Law in Quebec

News about Quebec legal developments

  • Revenue Canada investigation highly reprehensible, says court

    A “highly reprehensible” and illegal probe by the Canada Revenue Agency that failed to draw the distinction between a civil tax audit and a criminal tax investigation has put into jeopardy several tax evasion criminal cases involving Quebec construction companies and corruption charges against former federal civil servants, according to tax experts.

    In a precedent-setting ruling that appears to bring more clarity to the leading Supreme Court of Canada decision in R. v. Jarvis , [2002] 3 SCR 757, Court of Quebec Justice Dominique Larochelle held that the evidence produced to charge the owner and three other company officials of a Montreal company, B.T. Céramiques, was obtained illegally because federal tax officials crossed the “Rubicon” and failed to inform the taxpayers that the inquiry had turned into a criminal investigation, thereby breaching their right to freedom from self-incrimination and right to reasonable expectation of privacy guaranteed under s.7 and s.8 of the Charter of Rights and Freedoms.

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  • Former Quebec law society president back in the spotlight

    Lu Chan Khuong, the former president of the Quebec legal society who reluctantly resigned after a bitter and protracted fracas with the board of directors of the Barreau du Québec, is back on the spotlight.

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  • Right to protest in the streets is a constitutionally protected right

    An article of Quebec’s Highway Safety Code that was used to break up demonstrations has been repealed after a Quebec Superior Court judge held that it was unconstitutional in a ruling that reaffirmed that protesting in the streets is a constitutionally protected right.

    Justice Guy Cournoyer acquitted Gabriella Garbeau, one of 150 protestors who were fined during a 2011 anti-police brutality march in downtown Montreal under Article 500.1 of Quebec’s Highway Safety Code, which prohibits anyone from using a vehicle or other obstacle to block a highway “during a concerted action intended to obstruct in any way vehicular traffic.”

    In a ruling applauded by civil rights activists, Justice Cournoyer overturned a municipal court ruling and found that Article 500.1 was in violation of Garbeau’s right to freedom of expression and peaceful assembly as protected by the Canadian and Quebec charter of rights. Justice Cournoyer added that there “is no doubt” that these rights protect the right to express oneself on public roads even though “conveying messages” is not the primary purpose of city streets. But the “fact that they were historically used for expression showed” that public roads can be suitable “for exercising the right to freedom of expression,” noted Justice Cournoyer, heeding guidance provided by the Supreme Court of Canada in Canadian Broadcasting Corp. v. Canada (Attorney General), [2011] 1 SCR 19, 2011 SCC 2.

    “This is really an important precedent, and it’s something that we want to use in another cases and share with other organizations in other countries,” remarked Cara Zwibel, director of the fundamental freedoms program with the Canadian Civil Liberties Association.

    Under Article 500.1, organizers of demonstrations had to obtain authorization, as is the case in many cities across the country. But the prior approval scheme under Article 500.1 did not provide clear, “precise, and understandable” criteria that allowed organizers to know what requirements they needed to fulfil in order to obtain a permit, noted Justice Cournoyer. Nor did the law detail conditions under which the approval could be revoked. Indeed, the article did not even spell out who was responsible for approving or rejecting the application. “In fact, according to the evidence, no prior approval scheme was implemented nor established,” said Justice Cournoyer in his 92-page ruling in Garbeau c. Montréal (Ville de), 2015 QCCS 5246. “This process was not illusory, it was inexistent.”

    The Attorney General of Quebec argued that the law implicitly stated that it was municipal police forces who were responsible for such decisions. But Justice Cournoyer noted that law did not explicitly confer the police with such powers. Nor does the law explicitly state that police were acting as a city’s representative, with the power to authorize demonstrations. At best there was an “informal process of tolerance” in which police exercised discretionary powers to manage and supervise protests, added Justice Cournoyer.

    “The judge notes that one cannot rely on police to apply a law correctly when the article is so vague that it could lead to a constitutional violation,” noted Sibel Ataogul, a Montreal lawyer with Melançon Marceau Grenier & Sciortino who represented the Quebec Civil Liberties Union who were interveners in the case. “What’s also very interesting about the decision is that it clearly states that when the legislator delegates such powers to cities, as was the case here, they cannot sub-delegate such powers to the police forces. Police are there to ensure security but they should not be able to take the political decision of deciding who can demonstrate or not, especially without clear criteria.”

