2014 QCCA 2378, 2014 QCCA 2378

St-Pierre c. Sûreté du Québec 2014 QCCA 2378 COUR D'APPEL CANADA PROVINCE DE QUÉBEC DISTRICT DE QUÉBEC N o : 200-10-003053-142 (400-36-000536-132) DATE : 22 décembre 2014 CORAM : LES HONORABLE S JACQUES CHAMBERLAND, J.C.A. ALLAN R. HILTON, J.C.A. DOMINIQUE BÉLANGER, J.C.A. ÉTIENNE ST-PIERRE, S.K. EXPORT INC. APPELANTS – demandeurs c. SÛRETÉ DU QUÉBEC, DIRECTEUR DES POURSUITES CRIMINELLES ET PÉNALES OU PROCUREUR GÉNÉRAL INTIMÉS – défendeurs ARRÊT [ 1 ] Les appelants se pourvoient contre un jugement de la Cour supérieure, district de Trois-Rivières (l'honorable Raymond W.

Pronovost) rendu le 22 avril 2014 qui a accueilli la requête en irrecevabilité des intimés et a rejeté la requête amendée en certiorari pour annulation du mandat de perquisition du 28 septembre 2012 et pour remise des biens saisis des appelants; [ 2 ] Pour les motifs du juge Hilton, auxquels souscrivent les juges Chamberland et Bélanger, LA COUR : [ 3 ] REJETTE le pourvoi. JACQUES CHAMBERLAND, J.C.A. ALLAN R. HILTON, J.C.A. DOMINIQUE BÉLANGER, J.C.A. M e Guylaine Gauthier Pour les appelants M e Louis-Charles Bal Directeur des poursuites criminelles et pénales Pour les intimés Date d'audition : Le 29 octobre 2014

REASONS OF HILTON, J.A. [ 4 ] This appeal considers whether the motions judge properly dismissed an application for the issuance of a writ of certiorari without having addressed the merits of the application. He did so by granting the respondents' exception to dismiss that alleged grounds essentially unrelated to the merits. [ 5 ] I have concluded that the appellant's application was properly dismissed, albeit for different reasons than those of the motions judge.

Here is why. [ 6 ] Between October of 2011 and July of 2012, several thousand barrels of maple syrup valued at in excess of $17,000,000 were stolen from a warehouse of the Fédération des producteurs acéricoles du Québec in St-Louis de Blanford, Quebec. An investigation launched by the Sûreté du Québec pointed to the involvement of Étienne St-Pierre in the theft. He is the president of S.K. Export Inc., a company operating out of Kedgewick, New Brunswick. In particular, Mr.

St-Pierre was suspected of having committed a series of criminal offences in connection with the theft, including breaking and entering the Fédération's premises, theft in excess of $5,000, fraud in excess of the same amount, and being in possession of property obtained by criminal means. [ 7 ] In relation to the foregoing, three telewarrants were issued by justices of the peace in Quebec, all of which were subsequently endorsed by a provincial judge in New Brunswick. They were as follows: • On September 25, 2012, authorizing the taking of photographs and video-recordings in S.K.

Export's warehouse of the maple syrup barrels therein found, and authorizing the notation of the serial numbers on the barrels; • On the same date, authorizing the entry into S.K. Export's business office to seize any documents relating to transactions originating in Quebec of maple syrup barrels; • On September 28, 2012, authorizing the entry into S.K.

Export's warehouse to find and seize any barrels and metal or plastic containers of maple syrup. [ 8 ] Only the third of these seizures is directly relevant to this appeal. [1] [ 9 ] On November 25, while the telewarrants were still sealed, the appellants filed a motion in the Court of Quebec to require the return of all the maple syrup and related equipment belonging to them that had been seized, as well as the unsealing of the affidavits and the ITOs subscribed by any police officers that led to the issuance of the seizure in question.

On April 12, 2013, Trudel, J.C.Q. granted the conclusion of the motion relating to unsealing, but on May 2 he dismissed the other conclusion relating to the return of the seized property. [ 10 ] The SQ reacted immediately by presenting a motion to Trudel, J.C.Q. in which it sought orders authorizing the provincial ministry of agriculture to perform various tasks relating to the maple syrup that had been seized, including the determination of the extent to which it had become improper and/or unsafe for human consumption.

On May 16, Trudel, J.C.Q. granted this motion. [ 11 ] On May 27, Dionne, J. granted the appellants a partial stay of the order of Trudel, J.C.Q.

On August 13, Claude Gagnon, J., then a judge of the Superior Court, granted the appellants' application for a writ of certiorari only to the extent of quashing the conclusions of the impugned order that contemplated the destruction and/or alienation of the maple syrup that had been seized. [ 12 ] In the meantime, on July 8 the appellants filed a second application for a writ of certiorari based on s. 774 Cr.C . and s. 8 of the Canadian Charter to quash the September 28, 2012 telewarrant authorizing the seizure of the maple syrup and related equipment.

