Miscellaneous Volume 14:1

Unreported judgments

Table of Contents

Unreported Judgments

From time to time, judgments of interest to the legal community, which
do not, for one reason or another, appear in the regular reports in this province,
will be published in the McGill Law Journal. In all cases, the words in smaller
type are extracted verbatim from the judge’s notes; words appearing
in
larger type are those of the editors.

SALE

ERNEST HAEFNER v. ARMAND BOISJOLY, C.S.M. 482,050,

January 14, 1963, Mr. Justice F. R. Hannen.
Sale – Failure to comply with municipal building by-laws – Latent defect
Clause de style – Action quanti
C.C.

Legal and conventional warranties –
minoris – Redhibitory action – Reasonable diligence – Costs –
art. 1506, 1522, 1523, 1526, 1530.
Plaintiff, having purchased a new apartment building from
defendant, the builder-owner, was summoned before the Municipal
Court of Montreal on a charge of violating Article 5-25 of the City’s
building by-laws, which required that “interior stairways and the
exits constituting the outlets from a building shall be protected
against fire over their entire travel by enclosures”. Plaintiff pleaded
guilty to the charge, paid his fine and spent a reasonable sum of
money to have the enclosure repaired so that it might conform
to the City’s requirements. Plaintiff served this action ten months
after he had received his summons from the City.

Both parties had, in the opinion of the Court, acted in good
faith; however, the judge stated that, in equity, he would have
ruled for the plaintiff. Compelled, nonetheless, to apply the provi-
sions of the Civil Code, he found for defendant.

Mr. Justice Hannen

Beyond any question, this is primarily an action based on alleged latent
defects. That being said, I doubt very much whether the alleged defect is
latent as required by C.C. 1522, for it was only latent because plaintiff,
at best, did not see fit to see the plans and to have then raised the issue,
or again to have consulted, himself or an expert on his behalf, the City
By-laws. Furthermore I am not sure that the so-called latent defect rendered
the apartment-house unfit for use as such. Of course, if he had known that
something allegedly required by law was missing, he might have insisted
upon paying less, but that is a big assumption. The fact is that we knew he
paid $5,000 less than he offered originally and $10,000 less than the defendant
was asking; we do not know why but any enquite as to causes of variation
in price would necessarily be complete; defendant may quite possibly be in
the utmost of good faith in arguing that he “a 46 pris par surprise et n’a
pu contester d’une facon ad6quate la preuve faite par ce document”, seeing
that the declaration never refers to the offer to buy.

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In any event the alleged defect is not latent under C.C. 1523, for it was
apparent, and even without insisting as our courts have done in several
instances that a buyer has sometimes a duty to hire an expert to make an
inspection for him. (I agree fully with Batshaw, J., in Tellier v. Proulx,’
in this connection and in his holding that the ‘clause de style’ “de prendre
l’immeuble dans l’dtat oii il se trouve actuellement” does not specifically
remove the warranty referred to elsewhere in the contract, and created
by law).

But in any event this action is seriously late under C.C. 1530. The suit was
served on August 20th 1959. But defendant received the summons on or
about October 23rd 1958; and although he alleges this was his first knowledge
of the “latent defect’, it is established that he knew when the City gave
a ‘final notice’ on or about June 20th 1958.

So if the action is based wholly on alleged latent defect, it must fall.

The Court found no breach of conventional warranty for reasons
which do not interest us here but it is interesting to note that the
action was dismissed without costs.

Both parties were in good faith and the attitude of each might be understood,
but if defendant had been less taciturn and a little more co-operative when
his buyer was faced with this unexpected problem, I am convinced that this
litigation might have been avoided, if for no other reason because the
defendant would have indicated how the job could be done for $300 rather
than $850.

Action dismissed.

