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Sexual harassment prevalent in Quebec legal profession, reports study

Sexual harassment and violence is rife in Quebec legal workplaces, the overwhelming majority of which goes unreported for fear of repercussions, claims a report that calls on the province’s legal actors to work together to take concrete steps to raise awareness and address the pervasive culture of silence and impunity that permits harassment.

Sexual harassment, unwanted sexual attention and sexual coercion takes place in all workplace contexts, formal or informal, is often perpetrated by a colleague or a partner with a higher hierarchical status, and has far-reaching personal and professional consequences, with up to nearly 20 per cent of women changing career paths following the sexual misconduct, according to the study conducted by researchers at the Université Laval who were given the mandate by the Quebec Bar.

“The study denounces the culture of silence and impunity that endures in the legal profession,” remarked Julie Lassonde, a member of the Law Society of Ontario and the Barreau du Québec who has developed a consultancy business focused on the areas of gender, sexuality and social justice. “That is what will shock the most.”

The figures – and the painful personal accounts —  disclosed by the report are troubling but not surprising, according to legal experts. Sexual harassment, defined by the researchers as verbal and non-verbal behaviours that convey insulting, hostile and degrading attitudes, was by far the sexual misconduct that was most prevalent over the past five years. Half of women, or 50.2 per cent, who replied to the online survey reported that they were subjected to offensive sexual gags or tales, 36.3 per cent of women reported attempts to begin unsolicited discussions about sex, one-third reported being catcalled, another third said they were on the receiving end of derogatory remarks about their appearance, body or sexual activities, and yet another third reported being subjected to sexually suggestive gestures that offended or embarrassed them.

Men too reported being the victims of sexual harassment, with 21.7 per cent reporting that they were told offensive stories or jokes, 17.5 per cent said there were unwanted attempts to discuss sex, and 13.7 per cent reported receiving derogatory remarks over their looks or their body.

The report, entitled Survey on Sexual Harassment and Violence in the Practice of Law (so far available only in French), also divulges that nearly one-third of women, 27.1 per cent, were subjected to unwanted sexual attention such as being touched in a way that made them feel uncomfortable. A lawyer recounted the time she was in the photocopy room when a partner grabbed her buttocks while another told the story of how a colleague showed up at her office, dropped by his pants, and began massaging his genitals. A further 20.6 per cent of women – and 12.3 per cent of men — reported that attempts were made to establish an intimate or sexual relationship in the course of their professional practice in spite of their efforts to discourage it. The study also revealed that 4.2 per cent of women were the victims of sexual coercion, and suffered negative consequences after refusing to engage in sexual activities like the lawyer whose work dried up at a law firm after refusing to have sex with a colleague.

“I cannot say I’m surprised by the findings,” said Caroline Briand, a Montreal constitutional and Aboriginal lawyer with Cain Lamarre LLP who was the former president of the Canadian Bar Association’s Women Lawyers Forum, Quebec division. “On the one hand, it would have very surprising if the legal world would have had a lower incidence rate compared to the rest of society. On the other, we know that, particularly in private practice, that there are structures and business models that create situations where these issues are susceptible of manifesting itself.”

The study, one of a handful of studies that examined sexual harassment in the legal world following the fallout of #metoo, was launched in October 2018 after an online questionnaire was sent to all members of the Quebec Bar (27,137 members at the time). It generated a 14.5 per cent response rate, or 3,785 responses, from both people who were victims of sexual misconduct or who were witnesses or confidantes. Since the study used a non-probability and convenience sample, meaning it is a not random sampling of people but rather includes individuals who are most accessible to the researchers, the findings are not representative of the prevalence of sexual harassment and violence within all members of the Barreau, warn the researchers.

But Isabelle Auclair, one of the researchers of the study, said the results are nevertheless “extremely valid” as the response rate was very sizeable and the findings are very similar to other sexual harassment studies. A 2014 Australian report found that one in four female lawyers experienced sexual harassment, while a 2018 study by the International Bar Association revealed that one in three female lawyers were the victims of sexual harassment in the workplace. Closer to home, an online survey conducted by the Law Society of Alberta, in conjunction with the law societies of Saskatchewan and Manitoba, found that nearly one in three articling and new lawyer respondents reported experiencing discrimination or harassment during recruitment and/or articling.

Sexual violence has dire consequences, according to the 75-page Quebec study. Nearly 70 per cent of women and 39 per cent of men said they avoided contact with the person who committed the acts, while 19 per cent of women and 11 per cent of men said they had reorganized their work by withdrawing from a case or switching files. Moreover, nearly one in five women said they changed career paths or careers such as the woman who dreamed of being a lawyer since elementary school but left the profession following her “horrible” experiences while articling and at the beginning of her career. Even the health of victims was affected, with 22 per cent of women and seven per cent of men reported having nightmares or relieving the experience and 13 per cent of women and four per cent of men said they suffered from psychological problems.

While 72 per cent of women and 46 per cent of men reported disclosing the incident to at least one person, very few victims (one per cent) reported the sexual misconduct to either the Quebec Bar’s investigating officer or the police. A majority of women, 60 per cent, and half of men felt that the situation was not serious enough to report, while nearly a third of women and a quarter of the men wanted to put the incident behind them. Only 22 per cent and 19 per cent of women disclosed the incident to their superior. Some evoked the fear of reprisals.

“The general tendency is that people are not at ease to disclose within their organization,” said Lassonde. “That implies they do not have confidence in the mechanism that exist within their office to deal with these issues. That is very problematic.”

The feminization of the legal profession has done little to thwart sexual harassment, notes the study. If anything, it’s the contrary. Gender inequality seems to have been reinforced by the recent feminization of the traditionally masculine profession which is struggling to adapt as can be seen by the scarcity of female partners, salary discrepancies between men and women, the kinds of cases female lawyers are given, and the fact that more women lawyers have shorter careers or leave the profession altogether at a time when they possibly could have a greater influence, according to the study.

“Representation is important but it is not a solution in and of itself,” noted Auclair. “The presence of women in the profession has not led to a change in the practice, working conditions or the organizational culture.”

The hierarchical nature of the profession, particularly in private practice where most senior practitioners still tend to be disproportionately men, where lower-level employees are largely dependent on superiors for advancement and mandates play a significant role in sexual harassment and violence, according to the study. In 1993, the Canadian Bar Association published the so-called Touchstones report that explored discrimination against women and others. Headed by former Supreme Court Justice Bertha Wilson, the report found barriers to women and racialized individuals at all levels. It also found that sexual harassment was viewed by many lawyers as a risk to be “neutralized” rather than an opportunity to examine and question their conduct – a viewpoint that led to a greater exclusion of women as it was felt that by avoiding contacts with women, the risks of sexual harassment diminished. That is still the way that things are, said Antoine Pellerin, a Universite Laval law professor and one of the study’s researchers.

“This notion partly explains why things haven’t changed,” said Pellerin, who last year co-published a study examining gender inequalities within Quebec law firms which found there was not a “great need” for change because law firms are doing well. “Gender inequality between men and women in the profession is a fertile breeding ground for sexual violence, and that has not changed. A culture does not change from one day to the next. It does not change because there is more diversity. There is a need to share power. It is necessary to pre-emptively tackle the inequalities that exacerbates harassment.”

There is also need to provide outside assistance such as psychological support or information on possible recourses, according to respondents. They also believe that clear and transparent policies should be adopted to inform them of existing channels and steps to be taken, and to raise awareness over the legal rules, ethical obligations and internal policies. Tellingly, 41 per cent of women and 26 per cent of men said that the Barreau du Québec is not proactive enough in raising awareness about sexual harassment and violence.

Though the study explored a series of measures, such as introducing audits or compliance programs, the study recommended that the Quebec Bar create a working group to elaborate concrete measures that should be taken. It also recommended that the Barreau consult with legal stakeholders to determine steps that could be taken to foil sexual harassment and violence.

“Considering that sexual harassment and violence is a gender-based phenomena, that it is a form of discrimination based on gender, the Barreau should find a way to recognize this discrimination and ensure that people who act in this discriminatory manner face professional conduct consequences,” said Briand.

Pellerin underlines that the Quebec law society as a professional order has enormous powers. It is self-regulating, has the power to adopt code of ethics, and can exclude members from the profession. “With power comes responsibility,” said Pellerin. “The Bar has powers, law firms too as do universities and law faculties. “They have to face the problems and come up with concrete actions. This must not be a report that will be discussed only for a week.”

Briand underscored that ironically many of the measures surveyed by the study to counter sexual harassment are actions that lawyers themselves recommend to clients. “It’s like the proverbial poorly shod shoemaker,” said Briand. “We should apply the advice we give to clients and apply it to ourselves.”

The Barreau du Québec declined to comment.

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

Landmark ruling for trans rights

Quebec, once on the forefront of trans rights, is now joining the ranks of most Canadian jurisdictions after Quebec Superior Court declared unconstitutional several articles of the Civil Code of Quebec that discriminated against trans and non-binary people.

