Federal and provincial governments “need” to demonstrate a “stronger engagement” towards conducting meaningful consultations with indigenous communities, according to a United Nations working group on business and human rights.
The duty to consult takes on added weight given that extensive mining and oil and gas extraction in several indigenous territories is “accompanied” by significant adverse environment impacts that affect the right to health, added the UN panel.
A United Nations working group on business and human rights is calling on federal and provincial governments as well as industry associations and companies to bolster their efforts to prevent and address “adverse human rights impacts” of business activities in Canada and abroad.
The UN panel lauded the federal government for undertaking some initiatives to deal with business and human rights, particularly in the extractive sector, but underscored that it could do much more.
“We believe that there is greater room for both federal and provincial governments, industry associations and companies, to consider their activities both domestically and overseas through a human rights lens, using the UN Guiding Principles (on business and human rights) as a baseline to assess corporate respect for human rights,” said the panel in its statement.
Talk is cheap.
So says François Casgrain, Quebec’s lobbyists commissioner, who will be retiring by the end of the month after an eight-year term due to health reasons.
A government-mandated committee report that called for sweeping reforms of Quebec’s family law regime has all but been sidelined, making it the second the comprehensive report that the Quebec government has quietly shelved over the past month.
A comprehensive report that called on the Quebec government to revamp the province’s administrative justice system has been quietly shelved, all but admitted the Quebec Minister of Justice Stéphanie Vallée before a parliamentary commission at the National Assembly.
The report noted that an absence of clear rules in the nomination process of Quebec administrative tribunal adjudicators allows for partisan influence, compromises their independence, potentially raises questions over their impartiality, and casts doubt over the integrity of a system that directly or indirectly affects all Quebecers.
There are over 400 adjudicators working in Quebec’s 15 administrative tribunals. Over 140,000 cases are handled annually by adjudicators, rendering decisions that have an impact of the basic aspects of the lives of Quebecers, from the cost of electricity to highway accident compensation to wrongful dismissal. Indeed, the researchers point out that all Quebecers will at least once in their lives have recourse to an administrative tribunal and be affected by a decision taken by one of the public agencies.
It’s no wonder then that Supreme Court of Canada Chief Justice Chief Justice McLachlin noted that “without administrative tribunals, the rule of law in the modern regulatory state would falter and fail. Tribunals offer flexible, swift and relevant justice. In an age when access to justice is increasingly lacking, they help to fill the gap. And there is no going back.”
But Quebec’s current system lacks “uniformity, and the protection provided to adjudicators is generally insufficient if not archaic,” highlighted the 2014 report, which took four Quebec law professors five years to complete.
To begin with Quebec does not have a unified regime to appoint adjudicators, validate appointee qualifications, and guarantee independence from government, observed the 375-page report entitled “Administrative Justice: Of Independence and Responsibility.”
Under the current legal framework, nine out of 15 Quebec administrative tribunals are not required under law to appoint adjudicators with special qualifications and nor are they bound by selection criteria, notes the study. There is also an absence of uniformity in working conditions, compensation, and standards of ethics for adjudicators. The length of their mandates, which varies from three to five years, also suffers from a lack of homogeneity.
“I never thought that our report would have been adopted to the letter, rapidly and with enthusiasm by the government,” remarked Pierre Issalys, one of the co-authors of the report. “However, I believed, and still do, that the report addresses this old problem with solutions that deserve to be considered by the government.”
But he now fears that the report will continue to lay in a dustbin. Not that he is surprised. Echoing remarks made by co-author and Université de Montréal law professor France Houle at the time when the report was published, Issalys believes that the provincial government – regardless of who is in power – are loathe to lose their discretionary power, “which in certain cases is practically unlimited,” to replace a nomination system that compensates partisanship and replace it with a nomination system that rewards competence.
Quebec Justice Minister Vallée said that an inter-ministerial committee is “at present” examining the organization of the province’s administrative justice system. But minutes later she admitted that the committee has yet to get off the ground, and lamely blamed the delay on a four-month strike by government lawyers that took place between late October 2016 and February 2016. The report was published three years ago.