    Justice Cournoyer also notes that a demonstration can be considered to be peaceful even though a small number of protesters might have committed criminal or regulatory offenses. He added that merely because a person was present at a time when illegal acts were committed during a protest one cannot necessarily conclude that the individual was either encouraging the illegal acts or was trying to help the perpetrators to flee.

    “That is a very important finding of the decision because it clearly states that one cannot use violence by some protesters as a pretext to consider the demonstration unlawful,” noted Louis-Philippe Lampron, a law professor who teaches human rights at the Université Laval in Quebec City. “That is the problem with Article 500.1. It was far too easy to declare a protest illegal in spite of the importance of being to protest collectively in a democratic society. The judge underlines the danger of unduly limiting that right.”

    According to Zwibel, protests are frequently declared illegal because of the illegal actions of a few individuals, and that “totally undermines” the right to express oneself and to assemble peacefully as it plays on the notion of guilt by association. “The finding that that the actions of a few don’t render an otherwise peacefully assembly no longer peaceful is really an important part of the decision,” said Zwibel.

    That doesn’t mean that police will be hindered from arresting violent demonstrators, warned Marie-Claude St-Amant, a Montreal lawyer who represented Garbeau. The decision clearly states that if protesters are committing illegal acts that police should arrest those individuals but neither does it give them carte blanche to declare a demonstration illegal and breach the fundamental rights of “all protesters to express themselves,” said St-Amant, who also practices at the law firm Melançon Marceau Grenier & Sciortino.

    Justice Cournoyer’s decision could have an impact on a class action that was launched following a series of mass arrests and fines, under Article 500.1, at a 2012 demonstration in Hull, added St-Amant. It could also have a bearing on another case that is challenging the constitutional validity of a Montreal by-law, known as P6, that requires protesters to give police their itinerary beforehand and prohibits protesters from wearing masks.

    In the meantime, Justice Cournoyer gave the provincial government six months to change Article 500.1 and to set clear rules on pre-approval schemes.

    “The ruling does not prevent the use of pre-approval schemes,” said Lampron. “The judge does say that it is possible to implement such a scheme but it must be based on clear criteria, and criteria that allow for the refusal of a demonstration only for valid reasons. That is the heart of the ruling.”

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  • Law students hiding mental health issues and alcohol and drug use

    A “significant percentage” of American law students are grappling with mental health and alcohol and drug problems, reveals a recent study, the first to assess alcohol and drug use among law students since 1991 and the first ever to assess prescription use or misuse, mental health issues, and help-seeking attitudes.

    More troubling is that law students are afraid of seeking help because they fear that it may jeopardize their chances of being admitted to the bar or getting a good job. Law students, “socialized into a competitive environment in which showing any vulnerability is discouraged,” are also afraid of the social stigma that may be associated with seeking help, according to the study.

    “For a self-regulating profession, these data should be very worrisome,” warned the study entitled “Helping law students get the help they need.” “We need to do something, and we need to get started now.”

    The study, conducted by a law professor, a dean of law students, and the programming director of a non-profit focused on lawyers’ mental health, surveyed more than 3,300 law students from 15 American law schools about their drinking, drug use, and mental health. Twenty-two per cent of law students reported binge drinking two or more times in the previous weeks, and almost a quarter showed signs that they should go undergo further testing for alcoholism.

    Use of marijuana and cocaine appears to have increased since a 1991 survey. Fourteen per cent of law students said they used marijuana in the past 30 days (compared to eight per cent in 1991), and 2.5 per cent had used coke (compared to one per cent in 1991).

    Over 14 per cent of law students reported use of some prescription drug without a prescription in the prior 12 months. Approximately 13 per cent of those with a prescription shared their prescription drugs with others in the past 12 months, with stimulants the most frequently distributed.

    More than a quarter of law students reported that they had received at least one diagnosis of depression, anxiety, eating disorders, psychosis, personality disorder and/or substance use.

