Impact of lengthy imprisonment on offender family’s is a mitigating factor

In a case that provided the Quebec Court of Appeal with an “opportunity to address the extent to which the detrimental impact of a lengthy term of imprisonment on the offender’s family can operate as a mitigating factor in the sentencing process,” the appellate court dismissed an appeal by the Crown over a sentence handed to a man found guilty of two counts of sexual interference on his 12-year old daughter and her friend.

Keen on dispelling the Crown’s contention that the sentence of 90 days’ imprisonment sentence to be served intermittently was lenient and demonstrably unfit, the Appeal Court reiterated that sentencing ranges are only guidelines, reaffirmed that the objectives of denunciation and deterrence should be given relative precedence, and underlined that the detrimental impact of a lengthy term of imprisonment on the offender’s family can be considered as a mitigating factorin exceptional cases, affirm legal experts.

“It’s an excellent decision,” remarked Hugues Parent, a criminal law professor at the Université de Montréal and author of “Treatise on Criminal Law” which is cited in the decision. “Taking into account the impact of a person’s incarceration on the family can only be done when the sentence respects the principles of proportionality. It is certainly not a predominant factor in all cases, that’s for sure. It is only considered in exceptional cases where the person has a favourable profile.”

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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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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 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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Man not criminally responsible because of sexsomnia

A 46-year old Montrealer accused of sexually assaulting a friend was found not criminally responsible for his actions after Court of Quebec Judge André Perreault found that he suffered from the rare disorder of sexsomnia, a defence that is seldom successful.

The episode of sexual somnambulism constituted an “automatism,” or an act committed during a state of unconsciousness or grossly impaired consciousness, but “with mental disorder, in the legal sense of the term,” held Judge Perreault, whose verdict neither acquitted nor convicted Yannick Giguère. 

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Appeal Court underlines employers do not have a free pass to ask questions to potential employees

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.”

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Five years later, and still waiting for trial on merits

Telling remarks by Quebec Superior Court Justice Michel Pinsonnault issued during the Christmas holidays that reveals the state of Quebec’s justice system, an issue I have written about repeatedly over the years.

In Sprigg c. Cucuzzella, 2022 QCCS 4774, Justice Pinsonnault remarked:

[2]  As incredible as it may seem, this oppression remedy action instituted more than five years ago in November 2017 has still not been scheduled for trial on the merits.

[66 Five years having elapsed since the filing of the Oppression Remedy Demand, the irreconcilable business relationship between the parties herein must come to a much-needed resolution. Without casting any blame on anyone, given the stance adopted by each side, their commercial dispute can only be resolved with a judgment on the merits of each party’s contentions.

[70 The Court will not allow one party to take undue advantage of the other party in this judicial saga without due process.

Obtaining punitive damages from police remains “high bar”

The challenge for plaintiffs to obtain punitive damages against police was plainly illustrated yet again according to legal experts after four victims of the 2012 election shooting in a Montreal downtown venue that targeted then-premier-elect Pauline Marois of the Parti Québécois won a partial victory following a court decision that awarded them nearly $300,000 in pecuniary and non-pecuniary damages.

Quebec Superior Court Justice Philippe Bélanger found that the provincial and Montreal police forces committed a fault of omission and failed to ensure to ensure the safety of the public after they carried out a flawed security plan that allowed a gunman to kill lighting technician Denis Blanchette and seriously injure a second technician who was struck by the same bullet. Justice Bélanger ordered damages to be paid to Blanchette’s colleagues who survived the shooting after they successfully argued that they suffered from post-traumatic stress and other psychological damage following the shooting.

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Sperm donor granted visitation rights

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.”

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Disclosing documents to police does not necessarily entail a waiver of privilege, holds Quebec Appeal Court

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.

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