The conclusions of the application also sought an order to have the seized property returned to them. The appellants amended their application on January 27, 2014 by adding some 20 additional paragraphs. [ 13 ] The allegations in support of the amended application covered a wide scope that can be conveniently divided into two categories. [ 14 ] The first category contains an allegation related to a purely jurisdictional issue. It alleged, in effect, the nullity of the detailed 78 plus paragraph affidavit of SQ police officer Danny Lamontagne dated September 28, 2012, identified as

Schedule A to the ITO bearing the same date. The alleged nullity was that in the affidavit's penultimate paragraph, Sgt. Lamontagne alleged merely that he had reasonable grounds to "soupçonner" (instead of "croire", as required by law) that the containers of maple syrup on the appellants' premises came from the Fédération's warehouse in St-Louis de Blanford, Quebec. [2] [ 15 ] Broadly speaking, the second category of the amended application contained allegations relating to the overbreadth of the execution of the seizure, S.K.

Export's right pursuant to a federal certificate to purchase maple syrup from Quebec producers without regard to the Fédération and applicable Quebec law, the improper character of the seizure and the failure to disclose relevant facts to the Quebec justice of the peace who issued the telewarrant in light of ongoing civil litigation between the appellants and the Fédération, the resulting damage to the appellants in the civil litigation and the potentially disastrous effect on the appellants' business arising out of the seizure of their equipment. [ 16 ] The respondents reacted by filing an exception to dismiss the appellants' amended application.

They alleged for the most part that the Quebec Court judge who presides at the appellants' eventual trial will have the requisite jurisdiction to adjudicate their allegations in respect of the supposed illegality of Sgt. Lamontagne's affidavit, and that such judge will be better placed to consider their contentions in the context of a more voluminous evidentiary record. [ 17 ] The essential basis on which the Superior Court judge granted the respondents' exception to dismiss is encapsulated in the following paragraphs of his judgment:

[19] Ce que les demandeurs désirent, c'est qu'on leur remette ledit sirop présumément obtenu illégalement. Quelle sera donc la situationà la fin du procès devant la Cour du Québec, s'il est reconnu coupable? Le soussigné aura remis au demandeur St-Pierre des biens qu'iln'a pas le droit d'avoir en sa possession. [20] La requête en certiorari est pour remettre aux demandeurs des biens que le juge de la Cour du Québec pourrait déclarer avoir étéobtenus illégalement. Comment le tribunal peut-il risquer que cette situation arrive? Ce n'est pas de cette manière que la justice doit êtrerendue.

La requête en certiorari n'est pas pour permettre à quelqu'un d'obtenir un bien qu'il n'a pas le droit d'avoir. [21] La requête en certiorari demande de remettre le sirop aux demandeurs. Que le mandat soit déclaré valable ou non, ça ne changerien. Même si le mandat est annulé, on ne peut remettre le sirop tant que la décision n'a pas été prise sur la connaissance ou non de laprovenance du sirop donc sur la culpabilité ou non du demandeur St-Pierre. [22] Ce simple fait est suffisant pour accorder la requête en irrecevabilité.

Cette conséquence possible de remettre un bien à unepersonne qui le détiendrait illégalement, justifie le rejet de la requête en certiorari des demandeurs. Il serait aberrant que le systèmejudiciaire se retrouve dans la situation d'avoir remis des biens illégalement obtenus au receleur si jamais celui-ci est déclaré coupable. [23] En définitive, tant et aussi longtemps qu'un juge ne se sera pas prononcé sur la culpabilité ou l'innocence du demandeur, Étienne St-Pierre, il sera impossible pour un tribunal de lui remettre ledit sirop.

Pour qu'un tribunal puisse lui remettre le sirop, il faudra qu'il soitacquitté de l'accusation qui pèse contre lui. [18] The effect of the reasoning of the motions judge is that the seized property cannot be returned to the appellants unless they areeventually acquitted, even if the search warrant giving rise to the seizure of the maple syrup is null and should never have been issued. [19] The appeal as of right[3] urges several grounds of appeal: • Did the trial judge err in holding that the contestation of the seizure of the maple syrup should take place before the trial judge and notbefore the Superior Court considering that the maple syrup does not have to form part of the evidence at trial? • Did the trial judge exceed his jurisdiction by limiting his analysis to the possible consequences of issuing the writ of certiorari in notapplying the law relating to exceptions to dismiss, that is, by first determining whether the criteria for the issuance of the writ had beensatisfied on a prima facie basis? • Did the trial judge exceed his jurisdiction or commit a manifestly unreasonable and determinative error by rendering the recourse incertiorari against the issuance of the search warrant impossible once charges were laid against the appellants? • Did the trial judge exceed his jurisdiction in not respecting the fundamental principle of audi alteram partem by failing to hear theappellants' application on its merits? • Did the trial judge exceed his jurisdiction by not applying the fundamental precept of the criminal justice system, namely, thepresumption of innocence? [20] In light of the conclusion at which I have arrived, to which allusion was made during the hearing of the appeal, it is unnecessaryto consider the appellants' grounds of appeal as they have been framed. [21] Counsel for the appellants acknowledged at the hearing in response to questions that the allegations in the first category relatingto the nullity of the affidavit were strictly ones of law that would not have required the adduction of any evidence.

