Law in Quebec

News about Quebec legal developments

  • Quebec Court reaffirms authority of Aboriginal communities in youth protection

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

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

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

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  • New guidance provided Quebec Appeal Court over forced hospitalizations

    An elderly single woman spearheaded a significant advancement for the rights of people who are ordered to be hospitalized after the Quebec Court of Appeal considerably broadened the obligations of the courts and healthcare institutions to appoint in most cases an ex officio lawyer to safeguard their rights and interests.

    The decision, hailed by mental health legal experts as a step in the right direction, all but compels trial judges to appoint ex officio lawyers to represent the interests of individuals deemed to be “incapable” by the court, underlines that hospitals must ensure that such individuals have the opportunity to obtain counsel, and emphasizes that incapable people too have rights that must be respected, according to mental health legal experts.

    “The Court of Appeal calls on the courts of first instance to take these matters seriously and to give due weight to judicial debates, as it should, with the contribution of lawyers in most cases,” noted Emmanuelle Bernheim, University of Ottawa law professor and Canada Research Chair in Mental Health and Access to Justice. “The Appeal Court also stresses that the rights (of incapable individuals) are important and they must be debated, and the role of the court is not just to endorse measures taken by others who are doctors. It doesn’t matter how unfit people are. Unfitness does not mean that you can intervene and infringe on someone’s right to integrity and freedom, and that deserves a judicial debate.”

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  • Chief Justices call for modernization of court system

    The chief justices of four courts, addressing hundreds of judges and lawyers in person at the Montreal courthouse for the first time since the onset of the pandemic, broadly outlined their priorities and concerns at the Quebec’s opening of the courts ceremony, from the promise and pitfalls of technology to modernize the justice system to the debilitating impact of chronic underfinancing to the erosion of decorum in the courtroom and the pernicious effects of disparaging social media comments.

    The chief justices, faced with no choice but to implement technological innovations at breakneck speed after COVID-19 struck in March 2020 in order to arrest the temporary paralysis of the justice system, now warn that while technological modernization of courts is inevitable and necessary, it is not the panacea that will resolve the host of challenges confronting the justice system.

    “The digitization of the courts will not solve all the problems we face, and it may even raise new ones, but it is a step in the right direction,” remarked Quebec Court of Appeal Chief Justice Manon Savard who underlined that the appellate court is working “intensely” with the provincial Ministry of Justice to to establish a digital Court of Appeal within the next two years.

    “This movement is irreversible. Society as a whole is increasingly turning to digital processes, in all sectors of activity. Courts must keep pace. In order to maintain or even improve the efficiency of courts in a post-pandemic context, the implementation of a reform focused on the use of technology will certainly be part of the solution,” said Chief Justice Savard in the summit entitled “Building the Future.”

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  • Quebec Appeal Court increases sentence for sexually assaulting a child

    A 21-year old school janitor who sexually assaulted a 13-year old child had his sentence increased to 15 months imprisonment from 90 days by a divided Quebec Court of Appeal after the majority held that the trial judge failed to prioritize denunciation and deterrence as overriding factors.

    The majority decision crystallizes the growing trend to mete out tougher punishments for sexual crimes against children following a seminal Supreme Court of Canada decision, and it appears to send a strong message to trial judges following a recent controversial decision that caused an uproar in the province, according to criminal legal experts.

    “The message is clear,” said Université de Montréal criminal law professor and author Hugues Parent. “When there is no demonstration of rehabilitation on the part of the accused, when it is not convincing, the objectives of denunciation and dissuasion must be predominant, as a priority in child sex cases. So, from that point on, it is certain that the sentence will be very severe.”

    According to Julien Grégoire, a Quebec City criminal lawyer, the Appeal Court judgment illustrates, despite the dissent, that the key principles of the landmark SCC decision in R. v. Friesen, 2020 SCC 9 involving the abuse and exploitation of children, “are now inescapable and it is not enough (for the courts) to state them but to apply them in practice.”

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  • Provincial elections spur labour agreements with lawyers

    There’s nothing like an election to concentrate the mind.

    In recent weeks, the Quebec government settled acrimonious labour disputes that threatened to spill over during the election. The provincial government, faced with the prospect of large swaths of legal actors interrupting electoral efforts with unsightly placards during the campaign,  quietly reached an agreement with private sector lawyers who take on legal aid mandates, and more recently with government lawyers and notaries.

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  • Pragmatic measures must be implemented to address problems plaguing Nunavik’s justice system: report

    A series of wide-ranging concrete administrative and structural reforms, coupled with a new regional or municipal court, legal aid for all Inuit, and greater inclusion for traditional Inuit dispute resolution methods, should be implemented by the Quebec government and legal authorities to provide greater access to justice and tackle the alarming and increasing caseload in Nunavik, according to a recently published report.