In a long-awaited ruling by trans, non-binary and intersex people, the “critically important” decision affirms that having your identity acknowledged and recognized by the State is a core aspect of the right to equality and the right to dignity, assert legal experts. 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.

“The decision confirms that trans people are protected by the equality provisions of the Canadian and Quebec Charters,” said Michael Lubetsky, a Toronto lawyer with Davies Ward Phillips & Vineberg LLP who represented Egale Human Rights Trust, an intervener in the case. “And, very importantly, it confirms that lack of access to proper identity records constitutes unconstitutional violations of equality rights, dignity rights, and life, liberty and security rights of trans people.”

The constitutional challenge, launched in 2014 by the Centre for Gender Advocacy, an independent, student-funded group at Concordia University in Montreal, advocated for the rights of four different trans communities, including trans parents, trans youth, trans people without citizenship, and non-binary people or those who do not identify with the male-female gender binary, with each of the groups raising different but related issues.

“What’s striking about the case and the judgment is that it’s one of the few cases that gathers many marginalized communities,” said Dalia Tourki, an advocate of the Centre for Gender Advocacy and consultant with a Conseil Quebecois LGBT, an organization for the collective defense of LGBT rights. “They’re part of the larger umbrella trans and non-binary community but at the same time these are sub-communities that also have their own realities,” added Tourki, who is now studying law at McGill University.

To begin with, Quebec Superior Court Justice Gregory Moore found that an identity document that does not properly identify transgender and non-binary people contributes to their precarious lives. “Legislation that does not acknowledge transgender identity and non-binary identity leaves them without legal existence and denies their right to dignity,” held Justice Moore in Center for Gender Advocacy c. Attorney General of Quebec 2021 QCCS 191. “Their right to equal protection and benefit of the law is infringed because they cannot obtain an act of of birth that identifies them and that makes it easier for them to prove their civil status. By contributing to their vulnerability to suicide, their rights to life, security and inviolability are also engaged.”

Justice Moore struck down the provision in the Civil Code that only recognizes masculine and feminine genders as it does not allow non-binary people to change the designation of sex on their act of birth to correspond to their gender identity, thereby violating the dignity and equality rights of non-binary people.

Justice Moore also held that trans parents have a right to change their name and designation on their child’s birth certificates, and non-binary parents have a right to identify as “parent” as opposed to “mother” or “father.”

Following the decision, non-citizens who are Quebec residents will no longer be prevented from changing the designation of sex and their name on the act of birth that is kept in the registry of civil status, the provincial government’s primary and “most reliable source” of personal information as it contains information to identify an individual’s birth, civil union and death. Moreover, trans youth over the age of 14 will no longer be required to produce an attestation from a health professional in order to change their sex designation.

“One of the major things this case shows is the discrimination that people can face when they’re forced to have identity documents that don’t actually reflect their gender identity,” noted Audrey Boctor, a Montreal lawyer with IMK LLP who successfully argued the case. “The findings of fact regarding its impacts, which include increased suicide rates amongst the trans population, is a really important finding, a devastating one, but one that was really important for the Court to make.”

Thanks to the ruling, Quebec is nearly on par with most of the rest of Canada on trans rights, according to legal experts. Quebec used to be on the vanguard of trans rights, beginning in the 1970s when it made it possible to change a sex designation, with a surgical requirement to change sex. That was followed by a Quebec Human Rights Tribunal decision in 1998, Commission des droits de la personne et des droits de la jeunesse c. Maison des jeunes A…, 1998 CanLII 28 (QC TDP), that broadened legal protections for trans people. But afterwards, Quebec lagged behind the rest of the country. Even when the Quebec undertook legislative reforms in 2013 and 2015, it fell short and left gaps, said Robert Leckey, dean of McGill University’s law department and an expert in family law. In 2013, the Quebec government allowed a person to apply to change their designation of sex without having undergone any medical treatment. Two years later, it allowed adults to change their legal gender on birth certificates.

In the meantime, in the rest of Canada a combination of amendments to human rights legislation, successful human rights challenges and subsequent legislative changes increased trans people’s access to identity papers, points out University of Ottawa law professor Samuel Singer – and one of the co-plaintiffs — in an academic paper entitled “Trans rights are not just human rights.”

“The ruling is crucially important for the people involved,” remarked Leckey. “But the overall legislative scheme accepts the basic idea that there is a difference between sex and gender identity and accepts that people should be able to change their legal designation and to change their name. With this this judgment, Quebec is catching up to where some other provinces have already been. Nothing here is putting Quebec in a pioneering position.”

There’s still work to be done, said Lubetsky. Though Justice Moore ruled overwhelmingly in favour of the plaintiffs, they did not succeed in convincing him to declare the obligation to designate a child’s sex within 30 days of the the child’s birth to be optional. Parents, the plaintiffs argued, should be able to choose whether to designate their child’s gender identity or allow it to develop on its own. They further argued that the obligation to designate a sex does not take into account intersex babies, who might be born with the partially formed genitalia of each sex. “The obligation to designate a newborn’s sex on their act of birth is not discriminatory,” held Justice Moore. “There is no inconsistency between a person’s sex and gender at birth because newborns do not have a gender identity.”

But Lubetsky, echoing the views of other lawyers, doesn’t understand why it is not possible to leave the gender designation blank. “The decision really doesn’t address what should be done in the case of intersex people,” said Lubetsky. “That is certainly an unresolved issue, and I’m quite sure we’ve not heard the last of it.”

Another unresolved issue deals with the parent’s right to veto a name change for those between 14 and 17 years of age. The plaintiffs argued that parents often do not understand or accept their child’s trans identity and therefore do not support their applications to change their name. Justice Moore upheld that parent’s right to object to their child’s application to change their name, pointing out that Article 62 of the Civil Code does allow the registrar or the court to disregard the parent’s objection if there is a compelling reason. “Young people will unfortunately still face a barrier,” said Boctor. “Hopefully, given the findings of fact in the judgment, particularly about the vulnerability of trans youth that don’t have family support, that that’s something that can be rectified in the context of changes that will need to be made in the Civil Code.”

That’s something that Tourki is counting on. Tourki is hoping that the Quebec government will sit down with trans and non-binary community members, and find ways to remedy the situation. “I hope that in the process the legislator takes into account that there shouldn’t be any more legal violence or systemic violence towards intersex people and trans youth who the most vulnerable sub-community in the trans and non-binary community in general.

Justice Moore suspended the declaration of invalidity for the unconstitutional provisions of the Civil Code until year end to give the Quebec government time to make the necessary amendments. But that all hinges on whether the ruling will be appealed, and that’s far from certain.

“The government resisted this really hard, and played procedural hardball along the way,” said Leckey. “I don’t want to get into predictions but if you think about the kind of constituency for the current government, I’m not sure many of them would have spent a lot of time thinking about non-binary parents for example. So I could see why politically this judgment might not be that congenial to the current government but I hope they don’t feel it. It will be very disappointing if the Quebec government appeals this decision.”

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

Ruling may broaden Ottawa’s reach over patents

Seven pharmaceutical companies, along with a string of intellectual property organizations and patients’ groups acting as interveners, that challenged the constitutionality of new regulations intended to lower patented drug prices were rebuffed after Quebec Superior Court found that the price control of patented drugs falls within the scope of the federal government’s powers over patents.

The long-awaited decision will likely have a substantial impact on the pharmaceutical industry in Canada, will compel Ottawa to overhaul its regulatory approach and guidelines over patented drug pricing, and may even broaden the federal government’s reach to regulate other intellectual property, according to legal experts.

“The judgment sets an important precedent about the scope of the federal Parliament’s powers to legislate regarding patents, and potentially by analogy how the federal government can exercise its powers over other forms of intellectual property,” noted Miriam Clouthier, a Montreal lawyer with IMK LLP who represented the Canadian Cystic Fibrosis Treatment Society, who were interveners in the case.

Yael Bienenstock, a Toronto litigator with Torys LLP, concurs. “Arguably, if you say that the federal government’s power to legislate patents means that it can also regulate the price of those patented products, then that can very quickly become a very broad power,” remarked Bienenstock, part of a team of Torys’ lawyers who plead the case on behalf of The Intellectual Property Owners Association, also interveners in the case.

The legal challenge surfaced after the federal government enacted in August 2019 significant amendments to the Patented Medicine Regulations, made under the Patent Act. The Patented Medicines Prices Review Board (PMPRB), a federal agency established in 1987, has a mandate of ensuring that the prices of patented medicines sold in Canada are not “excessive.” The amendments were aimed at providing the PMBRB with “tools to protect Canadians from excessive prices and make patented medicines more affordable,” according to the federal government. The amendments, which are expected to come into force on July 1, 2021 following several delays, introduced three major changes to the PMPRB’s regulatory framework. It introduced new economic factors for PMPRB to use in order to assess whether a patented medicine’s price is excessive, replaced reference countries such as Switzerland and the U.S. while adding new ones for pricing tests, and added a requirement that the selling price reported to the PMPRB take into account rebates provided by the manufacturer, be it to purchasers or third-parties. The federal government estimates that the regulatory changes will save Canadians approximately $8.8 billion over 10 years.

