Man not criminally responsible because of sexsomnia

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

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

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

A prospective police officer who alleged that the Quebec provincial police force withdrew its pre-employment offer because he has Tourette Syndrome was rebuffed by the Quebec Court of Appeal after it found instead that he was not forthright and did not act in good faith during the hiring process.

In a decision in line with prior jurisprudence, the Quebec Appeal Court sheds new guidance that advises employers to exercise caution when drafting questionnaires, particularly medical queries, even in cases when pre-employment offers have been made, according to employment and legal experts. The unanimous per curium ruling acknowledges that it is a difficult balance to achieve between asking overly broad questions that may be deemed to be discriminatory under the Quebec Charter of human rights and freedoms and drafting “too specific” questions that may deprive employers of relevant and necessary information.

“It provides some guidelines to employers,” remarked Finn Makela, a law professor at the Université de Sherbrooke where he teaches labour and employment law. “One, it’s not an open bar. Employers can’t just ask super vague questions. And second, the decision also confirms the jurisprudence that the employer needs to justify in their specific circumstances why questions are related to job functions. So that gives some guidance. But, as the Cour of Appeal says, it’s not always easy.”

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Five years later, and still waiting for trial on merits

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

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

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

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

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

Obtaining punitive damages from police remains “high bar”

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

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

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Quebec justice system in the midst of ‘collapsing, say leading legal actors

The Quebec justice system is in the midst of “collapsing,” sagging under the weight of underfinancing and bedevilled by a “catastrophic” shortage of court personnel, with more than 20 per cent of employees resigning in a year, prompting leading legal actors to describe the situation as “embarrassing” and even more alarmingly, kindling a public lack of confidence in the province’s justice system.

The situation has never been so dire, worse than late this spring when a vexed legal community warned the Quebec government that the justice system, mired in a series of crippling labour standoffs that spurred mounting adjournments, was desperately in need of more funds to prop up the justice system. But while tense labour relations with a host of legal actors have subsided since the fall thanks to new collective agreements and a new legal aid accord, legal pundits assert far more has to be done to halt the exodus of courtroom personnel who are leaving in droves because remuneration is simply not competitive.

“There is a crisis in the justice system that has led to a crisis of confidence,” noted Catherine Claveau, president of the Quebec Bar. “And I, as the president of a professional order whose primary mission is the protection of the public, when the situation of underfunding in particular means that our institutions are undermining the right of citizens to have access to effective and quality justice, well for me, this corresponds to a real crisis.”

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Sperm donor granted visitation rights

A sperm donor was granted access rights by the Quebec Court of Appeal after he was deemed as a “significant” third party whose presence “could probably benefit” the child in a decision that has perplexed some family law experts.

The Appeal Court decision has ostensibly watered down the notion of significant third parties, leaves open the question whether a similar finding would have been reached if the third party did not have a biological connection with the child, and serves as a timely reminder that parents involved in a “parental project,” or assisted procreation, should carefully consider whether they want to hand third parties access rights, according to family law experts.

“It’s an assisted reproduction project that deviated into something else, and this is a phenomenon that we are now seeing and will be seeing more often,” remarked Michel Tétrault, a leading family law expert and author of a series of tomes on Quebec family law. “From the time that these ladies allowed access to take place, a form of status quo was created. That’s a message that needs to be sent out: the moment you allow a third party who is supposed to be in no way involved in the parental project to become involved, it opens a door.”

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

A voluntary disclosure of a report protected by privilege to assist police in a criminal investigation does not quash the privileges attached to the document held the Quebec Court of Appeal in overturning a lower court decision, the latest indication that case law surrounding privilege continues to evolve, according to a legal expert.

In a decision that reviews and revisits Quebec case law surrounding privilege, the Quebec Appeal Court held that it would be contrary to public policy for the disclosure of privileged documents in criminal proceedings to “somehow” have the effect removing privileges attached to those documents. The waiver of lawyer-client privilege must be clear and unequivocal, added the Appeal Court in Centre universitaire de santé McGill c. Lemay, 2022 QCCA 1394.

Disclosure to a third party information protected by solicitor-client privilege in principle entails waiver of the privilege but the Quebec Court of Appeal emphasizes that context must be considered, which must take into account all the circumstances in the case, noted Montreal litigator with Lavery de Billy LLP, who recently published an article entitled “Professional secrecy and testimonial immunity” for the legal encyclopedia JurisClasseur Québec.

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Montreal law firm teams up with Quebec video games non-profit

Montreal law firm De Grandpré Chait, a firm specializing in real estate since the beginning of the 20th C, is now branching out to the thriving and world-leading Quebec video game hub after it announced a partnership with a Quebec non-profit organization.

In what has been described as an “imaginative way to do business” in the flourishing sector by a lawyer familiar with the Canadian legal business landscape, De Grandpré Chait will be offering legal services at a discount to more than 300 members and partners of the Quebec Video Game Guild. The Guild, the largest group of its kind in the world, brings together independent and international video game developers, creators, educational institutions and entrepreneurs established in Quebec.

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McGill law professors unionized

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

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

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

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

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

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

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Landmark ruling curbs arbitrary police stops in racial profiling case

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

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

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

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