Comment

The question of the purchaser’s obligation to appoint an expert
to examine a new building remains unresolved. Although there are
at least four judgments of the Superior Court which either explicitly
or implicitly state that the puichaser of a new building has no such
obligation,la the Court of Appeal has expressly left the question open
for appreciation by itself at a later date. 2 Hannen, J., implies here
that there may be such an obligation on the purchaser. The argu-
ments for and against the proposition are clearly laid down by Prof.
Durnford in his article on latent defects.3

As far as the determination of whether a violation of a building
by-law may constitute a latent defect or not, this case is informative
as far as it goes, but is obviously not decisive on the point, since

1 [1,954] C.S. 180.
laLauzon v. Livesque, (1,929), 67 C.S. 470 (P. Demers, J.) ; Bourdon v. Lamon-
tagne, [1945] C.S. 269
(Boulanger, J.); Tellier v. Proulx, [1.954] C.S. 180
(Batshaw, J.); and Rothstein v. International Construction Inc., [1956] C.S. 109
(Collins, J.).

2 See the obiter dictum of Hyde, J., in E. and M. Holdings Inc. v. Besmor

Investment Corporation, I1961] B.R. 376 at p. 378.

3 What is an Apparent Defect in Sale ?, (1964), 10 McGill L.J. 60 at pp. 76-78.

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UNREPORTED JUDGMENTS

the judge found that the alleged defect did not, in this case, render
the building “unfit for the use for which it was intended”.4 In a
situation where a building did satisfy that criterion, one would have
thought that a court would have no trouble in finding that such a
violation amounted to a latent defect.5

The question of the tardiness of the action appears to fall in
line with the jurisprudence on the matter, ten months being an
excessively long delay from the acquisition of knowledge. 6

The refusal by Hannen, J., to give effect to the clause de style
is indicative of the more active role which our courts have pursued
in the area of judicial legislation; the tendency to reject burden-
some, unilaterally beneficial and socially valueless provisions of this
nature is growing in Quebec. See, for example, the recent judgment of
Michaud v. Letourneux.7

CONTRACT

BERNADETTE BROOMFIELD v. PAUL PAPPAS, C.S.M.

587,026, March 2, 1966, Mr. Justice Arthur I. Smith.

Parking lot –

Stolen car –

Lease and hire of space –

Element of deposit –
car – Responsibility for contents –

Standard of care – Burden of proof –

Innominate contract
Locked

C.C. 1063, 1064, 1802.

Plaintiff entered defendant’s parking lot at 2 p.m., paid the
standard parking charge, received a parking ticket (a duplicate of
which was placed on the car windshield by one of the defendant’s
employees), was directed where to place the car, parked it herself
and locked it. When she returned three hours later, the car was gone
and it was only after searching the lot for twenty minutes that she
spotted the parking attendants who were lounging in a parked car
instead of being at their posts.

Plaintiff claimed the value of the automobile ($2,150) and its

contents, various personal effects ($158).

4 Art. 1522 C.C.
5 In the area of the effect of a municipal by-law violation on an action for
cancellation of a lease, see the interesting judgment of Lemeovitch v. Daigneault,
[1957] C.S. 178 (Collins, J.) and Prof. Durnford’s discussion of uninhabitability,
in The Landlord’s Obligation to Repair and the Recourses of the Tenant, (1966),
44 Can. Bar Rev. 477 at pp. 511 et seq.

0 See, for example, David v. Manningham, [1958] C.S. 400 (Jean, J.) and
Gagnon V. Houle, (1923), 34 B.R. 11. See also J.W. Durnford, The Redhibitory
Action and the “Reasonable Diligence” of Article 1530 C.C., (1963), 9 McGill
L.J. 16.

7 [1967] C.S. 150 (Mayrand, J.). See also Tellier v. Proulx, [1954] C.S. 180

(Batshaw, J.).

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Mr. Justice Smith

it constituted an

Although it was argued by counsel for defendant that the contractual
relationship between plaintiff and defendant was merely that of lessor
and lessee of space in which plaintiff could park, I am satisfied that
the relationship, while
innominate contract, involved
the element of deposit and that defendant’s role required him to exercise
the care of a bon pre de famille in respect of the safekeeping of plaintiff’s
car.
The Court also found an implication that such was the case in
the following condition appearing on the face of the parking ticket:
Although we take the best possible care of your car and its contents, we
are not responsible for articles lost or stolen from cars or for accidents
involving our customers. (No overnight Parking.)
The Court is convinced therefore that, whatever name is given to the
contractual relationship which existed between the parties, it was one which
required defendant to exercise the care of a bon pare de famille and the
burden of proving that this care was in fact exercised rested upon defendant.’
The learned judge had no difficulty in finding that the defendant

had not discharged the burden.

