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New Quebec family bill raises troubling issues

A controversial Quebec bill that would amend the Civil Code and family law has been lauded for creating a legal framework for the use of surrogate mothers but has been slammed for scaling back trans rights and possibly opening the door to a divisive debate over the rights of a foetus.

Bill 2, the first reform of Quebec’s family law since the 1980s, is regarded as a disappointment, and in some cases a step back, by family law experts who had hoped long-awaited changes to the status of common law relationships would have been introduced. Instead, legislative changes around conjugality are expected to follow in the months to come.

“This can be viewed as a conservative bill,” noted Michel Tétrault, a family law expert who has written several books on Quebec’s family law regime. “This is a bill that changes little. But in some cases it clearly goes backwards. With trans rights it does not even maintain the status quo. Instead it is a clear step backwards. With assisted procreation, the way the bill is written is neither clear nor obvious, and represents kind of a step backwards because while there is a lack of regulations, there is a body of jurisprudence beginning to issue guidance. And as for giving juridical personality to a child considered as conceived but not yet born, the government is going to have to do some explaining.”

Under Bill 2, surrogacy contracts would gain legal recognition in the Civil Code. At present, it is illegal to pay a woman to carry a child. It is not if no payment is made but even then contracts signed between the surrogate mother and the parents who intend to raise the child are not legally binding under the Civil Code. Under the new family law reform, a notarized surrogacy agreement or a notarial act en minute would have to be concluded before the onset of pregnancy. It would also require the birth mother to consent to give up her bond of filiation with the child after the child is born, “being deemed never to have existed,” and that the bond of filiation “is established” for the intended parents. The surrogate mother, who would have to be at least 21, could change her mind and opt to terminate the contract, without legal consequences. The proposed legislation also would allow for the reimbursement or payment of expenses or the compensation for loss of income.

“I actually have concerns over whether it’s the place of the Civil Code to have quite such a detailed regime about surrogacy,” said Robert Leckey, a family law expert and dean of McGill University’s Faculty of Law. “This is very regulatory. But the big news is that there’s a legislatively conceived path for surrogacy agreements to lead to the parent’s filiation on the part of the intending parents without it sort of being done in the shadows of the adoption rules. All that is a lot better than the kind of regulatory void we’ve dealing with.”

See also

Surrogacy agreements illegal in Quebec

Besides following in the footsteps of the federal Divorce Act and explicitly stipulating that family violence is an element that must be considered by the courts when determining the custody of children, the bill also acknowledges that a child may have some interest in maintaining relationships with step-parents. But Leckey points out that the new legislative reform does not contemplate any possible obligation of support between the former step-parent and the child, as is the case under most provinces and the federal Divorce Act in cases where the step-parent treated the child as a member of their own family. “It’s ironic that you would acknowledge the relationship, but not back it up with the potential obligation of support,” remarked Leckey.

Changes have also been made to the assisted procreation regime, making it a clearer and a more transparent process but it does not as is the case in other provinces require the existence of a written agreement. Parents also have under the new bill to inform their child they were born involving the contribution of a third person, but is silent on what happens if the parent fails to tell the child. “Nobody uses assisted reproduction in a kind of spontaneous way without thinking about it so why wouldn’t you like them to write down their intentions?” asked rhetorically Leckey. “It feels like a missed opportunity not to require that the intending parents and the donor put in writing what their plans are.”

The bill also includes the presumption of parenthood for common-law couples, a development that Tétrault is uncertain about as it could lead to uncomfortable situations. “What happens in cases where the mother says her common-law spouse is the father, and he’s not,” remarked Tétrault. “You cannot expect hospitals to have the responsibility of ensuring that people are really in common-law relationships. This presumption will lead to questions.”

So too will the inclusion of the new right to know one’s origins “involving the contribution of a third person” into the Quebec Charter of human rights and freedoms. Under Bill 2, people who were adopted can learn, “in certain circumstances,” of the name of their birth parent, the right to obtain a copy of their original act of birth, copies of judgments around their adoption as well as the name of their grandparents and siblings of origin – unless the parent they expressly registered a contact veto.

“There are complicated interests involved in trying to think through these things,” said Leckey. “There’s a broader kind of global movement towards thinking people need to know these things so I guess it’s kind of line with the times.”

But the biggest questions around Bill 2 deal with trans rights, and it now appears that the Quebec government may back down. Under current regulations, in effect since 2015, transgender people in Quebec are allowed to change their designation on official provincial identification documents such as health-care cards and drivers’ licenses by filling out a sworn statement that their gender designation corresponds with their identity. But under the new reform, people can only request a sex change on their birth certificate after undergoing gender-affirming surgery – a requirement that Quebec Minister of Justice Simon Jolin-Barrette said was in response to a Quebec Superior Court ruling rendered early this year. In Center for Gender Advocacy c. Attorney General of Quebec 2021 QCCS 191, Quebec Superior Court Justice affirmed that having your identity acknowledged and recognized by the State is a core aspect of the right to equality and the right to dignity. The judgment, lauded as the most sweeping in its scope in Canada involving the constitutional rights of trans people, found that six provisions of the Civil Code violated rights guaranteed by the Canadian Charter of Rights and the Quebec Charter of Human Rights and Freedoms.

Moreover under Bill 2, people whose gender identity does not match their sex assigned at birth, such as trans people, will have the “opportunity” to obtain a “gender identity” designation in their legal documents distinct from their “sex,” noted Michael Lubetsky, a Toronto lawyer with Davies Ward Phillips & Vineberg LLP. As a result, a cisgendered person’s birth certificate will feature a “sex” field, while a trans person’s will instead have a “gender identity” field until and unless they undergo surgery to modify their sex organs. In other words, every trans person who declines to undergo surgical sterilization will be immediately identifiable as “trans” on their identification documents, said Lubetsky.

“By re-introducing mandatory sterilization requirements and providing that trans and intersex people will be systematically identified as such on their identification documents, Bill 2 has provoked horror and despair among trans and intersex people and their allies,” noted Lubetsky, who represented Egale Human Rights Trust, an intervener in the case Center for Gender Advocacy case. “Under the guise of complying with the Superior Court’s decision in the CGA case, Bill 2 completely upends it. Bill 2 has apparently been proposed without any serious thought as to how it would actually affect the day-to-day lives of trans and intersex people and their families.”

Jolin-Barrette appears to have heard the outcry, and said that he is planning to “remove” the controversial amendments, according to the French-language newspaper Le Devoir.

See also

Landmark ruling for trans rights

More controversy is likely to surface over a new amendment in Bill 2 that would amend Article 34.1 of the Civil Code by granting personality rights to a child not yet born. Under the new provision, “For a child to be considered as conceived but not yet born for the purposes of the law, the mother or the person who is to give birth must be pregnant with the child.”

Family law experts are concerned that it will lead to the divisive legal debates over abortion. “It’s not fully obvious to me what they’re doing with 34.1 as an addition,” said Leckey. “I was surprised to see that. I’m still trying to process what it is they are doing here.”

Tétrault too wonders. He points out that the Supreme Court of Canada held in Tremblay v. Daigle, [1989] 2 S.C.R. 530, that “unless the foetus is born alive and viable it will not be granted the rights recognized therein.”

“The Quebec government has opened a door,” said Tétrault. “Obviously it is not a recognition of the rights of a foetus, but it opens a door. They are giving a grip to people who say that before birth they have rights, that they have personality rights. They are giving personality rights to someone who according to the SCC is not yet a person. That is a problem. Perhaps it will lead to nothing, but it opens the door to legal challenges and will create legal uncertainty. And then what are we going to do.”

This story was originally published in The Lawyer’s Daily.

Quebec Court of Appeal sets clear guidelines over use of screening devices for breath samples

Police officers who demand drivers to provide breath samples must have an approved screening device with them to be able to immediately conduct the test, ruled a full bench of the Quebec Court of Appeal, upending its own previous guidance that allowed delays depending on the circumstances.