    But law future law students are not seeking help, and nor do they intend to. Only four per cent of law students said they used a health professional to deal with alcohol or drug abuse. And while 42 per cent of would-be lawyers believed they needed help for emotional or mental health problems, roughly half actually received counselling from a health professional.

    That’s because a staggering 63 per cent of students thought that seeking help was a potential threat to getting admitted to the bar, 62 per cent felt getting assistance was a potential threat to job or academic status, and 43 per cent were concerned about privacy and social stigma. Just as discouraging, 39 per cent of law students felt they could handle the problem themselves, while more than a third stated they simply don’t have the time.

    Existing research suggests that a significant number of lawyers who face discipline have an underlying addiction or mental health issue that could affect their ability to fulfil their responsibilities to clients.

    “Those most in need of help are least likely to seek help,” pointed out the study. “The very students who most need to understand that they will be best served by seeking help and getting the help they need are the very students who are most concerned that seeking help will be detrimental to their bar admission processes.”

    That’s where the culture of law comes into play. Many law students – even before getting to law school – get advice from advisors or from lawyers they consulted to “think carefully” about disclosing information and to be “wary” of how disclosure might be perceived by law schools or by state boards of law examiners. “Character and fitness” questions on law school applications or by state bars appear to be counterproductive and may discourage students from seeking help, suggests the study.

    “While in law school, students are getting messages indicating that seeking help may be problematic for their professional careers,” noted the study. “The competitive nature of law school reinforces a message that students are better off not seeking help and instead trying to handle problems on their own.”

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  • eDiscovery global market surpassed the US$10 billion mark in 2015

    The eDiscovery global market ostensibly surpassed the US$10 billion mark in 2015, and is expected to grow at a clip 9.8 per cent compound annual growth rate until 2019 when it is forecast to reach US$14.7 billion, according to market intelligence firm International Data Corporation (IDC).

    The Americas are leading the surge, while Europe and Asia are beginning to see an uptick in demand for eDiscovery services. Europe is expected to comprise nearly 23 per cent of the market while Asia just over seven per cent by 2019, foresees IDC.

    The sheer volume of electronically stored information, coupled with increased regulation and litigation, are the driving forces behind the increased growth in eDiscovery, according to Sean Pike, an IDC program director. So too is growing data governance concerns.

    But trying to calculate the opaque size of the eDiscovery market amounts to “wild ass guesses,” warned George Socha, of Socha Consulting. Attempting to size up the market based on the overall number of cases and average eDiscovery cost per case is incorrect because no two cases have similar eDiscovery costs, Socha told Bloomberg News. Adding to the murky nature of the market is the fact that many users still demand custom eDiscovery solutions, which in turn leads inaccurate estimated average costs per case, added Socha.

    And that’s not taking into account that law firms and corporate law departments are likely to record costs for eDiscovery software differently. A case in point: many software provide both cybersecurity and eDiscovery solutions – and the costs could be recorded under either account. Then there’s the vendors, who often measure and define the eDiscovery process differently, with some companies including paper scanning as eDiscovery while others do not.

    “The biggest problem is there’s no transparency into eDiscovery costs in general,” Socha said.

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  • Ruling clarifies circumstances under which securities can be ordered

    Tobacco companies suffered a second legal setback in less than a month after the Quebec Court of Appeal ordered two cigarette makers to set aside nearly $1 billion in security, the largest ever in the province’s history, to ensure that money is available to pay victims who won a landmark $15.5 billion class action lawsuit earlier this year.

    In a ruling that clarifies the exceptional circumstances under which securities can be ordered, the appeal court ordered Imperial Tobacco Canada Ltd. to pay $758 million in seven quarterly instalments and Rothmans, Benson & Hedges Inc. $226 million in six quarterly instalments, beginning in December until next year. If the tobacco manufacturers are successful in having the $15.5 billion judgement overturned on appeal, the security will be returned to them. If not, it will be available for distribution to victims who launched the class action suit. (A motion for security was not sought against JTI-MacDonald Corp. because one of the lawyers became ill).