The seven pharmaceutical companies that challenged the existing PMPRB regime and the amendments maintained that the federal government does not have the constitutional authority to regulate the prices of medicines. They argued that the changes exceeded Parliament’s authority over patents, and was instead a matter of provincial jurisdiction over property and civil rights, over hospitals and over matters of a merely local or private nature, including health, by virtue of the Constitution Act, 1867. They also maintained, as did the Canadian Cystic Fibrosis Treatment Society, that the amendments will slow and limit Canadians’ access to new breakthrough medicines. The Intellectual Property Owners Association went further, asserting that even in the face of abuse, the federal legislator does not have the power to reduce the price of patented products.

In a hefty 113-page decision, Quebec Superior Court Justice Sophie Picard found that the price control of patented drugs does fall within the scope of the federal government’s powers over patents. Justice Picard held that the existing PMPRB regime was constitutional and that the price control of patented medicines to impede them from being sold at excessive prices has a logical, real and direct link with patents and does not unreasonably infringe on provincial powers.

In a similar vein, Justice Picard also found that the pith and substance of the amendments too lies in price control of patented medicines but through the use of additional tools such as the addition of new economic factors or the change to the list of comparator countries. Using these measures to attain lowest possible pricing or optimal pricing would however be unconstitutional, held Justice Picard in Merck Canada inc. c. Procureur générale du Canada 2020 QCCS 4541, a decision issued on December 18th.

“It would be unconstitutional to adopt pure price regulation but practically speaking drawing those lines is going to be very difficult,” said Clouthier. “We were hoping for a lot more guidance and much clearer line from the Court around what is price regulation, what does it look like, and when can the government engage in it.”

Bienenstock too maintains that Justice Picard “really did not” address the scope of the federal government’s patent power. Justice Picard found that controlling prices to prevent them from sold at excessive prices has a logical, real and direct link with patents, but Bienenstock believes that that is “not answering the question of whether in pith and substance the regime falls within the patent power. The Court says it’s related to the patent’s power, but they’re not quite the same thing,” added Bienenstock.

But in a finding that will oblige the federal government to review its regulatory approach, Justice Picard struck down the requirement for patentees to report rebates provided by the drug companies. She held that this change was an incursion into provincial jurisdiction. Only provinces, held Justice Picard, can fix prices, a finding echoed by a Federal Court decision last June. In Innovative Medicines Canada et al. v The Attorney General of Canada et al, 2020 FC 725, Federal Court Justice Michael Manson too upheld the regulations, with the exception of the rebate reporting requirements, a decision that is now under appeal before the Federal Court of Appeal.

“Justice Manson got to the same spot to a slightly different pathway,” observed Scott MacKendrick, a member of Bereskin & Parr LLP’s executive committee. “Unlike the Quebec Superior Court decision, he was looking at it more through the lens of whether it was proper regulatory making authority as enabled under the Patent Act as opposed to looking at it through the lens of provincial responsibility and whether it was an intrusion into provincial responsibility. But it ultimately gets to the same spot.”

The elimination of compelled disclosure of third-party rebates will force the federal government to go back “to the drawing board and re-think its guidelines,” said Clouthier. But MacKendrick believes that the federal government may well want to wait it out to see what transpires from the appeals.

An appeal with the Quebec Court of Appeal has already been filed.

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

Quebec Court of Appeal expresses frustration over systemic delays in securing trial transcripts

The Quebec Court of Appeal, exasperated by provincial government inaction, delivered a rare but stinging rebuke over recurring systemic unmitigated delays in securing trial transcripts that disproportionately affect English-speaking appellants which “regrettably” puts into question the proper administration of criminal justice in Quebec.

Calling for a paradigm change in approach, the Quebec Court of Appeal issued clear and explicit guidance over the preparation and production of trial transcripts as litigants in criminal proceedings should “not be left without judicial remedies” when they face unreasonable appellate delays resulting from the “state’s inaction.”

“There are many bottlenecks in the system which may eventually need to be addressed by the Court in appropriate cases,” warned Quebec Court of Appeal Justice Robert Mainville in Dhingra c. R. 2021 QCCA 22.

“A culture of complacency, of neglect and underfunding has unfortunately characterized the preparation of appeal records, often leading to unreasonable delay in the prosecution of appeals. This is most often reflected in the inadequacies related to supplying timely trial transcripts, particularly with regard to English-language transcripts,” added Justice Mainville.

“The Quebec Court of Appeal was absolutely within its rights and did well to highlight the problem, especially because of all the injustices that it may lead to, particularly with people who are incarcerated and who want to exercise their legitimate rights to appeal a decision,” remarked Trois-Rivières criminal lawyer Michel LeBrun of Lacoursière LeBrun LLP and head of the criminal defense lawyer’s organization, Association québécoise des avocat(e)s de la défense (AQAAD).

The admonishment reflects a growing frustration by the judiciary with the executive branches of government over court administration, noted Université de Montréal law professor Martine Valois. Judges, believes Valois, will increasingly be writing more critical decisions that highlight the challenges they face due to endemic and and woefully inadequate financial and human resources because years of pressure put on the executive has been ineffective.

“This is a clear message to the provincial government, which finances the justice system, that inadequate financing has an impact on their capacity to render justice within reasonable delays,” said Valois, who has an expertise in judicial independence. “Judges, particularly those nominated by the federal government, know they have no negotiating power. The existing executive model is outdated, and jeopardizes judicial independence and the capacity of judges to render justice.”

The delays in obtaining trial transcripts are growing by the year, and underlines the “significant discrimination” between the rich and the poor, and francophones and anglophones, pointed out Maude Pagé-Arpin, a Montreal criminal lawyer who specializes in in appellate court proceedings. People with financial means can turn to private-sector stenographers that provide transcripts within a reasonable delay, said Pagé-Arpin. Legal aid beneficiaries don’t have that luxury. They have to rely on stenographers from the transcription department of courthouses who in turn resort to stenographers who will accept less-paying legal aid mandates, added Pagé-Arpin.

Since 2016 the Quebec Court of Appeal has underlined at least eight times in its decisions the “current and unmitigated delays” in the preparation and production of trial transcripts due to a lack of resources, particularly the dearth of bilingual stenographers. In fact, the appellate court points out that it must deal with issues of delayed trial transcripts in criminal appeals which have been placed on the special roll of the Appeal court almost every other week, the latest involving Soninder Dhingra, who was sentenced to 15 years’ imprisonment after being found guilty of trafficking and importing large quantities of cocaine and crystal meth. Dhingra appealed the conviction in July 2018, and yet little progress has been made in the case over the past two-and-a-half years because the trial transcripts are incomplete, deficient and in some cases inexistent because of technical failures. “In light of this sorry state of affairs,” as the Justice Mainville put it, Dhingra now seeks to raise new grounds of appeal based on the violation of his linguistic rights, under s. 530 of the Criminal Code.

In a bid to avoid injustice to appellants, particularly incarcerated appellants, “who are subject to unreasonable appellate delays resulting from state inaction,” the appellate court said it was incumbent on them to issue guidelines that would ensure the “continued trust” of the public in the criminal appeal process itself.

Though no formal timeframe is provided in Quebec, it may be “reasonably surmised” from the established framework and the case law of appellate courts of other provinces that the transcripts should normally be provided within three months from date they are requested, as is the case for an appeal in civil matters, held the appeal court. A delay exceeding six months to prepare the trial record, calculated from the date the record was requested and the costs of transcripts was provided, can be deemed excessive and even unreasonable if the circumstances warrant, added the appellate court. A delay exceeding one year “should always” be considered unreasonable, it said.

When the estimated or actual delay in providing trial transcripts is unreasonable, the Court of Appeal calls for a paradigm change in approach because “judicial denunciation” has produced little or no result and because litigants in criminal proceedings, particularly those who are incarcerated, should not be left without judicial remedies. In short, the remedy will depend on the actual circumstances of the case, said the appellate court. When the appellant is incarcerated, estimated or actual unreasonable delay in prosecuting the appeal resulting from state inaction may possibly be taken into account in “balancing the tension between the enforceability of a verdict and its review in appeal, a balancing exercise which is at the heart of the analysis” with respect to an application for release from detention pending the determination of appeal – all of which is set out in s. 679(3) of the Criminal Code. In this case, though Dhingra’s appeal was not deemed to be frivolous nor was he considered to be a flight risk, he failed to convince the appellate court that he would not present a serious risk to the public’s safety.

The Quebec Court of Appeal deemed that the appropriate remedy in Dhingra’s case would to be hear the the appeal under an accelerated schedule and placed on a special roll. Also, Justice Mainville held that since there still appears to be numerous and serious gaps of the English interpretation of the trial proceedings, that can “certainly” be raised by Dhingra with respect to alleged violations of his linguistic rights at trial. And if the trial transcripts continue to be deficient that would preclude a “meaningful” appellate review, Dhingra can also raise that issue in appeal and seek to order a new trial.

