Law in Quebec

The certification of the class action on July 2019 was the “essential catalyst” that led the Quebec government to “finally mobilize” and put in place a system guaranteeing an appearance within a maximum of 24 hours for anyone arrested and detained, divulged Justice Bisson in Makoma c. Procureur général du Québec, 2025 QCCS 1646 issued on May 20. Under s. 503 of the Criminal Code, arrested individuals must appear before a justice of the peace without undue delay, and no later than 24 hours, because that’s when the accused person finds out what the formal charges are against him and can find out what he needs to do to get bail.

“It’s a meticulous, thorough and extensive decision that deals with significant amounts of evidence, and reaffirms in the strongest possible terms the importance of respecting not only this but all provisions in the Criminal Code, and that the Charter has the teeth it is intended to have,” remarked Montreal lawyer Robert Kugler of Kugler Kandestin LLP, part of the team of lawyers that successfully pled the case. “One of the things that I’m most proud of, is that the only time that the government finally reacted and put in place the system to respect this 24-hour rule was when it was staring down a claim for monetary damages.”

The principles set out by Justice Bisson over the general application of fundamental rights are buttressed by decades of case law and that is one of the reasons why he was “tough on the government because there was nothing new about them,” noted Sophie-Anne Décarie, a Gatineau lawyer with Décarie Stephenson Lawyers who also was one of the driving forces behind the class action. “Complacency had set in,” explained Décarie. “We heard several government witnesses say that this was the way things were, and it was accepted as a state of affairs that they had been forced to live with. It had become the norm – and that’s why the judgment is really, really important because it reminds the government that the Charter is not negotiable. The Charter continues to apply on weekends, and continues to apply even when money is tight.”

Before June 2015, the class action start date, so-called telephone appearances before a justice of the peace were allowed in parts of Quebec but it was later ruled that it did not respect the Criminal Code. In April 2013, the Court of Quebec, without consulting any other legal actors, decided to curb the time slots of magistrates of the peace and removed them on weekend nights. The Quebec Director of Criminal and Penal Prosecutions (DCPP), who along with the Quebec Ministry of Justice is responsible for designing an appearance system that complies with all the provisions of the Criminal Code, then faced with what it considered to be an “insurmountable headache,” according to the ruling. On June 2015, the DCPP withdrew appearances before the magistrate justice of the peace in regions on Sundays and statutory holidays while reducing hours on Saturdays even though it was aware that this measure could result in people arrested and detained during weekends being unable to appear with the 24-hour time limit set by s. 503 of the Criminal Code.

The class action contended that the Attorney General of Quebec (AGQ) was at fault in all respects, and that the violation of the 24-hour appearance time limit provided for in s. 503 constitutes a fault under s. 1457 of the Civil Code of Quebec, and a violation of sections 24, 30 and 31 of the Quebec Charter and s. 9 of the Canadian Charter. It also argued that the AGQ has an obligation of result. The Attorney General acknowledged that there had been breaches and “some misconduct,” but not across the board and subject to many different sub-categories and restrictions, all leading to individual recovery for certain sub-groups of members. It also maintained that case law did not until 2019, following a ruling by the Alberta Court of Appeal in R. v. Reilly, 2019 ABCA 212, clearly require compliance with the 24-hour limit and that this time limit was subject to a judge’s availability. The AGQ also pinned the blame on others, from police officers, who have responsibility of deciding whether or not to release a person with or without condition or to keep them until they appear before court, to the Court of Quebec.

Justice Bisson dismissed all of Quebec’s contentions. He held that even if fault can be attributed to police in certain specific situations, “the fact remains” that the State’s systemic failure to put in place an adequate appearance system violated the fundamental rights of detainees by depriving them of their absolute right to appear within a maximum of 24 hours and to have their detention reviewed.

Contrary to the Attorney General’s assertions, Justice Bisson held that case law has clearly stated for decades that it is incumbent on the State to establish, implement and ensure the implementation of a system that allows anyone arrested and detained to appear within the maximum 24-hour time limit, regardless of when they were arrested – and that this obligation is an obligation of result.

