COURT
OF APPEAL
PROVINCE OF QUÉBEC
MONTRÉAL REGISTRY
No: 500‑10‑000290‑922
(455‑36‑000033‑910)
CORAM: THE
HONOURABLE ROTHMAN
PROULX
DESCHAMPS, JJ.A.
VILLE DE
FARNHAM,
APPELLANT - (Prosecutrix)
v.
ALAIN CHARRON,
RESPONDENT
and
SOCIÉTÉ DE
L'ASSURANCE AUTOMOBILE DU QUÉBEC,
MISE
EN CAUSE
and
PROCUREUR
GÉNÉRAL DU QUÉBEC,
INTERVENANT
OPINION
OF ROTHMAN, J.A.
Appellant, designated in
this appeal as "La Ville de Farnham", appeals, with leave, a judgment
of the Superior Court allowing an appeal by respondent Alain Charron from a
judgment of a judge of the Municipal Court of Farnham and quashing his conviction
on the following charge:
"
Le 90-03-16 à Farnham, district de Bedford, avoir conduit un véhicule routier
sur un chemin public alors que votre permis était révoqué par suite d'une
déclaration de culpabilité d'une infraction au Code criminel prévue à l'article
180 du Code de la sécurité routière.
-
Code de la sécurité routière (L.R.Q. (24.2), arts 105 et 144."
*
* * * *
On March 16, 1990,
respondent Alain Charron was stopped, by a police officer of the Ville de
Farnham, while he was driving a motor vehicle when his driving permit was
alleged to have been revoked following his conviction of a criminal offence.
On April 2, 1991, a
complaint was laid against Charron by the Attorney General of Quebec charging
him with the offence set out above. The complaint begins in the following
terms:
"
La présente constitue la plainte du Procureur général du Québec
représentant sa Majesté du chef du Québec, qui déclare des motifs raisonnables
ou plausibles de croire que..."
(emphasis
added)
There can be no doubt,
therefore, that it was the Attorney General of Quebec, and not the Ville de
Farnham, that instituted and prosecuted these penal proceedings against
Charron. At the hearing of the present appeal, moreover, counsel for
"appellant" confirmed that although he was generally the attorney for
the municipality, in the present case, he had received his mandate to initiate
and conduct these proceedings from the Attorney General. I consider it
necessary to underline this point at the outset since the question of the
identity of the prosecutor, though not raised before the Municipal Court or the
Superior Court, has been raised by the Attorney General and by respondent in
the present appeal.
On June 20, 1991, Charron
had his trial before a judge of the Municipal Court. It was not disputed that
he was driving the vehicle on the date in question. The critical issue was the
admissibility in evidence of certain documents emanating from the Régie de
l'Assurance automobile du Québec to prove that Charron's permit had been
revoked. The Municipal Court judge, basing his decision on the Quebec Code of
Penal Procedure, dismissed the defence objections, admitted the documents into
evidence and convicted Charron of the offence charged against him.
Charron appealed this
decision to the Superior Court, contesting the admissibility in evidence of the
documents emanating from the Régie, as he had contested their admissibility
before the Municipal Court. Because the evidence before the Municipal Court
had not been taken down or recorded, the appeal before the Superior Court
proceeded by way of trial de novo.
In the appeal before the
Superior Court, no witnesses were heard. The driving of the vehicle by Charron
was admitted, and the dispute centred entirely on the admissibility of the
documents emanating from the Régie de l'assurance automobile du Québec to prove
the revocation of Charron's driving permit. The Superior Court judge concluded
that the documents were inadmissible and he allowed the appeal and quashed the
conviction:
"
Dans le présent cas je verrais mal qu'un article général provenant du Code de
procédure pénale puisse permettre la production de documents que des lois
spécifiques tel le Code de sécurité routière et la Loi de la Société
de l'assurance automobile ont restreint à certains cas bien précis.
Dans les circonstances je dois conclure que la municipalité n'a pas fait une
preuve acceptable, comme l'aurait été une copie certifiée du jugement rendu,
qu'il y a eu une déclaration de culpabilité antérieure à l'infraction reprochée
pour le 16 mars 1990 et dans les circonstances je dois MAINTENIR l'appel
et CASSER le jugement de première instance et PRONONCER
l'acquittement de l'appelant puisqu'il s'agit ici d'un procès de novo."