“If the Quebec Court of Appeal orders a new trial, that will be a strong signal to the provincial government,” said Montreal criminal lawyer Denis Gallant, Ad.E. with Roy Bélanger LLP. “All of this makes no sense. The appeal court notes that the Supreme Court of Canada decisions in Jordan and Cody do not apply to appellate courts but the Court of Appeal seems to indicate that it may end up doing it themselves. That’s worrisome.”

Pagé-Arpin will in fact plead in a case in the near future that the 16 months her client had to wait for English-language trial transcripts should be considered as part of the presumptive ceilings outlined by Jordan.

“Normally delays in appeal are not part of the calculation, but I will maintain that in the exercise of a fair and equitable review of the procedures against the appellant, it is impossible to ignore this injustice,” said Pagé-Arpin. “It is unacceptable that anglophones suffer such from a lack of access to justice before an appeal court.”

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

News at a glance

Quebec Bar unveils report on sexual harassment in the legal profession

Half of Quebec female lawyers have been subjected to sexual harassment, a third of Quebec lawyers were the subject of unwanted sexual conduct, and 4.2 per cent of women suffered “negative consequences” for refusing to engage in sexual activities. Approximately one per cent of lawyers who were the subject of sexual misconduct reached out to police.

So reveals a report unveiled by the Quebec Bar, three years after it was launched. Only 14 per cent of Quebec Bar members, or 3785 members out of 28,000 lawyers in the roll, responded to the survey.

Following the 76-page report, the Barreau du Québec intends to launch free training on harassment and sexual violence, and is considering making it compulsory. A committee will examine other options.

Here is the report (en français).


 

Court specialized in sexual assault and domestic violence making headways

A court specializing in sexual assault and domestic violence cases is inching forward, following the announcement by Quebec Minister of Justice Simon Jolin-Barrette of the creation of a working group that will lay the foundations of the specialized tribunal.

The Quebec government is following up on a voluminous report by a group of experts, tabled in December, that recommended the creation of a specialized court to help victims navigate the justice system.

Here is an abridged version of the report, and here is the complete report.


 

New tort for online harassment recognized by court

A new tort of “harassment in internet communications” has been recognized after Ontario Superior Court found that traditional defamation law remedies have been thrown into disarray by the internet.

In a case dealing with extraordinary campaigns of malicious harassment and defamation carried out unchecked, for many years, as unlawful acts of reprisal, Ontario Superior Court Justice David Corbett held that while regulation of speech carries with it the risk of over-regulation, even tyranny, doing nothing also also “carries with it the risk of anarchy and the disintegration of order.”

[4]               Freedom of speech and the law of defamation have developed over centuries to balance the importance of preserving open public discourse, advancing the search for truth (which must allow for unpopular and even incorrect speech), protecting personal reputations, promoting free democratic debate, and enforcing personal responsibility for statements made about others.  The value of freedom of speech, and the need for some limits on that freedom, have long been recognised as central to a vibrant and healthy democracy and, frankly, any decent society. 

[5]               The internet has cast that balance into disarray. 

[6]               This case illustrates some of the inadequacies in current legal responses to internet defamation and harassment.  This court’s response is a solution tailored for these cases and addresses only the immediate problem of a lone publisher, driven by hatred and profound mental illness, immune from financial constraints and (dis)incentives, apparently ungovernable except through the sledgehammer response of incarceration…

It is clear that the law needs better tools, greater inter-jurisdictional cooperation, and greater regulation of the electronic “marketplace” of “ideas” in a world with near universal access to the means of mass communication.

Here is the ruling.


 

Dunn’s parent company awarded $500,000 for trademark infringement

The parent company of the Montreal-based “Dunn’s Famous” deli-restaurant group has been awarded by Federal Court approximately $500,000 for trademark infringement by five operators .

Stanley and Ina (Dunn) Devine, the daughter of founder Myer Dunn, who died in 1993, entered into a number of agreements between 2007 and 2018 “purporting to provide licences” to third parties without the authority of Famous Holdings International Inc., the sole trademark holder.

“Based on the affidavit evidence…and the exhibits, along with the Plaintiff’s submissions, I am satisfied that the Defaulting Defendants have been involved in the use of the Dunn’s Trademarks without the Plaintiff’s authorisation and have deliberately engaged in activities causing trademark infringement, passing off, depreciation of goodwill, and false and misleading advertising,” said Federal Court Justice Richard Southcott in Dunn’s Famous International Holdings Inc. v. Devine, 2021 FC 64.


 

Hasidic community wins partial court victory

The Hasidic Jewish Council of Quebec won a partial legal battle after Quebec Superior Court decided that the provincial government’s order that a maximum of 10 people be allowed in a place of worship applies to each room within a building that has independent access to the street, and not just to the building in its entirety.

Quebec Superior Justice Chantal Masse, who did not weigh in on the constitutionality of the public health measures, left the door for the Quebec government to adjust the rules in the future.

Here’s a copy of the ruling, and here’s a story I wrote about the constitutional questions that have surfaced over the curfew imposed by the Quebec government.


Landmark decision for trans

In a victory for trans, non-binary and intersex people, Quebec Superior Court declared several provisions of the Civil Code of Quebec unconstitutional.

Justice Gregory Moore in Center for Gender Advocacy c. Attorney General of Quebec 2021 QCCS 191 recognized that:

¶ trans parents have a right to change their name and designation on their children’s birth certificates and non-binary parents have a right to identify as “parent” as opposed to “mother” or “father;”

¶ people who do not identify as either male or female have a right to a non-binary designation;

¶ non-citizens have a right to change their name and sex designation

¶ trans youth age 14 and over cannot be required to produce an attestation from a health professional in order to change their sex designation

Here’s the ruling that for the most part now puts Quebec on par with the rest of the country.


Separating childless couples have access to mediation

Childless couples in the midst of a separation will now have free access to mediation thanks to a 20-week pilot project launched by the Quebec Ministry of Justice, beginning on February 18th.

Former spouses who do not have a child together will be able to benefit from three free hours with an accredited mediator to help them settle their separation amicably.

At present, separating couples with children are entitled to five hours of mediation, or two-and-a-half hours in the event that they need to review a previous judgment or agreement.


Bailiff’s firm must use surname 

The name of a bailiff’s firm must be composed of the surname of a partner or shareholder, held Quebec Superior Court Justice Janick Perreault. That means that a bailiff’s firm cannot use the initials or numbers as a moniker. Here’s the ruling.


Parking meters class action

A class action over the way that electronic parking meters operate in Montreal and Quebec City was given the green light. A Quebec City resident maintained it was unfair that the two cities can charge a person to park in a spot with a meter if the time is already paid for by someone who previously had the spot and left early. Quebec Superior Court Justice Éric Hardy rhetorically wondered if this was “abusive” and whether “municipal regulations allow this?” Here’s the ruling.


Desjardins data breach

An insurance agent who admitted buying and using information culled from a data breach at the financial group Desjardins Group was suspended following a ruling by an administrative tribunal. Here’s the ruling.


Parent loses child custody during COVID-19

Non-respect of public health measures during a pandemic may be considered to be “reprehensible, even harmful, conduct to the development of a child,” held Quebec Superior Court Justice Claude Villeneuve in a child custody case.

He added: “Even if freedom of expression is a recognized right, it does not go so far as to permit an adult to denigrate and discredit, in the presence of a minor, citizens who respect rules enacted by the public health authorities in a pandemic linked to COVID-19.” Justice Villeneuve added that the parent’s message to his child is that it’s not important to respect the law nor the health and security of others, “which leads the Court to put into question the parental capacities… and as a result, the custody of the child.”  Here is the decision.


Reprimanded judge loses case

Former Court of Quebec Judge Jean-Paul Braun who was reprimanded for suggesting in a sexual assault case that a 17-year-old girl who was kissed and groped by a taxi driver was probably “a bit flattered” by the gesture lost his bid to overturn a rebuke by the Quebec judicial council following decision by the Quebec Court of Appeal.

The Quebec judicial council, the Conseil de la magistrature, reprimanded Judge Braun for his stereotypical remarks. The council found that he breached his ethical duties and did not act with integrity, dignity and honour. Judge Braun, since retired, unsuccessfully sought a judicial review of the Council’s decision before Quebec Superior Court last fall. He appealed the Superior Court decision before the Quebec Court of Appeal, which rejected his request.


Paying rent during COVID-19

The obligation to pay rent during the pandemic is an issue the courts are grappling with. Quebec Superior Court Justice Peter Kalichman acknowledged that Quebec retailer Groupe Dynamite’s  ability to use certain leased premises to operate its stores was “severely limited by the Covid Restrictions.” However, Justice Kalichman held that “where leased premises are occupied by a debtor and cannot be leased to anyone else, the landlord is not prevented from demanding immediate payment of rent regardless of whether or not the debtor is carrying on business.” Or as law firm McCarthy Tétrault points out, the debtor is not relieved of the obligation to pay post-filing rent when it is asserting a right to sole possession of the premises and has not disclaimed the lease.