“We must relaunch the committee,” said Vallée. “I will not hide the fact that there have been things that slowly slowed its work, and we’ve talked it about, by the strike by government lawyers. So for sure some work has slowed down, but the intention is to continue the work and carry out a reflection on the organization of the administrative justice system.”
Issalys has not been invited to take part of the committee’s review on the administrative system.
“It’s to be expected that the government will propose a hypothetical reform internally so that it can carefully control its content and reach,” said Issalys.
Margaret Somerville’s fears appear to be coming true. The founding director of the McGill Centre for Medicine, Ethics and Law predicted that the passage of the Quebec Act Respecting End-of-Life Care would inevitably create a slippery slope. The ethicist asserts that once “the clear line of inflicting death” is crossed, euthanasia will inexorably be extended to a much wider range of people initially covered by the controversial law.
“The combination of an ageing population, scarce and very expensive healthcare resources and euthanasia is a lethal combination,” Somerville, who now teaches at Western Sydney University, told me. “People used to say you can’t talk about cost savings, that this will never be used for cost savings. But in the last couple of years it has entered into the conversation.”
This is a case of déjà vu all over again.
When Bernard Amyot resigned as the lead counsel of a public inquiry that will shortly be investigating surveillance of journalists by Quebec police, it marked the third time in seven years that a lawyer who sought to make a mark in public affairs had his hopes dashed.
Amyot, an ambitious Montreal lawyer with solid credentials, was appointed days before Christmas as lead counsel of the Commission of Inquiry on the Protection of the Confidentiality of Journalistic Sources by Quebec Court of Appeal Justice Jacques Chamberland, the chair of the commission. Less than three weeks later, an opinion piece penned by Amyot nine years ago came to haunt him. He had castigated Montreal columnist Patrick Lagacé for being a pseudo journalist who lacked vigor:
“Lagacé, who is neither a journalist nor an analyst, all the same claims the right to preach to everyone, however without deigning to impose on himself, in a measured and rational manner, the necessary rigour to debate ideas.”
Calls for his resignation by the organization that represents Quebec journalists soon followed because the opinion piece raised doubts about his neutrality. Lagacé, after all, is a central figure behind the scandal that prompted the Quebec government to launch the inquiry. Last fall it was revealed that the high-profile journalist had been the target of a months-long covert police operation that tracked calls and texts on his iPhone because law enforcement authorities were trying to find the source of an internal leak to the media.
In a statement Amyot said “doubts have been raised about me, and even though these doubts have no legal basis, I am making the decision to withdraw from my position as lead counsel.”
In 2012 renown Montreal lawyer Sylvain Lussier too felt compelled to resign a week after being nominated lead counsel of Quebec’s public inquiry into the province’s construction industry, which came to be known as the Charbonneau Commission. “Doubts” had been raised about a possible appearance of conflict of interest over an old case he had worked on as a lawyer, and while Lussier asserted that the concerns had “no basis in fact or in law,” trepidation over the integrity of the inquiry prompted him to step down.
In 2010 Québec City lawyer Pierre Cimon also saw slip away his opportunity to leave his mark as lead counsel of a public inquiry that examined the way judges are nominated in Quebec, or the Bastarache inquiry as it is better known. Barely a week after being appointed by former Supreme Court justice Michel Bastarache, Cimon bitterly resigned after being caught in a political maelstrom that raised doubts over his impartiality following revelations that he had regularly contributed to the Quebec Liberal Party. Between 2002 and 2007, Cimon made five donations ranging from $250 to $500 – far less than what he gives to the Barreau du Québec’s Foundation or his local parish.
“I donate to the local parish even though I am not a churchgoer,” Cimon told me at the time. “I donate because I believe churches play an important social role. It doesn’t mean that I practice and believe in the church’s dogma or agree with Cardinal Marc Ouellet’s position that abortion should be criminalized. The same holds true for the donations I made to the Liberals. I am a federalist, and that was the only place I could donate.”