It is from this judgment
that the present appeal has been brought by appellant, designated in the
application for leave to appeal and in all proceedings generally in the present
appeal as "Ville de Farnham".
The Attorney General of
Quebec has intervened in the present appeal to attack the judgment of the
Superior Court on grounds that, as prosecutor, he was not served with nor made
a party to any of the appeal proceedings so that, on that ground alone, the
judgment of the Superior Court was irregular and should be set aside. The Attorney
General further asserts that, even in the absence of the disputed documents,
Charron should have been convicted of the offence charged. He knew or should
have known that his permit was revoked when he was convicted of the criminal
offence and he offered no evidence to establish that he was in possession of a
valid permit on the date charged in the complaint. The Attorney General
asserts, as well, that the documents emanating from the Régie were admissible
under the Code of Penal Procedure, to the extent that they were necessary.
*
* * * *
THE ISSUES
This appeal raises two main
issues:
1. The identity of the
prosecutor: who was the prosecutor in this case? Did the prosecutor have the
power to lay the complaint and institute the proceedings? Was the prosecutor
made a party to the appeals?
2. The admissibility of
the documentary evidence: were the documents emanating from the Régie de
l'assurance automobile legally admissible under Sec. 66 of the Code
of Penal Procedure to prove that Charron's permit was revoked when was
stopped by the police?
*
* * * *
IDENTITY OF PROSECUTOR
This issue, as indicated
above, was raised for the first time in the present appeal. In his
intervention, counsel for the Attorney General submits that it was the Attorney
General who instituted these proceedings against Charron and that it was the
Attorney General who should have been made a party to the appeal to the
Superior Court and should have been served with any appeal proceedings. The
failure by Charron to serve his notice of appeal upon the Attorney General,
counsel submits, was fatal to Charron's appeal, and, on this ground alone, the
appeal to the Superior Court should have been dismissed.
Counsel for
"appellant" acknowledges that it was the Attorney General who laid
the complaint and that he was acting for the Attorney General, and not for the
Municipality, in prosecuting Charron for this offence. He acknowledges that
his description of the "Ville de Farnham" as appellant in the present
appeal was an error.
Counsel for respondent
contends that the judge who convicted Charron was a Municipal Court judge, that
the attorney for the prosecution was an attorney who regularly represented the
municipality, and that the municipality conducted itself as if it had been the
prosecutor in these proceedings. Counsel further contends that the Attorney
General, in any event, had no power to lay the complaint against Charron since
his agreement with the municipality under Sec. 600 of the Highway
Safety Code (R.S.Q. ch. C-24.2) had expired.
*
* * * *
As to the power of the
Attorney General to lay the complaint and conduct the prosecution, under Sec.
591 of the Highway Safety Code, penal proceedings under the Code may
be instituted either by the Attorney General or by a municipality (or by a
person generally or specially authorized by them). Under Sec. 600 of
the Code, a municipality may, by agreement with the Attorney General, approved
by the Government, waive in favour of the Attorney General the prosecution of
offences under the Code committed in its territory.
In the present case, there
was such an agreement between the municipality and the Attorney General, for a
term of 5 years commencing March 20, 1986 and expiring March 19, 1991, just a
few weeks before the complaint was laid by the Attorney General on April 2,
1991.
But the expiry of the
agreement, in my view, did not mean that the Attorney General had no power to
lay the complaint against Charron. Under Sec. 591 of the Code, he was
empowered to institute penal proceedings under the Code whether or not there
was an agreement in force under Sec. 600.
The expiry of the agreement
simply had the effect of removing the waiver of prosecution in favour of the
Attorney General agreed upon by the municipality, and the concomitant effect of
reviving the power of the municipality under Sec. 591 to prosecute
itself offences under the Code. The expiry of the agreement did not, however,
displace the general power of the Attorney General under Sec. 591 to
prosecute these offences.
In my opinion, the Attorney
General had the power to lay the complaint that he did and to prosecute these
proceedings against Charron, and this notwithstanding the expiry of the
agreement.