Right to contact counsel of choice

The right to contact counsel of choice was at the heart of two Quebec Court of Appeal decisions. In R c. Blackburn-Laroche, 2021 QCCA 59, the appellate court held that police officers had not made the necessary effort to reach the lawyers chosen by the respondent. As a result he was deprived of a reasonable opportunity to contact them. In another case, R. c. Tremblay, 2021 QCCA 24, the appeal court held that “the police did not fulfill their well-known duty to facilitate the respondent’s exercise, at the first reasonable opportunity, of her constitutional right to retain and instruct counsel.” 

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Constitutional challenge over legal aid fees rebuffed by court

A Montreal criminal lawyer behind a constitutional challenge of Quebec’s legal aid disbursements’ system and a motion to revamp the legal aid fee system lost his bid after Quebec Superior Court held that it was a political matter.

In a long-awaited decision by the Quebec legal community, with several high-profile criminal defense lawyer’s associations as well as the Quebec Bar joining in the effort, Superior Court Justice Manon Lavoie held that while the issue deserved attention it was an administrative issue that had nothing to do with the constitutional rights of the litigant who raised the matter.

“Considering the effort and energy that was put into this case for the past two years, the result for us was catastrophic,” said Félix-Antoine Doyon, a Montreal criminal lawyer who spearheaded the constitutional challenge. “We are absolutely and totally convinced that the current legal aid system is flawed. We are convinced that several fundamental rights are breached by the current legal aid fee system. At least the judge recognized the seriousness of the question,” added Doyon, who intends to file an application for leave to appeal before the Quebec Court of Appeal.

Doug Mitchell, a Montreal litigator and constitutional law expert who represented three Quebec criminal defense lawyer’s organizations who sought to be interveners, believes the decision is inconsistent with the current state of law. “The judge reduced it to simple financial expenditures, which is a complete misreading of the statement of claim,” said Mitchell, who co-founded IMK LLP in 1997. “The statement of claim says that the current regime results in a denial of several fundamental Charter rights and that it is setting up a system where either the lawyers are not incentivized to do a reasonably decent job or the people who are doing it are not going to be competent in criminal files with some degree of complexity.”

The case to the fore after Doyon took on a legal aid mandate to represent Michée Roy, who was charged in 2015 with killing his infant son in a suspected case of shaken baby syndrome. In 2017 Roy was found guilty and sentenced to 12 years in prison, a decision that was overturned by the Quebec Court of Appeal in 2019 after it ordered a new trial following new evidence.

Doyon initially accepted to once again represent Roy, but then desisted, maintaining that “derisory” legal aid fees did not allow him to adequately represent his client. Roy then lodged a motion in September 2019 seeking a declaratory judgment, alleging a breach of his rights under the Canadian Charter of Rights and Freedoms. He also sought a declaratory motion seeking the unconstitutionality of the 2013 legal aid agreement reached between the Quebec Bar and the provincial government, asserting that it infringed it his right to equality and his right to a full and fair defence.

Fewer and fewer Quebec private practice lawyers are taking on legal aid cases. In fiscal year 2019-2020, the number of private practice lawyers who took on legal aid cases dropped by 9.1 per cent compared to the preceding year, with criminal and penal cases shrinking by 11.3 per cent and civil matters by 6.5 per cent, according to the latest annual report by the Quebec Legal Services Commission, the provincial body overseeing legal aid. That’s mainly because legal aid fees are woefully inadequate, say critics of the current legal aid system. Under the 2013 agreement, the maximum amount a defence lawyer obtained to represent a legal aid client charged with a lesser criminal offence was $300, a figure that climbed to $500 for serious charges. More funds are available for “complex cases” but critics point out that it’s difficult and cumbersome to obtain. Such legal aid disbursements put the protection of the public and the honour of the profession in peril, asserts Roy in his statement of claim.

In the meantime in December 2019, the Quebec Legal Services Commission reviewed Roy’s case and granted him additional fees as it was deemed to be “complex case” – which prompted Doyon to represent Roy again. In spite of the favourable decision, Roy nevertheless forged ahead with the constitutional challenge.

The Attorney General of Quebec contested the motion, maintaining that Roy does not “sufficient interest” in the case as per Article 85 of the Quebec Code of Civil Procedure – a position that Justice Lavoie agreed with. Justice Lavoie held that since Doyon accepted the legal aid mandate with a premium disbursement, it voided Roy’s alleged constitutional breaches and the remedies he sought. As a result Roy did not have sufficient interest, “that is, direct and personal,” to pursue the case, held Justice Lavoie in Roy c. Procureur général du Québec – Ministère de la Justice 2020 QCCS 4503, a decision issued on December 15th.

Moreover even though under Article 85 (2), a plaintiff can raise a public interest under certain conditions, the court has to determine whether the issue is a serious one that can be validly resolved by the court and whether there is no other effective way to bring the issue before the court. Justice Lavoie held that she was not convinced that Roy was “interested” in the legal aid disbursement issue, its harmful consequences, and does not appear to be very committed to the issues at hand. Rather, the case appears to be one that interests above all lawyers who are seeking to renegotiate the legal aid agreement.

On top of that, Justice Lavoie pointed out that the Quebec government and the provincial bar association reached an agreement in October 2020 to increase legal aid fees and to establish an independent working group headed by former Court of Quebec Chief Justice Élizabeth Corte. The group, which will include members nominated by both the Quebec government and the Barreau du Québec, will conduct an exhaustive review of the tariff structure, including the issuance of legal aid mandates and disbursements involving complex cases. It is expected to issue a report by this spring. Under the agreement, legal aid fees will increase five per cent retroactively from October 2017 to May 2019, and a 14.7 per cent increase in fees from June 2019 to September 2022.

“It does not lie within the judiciary power to dictate to the legislator and the State how public funds should managed,” said Justice Lavoie, adding that the matter was an administrative one that has nothing to do with the constitutional rights of the plaintiff. “Furthermore, the Charter does impose to the State a positive constitutional obligation to provide legal services.”

But that is a complete misreading of the issues at stake, said Mitchell. Justice Lavoie puts too much faith on the fact that a committee was struck to examine issues that have long troubled the Quebec legal community. “I know of too many instances where committee reports sit on shelves and nothing is done,” said Mitchell. More importantly, added Mitchell, the existing regime for legal aid is “woefully deficient” on several constitutional law standards. “The mere fact that a judgment of a court on a constitutional question might require the State to spend more money is not an uncommon occurrence in constitutional law, and is not grounds for rejecting a statement of claim,” said Mitchell.

Doyon continues to assert in spite of the unfavourable decision that legal aid fees is “not a political or administrative matter” but an issue that deals with fundamental rights. “The problem with legal aid fees is that in cases where the person is facing serious consequences in a complex case, he is unable to obtain monies so that his lawyer can competently prepare for the case,” said Doyon. “That is a constitutional issue.”

Counsel for the Quebec Bar declined to comment on the ruling.

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

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Legal questions surface around Quebec’s curfew

A province-wide four-week curfew instituted by the Quebec government to stem COVID-19 infection rates and to serve as an “electroshock therapy” to deter people who have been flouting public health measures was launched without providing any grounds based on evidence that justifies the breaches of the Canadian and Quebec Charter, according to legal experts.

The mandatory overnight curfew from 20:00 to 5:00, the first in Canada since the beginning of the COVID-19 crisis, is part of an expansion of lockdown measures, including extending the closure of non-essential businesses, that will last until February 8th. Police officers will have the power to intercept individuals found outside during curfew hours and to issue fines ranging from $1,000 to $6,000 to those who cannot show a valid reason for breaking curfew. There are exceptions for essential workers, people with medical reasons and those walking their dogs. Employers should complete letters of “safe passage” to employees who are required to work or travel to work during curfew hours, according to the provincial government.

But while civil libertarians acknowledge that exceptional measures are required during exceptional circumstances, there are concerns over the broad discretionary powers handed to police to enforce the curfew and unease over the provincial government’s intentional decision to side-step its obligation to justify Charter breaches, one that may be emulated by other provinces.

“The legacy in the long run will be that during good times, under normal circumstances, governments respect fundamental rights but when the going gets rough, individual rights and the Charters can be ignored,” noted Stéphane Beaulac, counsel with Dentons and a law professor at the Université de Montréal, with an expertise in constitutional law. “It curbs the progress made since the second World War which values the legal protection of individual rights.”

There is little argument that the provincial government can under Article 123 (8) of the Quebec Public Health Act order any measures necessary to protect the health of the population, such as imposing as curfews or even ordering compulsory vaccinations, said Denis Gallant, a Montreal criminal lawyer with Roy Bélanger Avocats LLP. “I strongly doubt that the courts would come to the conclusion that a decree issued by virtue of the Public Health Act would be deemed to be unconstitutional,” said Gallant, Ad. E., Montreal’s first inspector general and the former head of the Autorité des marchés publics, an independent body that oversees public procurement.