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  • Legal confusion surrounds status of Quebec’s assisted dying legislation

    Confusion surrounding the legal standing of Quebec’s assisted dying legislation has prompted the Quebec College of Physicians to urge its members to be prudent before agreeing to euthanize a consenting patient until the Quebec Court of Appeal hears an appeal on a Superior Court decision that suspended key articles of the historic legislation.

    “We are suggesting that doctors wait until the Quebec Court of Appeal examines the issue,” said Dr. Charles Bernard, the president and executive director of the body that regulates the province’s physicians. “We’re not saying that physicians shouldn’t do it but we are telling them to be prudent given the legal imbroglio around this issue.”

    Quebec Court of Appeal Justice Robert Mainville scheduled a hearing on the merits of the appeal for December 18th, stating that the matter is urgent, particularly since the Superior Court decision will prevent people who meet the conditions of An Act Respecting End-of-Life Care (Act) from receiving euthanasia, potentially for months.

    “Refusing leave to appeal in such an important constitutional matter that raises such fundamental questions would be to call into question the raison d’être of the Court of Appeal,” said Justice Mainville in a brief six-page ruling, before adding that the decision to grant leave to appeal “must not be interpreted as nullifying or confirming the lower court judgment.”

    The Quebec government however has contentiously interpreted the appeal court decision as giving force to the province’s assisted dying legislation as of December 10th, the day it was scheduled to be in force. Quebec Justice Minister Stephanie Vallée this week sought to reassure the medical community by issuing directives to the province’s Director of penal and criminal prosecutions, ordering it to respect the wishes of people at the end of their lives who request a medically assisted death.

    But some legal experts call into question whether Justice Mainville’s decision actually suspended the lower court ruling. Under Quebec’s Code of Civil Procedure, which shares a similar heritage to common law principles, provisional injunctions are not automatically suspended because “of the concern to protect the status quo in such a way that a decision on the merits is not compromised by a provisional decision,” said Stéphane Beaulac, a law professor at the Université de Montréal. Gérard Samet, a Montreal lawyer too believes that the appeal court ruling did not suspend the lower court decision. Samet notes that the Quebec Superior Court ruling was a declaratory judgment that is not enforceable. “When a judgment is not enforceable, and is only a binding opinion to the government, one cannot suspend its provisional execution because it is a decision that cannot be the object of a suspension,” explained Samet.

    The appeal court decision also makes no explicit reference that suspends the lower court decision, pointed out both Beaulac and Samet. All of which could lead to the “very odd” situation of having a law that is in force for only eight days if the appeal court upholds the lower court ruling, added Beaulac.

    In a historic vote, after nearly five years of heart-wrenching deliberations across the province by a cross-party committee of the National Assembly approved in June 2014 Bill 52, An Act Respecting End-of Life Care. Bill 52 conspicuously, and contentiously, avoids using the terms euthanasia or assisted suicide. By amending the Quebec Medical Act to allow doctors who have been given the consent of an end-of-life patient to administer a drug or substance to hasten or cause death, the Quebec government is asserting jurisdiction over euthanasia on the grounds that it is a medical act, and health falls under provincial jurisdiction.

    But on December 1st, Quebec Superior Justice Michel Pinsonnault suspended key aspects of the Act. While the Quebec-based Coalition of Physicians for Social Justice and Lisa D’Amico, a disabled woman represented by Samet, sought an injunction from Quebec Superior Court to prevent Bill 52 from taking effect on December 10th, Justice Pinsonnault did not issue the injunction they sought. Rather Justice Pinsonnault ruled that the parts of the provincial law cannot take effect this month because some of the key articles in the new law contravene section 14 and 241(b) of Canada’s Criminal Code on medically assisted suicide. Article 14 states that “no person is entitled to consent to have death inflicted on him” and Section 241b) forbids anyone from counseling, aiding or abetting someone to commit suicide.

    Justice Michel Pinsonnault held that the federal law must take precedence over provincial law until the necessary Criminal Code amendments are made. “The doctrine of federal preponderance applies in this case and continues to apply until the incompatibility with sections 14 and 241b) of the Criminal Code disappears,” Pinsonnault concluded in a 39-page ruling in D’Amico c. Québec (Procureure générale) 2015 QCCS 5556. The doctrine of federal paramountcy comes into effect only where there is an inconsistency, or true conflict, between validly enacted federal and provincial legislation.