As to the designation of
the municipality as respondent in the appeal to the Superior Court, this was
clearly an error on the part of counsel for appellant. It was the Attorney
General who was respondent and he should have been designated as such and
served with all of the appeal proceedings. Notwithstanding this error, however,
counsel who represented the Attorney General in first instance did, in fact,
appear to contest the appeal before the Superior Court and he raised no
objection to the misdescription or the failure to serve the Attorney General.
In contesting Charron's appeal on the merits and raising no objection to the
misdescription or lack of service on the Attorney General, counsel for the
prosecution gave Charron's counsel reason to believe that it was, in fact, the
municipality that had instituted the proceedings or, at the very least, that he
was not objecting to the misdescription.
But there is more. To add
to the confusion already created in the appeal to the Superior Court, in the
present appeal to our Court, counsel for the prosecution himself designated the
appellant in this appeal as "La Ville de Farnham" and not the
Attorney General. Nowhere in the appellant's motion for leave to appeal or in
appellant's factum is any issue raised as to the identity of the appellant. It
was raised for the first time in the intervention.
Where does all of this
leave us?
It is clear, in my view,
that these penal proceedings were instituted and conducted by the Attorney
General. It is equally clear, I believe, that through lack of attention or
oversight, both parties misdescribed the party prosecuting in the appeal before
the Superior Court as well as in the appeal before this Court. Had the issue
been raised before the Superior Court, and had the misdescription and irregular
service of the appeal not been remedied (Arts 184, 285, 29, Code of
Penal Procedure), there may very well have been serious argument for
dismissing the appeal (F.H. Hayhurst Co. Limited v. Langlois [1984] C.A.
74).
At this late stage,
however, given the conduct of both counsel in treating both appeals as they
did, I am of the view that it would be unfair and unsatisfactory to decide the
present appeal solely on the basis of what appears to have been a common
misdescription. I see no substantial prejudice to either party. The
prosecution was represented by counsel both before the Superior Court and
before this Court and he contested the merits of the appeals relating to the
admissibility of evidence, and he raised no question as to the description of
the prosecutor. The Attorney General did intervene in the present appeal to
advance his submissions both with respect to the failure to serve the appeal
proceedings and make him a party to the appeal and with respect to the merits
of the appeal as well.
Under Art. 285 and Art.
184 of the Code of Penal Procedure, the Superior Court judge hearing
the appeal had very broad power to permit the amendment of the misdescription
of the respondent in the notice of appeal and to correct any irregularity in
that regard if he considered it in the interest of justice to do so. Under Art.
29, the Superior Court judge had the power to declare that the notice of
appeal was validly served, notwithstanding the irregularity in service, if he
was satisfied that the party for whom it was intended had examined it. Had
these irregularities been raised before the Superior Court, it could have
permitted these procedural irregularities to be remedied, and I have little
doubt that it would have done so.
Under Art. 312 of
the Code, our Court has similarly broad power, in the interest of justice, to
order the correction of procedural irregularities.
I do not wish to suggest
that any misdescriptions and procedural irregularities in appeal proceedings,
however serious, should be tolerated. Some go to jurisdiction and vitiate the
right of appeal itself (eg. F.H. Hayhurst Co. Limited v. Langlois [1984]
C.A. 74).
But where the procedural
irregularities are not jurisdictional in nature, where they could have been
remedied by amendment, where the irregularities have not been raised when they
could have been raised, where the parties have argued the merits of their
dispute in the appeal, and where no prejudice has been demonstrated to have
been caused by the irregularities, I do not believe the interest of justice
would be served by deciding this appeal on the basis of these procedural
irregularities.
Thus, before the Superior
Court, the party who was entitled to complain about the irregularity in
description caused by the accused was the Attorney General. The Attorney
General, represented by counsel, did not object. Before the Court of Appeal,
the Attorney General was again represented by counsel who perpetuated the
misdescription. It would certainly be ironic to permit a party who initiated
the error in his proceedings before the Superior Court to invoke that error
now. And it would be almost as ironic, I think, to allow a party who tolerated
and perpetuated the error to invoke it at this stage. Each of the parties is,
in part, to blame for the confusion, and neither can complain of prejudice at
this stage if the appeal is decided on the merits.
