Law in Quebec

The Appeal Court also sent an unambiguous message to Court of Quebec judges who launch constitutional debates proprio mutu, without the issue being raised by the parties, said Marie-Pier Boulet, a Montreal criminal lawyer and president of the Association Of Defence Counsel of Quebec. “The separation of powers means that provincial court judges cannot challenge a law on their own,” noted Boulet. “They have to wait for the debate to be raised before them. That’s why the Appeal Court was quite severe when they found that he literally overstepped his duty and his powers. He wanted to service his opinions. It was problematic.”

In May 2024, Judge Galiatsatos, while presiding the trial of Christine Pryde who was charged with dangerous and impaired driving and criminal negligence causing the death of a cyclist in May 2021 in Montreal, warned of potential delays because s. 10 of the C.F.L. was going to come into effect in June, a few days before the start of the trial. The new provision requires simultaneous translation of judgments rendered in English.

Judge Galiatsatos decided to examine the constitutional validity of s.10 on his own volition, even though the accused never brought up the issue. Both the Attorney General of Canada and the Attorney General of Quebec objected, arguing that he could not raise the issue propio motu because the defence expressly declined to do it. Both parties also maintained that there was no need to address the issue, and that the Notice of Constitutional Question was imprecise, incomplete and lacked context and a factual record. Judge Galiatsatos dismissed their objections, holding that there are circumstances in which the Court may, and even must, raise legal issues on its own motion, provided interested parties are given enough opportunity to be heard. Judge Galiatsatos, citing a list of judgments that he believed authorized him to unilaterally raise the issue for debate, acknowledged that most cases where judges raised constitutional issues dealt with the Charter. But he held that the same reasoning also applies to constitutional issues regarding the division of powers.

Judge Galiatsatos concluded that s. 10 of the C.F.L. is in “irreconcilable” conflict with the s. 530 of the Criminal Code in terms of both its legal and practical effects. It “frustrates” the federal objective aimed at securing equal treatment in criminal proceedings for English and French accused, and it “firmly prevents” a criminal court judge from rendering his verdict in the absence of a French-language translation of the ruling. “To be abundantly clear, the amendment impacts how and when a judgment may be rendered by a Criminal Division Provincial Court judge at the end of a trial,” said Judge Galiatsatos in R. c. Pryde, 2024 QCCQ 1544, a procedural ruling ahead of the trial itself. “This is no collateral detail. It is as basic as it gets. It goes to one of the judge’s core functions, exercised almost weekly. This is far from a purely intellectual exercise being raised out of caprice or boredom.”

The ruling prompted Droits collectifs Quebec to lodge a complaint against Judge Galiatsatos before the Quebec Judicial Council. The Quebec civil liberties group maintained that the judge was not impartial and had placed himself in a conflict of interest by raising a question of law dealing with the constitutional validity of a legislative provision when none of the parties requested or wanted to debate it. The complaint was rejected last October by the Quebec Judicial Council. “An examination of the entire factual and procedural context does not support the plaintiffs’ claims that the judge was in a conflict of interest, in reality or in appearance, nor that he had breached his duties of integrity and impartiality, nor that he had failed to respect his oath of office in the performance of his duties,” concluded the Quebec Judicial Council in A et Juge, Cour du Québec, Chambre criminelle et pénale, 2024 CanLII 109881 (QC CM).

In the meantime the Attorney General of Quebec appealed the decision before the Quebec Court of Appeal. In a 34-page per curium unanimous decision brimming with minutiae and a detailed chronological account of the circumstances that led to the impugned judgment, the three-justice panel held that “perhaps” there were grounds for a “proper constitutional debate” on the applicability of s. 10 of the C.F.L. in criminal matters.

“The question is a legitimate one,” said Appeal Court Justices Yves-Marie Morissette, Patrick Healy and Lori Renée Weitzman in a decision issued in late May. The written ruling however outlining its reasons is dated August 8. “But to initiate, conduct and resolve this debate, unilaterally and on an anticipatory basis, as the Judge attempted to do here, far exceeded the limits of his jurisdiction.”

