r v. IOANNIS FELEMEGOS, 2022 QCCQ 1051

Director of Criminal and Penal Prosecution c. Felemegos 2022 QCCQ 1051 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL LOCALITY OF MONTREAL « Criminal and Penal Division » N° : 500-61-528530-216 DATE : February 17, 2022 ______________________________________________________________________ PRESIDED BY GENEVIEVE CLAUDE PARAYRE JUSTICE OF THE PEACE MAGISTRATE ______________________________________________________________________ DIRECTOR OF CRIMINAL AND PENAL PROSECUTION Prosecutor v.

IOANNIS FELEMEGOS Defendant ______________________________________________________________________ RECTIFIED JUDGMENT (underlined) ______________________________________________________________________ [ 1 ] Mr. Felemegos , owner of Lol Jouets (hereinafter "the business"), is alleged to have admitted the public into a commercial establishment outside the hours permitted by the Act respecting hours and days of admission to commercial establishments [1] (hereinafter "the Act"). [ 2 ] On February 1, 2020, Inspector Goudreau, in charge of the enforcement of the Act, arrives at 5:10 p.m. at the business.

The lights inside are open and the entrance door is not locked. The inspector has no difficulty entering the establishment and is greeted as a customer. [ 3 ] Two employees are behind the service counter. He presents himself to Ms. Johanna Felemegos, in charge of the business on that day, and informs her of his findings. Ms. Felemegos tells him that the business normally closes at 6:00 p.m. on weekends. [ 4 ] He takes some photographs of the place, buys a small toy at 5:12 p.m. to validate the tax information of the business and leaves shortly after. [ 5 ] On the day of the incident, Mr.

Felemegos, as well as the employees, claim that they are not aware of the Act. Since the opening of the business in 2012, the operating hours are based on those of the neighbouring businesses and on the availability of the employees. [ 6 ] Ms. Johanna Felemegos testifies that she and her colleague, Ms. Anjani Patel, welcomed the inspector upon his arrival. On two occasions, the inspector told her his visit was only a warning. [ 7 ] Mr. Felemegos asserts that his business should benefit from the exception provided for in

section 8 of the Act, since they sell some art products. [ 8 ] He also denies the offence and alleges that the prosecution’s own evidence shows that the inspector arrived before 5:00 p.m. [ 9 ] Furthermore, he argues that the photographs in the infraction report were tempered making them inadmissible. He also states that the internet screenshot in the infraction report of his business hours is not reliable. [ 10 ] Finally, Mr. Felemegos states that the inspector’s warning misled him. Had it not been for this fact, he would have kept a video recording to support his defence. [ 11 ] The Tribunal must answer the following questions: 1. Does the defense raise a reasonable doubt?

1.1 Does the business benefit from an exception to the Act? 1.2 Did the inspector’s action mislead Mr. Felemegos? 2. Did the prosecution fulfill its burden? 2.1 Did the inspector enter the business before 5:00 p.m.? 2.2 Are the reproductions of photographs as exhibit admissible? ANALYSIS [ 12 ] The defendant is presumed innocent and bears no burden whatsoever. That principle remains true whether the defendant chooses to testify or not [2] . [ 13 ] The onus is always on the prosecution to prove, beyond a reasonable doubt, the essential elements of the offence.

The Court must consider the totality of the evidence and not recount and analyze every piece of evidence tendered at the trial [3] . [ 14 ] Proof beyond a reasonable doubt does not require for it to be perfect. It is not proof without any possible doubt either. Rather, it is a proof beyond a reasonable doubt, after a meticulous and global analysis of the whole of the evidence, while considering its imperfections, such as inconsistencies or contradictions [4] . [ 15 ] When faced with conflicting versions, the Court is required to follow the guidelines set out in R. v. W. (D.) [5] by the Supreme Court.

The Court must be thorough and entirely consistent with a proper application of the burden of proof [6] . [ 16 ] Some aspects of credibility can be ascertained from the content of testimony itself, for example the degree of detail a witness is able to provide or, inconsistencies in a witness’s testimony. [7] 1. Does the defense raise a reasonable doubt? [ 17 ] Mr. Felemegos called the employees who were present at the time of the events, Ms. Johanna Felemegos and Ms.