    “It is of primary importance to recognize that the system, as it currently exists, has failed in many respects,” said the report, which was mandated by the Quebec Ministry of Justice and the Makivik Corporation, the Inuit’s legal representative under the terms of the 1978 James Bay and Northern Quebec Agreement. “Reoffending rates have not declined, the Inuit have not been included, and bridges with traditional dispute resolution methods have not been used.”

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  • Man acquitted of sexual assault because professional secrecy was breached

    A man convicted of sexually assaulting a four-year-old child was acquitted by the Quebec Court of Appeal after it held that a confession he made during therapy should have been protected by professional secrecy.

    The decision by the divided Appeal Court underlines that therapy group sessions do not mitigate a medical professional’s confidentiality obligations, reaffirms that professionals may be relieved of the duty of confidentiality but only under specific circumstances, and provides guidance over the role the Charter plays in the application of the so-called Wigmore test which determines whether or not communications are privileged, according to criminal lawyers.

    “No one is going to seek treatment if they know that every time they say something, it will be used against them,” noted Marie-Pier Boulet, a Montreal criminal lawyer who heads the Association Of Defense Counsel of Quebec. “Essentially, the Appeal Court wants to protect professional secrecy in a therapeutic setting. Just as we want to protect therapeutic privileges of complainants so that they continue to have confidence that their privacy will be respected, their right to therapy and their right to professional confidentiality, the accused too have that right. Otherwise, no one is going to get help.”

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

    A new trial for a man convicted of sexual interference on a child was ordered by the Quebec Court of Appeal after it held that the trial judge’s refusal to allow the re-opening of the complainant’s cross-examination infringed his right to make full answer and defence.

    In a decision brimming with guidance over the scope of sections 10 and 11 of the Canada Evidence Act to dispel “some confusion” around cross-examinations on prior inconsistent statements, the Quebec Appeal Court held that despite the impact of a new trial on the complainant, an autistic child, who will have to testify again, “no other outcome can be considered” when the right to a full answer and defence and the right to a fair trial have been infringed.

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  • Plaintiff class action legal fees under the microscope

    A $28-million settlement reached with a Catholic religious order in a sexual abuse class action was rejected by Quebec Superior Court because of the high legal fees associated with the agreement, the second Quebec class action settlement in the past month whose legal fees have been the subject of a critical assessment.

    The decision by Quebec Superior Court Justice Thomas Davis to rebuff a settlement for more than 375 alleged victims of sexual assaults committed by members and employees of the Clercs de Saint-Viateur of Canada follows on the heels of a ruling in mid-June by Quebec Superior Court Justice Daniel Dumais to curb plaintiff class action legal fees by 20 per cent in the so-called Dieselgate scandal in which German carmaker Volkswagen AG violated Canadian emissions standards.

    The decisions underline that settlement approvals are not a rubber stamping exercise, demonstrate that the courts will take into account the Code of Professional Conduct of Lawyers (Code) when examining plaintiff class action legal fees, reiterate the importance of transparency vis-à-vis clients even in a class action setting, and illustrate why settlement approvals should be separate from and not contingent on class counsel fee approvals, according to class action legal experts.

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

    Nearly four years after the federal government added deferred prosecution agreements to the Criminal Code as part of its arsenal to fight corruption and other white-collar crime, legal experts hope that guidance provided by Quebec Superior Court in Canada’s first ever remediation agreement will prompt federal prosecutors and organizations to take advantage of the new way of settling criminal charges.

    The comprehensive, meticulous and “important” decision introduces a “welcome” degree of certainty to the new process in the absence of accompanying regulations, guidelines or policies in the remediation agreement regime, according to legal experts. The ruling by Quebec Superior Court Justice Éric Downs sheds light on how remediation agreements will be broached by the courts, indicating that while they will not act as a “rubber stamp” in reviewing proposed settlements, the agreements will be afforded a high degree of deference, added the experts. The judgment also signals that self-reporting, though not a “hard condition,” will carry considerable weight as does “strong cooperation” to help sway the courts to sanction the agreement, they added.

    “It’s an important decision because there were question marks around how the courts would approach the approval of a remediation agreement and how involved they would be in the process,” noted Louis-Martin O’Neill, a Montreal M&A and securities litigator with Davies Ward Phillips & Vineberg LLP. “The Court was very mindful of the fact that there is a huge need for stability in the system, and that implies that when a corporation starts to negotiate with the prosecution for a remediation agreement it has to know that unless something very grave happens, that agreement should stick when presented to the court.”

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  • Former Quebec Superior Court Chief Justice reflects on challenges posed by pandemic and lack of resources

    After seven years at the helm of Quebec Superior Court, the last two particularly challenging and exhausting, Justice Jacques Fournier has stepped aside and became a supernumerary judge, with the reins being handed to Marie-Anne Paquette, a puisne judge of the Superior Court of Quebec for the district of Montreal.