It appears from the evidence that it was not the practice for defendant,
or his representatives, to require the surrender of the parking, ticket before
allowing the removal of a car from the parking lot and there is no evidence
that anyone was on duty at the exit during the time that plaintiff’s car
was on the premises. In fact the manager, Murphy, who was not there
until after the theft had been reported, and defendant’s employee, Ostiguy,
both testified that the ticket given to the car owner (a duplicate being
placed on the windshield), was given solely for the purpose of ensuring
that the parking fee had been paid and not for the purpose of establishing
that the person removing the car from the lot was the person entitled to
do so. This is an extraordinary admission and leaves unexplained why, if
such was the case, it was considered by defendant to be necessary to issue
a parking ticket in duplicate. Surely the obvious reason for doing so is
that, by requiring the person removing the car from the lot to produce his
duplicate ticket, defendant would be able to assure himself that the car was
not being removed by an unauthorized person. 2
The judge then replied to the interesting argument that the degree
of care required in the instant case, where the car was locked, was
less than where an automobile might be left unlocked, in the following
way.

It however is the court’s view that plaintiff’s automobile whether locked
or not was entrusted to defendant’s care and that the most that can be said
on behalf of defendant’s view is that the degree of care required of the
parking lot owner might be less in the case of the car left locked than it
would be in the case of the car left unlocked, but in either case it would

IArt. 1063, 1064, 1802 C.C.; Palmer v. Gaucher, (1941), 71 B.R. 449, Bell v.

Ruby Foo’s, [1,962] C.S. 559 (Ferland, J.).

2 Garage Touchette Lt6e v. Metropole Parking Inc., [1963] C.S. 231 at p. 236.

No. 1]

UNREPORTED JUDGMENTS

be defendant’s obligation to exercise the care of a bon pare de famille,
having regard to the circumstances. In the present instance the court is
obliged to conclude that the burden of proving that such care was taken
by defendant has not been discharged.
Finally, the Court dealt with the question of responsibility for

the contents of the car.

The value of plaintiff’s car was admitted at the sum of $2,150.

In addition to that amount plaintiff claims the sum of $158, the alleged

value of personal effects which were in the automobile.

Since the court is convinced that defendant had the obligation of exer-
cising reasonable diligence to safeguard plaintiff’s property, it
is of the
opinion that defendant, having failed to discharge this obligation, is liable
to plaintiff for the loss of the personal effects contained in the vehicle.

Counsel for defendant, in arguing to the contrary, cited Atlas Parking

Limited v. Laferri6re.3

That case however is clearly distinguishable from the present one in
various respects and, in particular, in that the plaintiff’s claim in that case
included a claim for the loss of furs valued at thousands of dollars. The
holding of the court in
the Atlas Parking Limited case that the parties
could not in the circumstances be considered to have contemplated that
the defendant would be responsible for the safekeeping of such valuable
articles is understandable. On the other hand, the said judgment is not, in
he opinion of this court, authority for the proposition that the present
defendant is not liable for the loss of plaintiff’s automobile and its contents
comprising only such clothing and personal effects as one might expect to
find in such a vehicle.

The proof, however, as to the value of these effects was meager and
does not justify the award of the sum of $158 claimed. Although any estimate
of the value of these effects must to some extent be arbitrary, the court
considers it just and reasonable to fix this value at the sum of $75.

Action maintained ($2,225).

DELICT

ANTONIO DI BIASIO v. SEVEN-UP MONTREAL LTD. and
(CANADA) LTD., C.S.M. 670,214, April 7,

COTT BEVERAGES
1966, Associate Chief Justice George S. Challies.

Collapse of advertising sign – Good sign erecting practice – Fault –

Strong

wind – Force majeure – Res ipsa loquitur – Damages for loss of eye.

Plaintiff claims damages for the loss of an eye arising from
an accident which occurred when a sign, the property of Seven-Up
Ltd., erected on the outside front wall of the building in which the
barber shop where he was employed was located, came loose and
fell from the wall through the window of the barber shop, striking
him in the face.