Anjani Patel. [ 18 ] No evidence to the contrary was adduced regarding the time at which Inspector Goudreau entered the business, with the exception of a mathematical calculation which will be discussed below. 1.1 Does the business benefit from an exception to the Act? [ 19 ] According to Mr. Felemegos, his business does not have to comply with the closing hours set out in

section 2 of the Act because art products are sold. [ 20 ] When a defendant claims an exception to a statute, it is up to him to establish, on a balance of probabilities that he or she benefits from the exception [8] . [ 21 ] In this regard, Mr. Felemegos files as evidence a construction and story game for children [9] sold at the business and photographs of the interior displays of the business. [ 22 ] In cross-examination, Mr. Felemegos indicated that art products cannot be found on the business’s website.

In 2020, online sales represented 90% of the business’s revenues. [ 23 ] The Court finds that the present exception does not apply to Mr. Felemegos. [ 24 ] The exception in question is found in

section 8 of the Act, which provides: 8. The public may also be admitted to a commercial establishment outside the legal periods of admission, provided that the principal articles offered for sale at all times are: (1) works of art or handicrafts or both; (2) lowers or inedible horticultural products or both; (3) antiques. [ 25 ] Some art products do appear to be sold at the business. However, the Act provides an exception for works of art or crafts and not for art products. [ 26 ] Even if this condition is met, the

article also provides that the works of arts must be offered for sale at all times. [ 27 ] Mr. Felemegos failed to demonstrate, on a balance of probability, any of these criteria. 1.2 Did the inspector’s action mislead Mr. Felemegos? [ 28 ] Since the inspector informed his daughter that the business was only receiving a warning, Mr. Felemegos did not keep the recordings from a video camera located behind the service counter.

[ 29 ] He therefore alleges that he was deprived of a full and complete defense. [ 30 ] No preliminary motion was made before the Tribunal. However, since this argument essentially boils down to an assessment of the credibility of the heard testimony, the Tribunal will address it. [ 31 ] It should first be noted that Mr. Felemegos has not explained how the recording would have enabled him to defend himself. [ 32 ] The argument is based essentially on Ms. Felemegos’ testimony since her colleague, Ms. Anjani Patel, does not recall the conversation. [ 33 ] Ms.

Felemegos’ recollection is general and imprecise except for the warning given by the inspector. According to her, the inspector informed them on two occasions that the business would only receive a warning. [ 34 ] When questioned about the facts surrounding the event, she recalled very little.

Moreover, even though she has been working at the business since the opening, she claims not to know the hours of operation of the business nor recall if the business was closing at 6:00 p.m. or 5:00 p.m. on the day of the inspection. [ 35 ] It is normal for the passage of time to have an impact on a person’s ability to remember small details. However, Ms.

Felemegos’ general recollection remains imprecise and wandering with the exception of the warning she received. [ 36 ] When the Tribunal is faced with a witness who has little recollection of an event, the primary focus must be on the reliability of the witness’s memory: A witness who, by his or her demeanour appears honest or credible, may, because of the passage of time, be inaccurate or unreliable. Credibility alone, determined by demeanour, is therefore not a sufficient tool in attaining the truth.

The reliability of the evidence, as opposed to the credibility of the witness, assumes paramountcy when there is an evidentiary reason to be concerned about the ability of a witness to accurately recall events. [10] [ 37 ] Ms. Felemegos’ recollection is selective. Her testimony, while candid, is not reliable and cannot support the conclusions sought by Mr. Felemegos. [ 38 ] There is more. On February 5, 2020, the Ministry of Economy and Innovation sent a notice of infraction to Mr. Felemegos advising him of the possibility of legal proceedings. [ 39 ] Therefore, Mr.