In these circumstances, and
at this late stage, I would have great difficulty in disposing of the appeal
solely on the basis of the misdescription of the prosecutor and the failure to
serve the appeal proceedings. The parties have gone to the merits both in the
appeal before the Superior Court and in this appeal, and I would propose that
we deal with this appeal on the merits.
ADMISSIBILITY OF EVIDENCE
OF PERMIT REVOCATION
The documentary evidence
which the prosecution sought to produce may be summarized as follows:
P-1 The "billet-rapport d'infraction" completed by the police officer when he stopped Charron. This document
contained the phrase:
"...
Son permis a été révoqué du 89/09/05 au 92/09/04. Voir rapport
d'événement."
This was not admissible, in itself, to prove the
revocation of the permit, and it is not of much consequence.
P-2 A document
emanating from the Régie de l'assurance automobile dated October 17, 1990
signed by Lise Dery, an employee of the Régie, certifying that on March 16,
1990, Alain Charron's permit was under revocation for the period from September
5, 1989 to September 4, 1992 by reason of a criminal offence and that a notice
had been mailed to him by ordinary mail.
P-3 A notice of revocation
dated November 15, 1989 addressed to Alain Charron by the Régie.
There was no doubt as to
the relevance of this evidence to establish that Charron was driving when his
permit was revoked. The only issue was an issue of admissibility. In substance,
counsel for Charron contended that these documents constituted hearsay, that
they violated the best evidence rule, and that, in any event, they were
inadmissible in accordance with the provisions of the Highway Safety Code
and the Act Respecting the Société de l'assurance automobile du
Québec (R.S.Q. ch. S‑11.011).
Article 66 of the Code
of Penal Procedure provides:
The Superior Court Judge
was of the view that this provision of the Code of Penal Procedure was
inapplicable to the present case.
With respect, I disagree.
Article 66 is
contained in the section of the Code of Penal Procedure dealing with the
rules of evidence in penal matters (Art. 61 et seq.).
Article 1 of the
Code makes it clear that the provisions of the Code are of general application
governing all prosecutions invoking penal sanctions for offences under Quebec
laws and regulations, with the exception of disciplinary proceedings.
In Terrasses St-Sulpice
Inc. v. R., [1994] R.J.Q. 1179
, 1181, (C.A.), our Court recognized the
general application of the Code in Quebec penal proceedings:
"
The principal purpose of the enactment of the new Code of Penal Procedure was
to create a uniform code of procedure of general application governing all
penal proceedings seeking penal sanctions for offenses under Quebec laws and
regulations, with the sole exception of disciplinary proceedings.
Article
1 of the new Code provides:
1.
[Application du Code] Le présent code s'applique à l'égard des poursuites
visant la sanction pénale des infractions aux lois, sauf à l'égard des
poursuites intentées devant une instance disciplinaire.
In their Code de procédure pénale du Québec annoté, Gilles Létourneau and
Pierre Robert note that purpose of article 1 was:
Cette
disposition définit le domaine général d'application du Code qui vise les
procédures relatives à la constatation, à la répression et à la sanction pénale
des infractions créées par la législation et la réglementation québécoises. Le
Code de procédure pénale est la législation d'application générale en droit
pénal québécois et, sauf l'exclusion du droit disciplinaire, la loi ne prévoit
pas de dérogation à la généralité de son application."
In its judgment, the
Superior Court appears to have relied heavily on Sec. 15.1 of the Société
de l'assurance automobile du Québec Act (R.S.Q. Ch. S-11.011), and
particularly the phrase "autre que pénale" in that section:
"15.1.
Dans toute instance autre que pénale, le tribunal peut accepter, pour tenir
lieu du témoignage d'un officier, d'un fonctionnaire ou d'un employé de la
Société, un rapport fait sous sa signature, pour fournir des renseignements
relativement à toute loi que la Société a pour fonction d'appliquer.
Toutefois, une partie à l'instance peut en requérir la présence à l'audition et
le tribunal, s'il est d'avis que la simple production du rapport eût été
suffisante, peut condamner cette partie à des frais additionnels dont il fixe
le montant.
1986,
c. 91, a. 669; 1990, c. 19, a. 11; 1990, c. 4, a. 755."
