Law in Quebec

News about Quebec legal developments

Rulings

  • McGill law professors unionized

    Almost a year to the day when McGill law professors formally launched proceedings to become recognized as an exclusive bargaining unit for faculty members, the longer than expected legal battle culminated with an unequivocal victory after the Quebec labour board issued granted certification, a first for professors in the university’s 200-year history.

    The “slam dunk” decision by the Quebec Administrative Labour Tribunal sets the stage for changes to the labour landscape at McGill, with the new union intending to flex its muscles over a growing inclination towards centralization at the university, safeguard the collegial governance at the faculty level and negotiate a collective agreement that will provide better working conditions and security, according to leaders of the Association of McGill Law Professors (AMPL).

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  • Parents appeal decision to remove allowing hospital to remove child’s breathing tube

    The parents of a five-year old child who has been in a coma for the past six months will appeal a Quebec Superior Court decision allowing a Montreal children’s hospital to permanently remove the breathing apparatus in a heart-breaking case that is in line with jurisprudence, according to health law experts.

    The decision by Quebec Superior Court Justice Bernard Jolin, commended for being sensitive, solicitous and thoughtful, reaffirms that the best interests of the child must prevail, underlines that courts do not “strip” parents of their parental authority when going against their wishes but rather “corrects their manifestly erroneous decision,” highlights that the courts will take into account suffering as an important consideration, and illustrates the strain that may arise between faith and medical evidence.

    “It’s not a judgment that breaks new ground in law but I am pleasantly surprised by the tact with which the judge goes about it,” said Montreal lawyer François Dupin, Ad.E, formerly with the Public Curator of Quebec. “He tries to explain the ins and outs of his grave decision. That’s important because if he was just concerned about the legal thing, he could have asked for the provisional execution of the judgment. But he didn’t do that. He wanted to give the parents a chance to appeal.” In Quebec, litigants challenging forced medical care have five days to ask the Quebec Court of Appeal to review the decision.

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  • Landmark ruling curbs arbitrary police stops in racial profiling case

    An “obsolete” common law rule framed by a 1990 Supreme Court of Canada ruling and codified by the Quebec Highway Safety Code that allowed police to randomly conduct motor vehicle stops without cause was set aside by a landmark Quebec Superior Court decision that held it was in violation of the Canadian Charter and a “vector, even a safe harbour” for racial profiling against the Black community.

    In a decision hailed as historic as it recognizes that racial profiling is a reality that “weighs heavily” on Black communities, particularly Black drivers, Quebec Superior Court Justice Michel Yergeau held that the arbitrary power police have to carry out roadside stops without grounds is in breach of s. 7, 9 and notably 15.1 of the Charter, ostensibly the first time that s. 15 has been used to invalidate or declare inoperative a criminal provision, according to legal experts.

    “We’re not there yet but potentially this decision will have an impact everywhere in Canada,” noted Karine Joizil, a Montreal litigator with McCarthy Tétrault who represented the Canadian Association of Black Lawyers, intervenors in the case. “What struck me is the clarity of the decision, and what this judgment is not about. It’s not a judgement against roadblocks, against police work, or on the values of the police. It’s really a judgment about whether s. 636 (of the Quebec Highway Safety Code) is well drafted or has the effect of creating a prejudicial effect for a category of the population that is otherwise protected by rights guaranteed under the Charter. It’s a wise and timely decision.”

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  • Quebec Court reaffirms authority of Aboriginal communities in youth protection

    First Nations that have implemented youth protection legislation under the auspices of the federal Bill C-92 have jurisdiction over youth welfare regardless of place of residence held a provincial court judge in a decision viewed by legal experts as a precedent.

    The long-awaited decision, widely regarded by legal pundits as an important stepping stone towards the right to self-government for First Nations, reaffirms the generic right to self-determination, confirms the authority of Aboriginal communities to withdraw children from the care of Quebec youth protection authorities, and highlights the importance of negotiating in good faith.

    “This is the first judgment in such a matter, and we hope it will create a precedent,” said Frédéric Boily, a lawyer with Simard Boivin Lemieux in Dobeau-Mistassini in the Saguenay-Lac-Saint Jean region who represented the the Conseil des Atikamekw d’Opitciwan, an intervener in the case. “So another Aboriginal community that wanted to follow in our client’s footsteps would indeed have good moorings on which to build.”

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  • New guidance provided Quebec Appeal Court over forced hospitalizations

    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.”

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  • Quebec Appeal Court increases sentence for sexually assaulting a child

    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.”

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  • Man acquitted of sexual assault because professional secrecy was breached

    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.”

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  • New trial ordered by Quebec Appeal Court for man convicted of sexual interference on a child

    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.

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  • Plaintiff class action legal fees under the microscope

    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.

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  • Legal experts hope first remediation agreement under Criminal Code will lead to more

    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.”

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  • Some provisions of federal patented drug pricing regime unconstitutional

    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.

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  • Ordered to pay $250,000 in damages for committing repeated sexual acts against a teen

    A man who committed repeated sexual acts against a teenage girl over a two-year period was ordered to pay more than $250,000 in damages by Quebec Superior Court.

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  • Montreal car dealer ordered to pay damages for selling fake vintage

    The 1969 ZL1 Camaro is a legendary muscle car. It is a beast of a car, raw, powerful and quick, and was actually designed for drag racing, capable of exceeding 500 horsepower. Only 69 were made, and it’s worth a fortune, with collectors paying as much as US$1 million.

    Brad Kyle thought he got his hand on one of these rare vintage automobiles, number 48 of 69. In February 2014 the head of Town & Country Chrysler Ltd., a new and used car dealer that occasionally sells exotic sports cars, purchased the car for $395,000 (plus tax) from Rolls-Royce Motor Cars Limité, a Montreal car dealership specializing in the sale of exotic and luxury cars.

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  • Canadian Constitution architecture dramatically altered following Quebec Appeal Court decision, according to experts

    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.”

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  • Quebec legal community dismayed by secret criminal trial

    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.

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Law in Quebec
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