Each Monday I intend to provide a potpourri of Quebec (and Canadian) legal developments. Issue 05 takes a brief look at calls to make lakes and river more accessible, rights of transgender inmates, and the frightful scheming of AI.
Criminal law
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Quebec ordered to pay $164 million for Charter breach in class action suit
The Quebec government has been ordered by Superior Court to pay a staggering $164 million in compensatory damages, plus interest, for knowingly violating the rights of thousands of individuals who were arrested and illegally detained for a longer period of time permitted by the Criminal Code prior to appearing before a Justice of the Peace.
The comprehensive decision by Quebec Superior Justice Donald Bisson reveals that during a five-year stretch, from 2015 to 2020, the Quebec government stopped offering court appearances on Sundays and statutory holidays due to austerity measures, and failed “in their obligation” to put in place a system that complies with section 503 of the Criminal Code, “knowing full well that their flawed appearance system led to the systemic violation of the fundamental rights” of some 24,000 individuals.
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Quebec discreetly issues directive that favours non-judicial treatment of simple drug possession
Quebec criminal lawyers have welcomed a discreet directive issued without fanfare by the provincial Minister of Justice calling on Quebec’s Crown prosecutors to weigh public interest and the risk to public safety before prosecuting people suspected of simple drug possession for personal consumption.
The circumspect directive, followed up a day later by new guidelines issued by the Quebec Director of Criminal and Penal Prosecutions (DCPC), is widely expected to help alleviate the logjams currently plaguing the provincial court system, according to criminal lawyers.
Tags: drugs -
Quebec looking at electronic surveillance of offenders serving conditional sentences
Nearly two years after the Quebec became the first jurisdiction in the country to introduce an electronic tracking system to thwart intimate partner violence, the provincial government is now considering the possibility of remotely following offenders serving sentences in the community.
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Alleged Darknet Xanax Kingpin faces extradition
The “Darknet Xanax Kingpin,” ostensibly a Quebecer who allegedly sold over 15 million counterfeit Xanax tablets that were mainly exported to the United States, failed to thwart extradition proceedings against him after Quebec Superior Court dismissed his constitutional arguments.
U.S. authorities are seeking the extradition of the Quebecer so that he can be prosecuted in the state of Connecticut for the sale and distribution of controlled substances. It is alleged that the Quebecer, who cannot be identified due to a publication ban, operated a “very large-scale” drug sales network, mainly using crypto-markets, otherwise known as Darknet markets.
Evidence contained in the certified extradition file shows that the Quebecer engaged in clandestine activities that generated huge profits for himself and his associates, assert U.S. authorities. In conversations on chat rooms, he described himself as the “Darknet Xanax Kingpin”, claiming to have sold over 15 million counterfeit Xanax tablets, mainly exported to the United States. He also allegedly distributed fentanyl or its derivatives, “a highly harmful drug causing serious harm and death to users.”
The Quebecer challenged the constitutionality of several provisions of the Extradition Act. He argued that an extradition to the U.S. and eventual incarceration will leave him in a precarious and “unacceptable” health situation, and increase the risk of suicide in prison, because he is afflicted with Asperger’s Syndrome, a developmental disorder that’s part of the autism spectrum disorder.
He also argued that the role currently vested in the Minister of Justice should largely be exercised by the extradition judge, at least as far as the constitutional rights guaranteed by the Charter are concerned. He also maintained that his extradition should be refused under section 24(1) of the Charter because he suffers from Asperger’s.
Quebec Superior Justice Mario Longpré dismissed the arguments. In a 56-page decision in Procureur général du Canada (États-Unis d’Amérique) c. Beaudry, 2024 QCCS 1368, Justice Longpré concluded that the accused failed to establish that the federal Justice Minister “would be unable to determine whether his extradition would contravene the principles of fundamental justice guaranteed by section 7 of the Charter.”