The long-awaited ruling sets clear obligations for police officers, falls in line with Supreme Court of Canada jurisprudence that asserts that delays cannot be justified for practical reasons given that the right to counsel is temporarily suspended, and is widely expected to have an sizeable impact on impending cases, according to criminal lawyers.

“Over the years some rulings have stretched the term immediately or forthwith to mean something else than immediately,” noted Jean-Philippe Marcoux, a Montreal criminal lawyer with Marcoux Elayoubi Raymond LLP who specializes in impaired driving cases. “But this ruling is very clear on the duties police face when using approved screening devices (ASD), and it will have an impact on the cases now in the system. I have a number of cases before the courts where either police did not have an ASD with them or there was a delay before the ASD arrived at the scene.”

Pascal Breault was arrested on April 2017 for refusing to provide a breath sample after he was suspected of driving an all-terrain vehicle (ATV) while drunk. A police officer, who smelled a strong odour of alcohol and noted Breault’s eyes were bloodshot, ordered him to provide a breath sample using an ASD even though he did not yet have the device in his possession. The police officer radioed for one but it did not arrive 20 minutes after the request. While waiting, Breault asked to speak to his lawyer but was refused as he was not yet under arrest at the time. The request for an ASD was ultimately cancelled because Breault refused three times to provide a breath sample, each time stating that he had not been driving the ATV. Breault was charged with committing an offence under ss. 254(5) and 255(1) of the Criminal Code but he questioned the validity of the demand in light of the absence of the ASD, and challenged the immediacy of the demand given the waiting period before the arrival of the device.

But Quebec City Municipal Court Judge Patrice Simard, citing the Quebec Court of Appeal’s decisions in Petit c. R., 2005 QCCA 687 and R. c. Piazza, 2018 QCCA 948, found that a waiting period of up to 15 minutes can be considered valid, depending on the circumstances. Judge Simard also relied on R. Degiorgio, 2011 ONCA 527, to assert that the validity of the demand does not depend in any way on the presence of an ASD at the scene at the time the police officer makes the demand. Quebec Superior Justice Raymond Pronovost dismissed Breault’s appeal.

See also

Quebec rulings declare rules on impaired driving unconstitutional

The Quebec Court of Appeal however quashed the Superior Court and the Municipal Court decisions,  ordered an acquittal, and declared that its 2005 Petit ruling no longer has precedential value. In Piazza the Quebec appeal court applied Petit because of the stare decisis rule, leaving the possibility of overturning it to a panel of five judges, which is what took place in the case involving Breault.

At issue was the interpretation of the term “forthwith.” Under s. 254 (2)(b) of the Criminal Code, before it was amended, police officers were permitted to make a demand to provide “forthwith” a breath sample using an ASD. Unlike its previous decision in Petit, the five-member panel of the Quebec Court of Appeal held that “forthwith” has a “well-known meaning,” and it means immediately, unless there are unusual circumstances. The appeal court held that unusual circumstances “directly related” to the operation of the device or the reliability of the test result can warrant a short delay.

“But the mere need to wait for the arrival of an ASD must not be considered to be such a circumstance,” said Appeal Court Justice François Doyon in Breault c. R., 2021 QCCA 505. “For the demand to be valid, the police officer must therefore be in a position to demand that the accused provide a breath sample forthwith, before the accused even has the time, realistically speaking, to contact counsel, which means that the police officer must have immediate access to an ASD.”

“It’s interesting that the appeal court objectivizes the criteria,” remarked Félix-Antoine Doyon, a Quebec City criminal lawyer who successfully plead the case. “That is, an order is immediate or it is not. An order is valid or it is not. That clarifies the state of law and objectivizes the applicable law.”

The appeal court also pointed out that a driver too has an obligation to provide “forthwith” a breath sample after the demand has been made. “To comply with the demand, the appellant had to provide a breath sample forthwith,” underlined Justice Doyon. “How could he do so in the absence of an ASD? This was obviously impossible. How he could he commit an offense by refusing to do something that he could not do? This was just as impossible.”

Parliament could have departed from the interpretation of forthwith when it introduced amendments under Bill C-46, which came into force in December 2018, to the Criminal Code. It could have used wording found in other provisions such as “soon as feasible” or “as soon as reasonably possible,” noted Justice Doyon. But it did not, he added.

Moreover, police officers do have other resources that they can use in the absence of an ASD. They can resort to new provisions of ss. 320.27 and 320.28 of the Criminal Code following the passage of Bill C-46, and can use physical coordination tests.

“Following the adoption of Bill C-46, police have more powers,” said Doyon. “That is, they can demand a person who is driving to submit to a mandatory breath test without reasonable grounds but as long as they have an ASD with them. By strictly interpreting the term forthwith, it is a win-win situation for both police and litigants. It ensures the respect of constitutional rights and ensures that impaired drivers are detected.”

But the simplest solution would be for all police cruisers to be equipped with an ASD, said Andrew Murie, CEO of Mothers Against Drunk Driving (MADD Canada). “Most police forces I know have already dealt with the issue by simply having an ASD in all of their vehicles,” said Murie. “I think the police could correct the problem immediately. The device is very affordable. Just like they would have handcuffs and bullet proof vests as part of their equipment, they should also have an ASD in their car.”

This story was originally published in The Lawyer’s Daily.

Expert group recommends salary hike for provincially appointed judges

Barely two weeks after the Quebec Justice Minister and the Chief Justice of the Court of Quebec publicly clashed over competing visions on how to deal with conjugal and sexual violence, a judicial compensation committee released a report recommending sizeable salary increases for the provincial judiciary, laying the groundwork for even further friction between the executive and the judiciary.

A five-member blue-ribbon panel (pdf) of legal and financial experts recommended boosting the renumeration of Court of Quebec judges from the current $255,000 to $310,000 by July 2022, which would make them the third best paid provincially appointed judges, behind Ontario and Saskatchewan. The independent committee would have recommended a more significant increase “had it not been for the uncertainty created by the pandemic” on Quebec’ economy and public finances.

But given past history it is unlikely the Quebec government will give the green light to the salary increases. There have been seven judicial compensation committees since 1998, and the government has contested its recommendations in all but two. In almost every case, judges have had to launch legal proceedings to compel the provincial government to adhere to recommendations made by the independent committee.

The fractious relations between the two branches of government will not help matters either, believes Martine Valois, a law professor at the Université de Montreal who wrote a book on judicial independence. Earlier this year, Quebec Justice Minister Simon Jolin-Barrette and Court of Quebec Chief Justice Lucie Rondeau were at odds over the need for bilingual judges in the Greater Montreal region. The justice minister refused to require bilingualism in the selection of a new Court of Quebec judge in a Montreal borough, in spite of a longstanding tradition of naming bilingual judges in the Greater Montreal area. More recently still, the pair have sparred over the need for a “specialized” tribunal that would take a different approach to dealing with victims of domestic and sexual violence by moving away from the traditional criminal justice framework, something that Chief Justice Rondeau wants no part of.

“If we look at the way the government behaves towards the judiciary, they will use the pandemic as a pretext to not increase the salaries of provincially appointed judges as recommended by the independent committee,” noted Martine Valois, a law professor at the Université de Montreal who wrote a book on judicial independence. “That would be unfortunate because Quebec judges should not be paid less than their colleagues in other provinces.”

See also

Chief Justice of Court of Quebec will establish division to deal with conjugal and sexual complaints

The independent committee, headed by arbitrator and lawyer Pierre Laplante, recommended a 21.8 per cent salary increase over a four-year period from July 2019 to July 2022 for Court of Quebec judges, far more than the 9.3 per cent increase proposed by the provincial government but less than the 42 per cent sought by the provincial judiciary which would have given them parity with Superior Court judges who will earn $368,220 in 2022.