3 [1962] B.R. 422, and particularly the remarks of Tremblay, C.J., at p. 427.

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The Seven-Up sign was erected in two parts, divided vertically
in the center, and consisted of a wooden frame in two parts on which
was nailed a metal sheet, also in two parts, on which the sign was
painted. The sign had been erected in 1957 by Mayman’s Signs
acting on behalf of Seven-Up and the sign was thereafter the
property of that defendant. The sign was repainted in 1960 but
it was not thereafter inspected or touched in any way.

After the Seven-Up sign had been installed, a large metal sign
was erected in 1962 extending away from the building at right
angles and suspended on a metal frame attached to the wall of
the building supported by guy wires which were attached to the
southern portion of the Seven-Up sign. The second sign was the
property of Cott Beverages, the other defendant, and it was alleged
that the continuous movement of the Cott sign served to weaken
the installation of the Seven-Up sign.

About one month after the accident, the wall was examined by
one Reiter who found the brick wall, and particularly the mortar,
in poor condition. He found a four and a half inch hook (Exhibit
P-4) which was still in one of the holes surrounded by some frag-
ments of wooden wedges which had rotted because of moisture
getting into the wood.

When the accident occurred, the entire north portion of the
Seven-Up sign fell and went through the window of the barber shop
although the Seven-Up sign was over the window of an adjacent
pastry shop and not over the window of the barber shop. This fact
caused the court to conclude that “it must have swung on one of
the wires connected to the Cott sign and then swung through the
window, probably impelled by the wind”.

Although a record wind velocity was recorded at Dorval about
15 minutes before the accident occurred and it was undisputed that
the wind was strong in the locality of the barber shop, there were
six or seven other signs in the immediate neighbourhood on both
sides of the street, some of which were flat against the wall and
some of which were suspended over the sidewalk, none of which
fell at the time the Seven-Up sign fell.

Associate Chief Justice Challies

On the facts as above set forth the Court has no doubt as to the responsibility
of both defendants both under 1054 and 1053. The two signs were each
things the property of and under the care and control of the respective
defendants and it was the autonomous act of the signs put into motion
by the wind which caused the signs to fall and to cause the damage to
plaintiff. Accordingly both defendants are responsible unless they can show
that they could not by reasonable means have prevented the accident. In

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UNREPORTED JUDGMENTS

view of the fact that there was not the slightest inspection of the signs
at any time, the Court is unable to come to the conclusion that the defendants
could not by reasonable means have prevented the accident.

An attempt was made to prove the defence of irresistible force or for-
tuitous event. It may well be that a wind with gusts to 100 miles an hour
would constitute a fortuitous event, as the highest wind previously recorded
in the Montreal area was 86 miles an hour. However, there is no evidence
at all that gusts of anything like this magnitude were found at the scene
of the accident, and it must be borne in mind that Dorval is an undetermined
but considerable number of miles away from the scene. The maximum velocity
wind of 50 miles an hour recorded at St. Hubert Airport is by no means
a wind of unusual velocity in Montreal. Accordingly the defence of irre-
sistible force or fortuitous event fails.

The fact that the Seven-Up sign fell brings into play the principle of
res ipsa loquitur and the Court is of the opinion that, failing the strongest
evidence to the contrary, this indicates in itself that the sign was defectively
installed. However, there is ample evidence that the mortar and the bricks
were in poor condition and that all the holes into which the pins supporting
the sign had been driven were in to the mortar. The weight of the evidence
shows that at least one of the pins used was the four and a half inch pin
found a month after the accident and produced as Exhibit P-4. It must
also be borne in mind that half of the sign did not fall and one wonders
how it was that half of the sign was sufficiently well attached and that
the other half was not, and also how it was that none of the other signs
in the immediate neighbourhood blew down.

Defendant Seven-Up argued that the two guy wires from the Cott sign
put an unexpected strain on the Seven-Up sign resulting in it being loosened
and then falling from the wall. There is no precise evidence as to the
extent of this strain and the proof on this point by Mr. Jenkinson, civil
engineer, is largely hypothetical and not based on any definite information.
In any event the defendant Seven-Up should have inspected the sign
periodically and had it done so it would have immediately discovered the
existence of the guy wires and had them removed.