Justice Longpré added that the accused will be able to present all his arguments to the Minister, including his diagnosis of Asperger’s syndrome and the problems this condition creates in relation to possible extradition. If the Minister decides to extradite the Quebecer, he will still be able to seek judicial review before the Quebec Court of Appeal, where he will be able to argue that the Minister’s decision does not meet Charter requirements, noted Justice Longpré.
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Court’s approval of remediation agreement yields guidance but raises questions
A remediation agreement sanctioned by Quebec Superior Court, the second in Canada, sheds new guidance and fleshes out principles applicable to the unique regime but also raises concerns over the opaqueness of the process and the relatively hands-off approach by the court, according to legal experts.
The “important” decision, the first one involving the Public Prosecution Service of Canada (PPSC), reaffirms that courts must follow a deferential approach towards the terms of the agreement; rejected contentions that approval hearings should be in- camera; and held that in the absence of victim reparations — a “core value” of the regime — prosecutors must provide reasons why reparations are not appropriate.
Quebec Superior Court Justice Marc David also provides clarity over a victim’s standing to intervene in the proceedings and approvals of settlements, holding that the remediation agreement framework is not designed to resolve private civil law liability issues as it recognizes only two participants in the process, the prosecutor and the accused organization.
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Impact of lengthy imprisonment on offender family’s is a mitigating factor
In a case that provided the Quebec Court of Appeal with an “opportunity to address the extent to which the detrimental impact of a lengthy term of imprisonment on the offender’s family can operate as a mitigating factor in the sentencing process,” the appellate court dismissed an appeal by the Crown over a sentence handed to a man found guilty of two counts of sexual interference on his 12-year old daughter and her friend.
Keen on dispelling the Crown’s contention that the sentence of 90 days’ imprisonment sentence to be served intermittently was lenient and demonstrably unfit, the Appeal Court reiterated that sentencing ranges are only guidelines, reaffirmed that the objectives of denunciation and deterrence should be given relative precedence, and underlined that the detrimental impact of a lengthy term of imprisonment on the offender’s family can be considered as a mitigating factorin exceptional cases, affirm legal experts.
“It’s an excellent decision,” remarked Hugues Parent, a criminal law professor at the Université de Montréal and author of “Treatise on Criminal Law” which is cited in the decision. “Taking into account the impact of a person’s incarceration on the family can only be done when the sentence respects the principles of proportionality. It is certainly not a predominant factor in all cases, that’s for sure. It is only considered in exceptional cases where the person has a favourable profile.”
Tags: sentencing -
Giving the middle finger is a fundamental right, says judge
Imagine. Court of Quebec Judge Dennis Galiatsatos was so outraged by the case before him, a ridiculous neighbourly dispute gone awry, that he admits he had to resist the urge to write the decision in bold and in caps.
In an animated and colourful decision in R. c. Epstein, 2023 QCCQ 630, Judge Galiatsatos acquitted a Montreal man charged with criminal harassment, (s. 264(1) Criminal Code) and uttering death threats (s. 264.1(1) Criminal Code) towards his neighbour, who “weaponized the criminal justice system in an attempt to exert revenge on an innocent man for some perceived slights that are, at best, trivial peeves.”
[174] In the modern-day vernacular, people often refer to a criminal case “being thrown out”. Obviously, this is little more than a figurative expression. Cases aren’t actually thrown out, in the literal or physical sense. Nevertheless, in the specific circumstances of this case, the Court is inclined to actually take the file and throw it out the window, which is the only way to adequately express my bewilderment with the fact that Mr. Epstein was subjected to an arrest and a fulsome criminal prosecution. Alas, the courtrooms of the Montreal courthouse do not have windows.
Judge Galiatsatos vividly sets the scene over what took place in a Montreal suburb in the spring of 2021:
[2] Picture the following scene:
A beautiful spring day. A quiet street in a small residential neighbourhood, just steps away from two elementary schools, a daycare and a park.
Up the road, a 4-year-old girl rides her scooter in front of her house, with three adults sitting on camping chairs in their driveway watching her. Said driveway is adorned with chalk drawings made by the child.