Established under the Quebec Courts of Justice Act (Act), the panel examines every three years issues such as remuneration, pension packages and benefits of provincially-appointed judges. Under Article 246.42 of the Act, the independent committee must take into account ten factors, ranging from the “particularities” of the judges’ functions to the “need” to offer judges “adequate” remuneration to the cost of living index and the economic situation prevailing in Quebec to the need to attract “outstanding” candidates.

The committee is also expected to examine remuneration paid to other judges exercising a similar jurisdiction in Canada. In Ontario, the remuneration of provincial court judges is aligned with the salaries of federally-appointed Superior Court justices while in Saskatchewan it is pegged at 95 per cent. The Quebec government argued that remuneration of Court of Quebec judges should be similar to other provincial court judges while Court of Quebec judges asserted that their salaries should be on par with Superior Court judges.

The Laplante committee, like others before it, found that the Court of Quebec is without equal in the rest of Canada, with a jurisdiction more akin to a Superior Court than any other provincial court. More than 85 per cent of court cases in the province land before the Court of Quebec’s 308 judges. It is a court of first instance that has jurisdiction in civil, criminal and penal matters as well as in matters relating to youth. It also hears provincial tax matters, has jurisdiction in other areas such as electoral law, and has appellate jurisdiction in cases dealing with expropriation, property assessment and protection of agricultural land.

“It is not true, as the Quebec government asserts, that the Court of Quebec does not have a jurisdiction to review decisions of administrative tribunals in Quebec,” pointed out Valois. “The Code of Civil Procedure states that these rights of appeal, whether by permission or by right, must be exercised before the Court of Quebec before going to Superior Court. So their argument does not hold water.”

The Laplante committee concluded that since the “competence of Court of Quebec judges is unique in Canada,” their remuneration should be aligned with Superior Court judges. Its recommendation to increase their salaries by 3.3 per cent for July 2019, followed by annual increases of five per cent until 2022, represents 84 per cent of the salary rate of Superior Court justices. Were it not for the pandemic and the impact it has had on the Quebec economy and public finances, the Laplante committee “would not have hesitated” to recommend that the total remuneration of Court of Quebec judges reach 88 per cent of Superior Court justices.

According to statistics compiled by the Conférence des juges de la Cour du Québec, the body that represents Court of Quebec judges, of the 1,172 provincially appointed judges in Canada, of which 306 are Court of Québec judges judges, 808 judges earn more than the judges of the Court of Québec while only 58 earn less. In fact, the total compensation of Court of Quebec judges lags behind that of Ontario judges by more than $84,000. “There is no justification for such a gap,” said the Laplante committee in its 157-page report.

See also

Committee recommends a modest salary increase for Quebec judges

Lower salaries have led to dire consequences, added the Laplante Committee. It is becoming increasingly difficult to attract candidates to sit on the provincial bench, with growing numbers far more interested in a federal nomination.

The Laplante committee also recommended increasing the remuneration of municipal court judges for the cities of Quebec, Laval and Montreal from $217,000 in 2018 to $310,000 by July 2022.

The Quebec government said it is now in in the midst of “analyzing” the report. Counsel for the Court of Quebec judges did not respond to calls. Counsel for the municipal court judges said his clients would not issue comments as “there is much work still to be done.”

This story was originally published in The Lawyer’s Daily.

Quebec Appeal Court provides guidance to notaries over duty to inform

Quebec notaries can now heave a huge sigh of relief.

Nearly two years ago, Quebec Superior Court found that a notary had committed a professional fault for failing to inform the testatrix of the foreseeable legal consequences arising from a will.

Justice Marc St-Pierre, alluding to Article 16 of the Quebec Code of Ethics of Notaries (Code), which provides that a notary must inform parties of “normally foreseeable legal consequences,” held that it was “clear” that (the notary) has not fulfilled this obligation.”

Justice St-Pierre added, in Succession de Caron c. Malenfant, 2019 QCCS 5440:

“In fact, even if the Code of Ethics of Notaries specifically provided for tax consequences as part of their duty to advise, and even if (the notary) did not have the mandate to prepare a tax plan, as his attorney pointed out, the Court is of the opinion that he could have at least warned his client that it would be her husband who would pay the tax on the income properties bequeathed to his consanguineous family.”

The notary was held partly liable for harm suffered, and was ordered to pay more than $250,000 in damages and over $50,000 in extrajudicial fees.

See also

Quebec notaries can sign documents remotely during pandemic

The judgment was appealed. The notary, supported by the Liability Insurance Fund of Quebec Notaries, argued that he warned the deceased of the tax consequences of his death on the income properties and that there is no proof that the deceased would have changed his will if he had not done so.

The Quebec Court of Appeal overturned the ruling.

In a succinct ten-page decision the three-member panel of judges found that a notary’s liability may be incurred when he commits a fault in the exercise of his professional duties, which includes the duty to inform the parties to an act or agreement. That is a duty plainly outlined by Article 16 of the Code, added the Appeal Court in Succession de Caron c. Lemieux, 2021 QCCA 1676.

But the duty to provide information must be “assessed in the particular context in which the notary’s services are rendered.” It also varies according to the knowledge of the parties and their relationship with the notary, pointed out the Appeal Court.

In this case the Appeal Court found that the trial judge committed a manifest and decisive error as he “wrongly imputes to the notary a duty that was not his responsibility.” The notary did not have a mandate to advise his client on the tax impact of the legacies by particular title, found the Appeal Court.

Although there may be circumstances in which such a mandate could be implied, this was not the case, added the appellate court.

At the time the will was written, the client was on her deathbed and the notary was called to the hospital to put the client’s last wishes in a notarized will. They did discuss each provision of the will, including a provision that stated that the duties and taxes payable due to her death would be paid by the succession. But the notary was not asked to provide an opinion on the tax implications of bequests and was not given any information to do so, held the Appeal Court.

The Notary had no obligation to provide the client with information regarding the tax treatment of the immovables, concluded the Appeal Court. “Nor did he have any general obligation in this regard.”

Quebec enacts new corporate transparency framework

A new corporate transparency law recently enacted by the Quebec government will compel all private corporations and partnerships, regardless of where it is registered or incorporated, who conduct business in the province to disclose the identity and some information of the beneficial owners of their shares in a publicly accessible database, a requirement that goes further than similar legislation passed by the federal government and other provinces.

Bill 78, An Act mainly to improve the transparency of enterprises, is part of a growing wave of international and national efforts aimed at thwarting tax fraud, money laundering and the financing of terrorist activities. But the bill, while lauded by business and tax lawyers, has also prompted questions over its opaqueness, its application, compliance costs, and privacy issues.

“All of these registers point to certain ills that have been raised by international bodies going back 10, 20 years,” noted Daniel Frajman, a Montreal corporate, commercial and tax lawyer with Spiegel Sohmer LLP. “The feeling is that by having more information available with respect to who is behind corporations then those ills can be be fought better with these kinds of registers. One would think it’s helpful and laudable but I guess time will tell.”

The move towards corporate transparency has accelerated in recent years. The global money laundering and terrorist financing watchdog, the Financial Action Task Force (FATF), has called on governments around the world to implement measures to deter and prevent the misuse of corporate vehicles such as companies, trusts and other types of legal person arrangements by making them “sufficiently transparent.” The inter-governmental body, of which Canada is a member, beckons governments to ensure that accurate and up-to-date basic and beneficial ownership information is available to competent authorities in a timely fashion. FATF is now considering updating recommendations it issued in 2014, in part due to the use of cross-border ownership structures to conceal beneficial ownership. It is also examining issues dealing with access to beneficial ownership information to address issues around privacy, security and potential misuse of information.