Insofar as the defendant Cott is concerned, it was its thing, the guy
wires attached to its sign, which put in motion the chain of events which
caused the sign of Seven-Up
to fall through the window. Here again
Article 1054 applies and there is no proof that defendant Cott was unable
by reasonable means to have prevented what occurred. Also defendant
Cott is at fault in that it never inspected its sign during a period of
almost two years and in that it permitted its sign to remain guyed not
to the wall of the building in accordance with good sign erecting practice
but guyed to the bottom of another sign which is contrary to acceptable
practice.

Accordingly the two defendants or their representatives committed all
the faults alleged in paragraphs 18 and 21 of the declaration and these
faults led directly to the accident which caused the loss of the vision
in plaintiff’s eye.

Turning now to damages, the

three doctors who gave very clear
testimony all agreed that the vision of the right eye was for all practical
purposes irretrievably lost. Dr. Little gave a percentage of actual bodily
incapacity of 16% but conceded that some authorities would go as high

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as 25%. Dr. John Nicholls felt that he would give a percentage of 12/2/o
to 15% but also conceded that the doctors in the United States allowed
30% incapacity for the loss of an eye and the United States Army allows
40%. Dr. Kushner inclined to a considerably higher percentage of incapacity.
There was total temporary incapacity of three months.

Bearing in mind the evidence of the three physicians and the type of
work done by the plaintiff and the fact that he is affected by the loss
of depth perception
the use of the razor and the scissors on his
customers, the Court fixes the incapacity at at least 20%.

in

Action maintained ($22,938.55).

LEASE AND HIRE

PARADIS ST. LEONARD LTEE v. CLAUDE ST. JACQUES,

C.S.M. 694,465, October 3, 1966, Mr. Justice Albert Mayrand.

Lease and hire of things – Apartment infested with spiders – Unjustified
C.C. 1612,

desertion of premises – Cancellation of lease – Damages –
1613, 1641.
Plaintiff-lessor seeks $200 for two months of unpaid rent, can-

cellation of the lease and $300 damages for loss of rental.

Defendant-lessee abandoned the premises in August, 1965, less
than four months after taking possession thereof. He had tried to
get rid of the spiders himself with an insecticide but finally gave up
when it became obvious that the method would be unsuccessful. He
complained to the janitor in August and the latter immediately called
an exterminator who fumigated the premises while defendant and
his family were not at home, on August 21. When they returned,
they found the smell unbearable and consequently spent the night
at the home of relatives.

On subsequent days the defendant claimed that the spiders
re-appeared, although in considerably smaller quantities than pre-
viously. The exterminator, on the other hand, was of opinion that
there were no more spiders and he stated that, even if there were,
he would have fumigated again since his work was guaranteed for
several weeks.

Mr. Justice Mayrand

Le ddfendeur est parti quelques jours apr~s, le 25 aofit 1965, sans demander
que l’on fumige de nouveau, sans payer le loyer d’aofit qu’on lui avait
rdclam6, et sans aviser la demanderesse de la date de son d6part. La
demanderesse ddclare n’avoir jamais
td avisde de l’intention du ddfendeur
de mettre fin au bail, mais le d~fendeur soutient qu’il avait pr6venu le
concierge de l’impossibilit6 de rester dans ce logement infest6 d’araign~es.
I1 est vrai que la prdsence de vermine dans un logement peut justifier
le locataire de le quitter et de demander la rdsiliation du bail, qu’il s’agisse

No. 1]

UNREPORTED JUDGMENTS

de punaises, de puces, de blattes ou autres insectes nuisibles. 1 En principe,
le locataire doit cependant mettre le locateur en demeure de faire disparaitre
les insectes, surtout lorsque le locataire a habit6 quelque temps le logement
et que l’invasion des insectes est progressive; le locataire ne peut done pas
se faire justice et mettre fin au bail de sa propre autorit6 en quittant
les lieux.2 A titre exceptionnel, lorsqu’il y a urgence de quitter les lieux,
sans quoi sa sant6 et celle des membres de sa famille seraient en danger,
on admet que le locataire puisse quitter les lieux et demander ensuite en
justice l’annulation du bail.3

Dans le present cas, la preuve r~v~le que le locateur a agi avec diligence
quand son locataire s’est plaint de
son
logement. Il s’est adress6 A un entrepreneur en fumigation qui a fait
un travail efficace. Quand le locataire a quitt6 les lieux, sans payer le
loyer, si toutefois quelques araign6es avaient 6chapp6 i 1′ >.