A few metres away, another gathering of 9 children, spanning ages 2 to 8. Smiles from ear to ear. Some have bicycles, some have scooters. All are wearing helmets. Other children are simply walking, playing, getting much needed fresh air. They are all under the watchful eye of their parents.
Nearby are balloons and decorations in front of a home. Some snow is still seen melting. This is after COVID lockdowns had kept kids cooped up inside for far too long, and while onerous curfews were still active. Finally, the kids could play – during the daytime – and interact with one another.
On the street, there are chalk drawings made by children depicting a birthday cake and spelling “Happy 5th”.
Around the corner, various other adults and children are walking on the street. Some are walking their dogs. Everyone is smiling. At a later point, a young father holds his toddler in his arms.
[3] To most, this scene represents a blissful snapshot of a suburban utopia. Peaceful, friendly community life.
[4] Yet, to the complainant and his family, this is an unbearable nuisance. An affront on many levels. So much so, that according to the objective video evidence, they drive dangerously near the children as a way to protest their presence and express their discontent. That is the backdrop of this case. The complainants have a list of grievances against the accused, his family, his young children and the other neighbours’ young children. These grievances are nothing more than mundane, petty neighbourhood trivialities…
[5] To the complainants, the presence of young families outside it is a source of scorn and vivid resentment that ultimately spilled over into a criminal complaint against their neighbour. A school teacher. A caring father of two young daughters who committed no crime whatsoever. A man who has somehow been subjected to criminal charges for almost two years.
[6] This injustice ends today.
In a finding that will reassure Quebecers, Judge Galiatsatos held that it is not a crime to dislike a neighbour, and it is not a crime to express it. Nor is it a crime to give someone the finger. Rather,
[168]…Flipping the proverbial bird is a God-given, Charter enshrined right that belongs to every red-blooded Canadian. It may not be civil, it may not be polite, it may not be gentlemanly.
[169] Nevertheless, it does not trigger criminal liability. Offending someone is not a crime. It is an integral component of one’s freedom of expression. Citizens are to be thicker-skinned, especially when they behave in ways that are highly likely to trigger such profanity – like driving too fast on a street where innocent kids are playing. Being told to “fuck off” should not prompt a call to 9-1-1.
Scorn aside, there is nothing funny about living with the spectre of being found guilty of criminal harassment and uttering death threats. As Judge Galiatsatos, the proceedings took a toll on the school teacher.
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Man not criminally responsible because of sexsomnia
A 46-year old Montrealer accused of sexually assaulting a friend was found not criminally responsible for his actions after Court of Quebec Judge André Perreault found that he suffered from the rare disorder of sexsomnia, a defence that is seldom successful.
The episode of sexual somnambulism constituted an “automatism,” or an act committed during a state of unconsciousness or grossly impaired consciousness, but “with mental disorder, in the legal sense of the term,” held Judge Perreault, whose verdict neither acquitted nor convicted Yannick Giguère.
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Quebec Appeal Court increases sentence for sexually assaulting a child
A 21-year old school janitor who sexually assaulted a 13-year old child had his sentence increased to 15 months imprisonment from 90 days by a divided Quebec Court of Appeal after the majority held that the trial judge failed to prioritize denunciation and deterrence as overriding factors.
The majority decision crystallizes the growing trend to mete out tougher punishments for sexual crimes against children following a seminal Supreme Court of Canada decision, and it appears to send a strong message to trial judges following a recent controversial decision that caused an uproar in the province, according to criminal legal experts.
“The message is clear,” said Université de Montréal criminal law professor and author Hugues Parent. “When there is no demonstration of rehabilitation on the part of the accused, when it is not convincing, the objectives of denunciation and dissuasion must be predominant, as a priority in child sex cases. So, from that point on, it is certain that the sentence will be very severe.”
According to Julien Grégoire, a Quebec City criminal lawyer, the Appeal Court judgment illustrates, despite the dissent, that the key principles of the landmark SCC decision in R. v. Friesen, 2020 SCC 9 involving the abuse and exploitation of children, “are now inescapable and it is not enough (for the courts) to state them but to apply them in practice.”