The international tax evasion and avoidance schemes uncovered through leaks such as the FinCEN Files and the Panama and Paradise Papers too added fuel to the corporate transparency movement. Several of the schemes revealed by the leaks involved shell companies, which made it possible to hide the true identity of these entities’ ultimate beneficiaries, according to a 2019 consultation paper (pdf) on corporate transparency prepared by the Quebec Ministry of Finance. On top of that, Canada was identified by Transparency International as having lax anti-money laundering rules that allowed “snow-washing,” the practice of laundering dirty money through shell companies. An expert panel that examined money laundering in British Columbia’s real estate market estimated that $46.7 billion was laundered in Canada in 2018, and $7.4 billion in the province. The think-tank C.D. Howe Institute has pegged the figure even higher, asserting that a “realistic estimate” of dirty money laundered in Canada ranges from $100-$130 billion annually.

These developments spurred the federal government and provincial governments to sign in 2017 the Agreement to Strengthen Beneficial Ownership in which Finance Ministers across the country agreed in principle to pursue legislative amendments that would lead to greater corporate transparency. As of June 2019, corporations governed by the Canada Business Corporations Act (CBCA) are required to maintain a securities register of all individuals with “significant control” over the corporation. Other provinces have followed suit, including British Columbia, Manitoba, Nova Scotia and Saskatchewan, with amendments of their own business corporation statutes.

On-line public registry

The Quebec government took a different tack when it enacted Bill 78 in June. Rather than amend its provincial Business Corporations Act, the Quebec government amended the Act respecting legal publicity of enterprises (LPA) which will set up a public register on-line as part of the Quebec Enterprise Register (REQ). The difference is significant, pointed out Marie-Andrée Latreille, a Montreal corporate lawyer with Davies Ward Phillips & Vineberg LLP. Under Bill 78, businesses will be required to publicly disclose the identity of their “ultimate beneficiaries,” which generally speaking is a natural person who effectively exercises significant control, directly or indirectly, over a corporation, trust or other entity, such as a partnership. In contrast, under the federal CBCA and other provincial jurisdictions that have amended their own business corporation statutes to include corporate transparency rules, only corporations incorporated under those statutes are required to maintain a private register of beneficial owners, which can be inspected by certain regulatory authorities and stakeholders, said Latreille.

“To do business in Quebec you must be registered according to the LPA,” explained Latreille, who testified earlier this year during public hearings on Bill 78 before the Quebec National Assembly on behalf of the Quebec Branch of the Canadian Bar Association (CBA). “By amending the LPA, it’s not only corporations incorporated under the Quebec Business Corporations Act who will have to follow the new corporate transparency rules, but all registrants.”

See also

Fixed income market slowly inching towards increased transparency

Under Bill 78, registrants will need to provide the REQ with a copy of identification issued by a governmental authority for each of their directors and to declare their dates of birth. Registrants will also need to declare the dates of birth of the three shareholders holding the most voting rights as well as the birth dates of the president, the secretary and the chief executive officer. Business will also have to disclose information regarding ultimate beneficiaries such as their names, domiciles, and dates of birth and the type of control exercised by each ultimate beneficiary or the percentage of shares or units each one holds or of which each one is a beneficiary.

Bill 78 however expressly prohibits the consultation of a person’s date of birth as well as the name of and domicile of a minor if he or she is an ultimate beneficiary of an entity subject to provincial registration requirements, noted Éloïse Gratton, Ad.E., a privacy expert who co-leads the national privacy and data protection practice at Borden Ladner Gervais LLP.

There are further exceptions. Under Bill 78, exempted registrants include not-for-profits, Crown corporations, reporting issuers, financial institutions according to the Insurers Act, banks and associations.

All that information held by the REQ can be consulted by the public, free of charge, making it an outlier in North America and Canada’s de facto public register, according to Frajman. Quebec decided to follow the example set by the United Kingdom and many of European nations by implementing a public register because it is hoping to foil more than just tax evasion, money laundering and terrorist financing, said Frajman. He pointed out that the 2019 consultation paper on corporate transparency prepared by the Quebec Ministry of Finance states that by allowing the public to make searching using an individual’s name it would “enhance transparency in the economic sector and support the fight against fraud and corruption.”

“Once a jurisdiction is starting to look at fraud among counterparties, then they’re starting to want to have a public register or a register that the general public can be able to consult and that will help protect them,” explained Frajman. “They’ll know who they’re dealing with when they’re entering into contracts and other agreements and arrangements.”

The federal government intends to follow suit. In the 2021 federal budget, Ottawa announced that it will be investing $2.1 million to establish a corporate beneficial-ownership registry that will be publicly accessible by 2025.

Compliance burden

But in the meantime, many questions still linger around Bill 78. The legal community is hoping that the provincial government will issue regulations and guidance to reduce the compliance burden, but without overreaching. For example, the definition of ultimate beneficiary needs to be clarified as does the notion of control, said Frajman, a point of view shared by the Quebec Branch of the CBA. “What does it mean to have control,” asked rhetorically Frajman. “Quebec is pointing to a definition in the Quebec Taxation Act but that definition does not always have clarity, and there’s always judgment there.”

There are also concerns over compliance costs. A brief by the Quebec Branch of the CBA asserts that Bill 78 will impose a “higher financial burden” on domestic and international business given that it is likely that they will have to resort to professionals such as lawyers, notaries and accountants in order to fulfil their legal obligations.

Privacy concerns have also been raised. Though Gratton applauds the initiative to enhance corporate transparency, she questions whether it is “truly necessary and proportional, in light of the common underlying objective of these register, to provide the public a relatively unfettered access” to information contained in the registers. Allowing anyone, regardless of purpose or intent, to conduct searches based on a natural person’s name is also disquieting, added Gratton.

“The main worry in this respect is that it could cause this information to be disseminated more broadly than originally intended, with potentially devastating effects on those most vulnerable, who may find themselves the target of phishing scams, extortion or other types of threats based on inferences that can be drawn from this information,” said Gratton. “These concerns are only likely to increase in severity as a growing number of governments decide to implement similar measures.”

Registers, added Gratton, should be subject to reasonable limits in terms of who can access information about ultimate beneficiaries and under what circumstances.

Bill 78 is not in effect. It is expected to come in force in 2022.

This story was originally published in The Lawyer’s Daily.

Report calls for paradigm shift to Quebec’s legal aid system

An independent panel of experts is recommending sweeping reforms to Quebec’s administration of the legal aid system to simplify the process to seek legal aid and alleviate the administrative encumbrances faced by private sector lawyers who take on legal aid mandates.

The experts, while affirming Quebec’s decentralized legal aid model because it ensures the independence of staff counsel and “respects” regional diversity, are nevertheless calling for a “paradigm” shift that would be anchored by the introduction of a secure digital platform to help establish a province-wide one-stop shop to receive, process and manage legal aid applications.

“The working group notes that the system is cumbersome, rigid and that it leads to delays,” said the five-member independent group headed by former Court of Quebec Chief Justice Elizabeth Corte. “It is obvious to the members of the working group, as well as those who were consulted, that the legal aid regime is sorely lacking technological means to manage legal aid applications, its processing and its follow-up. This is unacceptable in a post-pandemic, quasi-digital society, at a time when the plan to modernize the justice system is being touted.”

The independent group was created following an agreement reached between the Barreau du Québec and the Quebec government in October 2020. The agreement, which was reached after three years of negotiations, calls for a five per cent retroactive increase in legal aid fees for the period of October 2017 to May 2019 and a 14.7 increase in fees from June 2019 to September 2022. But the fulcrum of the agreement was the creation of an experts’ group that would examine and make recommendations for a thorough reform of the legal aid system and fees paid to private sector lawyers who work on legal aid cases.

Interim report

After consulting with 28 legal stakeholders, the interim report issued 43 recommendations (pdf), all of which were welcomed by Quebec legal community, who are now pinning their hopes that the provincial government and the Commission des services juridiques (CSJ), the provincial agency that oversees the legal aid system, will implement them promptly. “We are pleased that the independent committee brought to the forefront the slew of irritants that were identified by stakeholders,” said Catherine Claveau, the new bâtonnière of the Barreau du Québec. “We hope that the recommendations will not be shelved but will be the object of a real change to the current structure” of the legal aid system.