The list of rulings the trial judge cited to endorse his position that he was able to unilaterally raise the issue for debate does not in fact deal with the “alleged power of a provincial court judge to identify on his own initiative and resolve” an issue dealing with the validity of a statutory provision in light of the division of legislative powers set out in the Constitution Act, 1867. All of the rulings cited by Judge Galiatsatos instead dealt with the legality of government action.

The Quebec Appeal Court also noted that the Supreme Court of Canada in R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130 confirmed that provincial court judges can declare a legislative provision to be of no force or effect on constitutional grounds “where the matter is properly before them,” as former Chief Justice Beverley McLachlin specified. “To use this proposition to draw the argument that any such declaration by a provincial court judge is permitted, regardless of the context, is to wrongly give precedence to form over substance” and to disregard doctrine, said the Appeal Court.

Another ruling by the Quebec Appeal Court, handed down a week after Judge Galiatsatos issued his decision, confirms and clarifies the limits inherent in a Court of Quebec judgment which declares on constitutional grounds that a rule of law stemming from legislation is inoperative in a particular case. In Denis c. R., 2024 QCCA 647, a case pled by Boulet, the Quebec Appeal Court held that a Court of Quebec judge can and must refuse to impose a sentence on the accused whose trial he is presiding where the that sentence is based on a provision contrary to the Charter. But he cannot declare it to generally to be of no force or effect. His ruling only applies to the parties, in contrast to a superior court or an appellate court ruling that applies to the entire province, pursuant to the rules of stare decisis. “This judgment shows that, although there is a rule of horizontal stare decisis, it does apply in the case of ‘informal’ or ‘specific’ declarations of inoperability on constitutional grounds, held the Quebec Appeal Court.

“The basis on which the Court of Appeal overturned the decision is almost technical,” said Beaulac. “But that doesn’t mean that it can’t, or shouldn’t, be understood in the broader context of architecture in constitutional law. As a constitutionalist, I see this as being in conformity with, and going in the direction of, something that is particularly important to consider in terms of the principle of the separation of powers.”

The Quebec Appeal Court underlined there were procedural shortcomings as well. Among the “troubling elements,” Judge Galiatsatos made “quite imprudent” comments while engaged in a discussion with one of the lawyers in the case, insisted on an accelerated timetable, and issued a notice to the attorneys general that was inadequate, both in terms of its content and in the deadline set for their response. “What purpose does the right to be heard in the Court of Québec serve if the die has already been cast?” asked rhetorically the Quebec Appeal Court. “No matter how one chooses to view the case, one can only conclude that the record had shortcomings likely to hinder the debate and prevent it from being resolved in a fully informed manner.”

According to Julius Grey, a well-known Montreal human rights lawyer, “it might have been more prudent” to issue notice and a hearing on the constitutional points prior to trial but “this would have meant a long delay which is never desirable. On the notice requirements, there is a serious question: How can you reconcile the need for celerity with the time needed to present a constitutional challenge?”

Grey, who is in the midst of challenging much of the French language charter, does not have a mandate to specifically challenge s. 10. “Virtually everything merits challenge in that law,” said Grey.

Judge Galiatsatos may have provided a roadmap for a constitutional challenge of s. 10 of the C.F.L. but none will likely be forthcoming, said Boulet. “You need to have a mandate from a client to raise the issue of constitutionality, and why would a client give a mandate to challenge that when it doesn’t really have any impact on Canadians in general,” said Boulet. “Unless an English-speaking accused would say, well, it’s going to take longer for me to get my decision because he has to write it in French. But it’s hard to imagine how a defendant could have an interest in challenging this law.”

The Quebec Appeal Court was very careful not to give any clues on how it would deal with a challenge to s. 10 of the French language charter, said Beaulac. “The Court takes pains to really circumscribe the debate around jurisdiction, and then obiter dictum, the appearance of partiality,” added Beaulac.

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This story was originally published in Law360 Canada.