There is also little dispute among legal experts that the curfew breaches the Canadian Charter of Rights and Freedoms and the Quebec Charter of human rights and freedoms, notably mobility rights and the freedom of peaceful assembly, as well as rights set out by the International Covenant on Civil and Political Rights.

But the Quebec government has circumvented the two-step test set out by the Supreme Court of Canada in the landmark Oakes decision, R. v. Oakes, [1986] 1 S.C.R. 103, for determining whether the provincial government’s limitation on Charter rights is reasonable and demonstrably justified, according to legal experts. There is no doubt it would be able to demonstrate that there was a pressing and substantial objective for the implementation of a curfew given the rising numbers of COVID-19 cases and hospitalizations in spite of a series of public health measures that were introduced since last spring. But the provincial government has omitted to provide a justification or a rational connection that would justify the limitations to Charter rights, pointed out Cara Zwibel, the director of the fundamental freedoms program with the Canadian Civil Liberties Association.

“We don’t really know what the government is relying on in terms of deciding that a curfew is a necessary step,” said Zwibel. “When liberties are being restricted we need to have a reason based on evidence, based on data. We want these restrictions to be grounded in evidence and for the government to be able to demonstrate that it is capable of achieving that purpose.”

Quebec Public Health director Horacio Arruda acknowledged in a press conference last week that he could not cite studies about the efficacy of curfews. The curfew, added Arruda, was implemented to serve as a “signal,” and to reduce contacts between people.

But that’s not good enough, said Beaulac. “It appears that they have not even bothered to provide a justification,” said Beaulac. “It’s as if because of the public health emergency they can govern outside of the legal framework, outside of the constitutional framework of the Canadian and Quebec Charters. My fear is that the absence of justification was not committed by negligence nor by oversight but voluntarily. It’s regrettable because in three, five years time when examining how the Quebec government managed the coronavirus public health crisis, it will appear as if they governed by shunting aside the importance of individual freedoms. It creates a bad precedent. It’s a precedent that does not provide a justification behind the adoption of this draconian measure, the curfew.”

Julius Grey, a Montreal human rights lawyer, believes however that curfews are a reasonable measures as long as it is within reasonable limits, have reasonable exceptions, and does not impose “truly draconian penalties” that would be considered to be cruel and unusual.

“The government doesn’t need absolute scientific evidence but it needs some,” said Grey of Grey & Casgrain LLP. “If the curfew is unreasonable and unconnected to controlling the disease then it would not be lawful. But I don’t think this is the case. It’s just that it doesn’t end the disease. And in that situation the government is entitled to a certain margin of error.”

Gallant too believes that the courts would give the provincial government leeway to tackle the pandemic in ways recommended by public health officials. The Supreme Court of Canada, he points out, has reiterated numerous times that fundamental rights are not to be interpreted in a vacuum. Gallant likens the current measures to random stops by police to curb drinking and driving, the subject of a series of decisions by the nation’s highest court in the 1990s. In R. v. Ladouceur [1990] 1 S.C.R. 1257, the SCC held that random stops were a proportionate or appropriate measure to the pressing and substantial concern of “carnage on the highways.”

But besides the constitutional issues raised by curfews, Zwibel also is concerned about the discretionary powers police have to enforce it. “We know that when police are given the power to stop people they are going to be the people who are subject to more scrutiny than others – and those are racialized communities and communities with a lower socio-economic status,” said Zwibel. “That is a concern.”

Gallant points out that the SCC, in R. v. Beaudry, 2007 SCC 5, held that the ability to exercise discretion is fundamentally necessary for effective policing. But the discretion is not absolute and it must be justified subjectively. “In a regulatory legislative context, where police have the discretion to give or not give a fine, there are grey zones,” said Gallant. “In grey areas defendants can stand to gain from reasonable doubt. Curfews are an extraordinary measure but it does not do away with our fundamental rights such as the right to a fair trial and the right to a full defence. So a person who believes that a police officer poorly used his discretionary powers can raise a reasonable doubt. That reassures me.”

But out of concern over the effect the curfew will have on homeless people who have no access to a shelter, Quebec Superior Court Justice Chantal Masse lifted the severe public health measure for them. In a five-page decision, Justice Masse held that the curfew has a discriminatory and disproportionate effect on people experiencing homelessness, contrary to the right to equality of persons.

“Many of these people, when the curfew takes effect, seek to hide from police in order to avoid getting a fine or being picked up, and are likely to put their health and security in danger given the winter,” said Masse in Clinique Juridique Itinérante c. Procureur générale du Québec. “Many of these people fear, for objective reasons, of contracting the COVID-19 virus in shelters, which are packed during winter” and have had outbreaks. The Attorney General of Quebec did not take a position on the matter.

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

Is mandatory COVID-19 vaccination an option for employers in Quebec?

Since the beginning of the pandemic, many have been eagerly awaiting a safe and effective vaccine to allow us to return to normal. With the first doses arriving in Quebec, one question keeps arising: Can employers require employees to get vaccinated before returning to work?

Guiding principles

Due to this situation’s unprecedented nature, there are unfortunately no useful precedents offering clear guidelines on how best to address this issue. However, recognized legal principles, such as consent to care1 and the right to personal integrity2, tell us that the basic idea of requiring employees to be vaccinated before returning to work will not pass the test of the courts.

There is one exception to these principles, but it is one that we believe will rarely (if ever) be applicable: the Public Health Act (Act) does provide that the government may, in the event of a health emergency, order compulsory vaccination of the entire population or a certain part thereof. In such an event, the government would have to under Article 125 of the Act ensure that sufficient quantities of doses are available and that the required health services are provided — all at its own expense. At this point in time, unless the government makes such an order, this provision will not help an employer who wants employees to get vaccinated before returning to work.

The other, more realistic option available to employers is to demonstrate that employee immunization is a bona fide occupational requirement (BFOR) due, for instance, to frequent and repeated contact with vulnerable clients. This could apply to some categories of workers in the health and social service sectors or in the education sector. It should be noted that even in such circumstances, the vaccination of a recalcitrant employee could not be imposed; however, the employer would then have the option of removing the employee from the risk environment, potentially without pay, and implementing an alternative solution.3

Indeed, there is reason to believe that an employee who refuses to be vaccinated when it is shown that the vaccination constitutes a BFOR could be subject to administrative measures. These could range from a transfer to another department where others’ safety is not at risk to possible dismissal in cases where reassignment is not possible.

What to do now?

We now understand that employers who want their employees to be vaccinated before returning to work will not be able to impose their will through a mandatory vaccination policy or by any other means. However, if vaccination is shown to be a BFOR, other administrative options will be available to employers.

Therefore, we recommend that employers focus on reaffirming their commitment to providing a safe work environment by following all the measures recommended by public health authorities (e.g., social distancing, wearing face masks, etc.).

A reminder from the employer that everyone has a role to play in ending the pandemic and that vaccination can be an effective tool to bring about a return to normal could mobilize employees and encourage them to get vaccinated. Please do not hesitate to contact a member of our team if you have any questions regarding the topics covered in this newsletter.

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1 Civil Code of Quebec, CQLR c CCQ-1991, s. 11.
2 Charter of Human Rights and Freedoms, CQLR c C-12, s. 1.
3 Syndicat des professionnelles en soins infirmiers et cardio-respiratoires de Rimouski (FIQ) c. CSSS Rimouski-Neigette, 2008 CanLII 19577 (QC SAT) (Application for judicial review dismissed: 2009 QCCS 2833).

Committee recommends overhaul of Quebec’s youth protection system

A Quebec commission of inquiry is calling for a sweeping overhaul of the provincial youth protection system, including legislative amendments, to deal with children slipping under the cracks, burnt-out staff leaving in hordes, and underfinancing, all of which should be overseen by a newly appointed provincial director.

In a preliminary report, the Special Commission on the Rights of the Child and Youth Protection found that children’s rights are not always respected, observed regional disparities of youth protection cases before the courts, deplored the overrepresentation of Indigenous and black children in the system, and noted that the interpretation of confidentiality provisions served as a “brake” on collaboration.

The commission called on the Quebec government to immediately appoint a youth protection director to oversee the entire provincial system, introduce legislative amendments that would clarify the Youth Protection Act, encourage judges hearing youth protection cases to act “as much as possible” as facilitators rather than deciders, bolster the use of mediation in all interventions, and pour more monies into the system. The Quebec government announced last year that it would inject $47 million in child protection services to hire new social workers and curb waiting times.

“I have a hope and a fear,” said André Lebon, the vice-president of the Commission. “I hope, even if staff are fleeing the system, that if the reforms are properly implemented to save our system and we give back to people a work environment that puts care and needs at the heart of our concerns, we will keep our people and rekindle the flame because the flame still exists. But if we don’t, we will waste 30 years of social innovation and we will eventually hit a wall and it will be extremely painful, perhaps even perilous, to reorganize the system. It’s now or never.”