The Quebec legal aid system is beset with numerous issues, points out the report, echoing many of the findings by a Young Bar of Montreal report (pdf) issued earlier this year. The legal aid’s decentralized regime –composed of 11 regional legal aid centres and includes 86 permanent legal aid offices and 18 part-time offices — has led to “some inconsistencies, even contradictions,” predominantly in the processing of applications and in the decisions issued by legal aid bureaus, according to the task force.

See also

Constitutional challenge over legal aid fees rebuffed by court

The hindrances begin from the get-go, with private sector lawyers often paying the price, according to the report. It is challenging, points out the report, for individuals to seek legal aid. The list of documents currently required to prove eligibility is “exhaustive,” a requisite many individuals are unable to complete, which in turn results in a large number of litigants who are potentially eligible to miss out. Or when legal aid applications are incomplete, it very often falls on private sector lawyers who take on legal aid mandates to devote “time and energy” to ensure that their clients receive legal aid, notes the report. It is equally challenging to obtain information over the status of the legal aid application, an exercise which again falls too often on the shoulders of private sector lawyers. In urgent cases, private sector lawyers often take on cases, without knowing whether or not it will be covered by legal aid because of endemic delays in rendering decisions over a legal aid application.

“The issues we have raised for a long time were validated by the independent committee,” remarked Michel LeBrun a Trois-Rivières criminal lawyer with Lacoursière LeBrun Avocats and head of the Association Of Defense Counsel Of Quebec. “There is a bit of a chronic disconnect to see that the legal aid system has not evolved at the same rhythm as technology. The processes should be simpler and far more efficient. As it stands, everyone loses.”

The consequences are dire. Fewer and fewer Quebec private practice lawyers are taking on legal aid cases. In fiscal 2019-2020, $50.6 million in legal aid fees and nearly $11 million in legal expenses were doled out to 2,165 private practice lawyers and 86 private sector notaries, according to the CSJ annual report. But the number of private sector lawyers that accepted legal aid mandates decreased by 9.1 per cent in fiscal 2019-2020 compared to the preceding year, with criminal and penal cases shrinking by 11.3 per cent and civil matters by 6.5 per cent. About 20 years ago, approximately 14 per cent of lawyers accepted a legal aid case compared to about eight per cent today.

Some of the issues plaguing the legal aid system, particularly those dealing with documentation, could be remedied if the CSJ established links with numerous ministries, organizations and institutions to facilitate the exchange of information, said the report, a recommendation that was well received by legal stakeholders. “That is a very important recommendation that would help private sector lawyers and their clients,” said Alexandra Paquette, a criminal lawyer and vice-president of the Young Bar of Montreal. “But there would have to be a system in place that would restrict the scope of information that was exchanged. I believe that if this recommendation was implemented that security measures would also be implemented to ensure confidentiality.”

Digital platform

The task force believes that the key to addressing many of the legal aid problems is technology such as electronic signatures, videoconferencing and notably a secure digital platform. Just as prisoners seeking legal aid can resort to video-conferencing, so too should all applicants, depending on the situation, said the report. At present, legal aid applications must be signed in the presence of a lawyer or a legal aid employee, a procedure the task force cast doubt on, given that electronic signatures could be used.

Investing and implementing a secure digital platform is key, something that the CSJ said it is in the midst of doing. As envisioned by the task force, the digital platform could be used to fill out legal aid applications online, using so-called smart applications. It could also be used to manage and process them, far more efficiently than is the currently the case. And such a platform, said the report, could lead to a province-wide integrated service that would be advantageous to all legal stakeholders.

“We ought to be able to have something that is adapted to today’s realities, that works, that uses digitization and instantaneous communication,” said LeBrun.

The task force is expected to publish a second report in April 2022 that will issue recommendations over the thorny issue of special considerations or additional compensation for long and complex mandates – a report eagerly awaited by all legal stakeholders.

“The key for us is being paid for the work that we do,” said Élizabeth Ménard, a Montreal criminal lawyer and head of the Montreal Criminal Defence Lawyers Association (AADM). “We are really looking forward to seeing what the second report will have to say about the fee schedule. The report delves into some of the issues dealing with special considerations without proposing recommendations. We were hoping that they would come up with an intermediate solution dealing with fees in special consideration cases.”

The head of Quebec’s legal bar association too is hoping the task force will come up with concrete recommendations that will deal with special considerations. “I hope that that the authors of the report will come up with a middle-ground solution that will ensure that lawyers who accept these complex mandates do not lose their shirts,” said Claveau. “If we could have a solution that could satisfy our members in terms of legal fees then I would be very pleased. I have a lot hope as it is a committee that is representative of the legal community and they were very open to hear the concerns of stakeholders to help us change things.”

The CSJ declined to comment.

This story was originally published in The Lawyer’s Daily.

The push to decriminalize magic mushrooms

The drive towards decriminalizing or legalizing psychedelics such as magic mushrooms is gaining momentum. Galvanized by research exploring the medicinal promise of psychedelics as a potential treatment for mental health disorders, patients’ groups and the business and medical community are pushing to make psychedelics more readily legally accessible.

Ottawa is paying heed. Over the past year Health Canada has quietly opened the door for extremely limited use of psilocybin, a naturally occurring hallucinogenic compound produced by more than 200 species of mushrooms. Psilocybin, like most psychedelics, is a Schedule III controlled substance under Canada’s principal federal drug statute. It can only be accessed under a section 56(1) exemption of the Controlled Drugs and Substances Act (CDSA) granted by the federal Minister of Health. So far, 47 exemptions have been granted to patients suffering from end-of-life psychological distress, 19 to healthcare practitioners for professional training purposes, and several more to institutions and companies for research, with another 149 exemption applications in the pipeline, according to Health Canada. “This is just the beginning,” said Leila Rafi, a securities lawyer with McMillan LLP who has clients in the psychedelic sector. With the stigma surrounding psychedelics slowly being chipped away by research supporting its therapeutic use, Rafi expects exemptions will “become more commonplace.”

But even though Canada cemented its reputation as a world leader in drug reform following the legalization of cannabis in 2018, it is implausible that the feds will legalize psychedelics for recreational use, said Robert Laurie of Ad Lucem Corporation and an advisor to the Canadian Psychedelic Association. It is far more likely that Ottawa will follow in the footsteps of the U.S. Food and Drug Administration, which granted in 2019 certain psychedelic substances like MDMA and psilocybin a “breakthrough therapy” designation, a status given out only for therapies that have shown strong preliminary evidence it may be a substantial improvement over available therapy. A Health Canada regulatory proposal to broaden access to the Special Access Program, an initiative that allows healthcare professionals to request drugs not available for sale, is a clear signal that the federal government is beginning to exploring the possibilities of alternative medicines such as psychedelics. The proposed changes, if approved, would allow greater access to restricted drugs, including psilocybin, through the program.

“If they don’t do something, then there going to have a bigger problem to deal with,” noted Laurie. Yet “the government knows that if they come out with a policy, it probably will fall deficient of the Charter in one form or another because ultimately just like cannabis, the government has to be frog marched toward the line of reasonable, dignified access through the court.” In short, legal challenges under section 2 and 7 of the Charter are to be expected.

See also

Homegrown cannabis restriction reinstated by Quebec Appeal Court

These developments, in spite of the legal uncertainty, have heartened business. Some stock market speculators believe psychedelics will follow in the footsteps of the cannabis industry and become the next billion-dollar business. By Rafi’s count, there are more than 40 Canadian issuers that have emerged since 2020 hoping to tap into the potentially lucrative market, the majority of whom are focused on R&D and commercialization of psychedelics for medicinal purposes. But these nascent biotechs face major hurdles, not the least of which is ensuring compliance with complex local and international regulatory and legal regimes, remarked Sasa Jarvis, a securities lawyer with McMillan LLP. Licensing and regulatory approval requirements that must be met are “fundamentally different” depending on the the hallucinogenic substance, the nature of the business, and the sector they operate it in. “They need to know what legislation is applicable with respect to their financing activities, with respect to the location of their laboratories and researchers, and where they’re going to conduct clinical trials,” explained Jarvis. And they have to make sure, added Jarvis, that disclosures have proper disclaimers, more so because it is an evolving new industry operating in an highly regulated environment.

