2016 QCCA 1838, 2016 QCCA 1838

Cameron c. R. 2016 QCCA 1838 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-006273-161 (455-01-013635-143) MINUTES OF THE HEARING DATE : November 14, 2016 THE HONOURABLE MARK SCHRAGER , J.A. APPLICANT ATTORNEY SCOTT CAMERON Mtre ALEXANDRE CAISSIE (Paquin, Caissie) RESPONDENT ATTORNEY HER MAJESTY THE QUEEN Mtre MARC-ANDRÉ DAGENAIS (Directrice des poursuites criminelles et pénales) DESCRIPTION : Application for leave to appeal from an order of forfeiture rendered on September 29, 2016 by the honourable Julie Beauchesne of the Court of Quebec, District of Bedford (Art. 675(1)

b) and 490(1) Cr.c. ) Motion to suspend sentence until the appeal has been determined (Art. 683(5) Cr.c. ) Clerk: Annabel David Courtroom : RC-18

HEARING 9 : 33 Roll call and identification of the parties. The respondent announces that the motion is contested. Suspension. 9 : 36 Resumption of the hearing. Representations by Mtre Caisse. 9 : 41 Representations by Mtre Dagenais. 9 : 46 Mtre Caisse has no reply. Suspension. 9 : 48 Resumption of the hearing. Judgment – see page 3. 9 : 54 Conclusion of the hearing. (

s) Annabel David Clerk BY THE JUDGE JUDGMENT [ 1 ] Applicant pleaded guilty to charges of dangerous driving and mischief. He was driving at excessive speed in order to avoid a police stop. [ 2 ] Following his guilty plea, Applicant was sentenced to 60 days, concurrent on the two charges. [ 3 ] I am now seized with a motion for leave to appeal the judgment of the Court of Quebec, Criminal Division, of September 29, 2016, ordering the forfeiture of Applicant’s vehicle pursuant to

Section 490.1 Cr.c. , as property related to the commission of an offense. [ 4 ] The judge refused to exercise his discretion not to order forfeiture of the property as he found that the sanction was not disproportionate based on the circumstances of commission of the offenses.

Applicant alleges that the judge omitted to consider certain elements of the proof and that he erred in the application of the principle of proportionality, particularly considering that the vehicle is used in the country for Applicant’s work. [ 5 ] The Applicant also moves that the forfeiture be ordered suspended pending appeal. [ 6 ] The prosecution contests leave to appeal arguing that forfeiture is the rule and that an exemption is only granted exceptionally in the exercise of the judge’s discretion.

An appellate tribunal should only interfere where there is an error of principle. [ 7 ] In the circumstances, the grounds put forward by Applicant are arguable so that I will refer the application for leave to a bench comprised of three judges of the Court. [ 8 ] In view of my decision to refer the motion for leave to appeal to the Court and of Section 683(5) Cr.c. , the motion to suspend execution of the forfeiture will be granted, pending disposition of the motion for leave to appeal and the appeal, as the case may be.

THEREFORE, THE UNDERSIGNED: [ 9 ] REFERS the motion for leave to appeal to the bench hearing the appeal; [ 10 ] GRANTS the motion to suspend the order pending disposition of the motion for leave to appeal or the appeal, as the case may be;

[ 11 ] ORDERS the suspension of the execution of the forfeiture sentence of September 29, 2016, in first instance, pending disposition of the matter for leave to appeal and the appeal; [ 12 ] ORDERS the Applicant, after having notified a copy upon the Respondent, to file in the Office of the Court, no later than 90 days from today, five copies of a written argument not exceeding 20 pages .

All documents necessary for the adjudication of the appeal (judgment under appeal, pleadings, excerpts from depositions, etc.) shall be attached; [ 13 ] ORDERS the Respondent, after having notified a copy upon the Applicant, to file in the Office of the Court, no later than 30 days following the production of the Applicant’s memorandum , five copies of a written argument not exceeding 20 pages and of his supplementary documents; [ 14 ] REFERS the file to the Master of the Rolls to determine the date of a hearing of 60 minutes (30 minutes each) in duration after filing of the memorandum by Respondent; [ 15 ] DIRECTS the parties’ attention to the Practice Direction G-3 of May 20, 2016, encouraging the filing with their paper version documents a technologic version that must be in PDF or Word format to enable key-word search and stored on a CD/DVD-ROM or USB-key.

MARK SCHRAGER , J.A.