SCC to hear appeal over secret criminal trial

The Supreme Court of Canada will hear an appeal from a slew of media organizations challenging confidentiality orders issued in a secret criminal trial, with no paper trail, that was held in Quebec.

The secret trial only came to light after the defendant chose to appeal the verdict before the Quebec Court of Appeal.  The trial did not have a case number and was never filed in the province’s judicial archives. As disturbingly, the names of the defence lawyer, the Crown prosecutor and the judge were excluded from the public record as were the offence, date and location of where the trial took place. Moreover, witnesses were interviewed out of court, and the parties asked the judge to decide the case based on transcripts.

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Quebec legal world divided over notaries gaining access to the bench

The Quebec government, after scant debate and without the input or testimony of several major legal actors, has forged ahead in spite of forceful opposition by lawyers’ organizations with a controversial and divisive bill that will allow notaries to be appointed to the bench of provincial courts.

Under the guise of an access to justice bill that will make free mediation mandatory and arbitration automatic for small claims cases, Quebec Justice Minister Simon Jolin-Barrette has amended the Quebec Courts of Justice Act to allow notaries with more than 10 years of experience to be appointed as a Court of Quebec judge, justice of the peace or municipal judge in order to “diversify” the makeup of the magistrature, a line of reasoning that has perplexed a slew of lawyers’ organizations. ”In essence, notaries and lawyers are put on an equal footing,” said Jolin-Barrette at the Quebec National Assembly during the clause-by-clause consideration of Bill 8. “I believe that notaries are as competent as lawyers to become judges. We do not have the luxury of depriving ourselves of all the jurists we have in Quebec.”

But for Martine Valois, author of “Judicial Independence: Keeping Law at a Distance From Politics,” this part of the bill is yet another striking example of the provincial government acting hastily without fully taking into consideration its impact nor the necessary financial and human resources it will require. “The Quebec Justice Minister introduces bills that are drafted in a rush, without asking himself how we are going to implement them,” just as was the case with Bill 92, said Valois, a Université de Montréal law professor. Bill 92, assented in November 2021 with much fanfare, created a new division within the Court of Quebec to deal with conjugal and sexual violence offences but has yet to be implemented.

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Report recommends rights-based approach to tackle intimate partner violence and homelessness

The Quebec government should establish a comprehensive “made in Quebec” legal framework to tackle intimate partner violence by creating a specific right to adequate housing under the Quebec Charter of Human Rights and Freedoms and introduce comprehensive legislation that institutes a right to be free from domestic violence that includes legal recourses in civil matters, according to a report by legal experts.

Successive governments in Quebec have made important strides to provide better support to victims of intimate partner violence but “the time has come” to establish necessary policy foundations for a rights-based approach that should be anchored by Quebec’s international human rights obligations, affirms the report. The expert panel calls on the provincial government to follow in the footsteps of the federal government’s 2019 National Housing Strategy Act and explicitly incorporate the International Covenant on Economic, Social and Cultural Rights (ICESCR), a multilateral treaty signed by the United Nations General Assembly that came in force in 1976, in Quebec law.

“When you build your legal framework around a positive right, that’s going to change the entire approach,” remarked Pearl Eliadis, a McGill law professor and co-chair of the Gender Research Stream, one of several branches of the Québec Homelessness Prevention Policy Collaborative, that penned the report. The collaborative, founded in 2021, was established to advance policy reforms in Quebec to prevent homelessness. It is a joint effort between the McGill Department of Equity, Ethics, and Policy and the Old Brewery Mission, Quebec’s largest service provider for homeless men and the largest in Canada for homeless women.

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Class action motion judges facing pushback from Quebec Appeal Court

The Quebec Court of Appeal has overturned no less than eight lower court decisions over the past year that denied class action certification, signaling a possible discord that shows little sign of abating between motion judges more likely to cast a critical eye and the higher court intent on strictly adhering to case law and the teachings of the Supreme Court of Canada, according to class action experts.

With the Quebec justice system under severe strain, beset by underfunding and vexed by a dire shortage of court personnel, with more than 20 per cent of employees resigning in a year, leaving many Quebec judges compelled to share judicial assistants, class action lawyers speculate that motion judges are taking a harder line on the viability of class actions, all the while taking into consideration the impact it would have on an overtaxed justice system. “Perhaps what is happening is that trial judges have a more concrete understanding of the fact that there are already too many class actions going on in Quebec, be it at the authorization stage or at the trial level,” said Éric Préfontaine, a Montreal class action defence lawyer with Osler, Hoskin & Harcourt LLP. “There seems to be some kind of disconnect between the assessment some motion judges make” and the Appeal Court.

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Quebec Justice Minister openly derides provincial Judicial Council

Barely a couple of weeks after a special mediator was appointed to settle a fall-out between the Court of Quebec Chief Justice and the Quebec Justice Minister, the minister openly questioned the integrity of the Quebec Judicial Council.

