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====== R. c. Bellerive, 2004 CanLII 72984 (QC CA)  ======

Original Source: //R. c. Bellerive//, 2004 CanLII 72984 (QC CA), <[[https://canlii.ca/t/g0fdx]]>, retrieved on 2026-09-01.

====== COURT OF APPEAL ======

**PROVINCE OF QUÉBEC** \\
**DISTRICT OF QUÉBEC**

File No.: COURT OF APPEAL \\
200-10-001536-031 \\
File No.: TRIAL \\
400-36-000260-014 - 400-01-016396-996

===== HEARING MINUTES =====

DATE: **DECEMBER 16, 2004**

| **CORAM**: THE HONOURABLE JUSTICES | JEAN-LOUIS BAUDOUIN, J.C.A. |
|                                    | LOUISE OTIS, J.C.A.         |
|                                    | FRANCE THIBAULT, J.C.A.     |


^ **APPELLANT**             ^ **COUNSEL**         ^
| **HER MAJESTY THE QUEEN** | Me. JACQUES MERCIER |

^ **RESPONDENT**       ^ **COUNSEL**                         ^
| **MICHEL BELLERIVE** | Mr. MAURICE BIRON \\ (Biron, Spain) |

| NATURE OF APPEAL: | Driving with over 80 mg of alcohol in 100 ml of blood and driving a motor vehicle while impaired (acquittal) |

| On appeal of a judgment rendered | **JULY 24, 2003**       |
| by the Honourable Justice        | **JACQUES J. LÉVESQUE** |
| of the following Court:          | **SUPERIOR**            |
| in the district of               | **TROIS-RIVIÈRES**      |

| **CLERK: YOLAINE DUBÉ (TD1206)** |

11:40 AM Oral submissions of Me. Mercier

11:44 AM Oral submissions of Me. Biron

12:05 AM Reply of Me. Mercier

12:08 AM End of submissions

**BY THE COURT**

**DECISION**

[1] In a very brief judgement, the judge of the Superior Court overturned the verdict pronounced by the trial judge and entered acquittals on the two counts of driving while impaired by alcohol and driving after having consumed a quantity of alcohol such that the accused's blood alcohol level surpassed 80 milligrams of alcohol per 100 millilitres of blood.

[2] Essentially, the judge of the Superior Court took issue with the trial judge's failure to follow the analysis proposed by the Supreme Court in //R. v. W.(D.)//((1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742.)).

[3] To begin, the judge of the Superior Court determined that the trial judge "[TRANSLATED] //rejected the credibility of the accused's testimony in finding, without further explanation, that his explanations could not be believed//". However, a reading of the Court of Québec's judgment reveals - to the contrary - a careful consideration of the evidence admitted at trial and clear reasons based on which the trial judge concluded that the accused's testimony was not credible. He wrote, in particular:

<blockquote>
[TRANSLATED]

//I must first consider the credibility of the witnesses within the totality of the evidence. First of all, Mr. Bellerive testified very nervously, as demonstrated by his frequently-shaking hands. He testified without conviction and hesitated on multiple points. He hesitated while giving the name of the person who he thought was at Bar Richelieu; - hesitation as if he were making up a name. He was very evasive on the origin of the beer in his garage; - giving me the impression that he made up this part of the story. I do not believe the explanations which he gave to the Court of the way he drives, no more than on his difficulty to blow into the screening device. Given his gait, I find that on that day, he was affected by a large amount of alcohol.//

//I rely on the following pieces of evidence. First: Mr. Bellerive drove at night without turning on his lights. Second: he crossed the road to drive in the right lane, then returned to the left lane, then going back further into the right lane. Third: he turned at an intersection by encroaching, without reason, into the other land. Forth: Mr. Bellerive smelled of alcohol. Fifth: He was repetitive, as demonstrated by his repetition of the same thing. Sixth: His gait was slow and ranged from passable to shaky. Second: He blew incorrectly into the screening device to try to leave.//

//The totality of all these factors convinces me beyond a reasonable doubt that on the night of the events, Mr. Bellerive was impaired by alcohol rendering him incapable of driving a motor vehicle.//

</blockquote>

[4] As to the second issue raised by the judge of the Superior Court that the trial judge did not proceed to the other steps specified by the Supreme Court in //R. v. W.(D.)//, this was also unfounded on the first count as well as the second count. Once the trial judge completely rejected the consumption scenario and clearly stated that that he did not believe the accused, it was implicit that testimony of expert witness Rousseau which was based on this consumption scenario would become irrelevant and was implicitly rejected. The accused's spouse's testimony was subject to the same deficiencies: their general statements that their spouse normally had red cheeks and a slow gait did not affect the conclusions of the Court of Québec judge. In fact, the judge did not place any weight on the colour of the accused's cheeks and clarified that the accused's staggering gait "[TRANSLATED] that day" was caused by a large quantity of alcohol. As accurately stated by Brossard J. in //R. c. J.F.//(([1988] A.Q. n° 151, par. 13))((1998 CanLII 12451 (QC CA) )):

<blockquote>
[TRANSLATION] //First, it must be recalled that we are not dealing with jury instructions but rather with a verdict pronounced by judge alone whose experience and knowledge of what constitutes reasonable doubt are not called into question in this case. In this context, care must be taken to not solely and absolutely rely on the ordering suggested by the Supreme Court in the decision above [i.e. W(D)]. Rather, it is presumed that the first judge considered the judgments of the superior courts in their evaluation of the evidence and the credibility of the witnesses, even when they do not explain their reasons in a formal way or in an established order. It is only when it is manifestly obvious that the conclusions that the trial judge first drew from their evaluation of the credibility of the Crown's evidence prevents them from effectively and objectively appreciating reasonable doubts that the defence's evidence nevertheless raises... that there is room for this Court of intervene against the conclusions of the first master of the evaluation of the evidence.//
</blockquote>

[5] In light of these reasons, the appeal should be allowed and the judgment of the judge of the Court of Québec is reinstated.

[6] As a consequence, the Court:

[7] **ALLOWS** the appeal;

[8] **OVERTURNS** the judgment of the Superior Court pronounced on July 24, 2003;

[9] **REINSTATES** the guilty verdicts pronounced by the judge of first instance; and

[10] **ENTERS** a conditional stay of procedures on the first count.

%%_____________________%% \\
**JEAN-LOUIS BAUDOUIN, J.C.A.**

%%_____________________%% \\
**LOUISE OTIS, J.C.A.**

%%_____________________%% \\
**FRANCE THIBAULT, J.C.A.**