But the real battle looming ahead will be over intellectual property. So far, there are approximately 100 patents in queue in the U.S. but there is speculation that it can reach as high as 5,000 in three years. “I’ve actually never seen anything quite like this,” remarked Michael Fenwick, an IP lawyer with Bereskin & Parr LLP. “It just seems there is a rush to the Patent Office right now, and that’s why the focus on IP and patents is so important.”

But patenting psychedelics will be a challenge. Psilocybin, a natural compound, cannot be patented. But the way it’s made and used can be. Every patent requires three basic characteristics: novelty, inventiveness and utility. Determining whether a drug is useful takes time, a process usually done through clinical trials, which is normally conducted years later after the drug discovery. The heightened interest in psychedelics has often put inventors in a difficult situation of either filing a patent application without enough support to demonstrate utility or waiting to show usefulness and risk being scooped up by a third party, said Rafi. “That’s the kind of struggle we see with our clients — these are difficult positions to reconcile,” added Rafi.

See also

Ruling may broaden Ottawa’s reach over patents

Then, there’s “big unknown” hanging over the heads of biotechs – the legal status of psychedelics. The nascent sector is at the mercy of the federal government who may or may not make hallucinogens legal. “It can make it difficult to determine whether you should make big investments in research and patenting, and if the government doesn’t move as fast as you’d like them to, you’re kind of stuck in a holding period,” said Fenwick.

There is however another route biotechs can take. While the best way to protect a product is through patents, trade secrets can be an effective way to maintain safeguard certain forms of intellectual property such as processes, scientific research and technical data, said Fenwick. The drawback behind trade secrets is that it’s difficult to enforce because you don’t know what goes on behind a company’s closed door.

In spite of the obstacles, there is a whiff of optimism that the federal government will eventually forge ahead with a new regulatory framework for psychedelics. The pandemic has had a marked effect on people’s mental health, and it may prove to be the catalyst that prompts Ottawa to look at psychedelics as a viable alternative mental health therapy. “They’re going to see that there’s so much research going on, so much benefits coming from it, that we’ll eventually get to a place where potentially people will go to a clinic to have psilocybin delivered in a very standardized setting, controlled by doctors, to help out with mental health issues,” said Fenwick.

This story was originally published in the National, a publication by the Canadian Bar Association.

Quebec introduces most consumer-friendly privacy law in Canada

Quebec introduced sweeping changes to its privacy regime, making it the most consumer-friendly privacy law in Canada by giving individuals much greater control over their privacy while compelling private and public sector organizations to implement onerous prescriptive obligations that will be challenging to fulfil within two years, according to privacy experts.

The major overhaul, heavily influenced by the 2018 European Union’s General Data Protection Regulation (GDPR), introduces new privacy rights such as data portability rights and the right to be forgotten, new accountability and governance requisites, and new rules for the outsourcing and transfer of information outside Quebec. It also institutes new mandatory breach notification requirements, mandatory privacy impact assessments, clarifies consent requirements for collection, use or release of personal information, and significantly raises potential fines for violations.

Most provisions of Bill 64, An Act to modernize legislative provisions as regards the protection of personal information (Act) which received Royal Assent on September 22nd, come into effect in two years. But some, such as notifying Quebec’s privacy watchdog of “confidentiality incidents,” come into a year from now on September 2022.

“This is the direction a lot of jurisdictions are headed,” observed Corey Omer, a Montreal litigator with Davies Ward Phillips & Vineberg LLP. “Some of the changes introduced by Bill 64 are in a sense catching up to other legislation, like the requirement to designate a privacy officer or the requirement to report data security incidents and notify affected individuals. Others are more akin to GDPR, like the right to be forgotten, the right to data portability, and certain rights with respect to automated decision-making. It’s the most consumer-friendly privacy law in Canada in the sense that it is going one step further than where the other laws are right now. But it’s not necessarily the only one that’s headed in that direction.”

Constantine Karbaliotis, an expert in global privacy compliance and privacy management with nNovation LLP, believes that Bill 64 is going to have profound implications for business both in Quebec and in Canada. “What Quebec’s Bill 64 really means is that GDPR has come to Canada,” remarked Karbaliotis.

Businesses are concerned about the steep penalties, compliance costs, the amount of legwork they have to accomplish in a relatively short period of time, and the legal uncertainty that may stem from Quebec’s “unique drafting style” as well as the potential lack of harmonization between privacy legislation and obligations with the rest of Canada, noted Charles Morgan, national co-leader of the cyber-data group at McCarthy Tétrault LLP.

Canada’s privacy regime is a patchwork of federal and provincial laws, some of which are the subject of ongoing consultations. Privacy reform has lagged at the federal level, with the status of federal Bill C-11 being uncertain, but several provinces are forging ahead. Ontario recently released a white paper for its provincial private sector privacy law that appears to draw elements from Bill 64, Alberta launched public consultations on privacy protections, and Nova Scotia’s premier Tim Houston announced the province would make changes to its privacy legislation. As is the case with Quebec, the efforts are partly driven by high-profile data breaches, the need to modernize legislation so that it takes into account contemporary technology, and a desire to maintain its “adequacy” status for European personal data transfers under GDPR, according to privacy experts.

“Everybody’s going to be looking at Bill 64 as both at the federal and provincial level will work to maintain its adequacy status,” said Morgan. “It’s really, really important that we think about harmonization across the country. But there could also be a desire for privacy arbitrage. In other words, some provinces may make a policy decision to make their provincial privacy regime more sort of business friendly in order to attract business. So there could be a lack of harmonization because some provinces decided to have a different balance between individual rights, the practicalities of a modern economy and business needs.”

Further legal uncertainty, added Morgan, could emanate from Quebec’s unique take on privacy and the language it uses to describe privacy concepts. Under Bill 64, consent requirements have been reinforced. Consent must be specific to each use of personal information and implied consent is only accepted if some conditions are met. Business are allowed to use personal information without consent when necessary to provide a product or service or for fraud prevention and security enhancement. But it must seek consent “expressly” over the use of “sensitive” information such as medical or biometric “or otherwise intimate information.”

“They amended the initial, original text drafted in 1993,” explained Morgan. “They didn’t rewrite the law altogether so it’s a series of amendments and obligations that have been inserted into this original text, and that text was drafted in a very different way than any of the other privacy laws in Canada. Quebec law doesn’t use the same language, so the way Quebec describes consent is unique to Quebec law.”

See also

Workplace privacy: “People don’t understand”

Accountability, often deemed to be the anchor of privacy law, has been bolstered. Unlike in the past when the Act did not explicitly give much weight to accountability, Bill 64 compels organizations to designate a privacy officer, requires every enterprise to establish and implement governance policies and practices that provide a comprehensive framework for managing and protecting personal information, and introduces “privacy by design” into Quebec law.

A concept developed by former Ontario privacy commissioner Ann Cavoukian, privacy by design (in pdf) entails a proactive approach to protecting personal information. Under Bill 64, companies will obliged to ensure that pre-established settings for their technological products and services are by default set at the highest levels of confidentiality. A last-minute change introduced during the clause by clause review of the bill introduced a single word – from deactivate to activate — that will have “far-reaching” consequences, asserted Eloïse Gratton, the national co-leader of privacy and data protection at Borden Ladner Gervais LLP. Following the amendment under section 8.1 of the Act, organizations that collection information using technologies that include functions allowing the person concerned to be identified, located or profiled need to ensure that these functions are deactivated by default.

