A series of wide-ranging concrete administrative and structural reforms, coupled with a new regional or municipal court, legal aid for all Inuit, and greater inclusion for traditional Inuit dispute resolution methods, should be implemented by the Quebec government and legal authorities to provide greater access to justice and tackle the alarming and increasing caseload in Nunavik, according to a recently published report.
“It is of primary importance to recognize that the system, as it currently exists, has failed in many respects,” said the report, which was mandated by the Quebec Ministry of Justice and the Makivik Corporation, the Inuit’s legal representative under the terms of the 1978 James Bay and Northern Quebec Agreement. “Reoffending rates have not declined, the Inuit have not been included, and bridges with traditional dispute resolution methods have not been used.”
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.”
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.
A $28-million settlement reached with a Catholic religious order in a sexual abuse class action was rejected by Quebec Superior Court because of the high legal fees associated with the agreement, the second Quebec class action settlement in the past month whose legal fees have been the subject of a critical assessment.
The decision by Quebec Superior Court Justice Thomas Davis to rebuff a settlement for more than 375 alleged victims of sexual assaults committed by members and employees of the Clercs de Saint-Viateur of Canada follows on the heels of a ruling in mid-June by Quebec Superior Court Justice Daniel Dumais to curb plaintiff class action legal fees by 20 per cent in the so-called Dieselgate scandal in which German carmaker Volkswagen AG violated Canadian emissions standards.
The decisions underline that settlement approvals are not a rubber stamping exercise, demonstrate that the courts will take into account the Code of Professional Conduct of Lawyers (Code) when examining plaintiff class action legal fees, reiterate the importance of transparency vis-à-vis clients even in a class action setting, and illustrate why settlement approvals should be separate from and not contingent on class counsel fee approvals, according to class action legal experts.
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.”
After seven years at the helm of Quebec Superior Court, the last two particularly challenging and exhausting, Justice Jacques Fournier has stepped aside and became a supernumerary judge, with the reins being handed to Marie-Anne Paquette, a puisne judge of the Superior Court of Quebec for the district of Montreal.
In a tenure he described as not “not being a calm river” or not without obstacles, former Chief Justice Fournier began his mandate in 2015 dealing with the introduction of a new Quebec Code of Civil Procedure, a major reform that “needed to be assimilated” as it granted judges broader case management powers and bestowed a greater role to the principle of proportionality, followed by the landmark Jordan ruling and a legal battle with the Court of Quebec over monetary thresholds that wound up before the nation’s highest court, culminating with coming to grips with the “very demanding” pandemic.
“The decision (to step down) was very difficult, extremely difficult,” the 71-year old Justice Fournier told me. “I am going to miss it. But after seven years, you also have to know when to leave. At some point, it takes its toll without realizing it. I loved it, but there’s more to life than that.”
Barely days after the controversial and sweeping new language law that overhauls the Charter of the French language was adopted by the National Assembly of Quebec, the groundwork for potential legal challenges was being laid in spite of the Quebec government’s use of the notwithstanding clause to shield it from judicial review.
A Montreal English school board announced shortly after the passage of Bill 96 that it will be contesting its validity, with First Nations possibly following suit as well as business, and even possibly the judiciary, according to legal observers.
“Parts of Bill 96 are extremely vulnerable,” remarked Julius Grey, a Montreal constitutional and human rights lawyer collaborating with other lawyers to challenge the new law.
McGill law professors, hoping to gain greater faculty autonomy while seeking the security of a collective bargaining framework and a collective agreement, are attempting to unionize at the faculty level, a first for professors in the university’s 200-year history.
The Association of McGill Professors of Law (AMPL) petitioned the Quebec Administrative Labour Tribunal to be recognized under the Quebec Labour Code in late November 2021 shortly after the university adopted a controversial COVID-19 vaccination policy, a position that proved to be the “bale of hay that broke the camel’s back,” said Evan Fox-Decent, AMPL’s interim president. A supermajority of the 51 McGill law professors have signed membership cards to allow the AMPL to act as their exclusive bargaining agent. The overwhelming majority of Canadian professors are unionized, with less than a handful not represented by a certified bargaining unit.
“The university is becoming more McGill incorporated than McGill University in recent years,” remarked Fox-Decent, Canada Research Chair in Cosmopolitan Law and Justice. “What really drove the point home to us about how precarious our situation is, was when we were told we were going back to teach in fall, of course we were under a new wave of COVID-19 that was starting up. That was as much as anything what put people on edge and made the majority of the faculty think that we just had to sort of take control over our own house.”
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.”
The federal government will have to overhaul its regulatory approach and guidelines over patented drug pricing after the Quebec Court of Appeal found a couple of provisions to be unconstitutional and outside the scope of federal jurisdiction over patents, according to a legal expert.
The Appeal Court ruling, expected to have a significant impact on the pharmaceutical industry in Canada, upheld the constitutionality of the legislative framework of the Patented Medicines Prices Review Board (PMPRB) and it current regulations. In a unanimous decision, the Appeal found that controlling abusive pricing of medicines resulting from a monopoly conferred by a patent has a logical, real and direct connection with federal jurisdiction over patents and does not constitutionally encroach on provincial jurisdiction.
“During these incidents the offender punched the victim in the knees, hit her on the head and on her ears, pushed her, dragged her on the ground, slapped her, bit her, spat in her face, head-butted her, shook her, pulled her hair and grabbed her by the shoulders while threatening to throw her off a balcony. During one incident, he threw various objects at her. During another, he took a knife and threatened to remove the baby she was carrying in her womb.”
So described Court of Quebec Judge Alexandre Dalmau the horrors that former sports journalist Jonah Keri inflicted on his wife. Repeatedly. He was sentenced to 21 months of imprisonment.
The courts are beginning to take a harder line against domestic abuse. Over the past year Quebec Superior Court has awarded damages to victims of spousal abuse. Ontario Superior Court followed suit in late February 2022 after it recognized a new tort in family violence.
So too is the justice system and Quebec government, a movement that gained much traction over the past year, particularly since the beginning of the year.
Everyone was expecting the Quebec government to appeal the decision that ruled that the Quebec justice minister cannot bar bilingualism prerequisites for judicial candidates.
Failing that, legal experts reckoned the provincial government would change the regulation that prevented the justice minister from having a say on how the judiciary determines its professional and linguistic requirements. Even the judge that ruled on the case said there was nothing to prevent the Quebec government from changing the regulation to ensure the justice minister plays a bigger role in the selection process.
But the Quebec government went much further than anyone anticipated. It is using its legislative muscle “to make the necessary changes to ensure that mastery of a language other than the official language is not a systematic obstacle to accessing the position of judge in Quebec.”