“If there was a real impasse with the Court of Quebec,” the Quebec Ministry of Justice had a wide range of options that it could have used to resolve it, and evidence shows it did not use any of them, noted Justice Bisson. The ministry could have requested mediation with the Court of Quebec to address the stand-off, offer additional resources that would have allowed the opening of courthouses on Sundays, or formally demand that the Court of Quebec comply with s.503 of the Criminal Code either by allowing telephone appearances before justices of the peace or by offering appearances before Court of Quebec judges. On top of that, the Quebec Justice Ministry could have asked Superior Court to ensure Sunday appearances as they are justice of the peace under the Criminal Code, or could have submitted a reference to the Court of Appeal to decide the issue.

“The procedural rules on appearance set out in the Criminal Code protect and implement the constitutional rights of citizens,” underlined Justice Bisson. “The State is the architect of the appearance system to which citizens are subject, and as such, it is the guardian of the rule of law. It cannot absolve itself of responsibility by pointing the finger at the Court of Québec when it has made no effort to try to resolve the impasse that was causing the systemic violation of the constitutional rights of thousands of citizens.”

The DCPP and the Ministry of Justice, concluded Justice Bisson, “failed in their obligation” to put in place a system that would guarantee an appearance that complied with the Criminal Code, “knowing full well that their flawed appearance system” would result in a systemic violation of the fundamental rights of accused persons through the failure to comply with the 24-hour time limit on Sundays and statutory holidays.

“It was expected that thousands of litigants would be affected and that is exactly what happened,” added Justice Bisson. “Moreover, it was only in the face of the threat of class action that the government finally took action to correct its appearance system and put an end to the systemic violations of accused persons’ rights.

“The Court concludes that all of these factors militate strongly in favour of a substantial amount of punitive damages, in particular to dissuade the Government of Quebec from continuing to trample on the constitutional rights of litigants in order to save money, and from waiting for the threat of a class action before correcting a situation that violates fundamental rights of which it is fully aware.”

There was no political will to address the issues, said Décarie. “There was a lot of finger-pointing and no one took charge of the problem,” said Décarie. “There were pitfalls, but efforts to resolve them were minimal. That’s what happens when you have a government apparatus that doesn’t work properly to be able to put in place things as important as the fundamental provisions of the Charter. The sad thing, I have to tell you, is that I still get calls from people who would like to take part in the class action but who are outside the timeframe.”

Kugler has a slightly different take. “Rather than a black eye on the entire justice system, it is a strong, important reminder to the people in charge of the justice system that these provisions in the Criminal Code must be respected,” said Kugler. “You don’t have the right to disregard them. You don’t have the right to cast them aside in favour of budgeting somewhere else. And that’s the message I take away from the judge.”

The Quebec government also lost what Kugler describes as the key issue in the trial from a class action perspective. The Attorney General argued that individual recovery should be awarded as opposed to collective recovery. It is impossible, added the AGQ, to know the number of people who were affected by the systemic violation of their fundamental rights through the failure to comply with s. 503 of the Criminal Code. In Quebec class actions, Individual recovery requires each class member to submit a claim and prove their individual damages, and the court then determines the compensation for each member separately. In collective recovery, the court orders the defendant to pay a global sum that covers the total damages suffered by all class members, and the amount is determined based on evidence that allows the court to estimate the total harm with sufficient precision.

“The government tried so hard to get individual recovery because they know that so many of these thousands of people are vulnerable, marginalized, unable to seize the courts with a claim, and do not trust the justice system,” said Kugler. “Justice Bisson rendered a significant decision on collective recovery. It’s an important message for lawyers. You need to figure out how to make proof that will satisfy the test of sufficient precision to get collective recovery, because if you don’t get it, your win is not truly a win. The defendant is winning, too, because the defendant is going to inevitably end up keeping a lot of money that it would otherwise owe in damages.”

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This story was originally published in Law360 Canada.