“Bill 64 defines ‘profiling’ broadly so this amendment creates a great deal of uncertainty with respect to the use of online tracking tools such as cookies, beacons and pixels for marketing purposes since it is not clear if these technologies are covered by section 8.1,” explained Gratton. If that were the case, added Gratton, the shift from opt-out to an opt-in model could have “serious implications” for the entire digital advertising system by “placing unfavourable conditions” on Quebec business.

Bill 64, like the European Union’s GDPR, too has stringent rules around cross-border transfers. Before exchanging personal information outside Quebec, organizations must confirm that the information will receive an adequate level of protection according to generally accepted data principles.

“The nature, scope and content of this assessment lacks certainty and predictability as it would require businesses to routinely evaluate broad, open-minded concepts such as the ‘legal framework’ of a foreign jurisdiction and ‘generally accepted data protection principles,” said Gratton.

This obligation also raises concerns over whether business need to routinely monitor developments in a foreign jurisdiction to ensure that the information continues to receive adequate protection.

Under the new Quebec privacy law, mandatory privacy impact assessments must also be conducted for any acquisition, development and redesign of an information system involving personal information. This requirement, in combination with cross-border transfers, will have an impact on business supply chains, predicted Karbaliotis. “I expect much more interrogation of companies in supply chains as to how data is managed because there will be a greater requirement to conduct due diligence as there are now serious consequences or fines for failing to do so,” said Karbaliotis.

The fines under Bill 64 can be steep. Quebec’s privacy regulator, the Commission d’accès à l’information (CAI), now has greater powers of enforcement that allow it to impose administrative monetary penalties for a wide range of violations, The penalties for private sector offenders can reach as high as $10 million or if greater two per cent of worldwide turnover for the preceding fiscal year. The law also empowers the CAI to launch penal proceedings for breaches of the Act, with the minimum fine being $15,000 and the maximum up to $25 million or four per cent of the worldwide business revenue, whichever is greater. Moreover Bill 64 creates a private right of action for damages for unlawful infringement in the Act or the Civil Code.

Public and private sector organizations have their work cut out for them, assert privacy experts.

“The idea of treating this as a marathon rather than a sprint is very important,” said Omer. “This has to be sort of a process where you you really need to think about the data you have and collect. And, it’s not an obvious question. Some organizations might not really know what data they collect, what they store, how they store it, and whether they’re in compliance.

“You really need to understand your systems. You have to understand your policies, your procedures, and what you’re doing and figure out how it fits into each of the many elements of that, and there are many elements to this legislation. That’s why there’s a two-year period.”

This story was originally published in The Lawyer’s Daily.

Teen must provide DNA sample

A Montreal teen found who plead guilty of to cyber theft discovered the long reach of section 487.05 of the Criminal Code.

Under that provision, a judge has the power to order the taking of DNA samples from a person who’s been convicted of certain offences, so-called “designated offences.” It also allows a judge to issue a warrant to obtain DNA samples from a person suspected or accused of a designated offence.

The list of DNA designated offences is long and impressive, ranging from murder to sexual offences against children to using explosives, and its constitutionality has been confirmed. The Supreme Court of Canada in R. v. Rodgers, 2006 SCC 15 found that the collection of DNA samples for data bank purposes was reasonable as these samples may only be used in order to create profiles in the DNA data bank.

Unlike investigative DNA warrants, authorizations under the data bank provisions do not target suspected offenders nor particular offences nor do they gather evidence for use in specific prosecutions.

The provisions put DNA technology to use to identify offenders in a manner analogous to fingerprinting and other identification measures. Society’s interest in using this powerful new technology to assist law enforcement agencies in the identification of offenders is beyond dispute.

The resulting impact on the physical integrity of the targeted offenders is minimal. Furthermore, in restricting the use of DNA sampling for data bank purposes to an identification tool only, Parliament has adequately answered any heightened concern about the potentially powerful impact that DNA sampling has on the informational privacy interests of the individual.

According to the RCMP, the National DNA Data Bank maintains a collection of more than half a million DNA profiles. Every year, the NDDB processes approximately 40,000 convicted offender submissions, and in 2019-20 it received 19,465 convicted samples.

Samy Bensaci is the latest one.

In May the teenager pleaded guilty to 10 counts of computer-related fraud over a $50-million cryptocurrency scam. He used a common hacking technique, SIM swapping, to take complete control of his victims’ phone lines remotely. He was sentenced by Ontario Court of Justice Judge Susan Chapman to 18-months of house arrest for “serious, sophisticated and prolonged” crimes, according to a report by La Presse. (The decision has unfortunately not yet been published).

Bensaci was also ordered by Judge Chapman to provide a DNA sample.

“You have committed crimes of deception. We need to monitor you. Keeping a record of your DNA in the bank is one way to do that.

“It may seem like a fun game for hackers, but this type of crime has serious consequences in the real world. It causes chaos and disorder. You should be discouraged from committing similar crimes, and other confused-minded individuals should be discouraged too.”

If Senator Claude Carignan had his way, there would be many more criminals who would have to submit a DNA sample to the data bank. Under Bill C-236, sponsored by Carignan, DNA would automatically be collected from all adult or adolescent offenders convicted of offences where the maximum sentence is five years or more. Every person convicted of a violent or sexual offence, without exception, would have to submit their DNA to the data bank.

The bill also “considerably increases” the number of criminal offences for which a judge can issue a warrant for a DNA sample from a suspect or accused person. During the second reading of Bill C-236, Carignan said:

“I think this is an essential measure because DNA identification is a very reliable form of evidence for incriminating or exonerating an alleged offender. It is much more reliable than eyewitness identification evidence, which has led to many well-documented wrongful convictions.”

The bill would also open the door wide open to familial searching, something that Canada has steadfastly refused to consider, unlike the United Kingdom or the United States. Familial searching involves the use of a DNA investigative technique to identify a suspect by comparing the DNA they leave at a crime scene to the DNA of a biological relative who had to provide their DNA to a bank following a conviction.

This is what had Patricia Kosseim, now Ontario’s privacy watchdog, had to say about familial searches in 2015 when she was the senior general counsel with the federal privacy regulator:

“While it may be tempting to allow the ends of familial searching to justify the means, particularly in high-profile criminal investigations, Cromwell J. reminded us wisely that “the nature of the privacy interest does not depend on whether privacy shelters legal or illegal activity”.

In a recent paper, Simon Fraser criminology professor Colton Fehr wrote:

Familial searches are difficult to fit within the conventional Charter analysis. The suspect’s DNA does not attract a reasonable expectation of privacy as the sample is deemed abandoned at the scene of a crime. It is unclear, however, whether a similar conclusion is warranted with respect to DNA linking a suspect to his or her relatives. It is also possible that the suspect will not have standing to challenge familial searches as the search is directed at the relatives of the suspect.

In my view, these barriers ought not prevent constitutional limitations from being placed on familial searches. The Court’s broad understanding of informational privacy under section 8 of the Charter has created room to find that the initial search infringes upon an accused person’s reasonable expectation of privacy, thus requiring some regulation to pass constitutional muster.

The notion of privacy is evolving, rapidly. Quebec enacted recently what has been described as the most consumer-friendly privacy legislation in the country, by giving individuals much greater control over their privacy, something other provinces are considering.

The shift by Quebec, and possibly other Canadian jurisdictions, towards a stringent European-inspired privacy regime prompted much debate among legal circles.

It’s curious that a legislative effort to collect more DNA from a broader range of Canadians, including suspects or the accused, has been marked by relative silence.

Two Quebec law faculties among top 100 worldwide

Two Quebec law faculties have been rated as two of the best 100 in the world to study law by the Times Higher Education (THE) World University rankings.

McGill University’s law faculty, headed by Robert Leckey, was ranked 17th worldwide, maintaining its hold in the global top 20 since THE began publishing rankings specific to law in 2017.

The Université de Montréal’s law faculty was ranked 51st, climbing an impressive 42 spots.

The law faculty of the Université du Québec à Montréal was ranked between 101st and 125th while the Université Laval graded between 126th and 150th position. The Université de Sherbrooke’s law faculty was not rated.