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Man acquitted of sexual assault because professional secrecy was breached
A man convicted of sexually assaulting a four-year-old child was acquitted by the Quebec Court of Appeal after it held that a confession he made during therapy should have been protected by professional secrecy.
The decision by the divided Appeal Court underlines that therapy group sessions do not mitigate a medical professional’s confidentiality obligations, reaffirms that professionals may be relieved of the duty of confidentiality but only under specific circumstances, and provides guidance over the role the Charter plays in the application of the so-called Wigmore test which determines whether or not communications are privileged, according to criminal lawyers.
“No one is going to seek treatment if they know that every time they say something, it will be used against them,” noted Marie-Pier Boulet, a Montreal criminal lawyer who heads the Association Of Defense Counsel of Quebec. “Essentially, the Appeal Court wants to protect professional secrecy in a therapeutic setting. Just as we want to protect therapeutic privileges of complainants so that they continue to have confidence that their privacy will be respected, their right to therapy and their right to professional confidentiality, the accused too have that right. Otherwise, no one is going to get help.”
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New trial ordered by Quebec Appeal Court for man convicted of sexual interference on a child
A new trial for a man convicted of sexual interference on a child was ordered by the Quebec Court of Appeal after it held that the trial judge’s refusal to allow the re-opening of the complainant’s cross-examination infringed his right to make full answer and defence.
In a decision brimming with guidance over the scope of sections 10 and 11 of the Canada Evidence Act to dispel “some confusion” around cross-examinations on prior inconsistent statements, the Quebec Appeal Court held that despite the impact of a new trial on the complainant, an autistic child, who will have to testify again, “no other outcome can be considered” when the right to a full answer and defence and the right to a fair trial have been infringed.
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Legal experts hope first remediation agreement under Criminal Code will lead to more
Nearly four years after the federal government added deferred prosecution agreements to the Criminal Code as part of its arsenal to fight corruption and other white-collar crime, legal experts hope that guidance provided by Quebec Superior Court in Canada’s first ever remediation agreement will prompt federal prosecutors and organizations to take advantage of the new way of settling criminal charges.
The comprehensive, meticulous and “important” decision introduces a “welcome” degree of certainty to the new process in the absence of accompanying regulations, guidelines or policies in the remediation agreement regime, according to legal experts. The ruling by Quebec Superior Court Justice Éric Downs sheds light on how remediation agreements will be broached by the courts, indicating that while they will not act as a “rubber stamp” in reviewing proposed settlements, the agreements will be afforded a high degree of deference, added the experts. The judgment also signals that self-reporting, though not a “hard condition,” will carry considerable weight as does “strong cooperation” to help sway the courts to sanction the agreement, they added.
“It’s an important decision because there were question marks around how the courts would approach the approval of a remediation agreement and how involved they would be in the process,” noted Louis-Martin O’Neill, a Montreal M&A and securities litigator with Davies Ward Phillips & Vineberg LLP. “The Court was very mindful of the fact that there is a huge need for stability in the system, and that implies that when a corporation starts to negotiate with the prosecution for a remediation agreement it has to know that unless something very grave happens, that agreement should stick when presented to the court.”
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Murder charges stayed against former Quebec Appeal Court Justice
A public inquiry should be held to examine Quebec’s forensic laboratory following the decision by Quebec Superior Court to grant a stay in legal proceedings against former Quebec Court of Appeal Justice Jacques Delisle, according to a founding director of Innocence Canada, a non-profit organization that resolves wrongful-conviction cases.
“The mistakes in this case and their attitude to the mistakes in this case demonstrates that there are very serious systemic problems in the laboratory,” said James Lockyer, who took on Delisle as a client in 2014 before passing on the baton to Quebec City criminal lawyers Jacques Larochelle and Maxime Roy for the Superior Court proceedings. “There is every reason to believe that there are other miscarriages of justice as a result from their work.”