    “From a constitutional standpoint, the decision is very solid,” remarked Beaulac, a constitutional law expert. “Justice Pinsonnault’s interpretation of the doctrine of federal preponderance is not at all controversial.”

    But Jean-Pierre Ménard, a Montreal medical malpractice lawyer who headed a panel of legal experts commissioned by the Quebec government to examine the legal feasibility of a comprehensive “dying with dignity” law, asserts that the Pinsonnault ruling is very disappointing, extremely limited in scope, and only served to delay the application of the provincial legislation. In light of the recent SCC decision in Alberta (Attorney General) v. Moloney, 2015 SCC 51, Ménard argues that Justice Pinsonnault should have adopted a “much more nuanced” approach to the doctrine of federal paramountcy, particularly since those Criminal Code provisions were struck down by the SCC in the landmark ruling Carter v. Canada (Attorney General) 2015 SCC 5 last February.

    In an unanimous decision, the SCC ruled in Carter that those two Criminal Code provisions “unjustifiably” infringe s.7 of the Canadian Charter of Rights and Freedoms and are of no force or effect to the extent that they prohibit physician-assisted death for a competent adult person who clearly consents “to the termination of life,” and has a “grievous and irremediable” medical condition that causes enduring suffering that is intolerable to the individual. The SCC gave Parliament until February 6, 2016 to enact new laws. Ottawa, however, recently asked the SCC to give it another six months to make the changes while the Quebec government is asking the nation’s highest court for an exemption.

    “Ottawa should have given more thought to the issue in order to prevent an unfortunate situation,” said Sébastien Grammond, a constitutional law expert and former dean of the civil law section at University of Ottawa. “Ottawa could have said that the Quebec legislation is a response to the Carter ruling and work with Quebec for a possible solution.” The federal government could have either asked the SCC to exempt Quebec from the Criminal Code provisions that deal with medically assisted suicide or it could have rapidly enacted a law that would provide exemptions to provinces that enact laws that allow for physician-assisted deaths, said Grammond. These exemptions would hold that such deaths would not be a criminal offense, added Grammond.

    Beaulac too believes that a golden opportunity was missed by both parties, but particularly by the Quebec government, to endorse and foster cooperative federalism. He points out that Quebec was outraged when the federal government refused to hand over ownership of the provincial gun registry records. (In a split decision, the SCC ruled earlier this year against Quebec’s bid to take ownership of the gun registry data.) “It’s a missed and wasted opportunity, especially since we have a new federal government, to send a clear signal that there was a new era of collaboration between Ottawa and Quebec.”

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  • Quebec accounting firm CEO calls for elimination of small business tax

    The Quebec provincial government should follow Manitoba’s lead and eliminate the business tax for small and medium-sized business with net taxable earnings under $500,000 so long as they invest the amounts saved in employment, innovation, and production, suggested the head of a Montreal accounting firm at a tax conference.

    The latest Quebec budget has put the province in a better position to grow and prosper by gradually lowering the general corporate tax rate but the provincial government should contemplate abolishing income tax for small businesses to stimulate the economy even more, said Emilio Imbriglio, the president and chief executive officer of Raymond Chabot Grant Thornton.

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  • OECD hopes reforms will end era of tax avoidance

    An unprecedented international collaboration on tax reform that recently unveiled sweeping plans to crack down on aggressive tax planning by multinational companies has the potential of becoming the biggest shake-up in international tax rules in nearly a century, according to tax professionals.

    Endorsed by G20 finance ministers and leaders, the ambitious proposals by the Paris-based Organisation for Economic Co-operation and Development (OECD) aims to close loopholes, increase transparency to assist tax authorities in risk assessments, and restrict the use of tax havens to curb many international tax planning strategies. The plan, known as the Base Erosion and Profit Shifting (BEPS) project, lists 15 specific actions intended to establish coherent rules for corporate income taxation, prevent tax treaty abuse, tackle the tax challenged posed by the digital economy, and amend the world’s 3,000 bilateral tax treaties through a multilateral instrument.