Felemegos cannot claim to have only been aware of the violation when he received the statement of offence . 2. Did the prosecution fulfill its burden? [ 40 ] The offence with which Mr. Felemegos is charged falls into the category of strict liability offences. The prosecution must therefore prove the material elements of the offence, namely that the business is a commercial establishment within the meaning of

section 1 of the Act and that, at the time of the offence, the public is admitted to the business after 5:00 p.m. [ 41 ] It is conceded that the business sells toys and art products to the public. It is therefore, within the meaning of the Act, a commercial establishment. [ 42 ] With respect to the second part of the offence, no evidence to the contrary was presented in defense. However, Mr. Felemegos raises several difficulties in the prosecution’s evidence. 2.1 Did the inspector enter the business before 5:00 p.m.? [ 43 ] Mr.

Felemegos first argues that the inspector’s report, as well as his testimony, shows that he entered the business well before 5:00 p.m. [ 44 ] This argument originates from Mr. Goudreau’s infraction report, more specifically from

section B entitled "infraction", where it is indicated "minute hour (start): 17:10" and "minute hour (end): 17:25". These times correspond, according to Inspector Goudreau, to his entry and exit from the business. [ 45 ] Nowhere in this infraction report do we find a precise indication of the time at which Inspector Goudreau left the business. [ 46 ] It is only in cross-examination that Inspector Goudreau mentioned that he left the store after he asked for a cash register receipt. On the receipt reproduced in the infraction report, the time indicated is 5:12 p.m. [ 47 ] Mr. Felemegos mentions that there is a 13-minute difference between the time written on the receipt and the time written in

section B. The subtraction of these minutes shows that Inspector Goudreau entered the business at 4:59 p.m., thus before the mandatory closing time. [ 48 ] This argument cannot stand. [ 49 ] First and foremost, the inspector never said that he left at 5:12 p.m. but that he left after receiving the coupon receipt: Mr. Felemegos : So, you basically left the store at 5:12 p.m. or 5:13 p.m. or maybe 5:14 p.m.? Mr. Goudreau: Après, oui. [11] [ 50 ] Secondly, the mathematical hypothesis put forward by Mr. Felemegos demonstrates that the inspector could have entered at

16:59 p.m., 17:00 p.m. or 17:01 p.m. [ 51 ] Inspector Goudreau mentions on several occasions that he has no specific recollection of the minutiae surrounding the event given the time that elapsed between the event and his testimony. [ 52 ] Although his memories may be revived by reading his report, it would be surprising that the inspector would be able to recall the exact time he left the business when the offence report does not specifically mention it. [ 53 ] Inspector Goudreau testified in a direct and calm manner. He related the facts no more no less.

Despite a tight cross- examination, his credibility was not affected. His report, although succinct, contains the essential elements of the offence. [ 54 ] Finally, Ms. Johanna Felemegos and Ms.

Anjani Patel both told the Court that when inspector Goudreau came into the store they greeted him and asked how they could help him. [ 55 ] If the business is closed or one minute away from closing, it is inconsistent to greet a person who enters the business and ask him how they can be of service. [ 56 ] Therefore, the Court is of the opinion that the evidence shows without any reasonable doubt that Inspector Goudreau entered the business at 5:10 p.m. 2.2 Are the reproductions of photographs as exhibit admissible? [ 57 ] Mr.

Felemegos claims that the photographs annexed to the infraction report have been altered and cannot be admitted into evidence. He specifically refers to the photo of the certificate of occupancy and mentions that its original paper format is in landscape and its dimensions are 8 ½ × 11. [ 58 ] The infraction report contains six photos taken by Inspector Goudreau: one of the exterior of the business, four of the interior of the business and one of the certificates of occupancy. [ 59 ] These photographs were taken with a digital camera.

They were first digitally transferred to Inspector Goudreau initial report and then digitally transferred to the infraction report. [ 60 ] We can see that the photographs were cropped so that they could be inserted into the infraction report. [ 61 ] Does cropping a digital photograph make it inadmissible or affect its reliability? It does not. [ 62 ]

Section 5 of the Act to establish a legal framework for information technology (hereinafter "AELFT") provides that a document retains the same legal value regardless of the form chosen as long as its integrity is assured.

