2017 QCCA 1017, 2017 QCCA 1017

Rappaport c. R. 2017 QCCA 1017 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-006432-171 (C.S. 500-36-008098-165, C.M. 114-065-162) MINUTES OF THE HEARING DATE: June 21, 2017 THE HONOURABLE MARIE-FRANCE BICH, J.A. PETITIONER COUNSEL LANA RAPPAPORT Mtre JONATHAN GORDON (Boro, Polnicky, Lighter) RESPONDENT COUNSEL HER MAJESTY THE QUEEN Mtre ALEX DALPÉ (Cour municipale de Montréal) IMPLEADED PARTY COUNSEL SOCIÉTÉ DE L’ASSURANCE AUTOMOBILE DU QUÉBEC

DESCRIPTION: Motion for leave to appeal a judgment rendered on April 18, 2017 by Stephen W. Hamilton of the Superior Court, District of Montreal (s. 839 Cr.C .) Motion to suspend a sentence pending appeal and to suspend a driving prohibition pending appeal (sub-s. 683(5) Cr.C and s. 261 Cr.C .) Clerk: Robert Osadchuck Courtroom: RC-18 HEARING 9:43 Commencement of the hearing. Identification of counsel. 9:43 Representations by Mtre Gordon.

The third ground of appeal is abandoned. 9:44 Submissions by Mtre Gordon. 10:02 Submissions by Mtre Dalpé. 10:19 Reply by Mtre Gordon. 10:23 Recess. 10:46 Resumption of the hearing. 10:46 Judgment – see page 3. 10:46 Conclusion of the hearing.

Robert Osadchuck Clerk BY THE JUDGE JUDGMENT Motion for leave to appeal [ 1 ] Without expressing an opinion on the chances of success of the appeal, but considering the case-law submitted by the parties, I conclude that the questions raised by the petitioner in sub-paras. 31i, ii and iv of the motion for leave to appeal (ground iv having been abandoned) are of interest to the Court, which, apparently, has not had the opportunity to revisit the matter since Dupont v . R. [1] , in 1995.

I am of the view that these grounds of appeal satisfy the criteria for leave to be granted under s. 839 Cr.C.; [ 2 ] The parties, through counsel, first agreed that there should be case management in order for the appeal to proceed in an accelerated manner. Later correspondence from counsel indicated, however, that there had been a mistake in that respect and that the parties preferred that the file proceed according to the usual schedule.

Dates were nevertheless suggested by counsel, but, in the circumstances, it is preferable that the file be managed by the Office of the Clerk, according to the ordinary rules, counsel agreeing to a

hearing of 90 minutes of duration (45 minutes for each party). FOR THESE REASONS, THE UNDERSIGNED: [ 3 ] GRANTS the motion for leave to appeal; [ 4 ] Duration of the hearing before the Court: 90 minutes (45 minutes for each party). Motion to suspend a sentence pending appeal and to suspend a driving prohibition pending appeal [ 5 ] The Appellant seeks the suspension of the 12-month driving prohibition imposed by Caumartin J., of the Municipal Court, on May 26, 2016 (s. 261 Cr.C .). She also seeks suspension of the payment of the fine ($2,000) and surfine imposed by the same judge (paras. 683(5)

a) and

d) Cr.C. ). [ 6 ] The motion is not contested, and the parties agree to its conclusions, provided that the petitioner be prohibited to drive her vehicle after having consumed any amount of alcohol (zero tolerance condition).

FOR THESE REASONS, THE UNDERSIGNED: [ 7 ] GRANTS the motion; [ 8 ] SUSPENDS the payment of the fine and surfine pending appeal; [ 9 ] SUSPENDS the driving prohibition on the following condition: that the petitioner shall not be allowed to drive any motor vehicle after having consumed alcohol and having any quantity of alcohol in her system, even if the concentration of alcohol in her blood is lower than the legal limit set out in s. 253 Cr.C . (zero tolerance condition); [ 10 ] ORDERS the Société de l’assurance automobile du Québec to cancel the confiscation of the petitioner’s driver license imposed by virtue of s. 180 of the Highway Safety Code and AUTHORIZES said Société to deliver a driver’s license to the petitioner pending appeal. marie-france bich , J.A.