The commission, launched after the 2019 tragic death of a seven-year old girl in Granby, Quebec, following lapses in the youth protection system, was given carte blanche to undertake a comprehensive examination of youth protection services, the law that governs it, the role of the courts, social services and other stakeholders. The 12-member panel, headed by Régine Laurent, the former president of Quebec’s largest nurses union, is composed of six experts and a member of the National Assembly of each of the four political parties. The so-called Laurent Commission heard testimony by more than 335 witnesses in public hearings and 2,000 citizens and stakeholders in 42 regional forums across the province. It was supposed to issue a final report in November but due to the COVID-19 pandemic, it will now publish it in April 2021.

“This is a report that puts the finger on a number of findings that are not surprising,” said Dominique Goubau, a law professor at the Université Laval with an expertise in family and youth protection law. “The most tragic finding is that the rights and interests of children are not at the heart of actions. That is really depressing.”

The commission asserts that 2015 healthcare reforms undertaken by former Quebec health minister Gaétan Barrette under the Liberal government “weakened” the youth protection system’s management and leadership by abolishing “important” structures that provided psychosocial care. “The management models are ill-suited to the reality of youth services,” said the report, adding there is now a leadership and accountability vacuum that plagues the system. And that has led to other problems, from the dismantling of support to workers in the system to a lack of training and supervision, said Lebon. Workers, he added, are under siege, overwhelmed by caseloads, and distressed that they are unable to provide quality services to those under their care. Further, the youth protection system has degenerated into a system that cares more about numbers, with workers’s performance measured over the number of cases they have and closed rather than the type of care they provide, said Lebon.

“The youth protection system is facing the same situation that the healthcare system faced and faces,” observed Michel Tétrault, a family lawyer who up until last spring worked at a legal aid clinic in Sherbrooke. “There has been over the past four-to-five years a huge number of experienced workers who decided to take their retirement, and the people who have replaced them are young, around 23 years, who literally just came out of university. Dealing with family issues, especially in youth protection matters, requires experienced and competent workers.”

Under-financing has not helped nor has the fact that the youth protection system has become an entry point to obtain services because the health system is overburdened, added the report – a conclusion that Goubau, who testified before the commission, is in complete agreement with.

“The problem is that we have too many children who end up under the Youth Protection Act for the simple reason that other (healthcare) services cannot provide service or cannot offer service rapidly enough,” said Goubau. “The delays are so long that it’s easier to obtain access to services by going through the youth protection system, and that is an abuse of the law. The Act was not intended for that. It’s become a gateway for too many cases, with the result that there are massive cases that should not fall within the scope of the Act.”

The repercussions have been grave. The rights of children are not always respected, and children are not made aware of their rights so that they can exercise them, said the report. Or, adds Lebon, their voices not always heard. “There are many adults who speak about children’s issues but few adults who speak to children – and that’s the case for the social and legal aspects of the Act,” noted Lebon. “They are told this is what we should say before the courts. This is what we are going to ask for you. This is how we are going to defend you. But rarely are children, and by extension their families, are heard.”

Youth care services offered to cultural and linguistic minorities too have paid the price. They are “insufficiently” adapted to meet their needs. Moreover, young black children are overrepresented in the system as are Indigenous children – a situation that must be remedied promptly, recommends the report.

The Act is also applied unevenly across the province, found the report. The proportion of youth protection cases varies wildly form one Quebec region to the next, ranging from 30 per cent to 70 per cent, which seems to indicate that there is an absence of homogenous services across the province, points out the report.

Just as problematic is that youth protection workers tend to work in silos due to the strict interpretation given to  confidentiality rules. It is so restrictive that information is not shared between frontline workers, daycare centers, community organizations or schools. Lebon said the commission wants the government to introduce amendments to make the Act clearer over confidentiality provisions. “We want confidentiality to be re-defined so that the interests of the child are taken into account, and at present that is not the case,” said Lebon.

The immediate appointment of a provincial director overseeing the Quebec youth protection system would be a first, but important, step to meet head-on the daunting challenges, said Lebon. But Tétrault believes that a director with powers akin to a deputy minister does not go far enough. “They have to go further and ensure that the person has powers to change things, to sanction and to hold people accountable,” remarked Tétrault, author of a four-volume tome on Quebec family law.

But Lebon, while cautiously optimistic, has no illusions. He has worked in the youth protection system for 50 years, and has penned three reports, the latest a 2016 report on youth runaways and sexual exploitation, a report he acknowledges has been for all intents and purposes shelved. On top of that there is the COVID-19 pandemic, which is surely going to strain Quebec’s financial resources, said Lebon. ‘We are in the midst of mortgaging ourselves financially in a big way,” said Lebon. “Will there be money, resources and energy left? We don’t know but it doesn’t change what we have said or what we have to do. It makes it more complex.”

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

Quebec introduces major reform to crime victims legislation

Barely two weeks after the federal ombudsman for crime victims called on Parliament to overhaul Canada’s victims bill of right, asserting that it has fallen far short of delivering the “real rights it promised,” the Quebec government introduced a bill that will revamp its crime victims legislation to expand the number of people it will cover, making it the most generous in the country.

Bill 84, introduced by Quebec Minister of Justice Simon Jolin-Barrette in mid-December, broadens the definition of victims of crime, provides financial assistance to crime victims that were not covered before, eliminates prescription periods for victims of certain crimes, and repeals two provincial laws dealing with crime victims (Crime Victims Compensation Act and Act respecting assistance and compensation for victims of crime) and replaces it with an integrated legislative framework entitled An Act to assist persons who are victims of criminal offences and to facilitate their recovery.

“This is a major reform,” noted Jo-Anne Wemmers, an international expert on victimology who is professor at the School of Criminology at the Université de Montréal. “It essentially replaces two provincial laws that were on the book for a long time and comes up with one integrated comprehensive piece of legislation for victims of crime in Quebec. They had to update it and integrate it because essentially you had two different definitions of the word victim, which were rather inconsistent, confusing and difficult to defend.”

At a time when provinces, such as Ontario, are curtailing programs for crime victims, the Quebec government will abolish the list of criminal offences that provided coverage to only certain victims and will instead cover all crimes against the person. As a result, victims of criminal offences that were not covered before, including victims of sexual exploitation, child luring and criminal harassment, will be able to apply for assistance under Bill 84. Quebec residents who are victims of a crime that occurred outside the province too will be eligible for financial assistance.

“In comparison with the rest of Canada, Quebec has always been and will continue to be far more generous than any of the other provinces,” said Wemmers, author of “Victimology: A Canadian Perspective.” “Part of the reason is that victimology is stronger here than elsewhere in the country. You have a strong victims movement. You have strong victim services as well. This is one of the few places in Canada where you have assistance centers for victims of crimes in which victim support workers are paid compared to elsewhere in Canada where they’re often volunteers. There has to be a serious evaluation of victims right across the country and the lack of consistency.”

The bill also extends the time when crime victims can file an application for assistance from two to three years after the date which the victim “becomes aware of the injury” they suffered because of a criminal offence or within three years after a death due to criminal act. However, that prescription period is eliminated, and an application can be filed anytime, for people who were victims of a crime involving violence suffered during childhood, a sexual aggression or spousal violence. More than 600 sexual aggression victims were turned down by the the Direction de l’indemnisation des victimes d’actes criminels (IVAC), the provincial body that administers the Quebec crime victims compensation system, because they failed to meet the application deadlines, revealed the Montreal French-language newspaper La Presse earlier this month.

At present some 7,000 people receive compensation from IVAC, a figure that is expected to increase annually by approximately 4,000 if Bill 84 is enacted, according to the Quebec government.

In spite of certain gaps that are not addressed by Bill 84, the legislative proposal represents a welcome evolution to the rights of crime victims, according to Amissi Melchiade Manirabona, a law professor at the Université de Montréal who recently published a book entitled “Introduction au droit des victimes d’actes criminels au Canada.”

“As it stands Quebec is fairly advanced compared to other provinces in terms of the compensation that is offered as there are some provinces who do not even offer indemnities,” said Manirabona. “This bill will make it better but it’s still not perfect. There are things that should be improved but it’s still a very good step in the right direction.”

While the bill broadens coverage for all crimes against the person, it does not provide assistance to victims of economic crimes such as fraud, notes Manirabona. And yet, points out Manirabona, many victims of fraud who have lost their life savings have been suicidal or committed suicide, “which means that they are in distress almost in the same manner” of victims who were physically assaulted.

“Crimes against property are not covered because of cost-savings or because they are not well-informed over the real impact of these crimes,” said Manirabona. “It would be appropriate to further substantiate the bill to take into account the impact of crimes on victims, regardless of the nature of the crimes.”

Another shortcoming in the bill is that it will reduce the financial compensation awarded to victims of crimes, noted Manuel Johnson, a researcher with the non-profit organization Institut de recherche et d’informations socioéconomiques (IRIS) with an expertise in indemnities and landlord-tenant issues.