    In a tenure he described as not “not being a calm river” or not without obstacles, former Chief Justice Fournier began his mandate in 2015 dealing with the introduction of a new Quebec Code of Civil Procedure, a major reform that “needed to be assimilated” as it granted judges broader case management powers and bestowed a greater role to the principle of proportionality, followed by the landmark Jordan ruling and a legal battle with the Court of Quebec over monetary thresholds that wound up before the nation’s highest court, culminating with coming to grips with the “very demanding” pandemic.

    “The decision (to step down) was very difficult, extremely difficult,” the 71-year old Justice Fournier told me. “I am going to miss it. But after seven years, you also have to know when to leave. At some point, it takes its toll without realizing it. I loved it, but there’s more to life than that.”

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  • Legal community concerned about Court of Quebec plans

    The Quebec justice system, in crisis following an acute shortage of court personnel and strained labour relations that has led to walkouts and strikes, may face even more serious judicial delays if the Court of Quebec follows through with plans to have judges of the Criminal Division sit every second day as of this fall.

    Court of Quebec Chief Justice Lucie Rondeau informed Quebec Justice Minister Simon Jolin-Barrette earlier this year that 160 provincial court judges who preside over criminal proceedings will curb the amount of days they sit, from two days out of three to one day out of two so that they can spend more time writing judgments and managing cases. The Chief Justice is calling for the appointment of 41 provincial court judges to attenuate judicial delays once the new work scheme is implemented.

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  • Quebec justice system in crisis

    The Quebec justice system, buckling under the weight of years of chronic underfinancing, is stricken by such a serious manpower shortage that hardly a day goes by without a trial, a preliminary inquiry or a sentence being delayed or postponed, an untenable situation that could lead to “significant harm” to the public and undermine faith towards judicial institutions, warn top legal officials.

    The “catastrophic” situation is exacerbated by tense labour relations with a host of different legal actors and the Quebec government, with legal aid lawyers recently launching half-day strikes, private sector lawyers who take on legal aid mandates now refusing to accept cases dealing with sexual and intimate partner violence, and court clerks launching walkouts that may metamorphose into a strike.

    “The situation is at a minimum very troubling,” remarked Catherine Claveau, head of the Quebec Bar. “The system has reached its limits. At the moment, there are very real risks of breakdowns or disruptions of services that could cause significant harm to citizens and generate a great deal of insecurity towards judicial institutions.”

    Former Quebec Superior Court Chief Justice Jacques Fournier is just as concerned by the turn of events, asserting that parts of the justice system is in the midst of cracking, a state of affairs that will unlikely improve with an ageing workforce progressively retiring – unless more monies are poured into the justice system.

    “It’s very, very worrisome, very worrisome, because it’s not going to get better,” said Justice Fournier, who along with the chief justices of the Court of Quebec and the Quebec Court of Appeal wrote a letter to the Quebec government last year entreating it to boost the salaries of their judicial assistants. “To be satisfied with justice that is delivered in twelve, fifteen or eighteen months is not ideal. In my opinion, justice should be rendered almost in real time. It will take major investments to modernize, but modernizing in terms of access and in terms of speed of execution.”

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  • Legal challenges to Quebec’s contentious language law being prepared

    Barely days after the controversial and sweeping new language law that overhauls the Charter of the French language was adopted by the National Assembly of Quebec, the groundwork for potential legal challenges was being laid in spite of the Quebec government’s use of the notwithstanding clause to shield it from judicial review.

    A Montreal English school board announced shortly after the passage of Bill 96 that it will be contesting its validity, with First Nations possibly following suit as well as business, and even possibly the judiciary, according to legal observers.

    “Parts of Bill 96 are extremely vulnerable,” remarked Julius Grey, a Montreal constitutional and human rights lawyer collaborating with other lawyers to challenge the new law.

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  • McGill law professors seeking to unionize

    McGill law professors, hoping to gain greater faculty autonomy while seeking the security of a collective bargaining framework and a collective agreement, are attempting to unionize at the faculty level, a first for professors in the university’s 200-year history.

    The Association of McGill Professors of Law (AMPL) petitioned the Quebec Administrative Labour Tribunal to be recognized under the Quebec Labour Code in late November 2021 shortly after the university adopted a controversial COVID-19 vaccination policy, a position that proved to be the “bale of hay that broke the camel’s back,” said Evan Fox-Decent, AMPL’s interim president. A supermajority of the 51 McGill law professors have signed membership cards to allow the AMPL to act as their exclusive bargaining agent. The overwhelming majority of Canadian professors are unionized, with less than a handful not represented by a certified bargaining unit.

    “The university is becoming more McGill incorporated than McGill University in recent years,” remarked Fox-Decent, Canada Research Chair in Cosmopolitan Law and Justice. “What really drove the point home to us about how precarious our situation is, was when we were told we were going back to teach in fall, of course we were under a new wave of COVID-19 that was starting up. That was as much as anything what put people on edge and made the majority of the faculty think that we just had to sort of take control over our own house.”

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Law in Quebec
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