Justice Minister Simon Jolin-Barrette brazenly derided the provincial Judicial Council (Conseil de la magistrature) at the National Assembly during a clause-by-clause consideration of an access to justice bill, asking members of a parliamentary committee if they “really believe” statements issued in a brief by the Judicial Council.

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Mediator mandated to resolve issues between Quebec Justice Minister and Chief Justice

In an unprecedented move in recent history, a former Quebec Appeal Court justice was appointed as a mediator to resolve a dispute between the provincial Minister of Justice and the Court of Quebec Chief Justice over new judicial appointments and new work schedules for provincial court judges, a development viewed as regretful but necessary by legal observers.

Quebec Justice Minister Simon Jolin-Barrette and Court of Quebec Chief Justice Lucie Rondeau have been at loggerheads in the past year over a slew of issues, ranging from professional and linguistic requirements for judicial candidates to the establishment and implementation of a new domestic and sexual violence specialized court to a reform instituted by the Chief Justice that will curb the number of days that 160 provincial court judges who preside over criminal proceedings will sit — a deadlock that has led to several court battles, all of which were lost by the Quebec government.

The impasse between Quebec’s leading actors has taken place at a time when the provincial justice system is in dire straits, wilting under the weight of underfinancing and plagued by an acute shortage of court personnel, prompting Quebec Bar president Catherine Claveau to tell me late last year that the “crisis in the justice system has led to a crisis of confidence.” Claveau, alarmed that the conflict between the two protagonists will further undermine public confidence and mask the reasons behind the dismal state of the justice system, called on both to turn to conciliation to find common ground.

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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.

Quebec access to justice bill opens door for notaries to sit on provincial court bench

An access to justice bill that will make free mediation mandatory and arbitration automatic for cases under $5,000 took the Quebec legal community by surprise as it also unexpectedly opens the door for notaries to be appointed to the bench of provincial courts.

Bill 8, tabled by the Quebec government this month, aims to curb long delays afflicting small claims courts, implements a simplified and accelerated civil procedure for matters brought before the Court of Quebec with a value of between $15,000 and $75,000, and will compel the provincial Judicial Council to publish an annual report and be audited every five years by the Auditor General, all of which are developments viewed positively by the Quebec Bar.

“We are pleased that several provisions of Bill 8 echo requests made by the Barreau to the Justice Minister on measures that could help facilitate access to justice,” said Catherine Claveau, the bâtonnière of the Barreau du Québec. “The provisions relating to mandatory mediation and arbitration is an excellent avenue to improve access to justice and a concrete way to promote alternative methods of dispute resolution.”

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Competition Bureau to investigate Quebec real estate services market

The Competition Bureau will be investigating conduct by the Quebec Professional Association for Real Estate Brokers (QPAREB) and its subsidiary, Société Centris, regarding real estate data sharing restrictions.

The Association, a non-profit organization with more than 14,000 real estate brokers and agencies, manages the multiple listing service (MLS) that collects Quebec real estate transaction data, which Quebec real estate brokers use as part of their brokerage services.

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Quebec Appeal Court sets precedent over First Nations police underfunding

Pekuakamiulnuatsh Takuhikan

In an “important precedent,” the Quebec Court of Appeal held that Ottawa and Quebec breached their duty to act honourably after it refused to adequately finance the police department of a First Nation to ensure that its services were equal in quality to those offered to non-Indigenous communities, according to aboriginal law experts.

The ruling, deemed by pundits as a “pretty striking way of reading” Canada’s agreements with First Nations on programs and services, ordered both the federal and the Quebec government to pay the Pekuakamiulnuatsh Takuhikan First Nation, located in Quebec’s Saguenay-Lac-St-Jean region, $1.6 million to cover years of underfunding of its police force. A year ago, the Canadian Human Rights Tribunal concluded in Dominique (on behalf of the members of the Pekuakamiulnuatsh First Nation) v. Public Safety Canada, 2022 CHRT 4 that the same First Nation were victims of discrimination due to inadequate police funding, a decision Canada is seeking judicial review.

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Municipal bylaws over firearms and hunting must be reasonable, rules Court

Quebec municipalities will likely have to review their firearms and hunting bylaws after a farmer who received a fine for shooting a deer on his property waged a successful legal battle that prompted Quebec Superior Court to strike down a municipal bylaw that prohibits hunting as it ran afoul of provincial and federal legislation.

The decision, one of a handful that examines the extent to which municipalities can regulate the use and possession of weapons on their territories while respecting provincial hunting standards, underlines that Quebec municipalities have the power to pass bylaws over the use of weapons and can add safety rules set out in provincial standards, added the legal pundits. But these measures, while a “complex exercise,” must clearly set out their objectives, the means of enforcement and must be exercised in a reasonable manner without exceeding the legislative framework, added the lawyers.

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