They would, in effect,proceed exclusively on the material put before the justice of the peace who issued the telewarrant. [22] Counsel similarly acknowledged, however, that the remaining allegations were ones that would have required the adduction ofevidence, especially as they related to the sufficiency of the impugned affidavit and the over breadth of its execution.

Counsel for therespondent added that he too would have had to lead evidence to refute the assertions on these subjects in the appellant's motion. [23] The ancient writ of certiorari came into being long before the creation of courts exercising appellate jurisdiction. Its purposewas to allow superiors courts to exercise superintending authority over inferior courts where it was alleged there had been an absence ofjurisdiction.

In the original Latin its meaning in law is "to be more fully informed". [24] Proceedings in certiorari therefore proceed on the record that was before the judge of the inferior court, much like the conductof appeals that proceed on an existing record. They cannot be complicated by the necessity to prove allegations of fact that occurred afterthe decision that is subject to review. The proof of such allegations are the proper domain of the trial judge, whose decisions in respect ofadmissibility can only be subject to review on appeal from a verdict.

To short-circuit that process by inviting the Superior Court toconsider the sufficiency of an affidavit in support of a telewarrant through the adduction of evidence of facts either not before the issuingjustice of the peace or occurring after its issuance is an invitation to create wholly unnecessary delay, including, as this appeal shows, theright of an aggrieved party to assert an appeal as of right. [25] In this respect, there is a certain analogy with the circumstances considered in R. v.

Zevallos,[4] an appeal to the Ontario Courtof Appeal from a judgment dismissing an accused's pre-trial application for certiorari to quash a search warrant used by the police toseize cocaine in respect of a charge of possession for the purpose of trafficking. In the course of his reasons for the Court, Morden, J.A.noted the following: As indicated earlier, the pre-trial quashing of the search warrant by reason of its invalidity is, in a sense, an idle exercise.

Assuming thatthe search warrant is invalid in substance, in the sense that it goes beyond having mere minor or technical defects, and hence theaccused's rights under s. 8 of the Charter are infringed (see R. v. Gordon John Harris and Lighthouse Video Centres Limited, (ON CA), [1987] O.J. No. 394, Ont. C.A., April 24, 1987 at p. 37, per Martin J.A.) the evidence is still presumptivelyadmissible unless the accused satisfies the requirements of s. 24(2). In these circumstances, I do not think that a pre-trial application to

quash a search warrant, the order on which is appealable as of right to the Court of Appeal (Criminal Code, s. 719)[5] with a furtherappeal, if leave be granted, to the Supreme Court of Canada, reflects a procedure that is in the best interests of the administration ofjustice. See Mills v.

The Queen, (SCC), [1986] 1 S.C.R. 863 at 963-64 (per McIntyre J.), 977 (per La Forest J.), and894-96 (per Lamer J., in the course of a dissenting judgment, with respect to a general preference for the trial court, compared to asuperior court exercising its supervisory jurisdiction, as the most convenient forum for deciding Charter issues).[6] [Emphasis added.] [26] Those considerations apply with equal force here. [27] As a result, the recourse of certiorari being discretionary, the motions judge in this case would have been fully justified to grantthe exception to dismiss before him since the appellants' application went well beyond jurisdictional grounds, and fell within the domainof the Court of Quebec judge who will preside at the appellants' eventual trial.

It is for that reason that I would dismiss the appeal. [28] Had the appellants limited their application to grounds strictly related to the nullity of the affidavit because of the affiant'saffirmation in the penultimate paragraph of the affidavit that he only had grounds to suspect, rather than to believe, that the containers ofmaple syrup on the appellants' premises came from the Fédération's warehouse, the situation would have been different, a factor that themotions judge would have had to consider in the exercise of his discretion.

Such exceptions to dismiss, however, should generally belimited to circumstances such as those here present where the allegations in the application for certiorari go well beyond jurisdictionalerror.[7] [29] In light of the conclusion at which I have arrived, I therefore express no opinion as to the correctness of the reasoning of themotions judge that led him to grant the exception to dismiss. ALLAN R. HILTON, J.A.