Though the trial lawyer asserts he is apolitical, never attended a political meeting nor solicited or received any benefit from any government, and does not even know anyone stemming from ranks of the Liberals, he felt he had no choice to step down in order to avoid doubt being cast on the impartiality of the Bastarache Commission and to ensure the serenity of its procedures.
The Quebec Act respecting public inquiry commissions is silent about how the commission’s counsel are appointed. It does not state who has the power to appoint the counsel nor does it stipulate whether a procedure should be followed. That is not a unique situation. The Ontario Public Inquiries Act too provides no “provision for this crucial step in an inquiry’s life,” pointed out a 1992 Report on Public Inquiries by the Ontario Law Reform Commission. (That is still the case today).
In practice, the power to select an inquiry’s counsel is granted to the chair of the commission. “There are no rules or guidelines,” told me a lawyer familiar with the inner workings of public inquiries. A Protocol on the appointment of judges to commissions of inquiry that was adopted by the Canadian Judicial Council in 2010 states that’s the way it should be. “The judge should have complete independence in selecting his or her staff, in particular the commission counsel,” says the Protocol.
But the three resignations strongly suggest that it is perhaps time to review how judges appoint counsel to public inquiries. “I have seen how public inquiries can restore confidence and fix institutions – and I have also seen the tremendous impact on individuals whose lives are forever changed through their participation in the process,” once remarked former Ontario Court of Appeal Justice Dennis O’Connor, who sat as Commissioner on both the Walkerton and Arar Inquiries. At a time when public confidence in the justice system is under siege, it is incumbent upon judges appointed to head public inquiries to put in place proper vetting procedures that take into account not only conflicts of interest but perceived conflicts of interest that may cast doubt upon the players even though the qualms may have “no legal basis.” It certainly would help if they were media savvy and aware that in this day of age of unhealthy partisanship and intense media scrutiny, aided and abetted by the omnipresence of social media, that perceived conflicts of interest take on a life of its own.
Lawyers appointed as lead counsel of public inquiries too bear a responsibility of side-stepping potential ethical minefields. The president of the Fédération professionnelle des journalistes du Québec, Stéphane Giroux, noted that a simple Google search revealed that Amyot had written a “very disturbing” article that led to his resignation. Lagacé, upon learning of Amyot’s resignation, said that he was astonished that Amyot had accepted the mandate to act as lead counsel of the inquiry in the first place. “He is no doubt a good lawyer, I have nothing to say about that, but he knew what he had written about journalism, the media and certain individuals such as myself. I find it surprising that he had accepted, but he redeemed himself by recusing.”
But there’s no reason for yet another public inquiry to be subjected to an unnecessary blot. More is and should be expected.
Quebec, once a pioneer that lead the movement towards greater government transparency, is now among the least transparent provinces in Canada after successive provincial governments introduced more than 150 legislative exemptions that undermined the province’s access to information legislation, according to a recently published comprehensive report by Quebec’s Commission d’accès à l’information.
With Quebec ranking 10th out of 14 jurisdictions in Canada, and 57th in the world, behind Honduras and Romania, the Quebec government should overhaul the provincial access to information legislation to compel all public bodies, even those partially financed by the provincial government, to be subjected to the access to information law, noted the 214-page, five-year report that issued 67 recommendations. The Commission, which also oversees provincial privacy legislation, also called on the Quebec government to beef up privacy protection measures.
“The access to information law has not been the subject of a thorough reform in 35 years, and the privacy legislation in 22 years,” remarked Diane Poitras, the Commission’s vice-president. “It’s time to re-establish the balance between the rights of citizens — who are calling for greater transparency and stronger privacy protection measures — and the needs of business and government organizations to collect and use” — and in some cases safeguard — information.
A cultural change that emphasizes collaboration between all players of Quebec’s criminal justice system is the only way to ensure that costly and unwieldly megatrials do not end up in fiascos, according to a well-received comprehensive report on multi-defendant trials.
The long-awaited 180-page report also urges the Quebec government to provide more resources to the province’s Director of Penal and Criminal Prosecutions (DPCP), recommends that Quebec crown prosecutors limit the number of accused and concentrate their efforts on criminals most involved in serious crimes, advises the creation of a permanent forum for stakeholders to share best practices, proposes that police and prosecutors take management training, and calls on judges to use the powers they have more effectively. All told, the report makes 51 wide-ranging recommendations.