But in examining the
legislative history and context of section 15.1 and particularly the
phrase "autre que pénale", I have great difficulty concluding that
its intention is to exclude or displace the provisions of the Code of Penal
Procedure. On the contrary, since the phrase "autre que pénale"
was inserted in Sec. 15.1 at the time of the enactment of the Code
of Penal Procedure, it seems more reasonable to conclude that the intention
of the legislature was to remove penal proceedings under this Act from the
application of Sec. 15.1 so as to assure that the Code of Penal
Procedure would apply uniformly to penal proceedings under this Act as it
would to all other penal proceedings under Quebec legislation.
It is well to recall here
that several hundred provincial laws were amended at the time of the adoption
of the Code for the same purpose: to replace these disparate provisions with a
uniform and comprehensive code of procedure. (Terrasses St‑Sulpice
Inc. v. R., supra, p. 1182)
I do not think that Sec.
15.1 is of any help in deciding the issue. In my view, the words
"autre que pénale" simply mean that the section does not apply in
penal proceedings, and that one must therefore look to the law of general
application in provincial penal matters - the Code of Penal Procedure.
Nor do I believe that Sec.
595 or Sec. 596 of the Highway Safety Code have any
application.
Article 66 of the Code
of Penal Procedure was, in my respectful opinion, directly applicable to
permit the admission in evidence of the revocation of the permit and the notice
of revocation sent to Charron by the Régie:
"Article
66 C.p.p. - La preuve de la délivrance et du contenu d'un certificat, d'une
licence, d'un permis ou de toute autre autorisation requise par une loi
relativement à l'exercice d'une activité peut être faite par le dépôt de cette
autorisation devant le juge ou d'une attestation signée par l'autorité
compétente pour délivrer cette autorisation.
La
preuve de l'absence d'une telle autorisation peut être faite au moyen
d'une attestation signée par l'autorité compétente pour délivrer
l'autorisation.
Toutefois,
lorsqu'il est allégué que le défendeur n'a pas respecté l'obligation qui lui
est faite en vertu d'une loi de détenir une telle autorisation, le défendeur
doit établir qu'il en est titulaire si ce fait n'est pas consigné dans un
registre tenu par l'autorité compétente pour délivrer l'autorisation."
(emphasis
added)
The second paragraph of Art.
66 permitted the filing in evidence of the certificate of revocation of
Charron's driving permit during the period in question (P-2) and it also
permitted the notice sent to him to that effect (P-3). These two documents
together with Charron's admission that he was driving during this period
constituted relevant prima facie evidence sufficient to prove the offence
charged.
This evidence was
uncontradicted. There was no evidence given under the third paragraph of Article
66 to establish that Charron was the holder of a valid permit when he was
admitted to have been driving the vehicle.
While Article 66
does not specifically relate to evidence of revocation of a permit, it
does contemplate evidence of absence of a permit required by law. I can
see no reason to make a distinction between the absence of a permit by reason
of revocation and the absence of a permit by reason of expiry, non‑issuance
or for any other reason. The proof by attestation under Art. 66 would
be the same in each case. In my view, the attestation of revocation of
Charron's permit constituted admissible prima facie evidence that his permit
was revoked.
As to respondent's argument
that the documents emanating from the Régie establishing the revocation of his
permit would constitute hearsay and would violate the best evidence rule, this
argument is unfounded. Statutory provisions of this kind permitting the
documentary proof of certain facts or entries contained in public records, and
in some cases business records, have long been considered an exception to the
hearsay rule. (Finestone v. R. [1953] 2 S.C.R. 107; McWILLIAMS, Canadian
Criminal Evidence, 1984, Canada Law Book Company, p. 172; FORTIN, Preuve
pénale, Montréal, Éditions Themis, 1984, p. 765; LÉTOURNEAU ET ROBERT, Code
de procédure pénale du Québec, annoté, p. 82; see also, Secs. 26, 30,
Canada Evidence Act, R.S.C. 1985 ch. C-5)
In the result, I conclude
that this documentary evidence should have been admitted by the Superior Court
and that the appeal by way of trial de novo should have been dismissed and the
conviction confirmed.
I would therefore allow the
present appeal, set aside the judgment of the Superior Court, confirm the
conviction and sentence pronounced by the Municipal Court of Farnham and
declare respondent guilty as charged, with costs in both courts as provided by
regulation.
___________________________
MELVIN L. ROTHMAN, J.A.