(Signd) Armande Chenier.

Mr. Justice Mayrand

Reste h savoir si l’4crit du 21 f vrier 1963 est un engagement valable de
payer la somme de $3,800.00 A la demanderesse. La d6fenderesse soutiont
que ce n’est pas ]A une reconnaissance de dette, puisque le signataire y
ddclare z1l est entendu que ce n’est pas une dette>>. La ddfenderesse a
raison, si Pon d~finit ]a reconnaissance de dette qle fait d’une personne
qui ddclare devoir une dette civile . Par cot 6crit, Rena Daoust ddclare
en somme qu’iI ne doit rien civilement, mais qu’il s’engage
it payer la
somme de $3,800.00, ce qui constitue d~sormais une dette civile, l’engageant
lui et ses successeurs. Cette interpr6tation est conforme a
‘article 1018
du Code civil: zToutes les clauses d’un contrat s’interpr6tent les unes
par les autres, en donnant A chaeune le sens qui r~sulte de
‘acto entier2,.
En 6crivant cI est entendu que ce n’est pas une detteD, le signataire
d6clare que selon son sentiment il ne devait rien civilement i la demanderesse,
d’autant moins que la consideration de cot 6crit est un placement malheureux
que le mar de ]a demanderesse, d6c~d6 au moment de la signature do
l’dcrit, avait fait dans des valeurs minires.

En s’engageant b payer $3,800.00 A la demanderesse (c’est dvidemment
le sons qu’iI faut donner aux mots zje …
reconnait de payer ), Ren6
Daoust pr6cise qu’il fait cun remboursement honorableD; il transformo en
dette civile ce qui n’dtait qu’une obligation naturelle, l’obligeant cdans
le fort de l’honneur et de ]a conscience>> selon l’expression de Pothier.’
L’engagement du 21 f vrier 1963 n’est pas une disposition testamentaire
ne devant prendre effet qu’au d~c~s de Ren6 Daoust. I liait le signataire
imm~diatement. Parce qu’aueune date de remboursement n’est fixde, il no
s’ensuit pas que la somme n’6tait pas exigible du vivant du souscripteur
de I’engagement. Mrne si l’on avait stipul6 que la demanderesse ne pouvait
exiger le paiement avant son d~cis, la dette aurait exist6 imm6diatement,
seule son exigibilit6 en aurait AtM report6e au d6c~si2 Le fait d’ajouter que

IPothier, Oeuvres, 2e Ad., par M. Bugnet, (Paris, 1861),
2 Pesant v. Pesant, [1934] S.C.R. 249.

t. 2, no. 192, 193.

No. 1]

UNREPORTED JUDGMENTS

sa succession devrait honorer cette dette ne fait que confirmer la r6gle
g~n6rale posse par l’article 1030 du Code civil: .

Action accueillie ($2800).

CRIMINAL LAW

LA REINE v. CLAUDETTE <> BRISEBOIS, C.S.M.
(Juridiction criminelle) 10-375/67, Nov. 27, 1967, Mr. Justice
Philippe Pothier.

Obscenity – Go-Go dancer –

Indecent exposure – Undue exploitation of

sex – Cr.C. 150.

The Crown appeals de novo from a judgment of Mr. Justice Pascal
(C. Mun. 17-6134,
Lachapelle of the Municipal Court of Montreal
June 22, 1967) acquitting the respondent <>

Mr. Justice Pothier

Les parties ont de consentement produit au dossier la preuve offerte en
premiere instance et elles ont soumis leurs arguments. Cette preuve con-
siste dans le t6moignage de deux constables qui ont assist6 au spectacle.
t6 produit. La defense a soumis un film
Le costume de l’accus~e a aussi
repr~sentant une danse semblable A celle pour laquelle elle avait
t6 arr~t6e.
Cette danse est du genre de celle que l’on appelle de nos jours la danse
a
gogo>>. Elle consiste dans une sauterie accompagn~e d’une agitation des
bras alternativement de bas en haut et des hanches d’un c6t6 et de l’autre
et quelquefois d’avant vers l’arri~re, le tout suivant un certain rythme qui
lui est propre et g~n~ralement accompagn6 de musique. Les ‘figures en
peuvent lg6grement varier suivant l’imagination de l’ex6cutant.