Quebec’s justice system will require more money and human resources, need to make more use of technological advances to efficiently deal with routine appearances, and prioritize and encourage timely resolution of cases to be able to curb the unprecedented delays in criminal proceedings, according to the Chief Justice of the Court of Quebec Elizabeth Corte.
Nearly three years after the president of the Quebec legal society warned the provincial government that prison conditions faced by Inuit inmates in northern Quebec were appalling and deplorable, the Quebec Ombudsman upbraided the government for turning a blind eye to the daily violation of basic human rights, unacceptable detention conditions, and systemic shortcomings in the administration of justice in Nunavik.
Unsanitary and overcrowded holding cells, nauseating odours, soiled bedding, inaccessible showers, sanitation facilities that fail to provide detainees with privacy, and prisoners having to eat their meals on the floor are among some of the more disturbing findings made by the Quebec Ombudsman Raymonde Saint-Germain who likened Nunavik’s detention and justice system to the Third World. Just as troubling were her findings that detainees are kept in cells 24 hours a day because there are no outdoor courtyards, with some detainees having to wait as long as two weeks in preventative custody. The Criminal Code of Canada prescribes a maximum waiting time of three days.
A controversial Quebec Superior Court decision that ruled that religious marriages do not necessarily carry any legal obligations under civil law may have alarming and sweeping consequences, according to family law experts.
The “disturbing” ruling creates a new category of civil status in Quebec, undermines long-held views of religious marriages, and will possibly expose women to vulnerable situations where they will be pressured into celebrating a religious marriage without the protection afforded by civil law, cautioned family lawyers.
An article of Quebec’s Highway Safety Code that was used to break up demonstrations has been repealed after a Quebec Superior Court judge held that it was unconstitutional in a ruling that reaffirmed that protesting in the streets is a constitutionally protected right.
Justice Guy Cournoyer acquitted Gabriella Garbeau, one of 150 protestors who were fined during a 2011 anti-police brutality march in downtown Montreal under Article 500.1 of Quebec’s Highway Safety Code, which prohibits anyone from using a vehicle or other obstacle to block a highway “during a concerted action intended to obstruct in any way vehicular traffic.”
In a ruling applauded by civil rights activists, Justice Cournoyer overturned a municipal court ruling and found that Article 500.1 was in violation of Garbeau’s right to freedom of expression and peaceful assembly as protected by the Canadian and Quebec charter of rights. Justice Cournoyer added that there “is no doubt” that these rights protect the right to express oneself on public roads even though “conveying messages” is not the primary purpose of city streets. But the “fact that they were historically used for expression showed” that public roads can be suitable “for exercising the right to freedom of expression,” noted Justice Cournoyer, heeding guidance provided by the Supreme Court of Canada in Canadian Broadcasting Corp. v. Canada (Attorney General), [2011] 1 SCR 19, 2011 SCC 2.
“This is really an important precedent, and it’s something that we want to use in another cases and share with other organizations in other countries,” remarked Cara Zwibel, director of the fundamental freedoms program with the Canadian Civil Liberties Association.
Under Article 500.1, organizers of demonstrations had to obtain authorization, as is the case in many cities across the country. But the prior approval scheme under Article 500.1 did not provide clear, “precise, and understandable” criteria that allowed organizers to know what requirements they needed to fulfil in order to obtain a permit, noted Justice Cournoyer. Nor did the law detail conditions under which the approval could be revoked. Indeed, the article did not even spell out who was responsible for approving or rejecting the application. “In fact, according to the evidence, no prior approval scheme was implemented nor established,” said Justice Cournoyer in his 92-page ruling in Garbeau c. Montréal (Ville de), 2015 QCCS 5246. “This process was not illusory, it was inexistent.”
The Attorney General of Quebec argued that the law implicitly stated that it was municipal police forces who were responsible for such decisions. But Justice Cournoyer noted that law did not explicitly confer the police with such powers. Nor does the law explicitly state that police were acting as a city’s representative, with the power to authorize demonstrations. At best there was an “informal process of tolerance” in which police exercised discretionary powers to manage and supervise protests, added Justice Cournoyer.
