2021 QCCA 1985, 2021 QCCA 1985

Daly c. R. 2021 QCCA 1985 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No.: 200-10-003868-218 (200-36-002803-187) (CM: 17CC011141) MINUTES OF THE HEARING DATE: September 13, 2021 PANEL: THE HONOURABLE SIMON RUEL, J.A. SUZANNE GAGNÉ, J.A. MICHEL BEAUPRÉ, J.A. APPLICANT COUNSEL JEFFREY WILLIAM DALY Mtre DAVID ANBER RESPONDENT COUNSEL HER MAJESTY THE QUEEN Mtre MARIE-MICHÈLE LONGCHAMPS (Director of Criminal and Penal Prosecutions) DESCRIPTION : 1.

Motion to extend the time to appeal from a judgment rendered on February 13, 2020 by the Honourable Justice Étienne Parent of the Superior Court, district of Quebec (art. 678(2) C.cr .) 2. Motion for leave to appeal from a conviction on a ground that involves questions of law ( art. 839 C.cr . ) Clerk at the hearing: Ariane Gilbert Courtroom: 4.33 - videoconference

HEARING 9:35 Calling of the file and identification of the parties; The Court addresses the parties; 9:37 Submissions of Mtre Anber; Discussion between the Court and Mtre Anber; Mtre Anber continues; 9:47 Submissions of Mtre Longchamps; 9:53 Reply by Mtre Anber; Discussion between the Court and Mtre Anber; 9:58 Recess; 10:05 Resumption of the hearing; Judgment for reasons to be added to the minutes of the hearing; 10:06 End of the hearing.

Ariane Gilbert, Clerk at the hearing JUDGMENT [ 1 ] The applicant seeks an extension of the time to appeal from a judgment rendered on February 13, 2020 by the Superior Court, District of Quebec (the Honourable Justice Étienne Parent). [ 2 ] That judgment dismissed his appeal from a judgment rendered on November 26, 2018 by the Municipal Court of the City of Quebec (the Honourable Sabrina Grand) that (

i) dismissed his motion to exclude from evidence the results of his breathalyzer test [1] and (ii) convicted him of operating a motor vehicle on or about May 5, 2017 with a blood alcohol level exceeding the legal limit. [2] [ 3 ] The judge found that the manner in which the Municipal Court judge weighed the factors set out in Grant [3] was reasonable and that she made no reviewable error in concluding that, even though the police infringed the applicant’s right to counsel when they arrested him [4] , the infringement was minimal under the circumstances, and that excluding the evidence pursuant to s. 24 of the Canadian Charter of Rights and Freedoms would bring the administration of justice into disrepute, given its reliability, accuracy and relevance. [ 4 ] In his motion for an extension of time, the applicant alleges that, on the advice of his lawyer, he waived his right to appeal the Superior Court judgment because of its limited chance of success.

On March 4, 2021 , however, his lawyer informed him of the judgment rendered by this Court on February 23, 2021 in Cyr-Desbois c. R . [5] [ 5 ] The applicant argues that the circumstances in Cyr-Desbois are similar to those in his own case, that both judgments were rendered by the same judge in the first instance, using the same reasoning applying the Grant exclusionary test under s. 24 of the Charter , and in a manner that was overturned by this Court in Cyr-Desbois .

Thus, the applicant submits, both the Municipal Court and the Superior Court in his case erred in law in applying s. 24 of the Charter considering the legal pronouncements of this Court in Cyr- Desbois.

Consequently, the applicant seeks an extension of the time limit for an appeal—which had expired more than one year prior to the filing of his motion—in order to bring before a panel of this Court the following ground of appeal in respect of the Superior Court judgment: 8.1 The trial judge erred in law by concluding that an analysis under 24 (2) of the Charter should nonetheless result in the admission of the breath results; [ 6 ] The criteria to obtain an extension of time to file an appeal are well known. The applicant must convince the Court that (

a) he intended to appeal the judgment within the prescribed time limit, (

b) he acted with reasonable diligence in exercising his right to appeal,

and, (

c) his grounds of appeal are serious, or arguable. [6] The Court must also consider the harm to the public interest that would result from disturbing the stability of judgments if the motion for an extension of time to appeal was to be granted. [7] [ 7 ] The applicant fails to meet his burden. [ 8 ] The proposed appeal is not tenable. It is an attempt to belatedly reopen the proceedings in an effort to take advantage of an analysis undertaken by this Court in another case, on the basis of different circumstances. [8] This Court in Cyr-Desbois did not alter existing law.

It applied established principles to the particular facts of a case, which differ from the present one. [ 9 ] Furthermore, when the applicant, on the advice of his lawyer, decided not to seek leave to appeal from the judgment of the Superior Court, the appeal in Cyr-Desbois had been authorized by this Court and was under way. [9] He cannot today, knowing the final result of that appeal, try to reopen the debates while the legal issues raised in Cyr-Desbois were or ought to have been known to him at the time.

The applicant consequently does not meet the threshold of reasonable diligence. [ 10 ] In short, given the foregoing reasons and the imperative of preserving the stability of judgments, it is not in the best interests of justice to extend the time for an appeal. FOR THESE REASONS, THE COURT: [ 11 ] DISMISSES the motion to extend the time limit for an appeal; [ 12 ] DISMISSES the motion for leave to appeal from a conviction on a ground that involves questions of law. SIMON RUEL, J.A. SUZANNE GAGNÉ, J.A. MICHEL BEAUPRÉ, J.A.