In other words, photographs taken with a digital camera, digitally transferred to the infraction report, which is later printed, retain their legal value as long as their integrity is ensured. [ 63 ] Sections 6 and 9 of the AELFT provide that the integrity of a document is assured if it can be validated that the information contained in the document has not been altered and is reproduced in its entirety: 6 .

The integrity of a document is ensured if it is possible to verify that the information it contains has not been altered and has been maintained in its entirety, and that the medium used provides stability and the required perennity to the information (…). [ 64 ] In Droit de la famille - 161206 [12] , the Superior Court considered the admissibility of a document reproducing excerpts from a conversation. Here is what the Court wrote about the meaning of integrity: [67] Tant la Loi que le C.c.Q. accordent une présomption d’intégrité aux documents technologiques [10] .

Cette présomption s’applique aux messages sur support électronique, mais pour que leur reproduction sur support papier ait la même valeur juridique, encore faut-il que le document résultant du transfert comporte la même information que le document source et que son intégrité soit assurée. [68] L’intégrité de la copie sera assurée si, lors de la reproduction, l’information ne subit aucune altération ou destruction volontaire ou accidentelle [11] . [ 65 ] The certificate of occupancy reproduces all the information from its original paper medium. The same is true of the photographs taken of the business.

In this regard, Mr. Felemegos produced, as Exhibit D-7, photographs that he himself took in early 2021 of the interior of the business.

The visual comparison of these photographs with other photos submitted in evidence shows that no alterations were made. [ 66 ] Therefore, the photographs annexed to the infraction report are admissible in evidence. [ 67 ] The same cannot be said for the screenshot of the website attached to the infraction report to show the hours of operation of the business. [ 68 ] In fact, the screenshot does not include the URL link that identifies the website from which the information originated. In so doing, the integrity required by the AELFT is not met and the document cannot be put into evidence. [ 69 ] In Tabet c.

Equityfeed Corporation [13] , the Superior Court dealt with a similar situation in these words: [49] Comme le demandeur n’a pas conservé et ne connaît pas l’adresse URL exacte où retrouver le document et affirme que l’ordinateur portable qui contenait le document électronique n’existe plus, il devient impossible en demande [37] comme en défense de remédier à ce

défaut, de vérifier l’origine du document et « que l’information n’en est pas été altérée et qu’elle est maintenue dans son intégralité, et que le support qui porte cette information lui procure la stabilité et la pérennité voulue [38] ». [70] Since the screenshot of the website does not meet the integrity criteria of the AELFT, the Tribunal cannot draw any inferencefrom it. CONCLUSION [71] Mr. Felemegos did not present any evidence to the contrary to the effect that the business was not open to the public at the timeof the events.

The business did not benefit from any exception to the Act and had to be closed at 5:00 p.m. [72] The prosecution’s evidence shows beyond a reasonable doubt that on February 1, 2020, at 5:10 p.m., the inspector entered thebusiness when it was not supposed to be open to the public since 5:00 p.m. FOR THESE REASONS, THE COURT: [73] DECLARES the defendant guilty. [74] SETS the sentencing hearing for March 8, 2022, at 2:00 p.m., Room 5.08 to allow for representations pursuant to

section 224 ofthe Code of penal procedure. If the parties (and/or their representatives) have no representations to make regarding the fine, costs andthe time allowed for payment of the fine, they are excused from attending. [75] If no particular representations are made, the fine imposed shall be the minimum fine of $1,500.00, plus costs and contribution,payable within four (4) months. __________________________________ Geneviève Claude Parayre Justice of the Peace Magistrate Me Marie-Claude HuotDirector of Criminal and Penal ProsecutionProsecutor Mr.

Ioannis FelemegosNot representedDefendant Dates of hearing: October 12, 2021; November 24, 2021 [8] Code de procédure pénale, c. C-25.1, art. 64 ; Parent c. Autorité des marchés financiers, (QCCS), par. 59.