“The legislation was long overdue for a total rehaul,” remarked Johnson, a legal aid lawyer with the Centre communautaire juridique de la Rive-Sud in Longueuil. “The law needed to be modernized and on the surface it seems to be a very successful exercise. But the devil is in the details and so while they’re extending the coverage to a lot more people, it ‘s the clear that there’s a real risk that the financial compensation victims will receive will be drastically curtailed.”

Currently a Quebec crime victim who is unable to work because of the criminal offence will receive 90 per cent of their net salary, just as is the case with victims of a workplace accident, explained Johnson. That will no longer be the case if Bill 84 is adopted. Under the proposed legislation, financial assistance compensating a loss of income will be paid for a maximum period of three years, whether consecutive or not. Further, under Bill 84 it will be limited to 90 per cent of the income to a maximum of $78,500. It now stands at 90 per cent of the income to a maximum of $200,000.

“After they have an income replacement for three years, they will then have to go into welfare,” said Johnson. “That’s very worrisome. This limitation of three years is  clearly a setback for victims.”

Just as worrisome is how IVAC will apply the new law, if adopted, according to crime victim experts. In 2016, the Quebec ombudsman issued a special report that examined the compensation of crime victims. The report castigated the provincial government for favouring a restrictive interpretation of the Act, criticized its long waiting times, and found there were gaps in information to help victims understand how the assistance works.

“At the end of its investigation, the Quebec ombudsman identified several flaws in the system’s management, all of which pointed to failings regarding the fundamental obligations written into the Act respecting administrative justice in terms of service quality, celerity, and accessibility, or regarding the principles underpinning the spirit of the Crime Victims Compensation Act which calls for a broad and liberal interpretation,” said the report.

Wemmers believes the Quebec government should put in place a monitoring mechanism to ensure the IVAC follows the spirit of the bill.

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

Quebec appeal court ruling opens the door for former common-law spouses to claim unjust enrichment

A wealthy businessman was ordered to pay $2.4 million to his former common law-former partner as he left the relationship with a disproportionate share of the wealth accumulated by the parties’ joint efforts, held the Quebec Court of Appeal.

The appeal court decision, the latest in a slow but steady line of rulings that signals a steady evolution in the way Quebec courts are dealing with legal issues stemming from de facto couples, reaffirms that former common law spouses can make claims of unjust enrichment and be granted monetary awards when they are able to prove that the partners were engaged in a joint family venture, according to family law experts.

But while the appeal court is “bending over backwards” to state it is not imposing family patrimony rules or partnerships of acquests that apply to married spouses or those in civil unions on de facto spouses, it remains that the decision may nevertheless open the door to former common-law spouses to obtain alimony or evenly share the proceeds of the wealth generated by the parties’ joint efforts, added family law experts.

“The judgment kind of confirms that Quebec courts are on a path of trying to use unjust enrichment to remedy injustice when a long-term cohabitation ends,” observed Robert Leckey, dean of the McGill University’s Faculty of Law and a family law expert who was cited in the appeal court ruling. “But the cohabitant will still have to produce evidence and make out her case in an individualized way that married people don’t.”

Department of Justice – Family Structure in Canada

The appeal court decision may have wide-reaching consequences, according to Michel Tétrault, a family law expert who has written “Droit de la famille.” Besides laying the legal groundwork for unjust enrichment in Quebec civil law, the appeal court decision provides an underpinning for the possibility of using certain common law concepts of unjust enrichment to civil law, said Tétrault.

The decision also eases the criteria to establish unjust enrichment because the courts will likely seek to seek to avoid inequities, added Tétrault. “The courts will less likely focus on calculations or amounts but rather seek to determine whether it is inequitable if an ex-spouse is not compensated to what they contributed,” said Tétrault, Ad. E. “The courts will have to integrate the concept of equity while examining unjust enrichment. That is significant because equity is not a concept that is applied in civil law, unlike common law.”

The case involves a common-law couple who lived together for 16 years, beginning in 1997. As of 2000, he devoted himself entirely to developing a business he launched while she worked. The couple had two children between 2001 and 2003 at a time when his business was struggling, and it was her salary that helped sustain the family even though she took two maternity leaves until 2004 to care for the children. Things changed in 2007. His business became successful, and as a result he considerably reduced his workload after his business. Five years later, in 2012, he sold his business for $65 million, giving him a personal profit of $17 million. A few months later, he left his partner, giving her $100,000. She sued him for unjust enrichment in 2015.

Quebec Superior Court Justice Robert Mongeon, heeding guidance from the Quebec Court of Appeal in Droit de la famille – 132495 2013 QCCA 1586 and the Supreme Court of Canada’s Kerr v. Baranow 2011 SCC 10, [2011] 1 S.C.R. 269, concluded that were it not for her commitment to her spouse, their children and their household, the man would not have been able to devote so much energy and time to his business which made him a multi-millionaire. The man admitted as much in a book he wrote, pointed out Justice Mongeon who ordered the man to pay his ex nearly $2.4 million, an amount that represented 20 per cent of his net assets at the time they separated.

He appealed, arguing that the lower court judge usurped the role of the Quebec legislator by adopting common law remedies conferred by equity in cases of unjust enrichment that are foreign to civil law. The trial judge should have instead resorted to Article 1493 of the Civil Code of Quebec where the traditional measure has been to rely on the value of services received from the spouse, akin to paying a housekeeper had he not been involved in a relationship, he added. He also maintained the Quebec Court of Appeal “wrongly decided” the case in Droit de la famille – 132495 2013 QCCA 1586, the decision that the trial judge used to buttress his findings, as it too relied on common law concepts such as “joint family venture” and “value survived” that are alien to civil law. On top of that, he asserted that the trial judge failed to respect guidance issued by the SCC in the notable “Eric and Lola” case, Quebec (Attorney General) v. A, 2013 SCC 5, [2013] 1 S.C.R. 61 in which it upheld the constitutional validity of the articles of the Civil Code which provide that the support obligation and the division of the family property apply exclusively to couples who are married or who have entered into a civil union and not to de facto spouses.

The Quebec Court of Appeal dismissed the arguments. “Civil law has the capacity to adapt to changes in society, and on occasion integrate notions borrowed from other legal systems so long as there is a legal basis,” noted Quebec Appeal Court Justice Stéphane Sansfaçon in a 63-page decision in Droite de la famille – 201878, 2020 QCCA 1587. Chief Justice Manon Savard concurred in separate reasons as did Justice Claudine Roy.

Justice Sansfaçon pointed out that the SCC did exactly that in Cie Immobilière Viger v. L. Giguère Inc., [1977] 2 S.C.R. 67 when it addressed a situation it considered unjust, and the conditions for applying the unjust enrichment remedy were subsequently codified in Article 1493 of the Civil Code. Contrary to what the man claimed, the notions of joint family venture — characterized by mutual effort, economic integration, actual intent and priority of the family — and value survived (the increase in value of the defendant’s property as a result of the plaintiff’s activity) are not foreign to civil law, added Justice Sansfaçon.

“The appeal court decision reinforces the possibility of value survived as a remedy, which could be awarded when the facts prove that there was a joint family venture, meaning in cases where the contributions of both parties over time have resulted in an accumulation of wealth,” explained Suzanne Pringle, Ad. E., a Montreal family lawyer who successfully plead the case. “Unjust enrichment occurs when one party retains a disproportionate share of the assets that are the product of their joint efforts following the breakdown of the relationship.”

Leckey notes that the appeal court decision in a “really kind of subtle way” held that in a joint family venture the person has a “legitimate expectation” of sharing such that the person’s impoverishment “kind of grows” with the share of the property. “Her impoverishment is no longer going to be capped by the value of services she rendered,” said Leckey.

But Tétrault points out that the appeal court emphasized that merely cohabitation, even if it is for a long period of time, is insufficient in itself to conclude that the partners were co-partners engaged in a joint family venture that would justify the attribution of monetary compensation. “While this common will is presumed for (married) spouses, it is not the same in Quebec for couples who are not married,” said Tétrault. “Proof of a common will that they functioned as an economic unit is required. Still the use, in civil law, for claims for unjust enrichment of the principles of equity should lower the burden of proof for the claimant.”

Many questions linger following the appeal court decision, assert family law experts. Pringle wonders how the courts will characterize a joint family venture “because the appeal court said this interpretation must respect the way that people really lived their lives in the relationship, and I am eager to see how it will evolve.” Leckey is curious over the how courts will determine value survived and whether the courts will eventually come to a basic rule of 50-50 sharing. “It’s actually very hard to sort of maintain forever the idea that we look at every single case on its facts,” said Leckey. “Judges over time start to develop patterns and precedents, even presumptions. If you decide that this is a joint family venture, it’s very hard to come up with a figure other than 50 per cent.” Tétrault speculates that the appeal court decision will prompt many claims for alimony “because the Court of Appeal, citing the Supreme Court, held that homemakers are in a more precarious position. There is no doubt it will be litigated.”

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