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  • Tax competition stirs controversy

    Barely a month after the European Commission ruled that Starbucks Corp. and Fiat Chrysler Automobiles NV benefited from illegal tax deals from the Dutch and Luxembourg governments, cross-border tax avoidance will be the subject of yet more intense scrutiny after European Union lawmakers decided recently to quiz 11 multinational corporations over sweet-heart tax deals with governments.

    Sophisticated tax avoidance schemes, under increasing political scrutiny as the likes of Apple Inc., Google Inc., and Wal-Mart Stores Inc. shift billions of dollars of profits out of higher-tax countries into low or no-tax jurisdictions, comes with a hefty price. The Organisation for Economic Co-operation and Development (OECD) conservatively estimates that profit shifting costs the world between US$100 billion and $240 billion in lost tax revenues. Another study revealed that the 500 largest U.S. companies hold more than US$2.1 trillion in accumulated profits offshore to avoid U.S. taxes, and would collectively owe approximately US$620 billion in U.S. taxes if they repatriated the funds.

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  • Federal government given 18 months to amend Indian Act

    The federal government has been given 18 months to correct discriminatory provisions in the Indian Act that infringe the Charter of Rights and Freedoms after a Quebec judge held that generations of indigenous women have suffered discrimination based on gender.

    Despite several amendments to the Indian Act, the latest in 2010 in response to a ruling by the Court of Appeal for British Columbia, Quebec Superior Justice Chantal Masse found that it still discriminated against women and their descendants on the issue of registration or “Indian status.” The federal government has until January 2017 to amend the discriminatory provisions before they are declared invalid as an unjustifiable breach of the right to equality guaranteed by section 15 of the Charter.

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  • Tough on crime agenda suffers another blow

    The federal government’s tough-on-crime agenda suffered another blow after the Quebec Court of Appeal ruled that a legislative amendment slipped into the 2012 omnibus bill that effectively ended mandatory parole board hearings following a suspension, termination or revocation of parole or statutory release was of no force in the province.

    In a highly-anticipated ruling by the prison law community, the Quebec Court of Appeal held that the legislative change, a cost-savings measure expected to recoup $1.6 million, breached rights guaranteed under section 7 of the Canadian Charter of Rights and Freedoms. In a similar vein, the Supreme Court of Canada last year ruled that a federal law passed in 2011 that retroactively abolished accelerated parole review for offenders who had already been sentenced violates a person’s Charter right to not be punished again.

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  • Tobacco healthcare recovery cost law constitutional, rules appeal court

    Tobacco companies lost another legal battle in Quebec after the appeal court sided with the provincial government in a ruling that opens the door province to sue tobacco companies to recover billions in healthcare costs related to smoking.

    Nearly three months after a landmark ruling ordered three leading Canadian tobacco companies to pay $15.5 billion in moral and punitive damages to Quebec smokers, the Quebec Court of Appeal upheld a lower court ruling that found that while the province’s healthcare recovery legislation does deprive tobacco companies some traditional means of defence it does not affect their right to a fair trial.

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  • Expert evidence under the spotlight

    A day before Valentine’s day this year, the Quebec Court of Appeal set aside the conviction of a second degree murder and ordered a new trial after a forensic scientist with 14 years of experience as an expert witness submitted a conclusion during cross-examination at a jury trial that did not match the written report and testimony she provided during the preliminary inquiry. “Her credibility will always be questioned following this decision because defence lawyers are always going to use it,” remarked criminal lawyer Mia Manocchio.

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  • Ombudsman comes down hard on Revenue Quebec

    A blistering report by Quebec ombudsman recently accused Revenue Quebec of becoming more intransigent and less respectful report towards taxpayers, prompting an immediate reaction from the provincial finance minister who ordered the tax department to come up with a “concrete action plan” to remedy the “unacceptable” situation.

    Revenue Quebec “frequently failed” to apply the principles of natural justice or the fundamental rules of procedural fairness while recovering tax dollars, rigidly interpreted fiscal laws which often resulted in needless court action to resolve tax disputes with taxpayers, and “employed inadequate, and even abusive,” auditing methods, according to the latest report by the Protecteur du citoyen, the second year in a row that the taxman was castigated by the ombudsman.

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Law in Quebec
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