2020 QCCA 750, 2020 QCCA 750

Official English version of the judgment of the Court. Jetté c. R. 2020 QCCA 750 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-006523-177 (565-01-001633-106) DATE: JUNE 4, 2020 CORAM: THE HONOURABLE FRANÇOIS PELLETIER, J.A. MARK SCHRAGER, J.A. ROBERT M. MAINVILLE, J.A. HENRI JETTÉ APPELLANT – Accused v.

HER MAJESTY THE QUEEN RESPONDENT – Prosecutor JUDGMENT * [ 1 ] The appellant appeals against a verdict rendered on September 1, 2017 by the Honourable Paul Chevalier of the Court of Québec (Criminal and Penal Division), District of Labelle, that found him guilty of impaired driving causing death ( s. 255(3) Cr.C . .), ordered a conditional stay of proceedings with respect to the offence of operating a motor vehicle with a blood alcohol level greater than the legal limit ( ss. 253(1) (

b) and 255(1) Cr.C . .) and acquitted him on the count of hit-and-run ( s. 252(1.3) Cr.C ). [ 2 ] For the reasons of Pelletier, J.A. in the judgment rendered this day in docket number 500-10-006524-175, with which Schrager and Mainville, JJ.A. concur, THE COURT: [ 3 ] ALLOWS the appeal; [ 4 ] SETS ASIDE the guilty verdict rendered with respect to the charge of impaired driving causing death ( s. 255(3) Cr.C .); [ 5 ] CANCELS the order for a conditional stay of proceedings with respect to the offence of operating a motor vehicle with a blood alcohol level greater than the legal limit ( ss. 253(1) (

b) and 255(1) Cr.C .); [ 6 ] ORDERS that a new trial be held. FRANÇOIS PELLETIER, J.A. MARK SCHRAGER, J.A. ROBERT M. MAINVILLE, J.A. Mtre Martin Binet Noël et Associés For the appellant Mtre Émily K. Moreau Mtre Catherine Sheitoyan

Director of Criminal and Penal Prosecutions For the respondent Date of hearing: December 19, 2019 REASONS OF PELLETIER, J.A. [ 7 ] The appellant appeals against a verdict rendered on September 1, 2017 by the Honourable Paul Chevalier of the Court of Québec (Criminal and Penal Division), District of Labelle, that found him guilty of impaired driving causing death ( s. 255(3) Cr.C . .), ordered a conditional stay of proceedings with respect to the offence of operating a motor vehicle with a blood alcohol level greater than the legal limit ( ss. 253(1) (

b) and 255(1) Cr.C . .) and acquitted him on the count of hit-and-run ( s. 252(1.3) Cr.C . ). [1] [ 8 ] The case has certain characteristics similar to those found in R . c. Gauthier . [2] In fact, the judge stated: [ translation ] [2] The Court renders judgment in this matter that was heard by another judge, having been designated by the Associate Chief Justice under s. 669.2 of the Criminal Code to commence the trial again given the current inability to act of the judge who presided over the trial.

The parties agreed to have the evidence adduced filed into the record, such that the Court read the transcripts of the witnesses’ testimony and listened to it in order to render judgment. [ 9 ] In particular, the guilty verdict rendered with respect to the charge of impaired driving causing death ( s. 255(3) Cr.C . ) depends in part on an assessment of the credibility and reliability of the testimonial evidence given before the judge who is no longer able to complete the case. [ 10 ] Based on the reasons set out in support of the decision rendered today in R . v.

Gauthier , [3] I believe that, here too, there was no justification for departing, without taking special precautions, from the traditional way of adducing evidence contemplated in s. 669.2(3) Cr.C . , that is, without the judge being sure that the fairness of the trial would be fully preserved.

In my view, given the circumstances of this case, the method chosen, that of indiscriminately filing into the record the entire body of evidence so that it could be assessed by a judge who did not have the benefit of seeing the witnesses testify, may have undermined the fairness of the trial. [ 11 ] I would therefore allow the appeal, set aside the guilty verdict rendered with respect to the charge of impaired driving causing death ( s. 255(3) Cr.C . .), cancel the conditional stay of proceedings with respect to the offence of operating a motor vehicle with a blood alcohol level greater than the legal limit ( s. 253(1) (

b) and 255(1) Cr.C . ) and order that a new trial be held. FRANÇOIS PELLETIER, J.A.