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.
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.
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.
A prospective police officer who alleged that the Quebec provincial police force withdrew its pre-employment offer because he has Tourette Syndrome was rebuffed by the Quebec Court of Appeal after it found instead that he was not forthright and did not act in good faith during the hiring process.
In a decision in line with prior jurisprudence, the Quebec Appeal Court sheds new guidance that advises employers to exercise caution when drafting questionnaires, particularly medical queries, even in cases when pre-employment offers have been made, according to employment and legal experts. The unanimous per curium ruling acknowledges that it is a difficult balance to achieve between asking overly broad questions that may be deemed to be discriminatory under the Quebec Charter of human rights and freedoms and drafting “too specific” questions that may deprive employers of relevant and necessary information.
“It provides some guidelines to employers,” remarked Finn Makela, a law professor at the Université de Sherbrooke where he teaches labour and employment law. “One, it’s not an open bar. Employers can’t just ask super vague questions. And second, the decision also confirms the jurisprudence that the employer needs to justify in their specific circumstances why questions are related to job functions. So that gives some guidance. But, as the Cour of Appeal says, it’s not always easy.”
A sperm donor was granted access rights by the Quebec Court of Appeal after he was deemed as a “significant” third party whose presence “could probably benefit” the child in a decision that has perplexed some family law experts.
The Appeal Court decision has ostensibly watered down the notion of significant third parties, leaves open the question whether a similar finding would have been reached if the third party did not have a biological connection with the child, and serves as a timely reminder that parents involved in a “parental project,” or assisted procreation, should carefully consider whether they want to hand third parties access rights, according to family law experts.
“It’s an assisted reproduction project that deviated into something else, and this is a phenomenon that we are now seeing and will be seeing more often,” remarked Michel Tétrault, a leading family law expert and author of a series of tomes on Quebec family law. “From the time that these ladies allowed access to take place, a form of status quo was created. That’s a message that needs to be sent out: the moment you allow a third party who is supposed to be in no way involved in the parental project to become involved, it opens a door.”
A voluntary disclosure of a report protected by privilege to assist police in a criminal investigation does not quash the privileges attached to the document held the Quebec Court of Appeal in overturning a lower court decision, the latest indication that case law surrounding privilege continues to evolve, according to a legal expert.
In a decision that reviews and revisits Quebec case law surrounding privilege, the Quebec Appeal Court held that it would be contrary to public policy for the disclosure of privileged documents in criminal proceedings to “somehow” have the effect removing privileges attached to those documents. The waiver of lawyer-client privilege must be clear and unequivocal, added the Appeal Court in Centre universitaire de santé McGill c. Lemay, 2022 QCCA 1394.
Disclosure to a third party information protected by solicitor-client privilege in principle entails waiver of the privilege but the Quebec Court of Appeal emphasizes that context must be considered, which must take into account all the circumstances in the case, noted Montreal litigator with Lavery de Billy LLP, who recently published an article entitled “Professional secrecy and testimonial immunity” for the legal encyclopedia JurisClasseur Québec.
An elderly single woman spearheaded a significant advancement for the rights of people who are ordered to be hospitalized after the Quebec Court of Appeal considerably broadened the obligations of the courts and healthcare institutions to appoint in most cases an ex officio lawyer to safeguard their rights and interests.
The decision, hailed by mental health legal experts as a step in the right direction, all but compels trial judges to appoint ex officio lawyers to represent the interests of individuals deemed to be “incapable” by the court, underlines that hospitals must ensure that such individuals have the opportunity to obtain counsel, and emphasizes that incapable people too have rights that must be respected, according to mental health legal experts.
“The Court of Appeal calls on the courts of first instance to take these matters seriously and to give due weight to judicial debates, as it should, with the contribution of lawyers in most cases,” noted Emmanuelle Bernheim, University of Ottawa law professor and Canada Research Chair in Mental Health and Access to Justice. “The Appeal Court also stresses that the rights (of incapable individuals) are important and they must be debated, and the role of the court is not just to endorse measures taken by others who are doctors. It doesn’t matter how unfit people are. Unfitness does not mean that you can intervene and infringe on someone’s right to integrity and freedom, and that deserves a judicial debate.”
The chief justices of four courts, addressing hundreds of judges and lawyers in person at the Montreal courthouse for the first time since the onset of the pandemic, broadly outlined their priorities and concerns at the Quebec’s opening of the courts ceremony, from the promise and pitfalls of technology to modernize the justice system to the debilitating impact of chronic underfinancing to the erosion of decorum in the courtroom and the pernicious effects of disparaging social media comments.
The chief justices, faced with no choice but to implement technological innovations at breakneck speed after COVID-19 struck in March 2020 in order to arrest the temporary paralysis of the justice system, now warn that while technological modernization of courts is inevitable and necessary, it is not the panacea that will resolve the host of challenges confronting the justice system.
“The digitization of the courts will not solve all the problems we face, and it may even raise new ones, but it is a step in the right direction,” remarked Quebec Court of Appeal Chief Justice Manon Savard who underlined that the appellate court is working “intensely” with the provincial Ministry of Justice to to establish a digital Court of Appeal within the next two years.
“This movement is irreversible. Society as a whole is increasingly turning to digital processes, in all sectors of activity. Courts must keep pace. In order to maintain or even improve the efficiency of courts in a post-pandemic context, the implementation of a reform focused on the use of technology will certainly be part of the solution,” said Chief Justice Savard in the summit entitled “Building the Future.”
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.”
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.
“My first reaction is to deplore a reflex on the part of some judges to bow to public pressure in matters of sexual assault, especially when the complainant is a young person,” remarked Jean-Claude Hébert, a prominent Montreal criminal lawyer. “The Court of Appeal, firmly based on the current state of the law, correctly criticizes the trial judge for having erred in the exercise of her discretion regarding the right to a fair trial, in which case an accused person must be allowed to make a full answer and defence.”