Other Canadian law faculties did well as well.

The University of Toronto’s law faculty bested McGill by a rank, and was rated 16th best in the world. The University of British Columbia’s law faculty was ranked 39th, York University 50th, the University of Ottawa between 101 and 125, Western University between 126 and 150, University of Alberta between 151 and 175 as was Dalhousie University and Queen’s University. Carleton University and the University of Victoria’s law faculty were rated between 176 and 200.

THE law rankings, which include 257 institutions from 39 countries, are based on scores in five categories: teaching, research, citations, international outlook, and industry income.

16University of Toronto
17McGill University
39University of British Columbia
50York University
51Université de Montréal
Between 100 and 125Université du Québec à Montréal
Between 100 and 125University of Ottawa
Between 126 and 150Université Laval
Between 126 and 150Western University
Between 151 and 175University of Alberta
Between 151 and 175Dalhousie University
Between 151 and 175Queen's University
Between 176 and 200Carleton University
Between 176 and 200University of Victoria
Not rated.Université de Sherbrooke

Homegrown cannabis restriction reinstated by Quebec Appeal Court

A lower court ruling that struck down a provincial ban on homegrown cannabis was overturned by the Quebec Court of Appeal after it held that the province was acting within its jurisdiction over property and civil rights when it decided to regulate the market by creating a state monopoly to minimize the “harmful” effects of cannabis on health.

Thanks to the Quebec Appeal Court ruling, Quebec along with Manitoba are the only the provinces that still have in place a strict regulatory approach that bans residents from growing recreational cannabis at home in spite of the federal law, Cannabis Act, allowing individuals to grow up to four plants.

“The Court of Appeal’s conclusion that the provincial prohibition is intra vires Quebec appears to me to be largely correct, based on the Court’s very careful analysis of the evidence of the purpose and effects of the impugned provisions, particularly when placed in the context of the broader regulatory scheme created by the (Quebec) Cannabis Regulation Act as a whole, which seeks to give a monopoly on cannabis production and sale” to the Société Québécoise du Cannabis (SQDC), said Olga Redko, a Montreal civil litigator with an expertise in administrative, regulatory and constitutional law matters at IMK LLP.

But Maxime Guérin, a Quebec City cannabis lawyer with Saraïlis Avocats inc. who plead the case before the appellate court, intends to file an application for leave to appeal before the nation’s highest court. He maintains that the operational effects of the provincial legislation are incompatible with federal legislation, and therefore federal legislation must prevail and the provincial legislation should be rendered inoperative in terms of the impugned provisions. “I was a bit surprised by the nature of the comments by the Quebec Court of Appeal, notably over the slightly moral aspect over the use of cannabis,” remarked Guérin.

According to Julius Grey, a Montreal human rights lawyer with Grey & Casgrain LLP, the case deserves to be heard by the Supreme Court of Canada to establish the parameters of cooperative federalism.

“As far as the law is concerned, I think it is time to look at this so-called cooperative federalism where you uphold both legislations, and we should have a less intrusive system with regard to individual freedom,” said Grey.

Under the federal Cannabis Act, federal, provincial and territorial governments share responsibility for overseeing the cannabis regulation system. Provinces and territories are responsible for developing, implementing, maintaining and enforcing systems to oversee the distribution and sale of cannabis, including their own safety measures such as creating additional rules for homegrown cannabis.

See also

Ruling that struck down the ban on homegrown cannabis may set the stage for another constitutional legal battle

Janick Murray-Hall, co-founder of a satirical fake news website, challenged the Quebec ban on homegrown cannabis. He maintained that sections 5 and 10 of the Quebec legislation violated section 92 of the federal Constitution Act of 1867, and was ultra vires. He also argued that the dominant purpose behind those Quebec provisions was public morality and social acceptability, which falls under Parliament’s exclusive authority on criminal law. Murray-Hall also argued that the province prohibited an act the federal legislator sought to allow, thereby again infringing on Parliament’s exclusive authority.

Quebec Superior Court Justice Manon Lavoie ruled In September 2019 that Quebec’s prohibition on home cultivation was unconstitutional. Justice Lavoie held that the provincial prohibitions were in pith and substance criminal law and therefore ultra vires provincial jurisdiction – a decision that the Quebec Attorney General appealed successfully in Procureur générale du Québec c. Murray-Hall, 2021 QCCA 1325.

The Quebec Court of Appeal conducted a two-stage analysis to determine the constitutionality of the Quebec legislation. The first stage involved identifying the law’s purpose and its effect with a view to determine its pith and substance, while the second stage involved classifying the impugned act or provision under one of the heads of power set out in ss. 91 or 92 of the Constitution Act of 1867 to determine its intra vires character. Through a review of the intrinsic and extrinsic evidence, the Appeal Court found that the Quebec’s prohibition on home cultivation was intended to deal with harmful effects of cannabis and to “protect the health and security” of the population, particularly of youth, by creating a monopoly with a mandate to control “as well as possible” the consumption of a “substance deemed to be a risk.”

Guérin believes the findings by the Appeal Court are a stretch. “One has to poorly understand cannabis to say that the cultivation of four cannabis plants will break the SQDC’s monopoly,” said Guérin. “All the other provinces, apart from Manitoba, allow for regulated homegrown cannabis, and it hasn’t had an adverse effect on the cannabis legal market.”

But Redko believes that it is not “particularly controversial that a province is acting within its jurisdiction over property and civil rights when it decides to regulate the market for a particular substance by creating a state monopoly, and adopting multiple methods of enforcing that monopoly.”

At the classification stage the Appeal Court found that both the federal legislation and Quebec’s legislation have parallel objectives. Parliament “decriminalized” the possession of limited quantity of cannabis to minimize the role of organized crime while the provincial legislature seeks to effectively control access to cannabis, held the Appeal Court.

Grey believes that the Appeal Court misspoke when it asserts that Parliament decriminalized cannabis. Rather, he maintains that they regulated it and made it legal.

“The same thing applies to liquor to some extent,” said Grey. “There are some regulations and there are consequences for being drunk. There are all sorts of things that are lawful that may be regulated. That’s what they did. But to say that they didn’t legalize it, that they only decriminalized it, is to my view an inexact use of language.”

The Appeal Court also rejected Murray-Hall’s arguments that the impugned provisions should be declared of no force or effect under the doctrine of federal paramountcy as they frustrate the purpose of the federal law. Instead, the Appeal Court found that sections 5 and 10 of the Cannabis Regulation Act fall within the broad plenary jurisdiction of criminal law and may be interpreted in a manner that is consistent with the principle of cooperative federalism.

“One of the lingering questions after this judgment, which I think the Court of Appeal didn’t address at all, is what happens in the context of a paramountcy analysis when both Parliament and a provincial legislature purport to pursue the same or similar purpose but in different ways – one of which seems intentionally incompatible with the other,” said Redko.

Redko points out that then federal Minister of Health Ginette Petitpas Taylor testified before the Senate and said that it “is critically important to permit personal cultivation in order to support the government’s objective of displacing the illegal market.” But the Appeal Court found that there was not enough evidence linking home cultivation to the stated purposes of the federal Cannabis Act. “That leaves the uncomfortable impression that the federal decriminalization of home cultivation plays little to no role in realizing Parliament’s intent,” said Redko. “That does not seem right, and in my view, the Court of Appeal does not sufficiently address that problem, relying instead on the principle of cooperative federalism and the fact that the bar is very high to find an impairment of the federal objective, to ultimately hold that no conflict exists between Quebec’s law and Parliament’s.”

Grey too has qualms over the Appeal Court’s take on cooperative federalism.

“It should go to the SCC and should be revisited because one thing that gets lost in the mix, and that is in favouring both governments, individual rights are restricted,” said Grey. “It’s an orthodox decision in that way but it is also not a good one. For one thing, there is no concern at all about the individual’s liberty.”

This story was originally published in The Lawyer’s Daily.