Le costume se compose d’un triangle d’6toffe assez vaste servant de
cache-sexe auquel sont attaches deux prolongements en mailles’de filet pour
couvrir les jambes. Les seins sont recouverts de c6nes qui en dissimulent
les promontoires.

Le Code penal ne contient pas de d6finition explicite de l’obscnitd, de
l’immoralit6 ou de l’inddcence. L’on s’est appuy6 durant tr~s longtemps sur
une opinion du juge Cockburn’ qui avait dit que le crit&re de l’obsc~nit6
6tait la tendance h ddpraver et h corrompre ceux dont l’esprit est sensible
h de telles influences immorales. Depuis 1959, l’article 150 du Code classifie
comme obscene tout ce qui constitue l’exploitation indue (c’est-h-dire, exces-
sive, exag~r~e) des choses sexuelles et la Cour est d’opinion que bien que
cette disposition se r~f~re A la mati~re 6crite, elle doit servir de guide A
la matibre visuelle.

‘Reg. v. Hicklin, (1868), 11 Cox C.C. 19.

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La Cour, corrobor~e par les deux agents de police, n’a trouv6 aucune
exploitation sexuelle indue dans l’ex~cution de cette danse par l’intim~e.
Elle n’y a vu aucun geste, aucune posture, aucun mouvement significatif
d’6rotisme ou de sexualit6. C’est une danse aux mouvements rapides qui
respire et refl~te la vigueur, l’entrain et l’endurance de la jeunesse.

Le costume qui n’est pas exigu outre mesure recouvre suffisamment
l’anatomie intime de la danseuse et ne laisse voir sensiblement que ce que
l’on peut de notre temps regarder tous les beaux jours de l’6t6 sur une
plage fr~quent~e. La Cour admet que les seins sont l6g~rement plus d~cou-
verts h leur base que ceux de la baigneuse mais il ne s’agit pas d’une
exposition sexuelle indue et partant ind~cente aux termes de la loi. I1 faut
6galement se rappeler que ce spectacle est donn6 dans un Rtablissement que
seuls les adultes ont le droit de frequenter et ne pas oublier que certain
6talage qui pouvait 8tre jug6 ind6cent il y a cinquante ans est devenu,
A force de l’exposer, d’aspect plut6t indifferent. En effet, l’habitude acquise
avec les annes d’avoir les m~mes choses sous les yeux a diminu6, sinon
fait disparaltre leur 616ment d’attraction.

C’est done en rapport avec les moeurs d’aujourd’hui que doit atre exa-
min6e toute pr6tendue violation h la moralit6 publique. En cette matire,
la Cour n’est pas d’avis qu’il doit y avoir n6cessairement immutabilitY. Les
crit~res d’appr6ciation de l’ind~cence sont, selon les temps, les pays et les
peuples, forcment inconstants.

Appel rejet6.

Comment

This judgment appears to mark a departure from previous
Quebec decisions in this area. Furthermore, it has recently been
followed by Mr. Justice Marcel Marier in four Municipal Court
cases 2 dismissed without written reasons.

It is, however, essential to remember that the topless performance
has not been sanctioned by the Court. The decisions of all three
judges dealt with cases in which cone-shaped pasties covered the
girls’ breasts and do not offer any clear indication, it is submitted,
of the attitude which can be expected in the near future regarding
topless costumes.

2R. V. Nicolle Racette, C. Mun. 17-9646, R. V. Paulette Laporte, C. Mun.
17-9879, R. v. Sonia Par6, C. Mun. 17-9880, R. v. Claudette Brisebois, C. Mun.
17-9881. All the decisions were rendered by Mr. Justice Marcel Marier on
January 31, 1968.

Le statut des juges de la Cour des sessions de la paix in this issue De Minimis

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