“The judge notes that one cannot rely on police to apply a law correctly when the article is so vague that it could lead to a constitutional violation,” noted Sibel Ataogul, a Montreal lawyer with Melançon Marceau Grenier & Sciortino who represented the Quebec Civil Liberties Union who were interveners in the case. “What’s also very interesting about the decision is that it clearly states that when the legislator delegates such powers to cities, as was the case here, they cannot sub-delegate such powers to the police forces. Police are there to ensure security but they should not be able to take the political decision of deciding who can demonstrate or not, especially without clear criteria.”
Justice Cournoyer also notes that a demonstration can be considered to be peaceful even though a small number of protesters might have committed criminal or regulatory offenses. He added that merely because a person was present at a time when illegal acts were committed during a protest one cannot necessarily conclude that the individual was either encouraging the illegal acts or was trying to help the perpetrators to flee.
“That is a very important finding of the decision because it clearly states that one cannot use violence by some protesters as a pretext to consider the demonstration unlawful,” noted Louis-Philippe Lampron, a law professor who teaches human rights at the Université Laval in Quebec City. “That is the problem with Article 500.1. It was far too easy to declare a protest illegal in spite of the importance of being to protest collectively in a democratic society. The judge underlines the danger of unduly limiting that right.”
According to Zwibel, protests are frequently declared illegal because of the illegal actions of a few individuals, and that “totally undermines” the right to express oneself and to assemble peacefully as it plays on the notion of guilt by association. “The finding that that the actions of a few don’t render an otherwise peacefully assembly no longer peaceful is really an important part of the decision,” said Zwibel.
That doesn’t mean that police will be hindered from arresting violent demonstrators, warned Marie-Claude St-Amant, a Montreal lawyer who represented Garbeau. The decision clearly states that if protesters are committing illegal acts that police should arrest those individuals but neither does it give them carte blanche to declare a demonstration illegal and breach the fundamental rights of “all protesters to express themselves,” said St-Amant, who also practices at the law firm Melançon Marceau Grenier & Sciortino.
Justice Cournoyer’s decision could have an impact on a class action that was launched following a series of mass arrests and fines, under Article 500.1, at a 2012 demonstration in Hull, added St-Amant. It could also have a bearing on another case that is challenging the constitutional validity of a Montreal by-law, known as P6, that requires protesters to give police their itinerary beforehand and prohibits protesters from wearing masks.
In the meantime, Justice Cournoyer gave the provincial government six months to change Article 500.1 and to set clear rules on pre-approval schemes.
“The ruling does not prevent the use of pre-approval schemes,” said Lampron. “The judge does say that it is possible to implement such a scheme but it must be based on clear criteria, and criteria that allow for the refusal of a demonstration only for valid reasons. That is the heart of the ruling.”
The federal government has been given 18 months to correct discriminatory provisions in the Indian Act that infringe the Charter of Rights and Freedoms after a Quebec judge held that generations of indigenous women have suffered discrimination based on gender.
Despite several amendments to the Indian Act, the latest in 2010 in response to a ruling by the Court of Appeal for British Columbia, Quebec Superior Justice Chantal Masse found that it still discriminated against women and their descendants on the issue of registration or “Indian status.” The federal government has until January 2017 to amend the discriminatory provisions before they are declared invalid as an unjustifiable breach of the right to equality guaranteed by section 15 of the Charter.
First Nations can now bring tort claims founded on Aboriginal rights and title before those rights are formally recognized by a court declaration or government agreement after the Supreme Court of Canada refused to end lawsuits by Aboriginal communities against natural resource companies.
The SCC’s decision to dismiss the applications for leave to appeal paves the way for a $900 million class action filed by two Quebec Innu First Nations against Iron Ore Co. of Canada (IOC) and a separate suit by two north-central British Columbia First Nations against Rio Tinto Alcan Inc. over its diversion of water from the Nechako River since the 1950s.