2017 QCCA 1899, 2017 QCCA 1899

Tavares c. Ville de Rosemère 2017 QCCA 1899 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-006271-165 ( 700-36-001217-164 ) MINUTES OF THE HEARING DATE: December 1, 2017 THE HONOURABLE MARIE-JOSÉE HOGUE , J.A. PETITIONER RICARDO TAVARES IN PERSON AND PRESENT RESPONDENT COUNSEL VILLE DE ROSEMÈRE Mtre CHRISTOPHE BRUYNINX (Dufresne Hébert Comeau Inc.) DESCRIPTION: Application to extend the time for appeal. (Art. 678 Cr.C.) Clerks: Mihary Andrianaivo David Champigny Courtroom: RC-18 HEARING

9:33 Beginning of the hearing. 9:34 Exchange between the Judge and Mr. Ricardo Tavares. 9:40 Submission by Mr. Tavares. 9:42 End of the submission of Mr. Tavares. Submission by Mtre Christophe Bruyninx. 9:45 Mtre Bruyninx completes his submission. Rebuttal by Mr. Tavares. 9:46 BY THE JUDGE: The hearing is adjourned until 2:15 this afternoon for judgment delivery. The parties’ attendance will not be required. Recess. 14:15 Resumption of the hearing. BY THE JUDGE: Judgment – see page 3. 14:16 End of the hearing.

Mihary Andrianaivo / David Champigny Clerks BY THE JUDGE JUDGMENT [ 1 ] On March 15, 2016, the Petitioner was found guilty of a driving offence by a municipal judge. [ 2 ] He filed a notice of appeal in Superior Court on June 1, 2016. [ 3 ] On June 8, 2016, he appeared in Superior Court (the Honourable Michel Pennou).

The file was then postponed to July 11, 2016, and the Petitioner was duly advised that the Court was expecting him to file a motion to obtain an extension of the time limit for filing his appeal as well as an amended notice of appeal to identify his grounds of appeal. [ 4 ] On July 11, 2016, he appeared in Superior Court (the Honourable Hélène Di Salvo). At that point, neither a motion for extension nor an amended notice of appeal had been filed.

Following the representations of the city’s attorney, the case was adjourned to October 11, 2016, to allow for the preparation by the City of a motion to dismiss the Petitioner’s appeal. [ 5 ] The Applicant did not appear in Court on October 11, 2016.

The hearing took place in his absence. [ 6 ] After having observed that Petitioner never filed the requested motion for extension and after an assessment of the merits of Petitioner’s grounds of appeal, the Superior Court (the Honourable France Charbonneau) granted the city’s motion to dismiss the appeal and dismissed Petitioner’s appeal. [ 7 ] Petitioner filed a notice of appeal to the Court on October 31, 2016. [ 8 ] On August 28, 2017, he was sent a notice of default given his failure to file his factum. [ 9 ] He then filed a motion to obtain an extension for the filing of his factum. [ 10 ] This motion was heard and dismissed by my colleague Justice Healy on November 2, 2017.

In his judgment, he noted that there was no appeal before the Court since no application was made for leave to appeal under

section 291 of the Code of Penal Procedure . [ 11 ] Petitioner is now presenting a motion to extend the time for filing a motion for leave to appeal. [ 12 ] He could have presented this motion before Justice Healy on November 2, 2017, but did not. He could also have presented his motion for leave to appeal with the present motion for extension. [ 13 ] This being said, my review of the grounds of appeal he expressed verbally during the hearing convince me that the appeal he wishes to bring forward does not raise a question of law alone. As such, the court would have no jurisdiction on the matter since

section 291 of the Code of Penal Procedure provides for a right to appeal only on a question of law.

[ 14 ] In the circumstances, I am of the view that the motion to extend the delay for filing a motion for leave to appeal must be dismissed. THEREFORE, THE UNDERSIGNED: [ 15 ] DISMISSES the motion to extend the time limit for filing a motion for leave to appeal. MARIE-JOSÉE HOGUE , J.A.