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.”
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.
“It is a question of jurisdiction between the Quebec and Canadian governments, and we are pursuing the relationship with the Aboriginal communities,” said Quebec Minister of Justice Simon Jolin-Barrette, explaining why the provincial government is seeking leave to appeal before the Supreme Court of Canada.
“It is possible to have a partnership with the Aboriginal communities in order to take charge of youth protection, but this must be done within the division of powers that exists in the Constitution,” added Jolin-Barrette.
The architecture of the Canadian Constitution has been dramatically altered, with the emergence of a third level of government, after the Quebec Court of Appeal ruled that Indigenous people possess an existing right of self-government that is protected by section 35 of the Constitution Act, 1982, according to legal experts.
The “bold” decision, a reference case brought by the Attorney General of Québec after it challenged the constitutionality of the federal government’s Indigenous child welfare law, marks the first time a self-government right has been clearly recognized by the courts as a right of all Indigenous peoples in Canada, added aboriginal and constitutional legal experts.
“The Court recognized that Indigenous peoples in Canada have a right to self-government over child and family services recognized and affirmed by section 35 of the Constitution Act, 1982,” said Claire Truesdale, a Vancouver lawyer with JFK Law Corporation who practices Aboriginal, environmental and constitutional law. “This is remarkable.”
The Quebec legal community, aghast and dismayed over a criminal trial that took place in complete secrecy, with no paper trail, is calling for a probe and demanding accountability to deter the “judicial charade” from taking place again.
The trial, which only came to light after the defendant chose to appeal the verdict before the Quebec Court of Appeal, 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.
A new legal landscape governing labour relations may be in the horizon in Quebec following a Court of Appeal decision that found that the provincial Labour Code breached the Canadian and Quebec Charters by prohibiting first-level managers from unionizing.
“It’s a very important decision because it kind of creates a crack in the legislative scheme that we have in Quebec with regards to labour relations,” said Shwan Shaker, a labour and employer senior associate with Borden Ladner Gervais LLP. “It’s kind of opening a breach to allow low level managers to unionize. But it’s important to keep in mind that this is really case-by-case.”
In 1945 a religious corporation acquired from the City of Sherbrooke a piece of land, adjoined to a property it already owned, to provide a resting place for weary nuns, or “religieuses fatiguées.”
It paid $200. But the contract includes a clause by which the City obtains the privilege to repurchase the land at the price sold in the event that the religious outfit decides to resell it.
Les Filles de la Charité du Sacré-Coeur-de-Jésus launched an action to have the right of pre-emption be declared null and void or, in the alternative, that a time limit be set for its lapse.
The Quebec Court of Appeal dismissed the appeal. Heeding guidance by the Supreme Court in Uniprix inc. v. Gestion Gosselin et Bérubé inc., 2017 SCC 43, the Appeal Court reaffirmed that the only perpetual contracts that are invalid as contrary to public policy are those where perpetuity “undermines” fundamental values of society.
“The appellant has, to date, used the land in the manner it intended at the time of purchase and can continue to do so since it is only if it decides to sell it that it will have to allow the respondent to buy it back. It is true that this limits one of the components of her right of ownership, in this case abusus, but this limit does not undermine a fundamental value of society, especially since many other dismemberments of the right of ownership are authorized in Quebec law.”
Insurers are required to collect tax on insurance premiums, and remit it to the provincial government, within a certain allotted time.
When clients sent a cheque or made an electronic payment to pay their premiums before it was due on the effective date of the policy, one insurer accepted the sums as soon they were received but did not yet remit to the tax authorities because the policy was not yet in force.
The Quebec Court of Appeal nixed that practice.
The insurer, as per s. 527 of the Act respecting the Québec sales tax (Act), must in its capacity as agent account for the tax collected in the preceding calendar month at the end of the month, held the Appeal Court in Agence du revenu du Québec c. Assurances générales Desjardins inc., 2022 QCCA 57. Whether or not the premium is due does not change the fact that the insurer has collected the amount of tax on insurance premium paid by the insured and must therefore remit it to the Minister, added the Appeal Court.
“There is no doubt that, where the premium is paid on the day the contract comes into force, the tax on insurance premiums collected must be remitted to the Minister in accordance with the terms of section 527 of the Act.
“The issue at stake here is that the customer voluntarily fulfills his obligation, the payment of the amount corresponding to the premium, which includes the tax on insurance premiums, before the arrival of the suspensive term agreed between the parties and that the (insurer) collect this amount although they are technically not yet entitled to it.”
On top of that, under article 2398 Civil Code, this contract is formed as soon as the application is accepted by the insurer, even if it takes effect at a later date, added the Appeal Court. The enforceability of the reciprocal obligations of the parties is then simply suspended until the date fixed, concluded the Appeal Court.
The Quebec Court of Appeal overturned parts of a lower court ruling that struck down certain provisions of the provincial Tobacco Control Act and upheld the constitutionality and right of the province to apply its tough and comprehensive tobacco legislation on e-cigarettes, including robust restrictions on vaping advertising. Continue reading “Quebec’s vaping legislation upheld by Appeal Court”
A proposed climate change class action suit by a Montreal environment group against the federal government was denied certification by the Quebec Court of Appeal after it held that it was not justiciable, the latest in a series of climate change litigation cases that have been thwarted by the justiciability doctrine, prompting questions over the successful viability of using broadly framed Charter arguments in climate justice suits in Canada.
Less than a year after delivering a stinging rebuke to the Quebec government over recurring systemic unmitigated delays in securing trial transcripts that disproportionately affect English-speaking appellants, the Quebec Court of Appeal served a timely reminder over the importance of linguistic rights after it ordered a new trial for a convicted drug trafficker whose right to be tried in English was violated.