Law in Quebec

The $41-million project, which will begin in Quebec City next spring before being rolled out across the province over the course of two years, is the latest initiative the Quebec government has launched to fight domestic violence at a time when the province has been unnerved by an outbreak of feminicides since the beginning of the year. Only six countries, including Australia, England, France, Portugal, Spain, and the U.S., have implemented a GPS tracking device system to thwart domestic violence.

The GPS tracking system will be composed of two units, a bracelet for the offender, which must be worn at all times, and a notification device for the victim. When the two devices are too close in contact with each other, the person in need of protection is notified as are police.

Quebec coroner Stéphanie Gamache, following an investigation into the death of Maryléne Levesque, concluded that a GPS electronic tracking bracelet would have “probably” prevented the murder of the 22-year old woman. GPS tracking devices ensure public safety and promote better risk management of domestic violence perpetrators, said Gamache in her nine-page report. These devices should be the “primary condition” for the release of any person convicted of killing their partner, concluded Gamache.

According to a voluminous study conducted Jean-Pierre Guay and Francis Fortin, professors of criminology at the Université de Montréal who were mandated by the Quebec government to study the use of electronic tracking devices, the bracelets increases victims’ sense of safety and spawn a “feeling” of empowerment and autonomy in victims, while “allowing for a more focused and optimized police response.” In Spain, where tracking devices have been used in conjugal violence cases since 2009, a study to determine its efficacy has yet to be conducted but Guay and Fortin point out that 45 women were killed by their partners in 2020 compared to 72 in 2004. “The program suggests some effectiveness, at least among program officials,” noted the professors. A pilot project conducted in Australia provides more conclusive evidence over its effectiveness, affirming there was an 82 per cent reduction of high risk incidents.

But the Quebec endeavour, while described as a commendable undertaking by legal observers, still has many unanswered questions.

“The project is evidently in its embryonic stages as we had a lot of questions and government officials were unable to answer,” said Élizabeth Ménard, a Montreal criminal lawyer and head of the Montreal Criminal Defence Lawyers Association (AADM). “We don’t know what technology will be used, how it will be used, and the scope of its use. There are concerns.”

The Quebec government is now in the process of selecting the kind of GPS tracking devices it will select, an important consideration as some tracking devices such as the ones used in France are equipped with a microphone that can be automatically activated and allow the central monitoring team to listen to what is happening in the event of an alarm. In France, which inaugurated its program in the fall of 2020, recordings are used as evidence if an incident takes place.

The parameters that will be used to determine who will be forced to wear the devices is now being established by members of the Quebec Public Security Ministry, the Quebec Ministry of Justice and the Director of Criminal and Penal Prosecutions, said Camille Simard, a spokesperson with the Public Security Ministry.

“It’s clear that it should be judicial authorities who should establish the parameters,” said Rachel Chagnon, a law professor at the Université du Québec à Montréal. “This decision should be based primarily on an assessment of the risk posed by the accused. In my opinion, it is all based on the risk analysis grid, which should take into account, in its creation, the demands of groups that help victims of violence.”

Only judges, the director of a provincial detention centre or a provincial parole board (the Commission québécoise des liberations conditionnelles) can order a conjugal violence offender to use the tracking device, with the consent of the victim, said Simard. It could be imposed by a judge’s order as a condition of release during court proceedings, or as part of a probation order or conditional sentence order. It could also be imposed by a parole board commissioner or a director of a provincial detention facility as a condition for a conditional release or a temporary absence, added Simard.

Various working committees have been also established to develop police and correctional procedures as well as intervention protocols, said Simard, without providing more details. Eventually, added Simard, stakeholders from the judicial, police, correctional and community sectors will be consulted.

See also Quebec ramping up services for victims of conjugal and sexual violence

Guay and Fortin however point out in their report that the use of tracking devices as part of a peace bond under s. 810 of the Criminal Code “certainly” raises problematic legal issues, including the presumption of innocence – a view shared by Ménard. “Under s. 810, a person is not accused of a crime,” remarked Ménard. “It’s just that the judge finds that there are reasonable grounds to believe that the person who fear their safety, but it is not necessarily as a result of a criminal act that was committed or alleged to have been committed. So to impose a measure that is so restrictive or so invasive, we are talking about a 24-hour surveillance of the state where we can trace the person at any time.”

Chagnon disagrees. To the extent that the s. 810 contains an admission by the person signing it that the person requesting it is justified in considering themselves in danger, “I don’t really see how adding a bracelet to the conditions of application would pose a specific problem,” said Chagnon. Rather Chagnon has other issues with the imposition of tracking devices issued under s. 810. “The 810 is requested in cases where it is considered that there is no basis for a complaint. How do you reconcile the idea that an accused is dangerous enough to recommend wearing a bracelet with the idea that there is no basis for a complaint?,” asked rhetorically Chagnon. She added that the bracelet is already used in some cases as an alternative to the refusal of release without this being considered an infringement of the principle of the presumption of innocence. “Here the question also arises, if the individual is dangerous enough to justify the imposition of a bracelet, why release him?,” said Chagnon.

The use of tracking devices also raises privacy concerns, said Ménard.

“What is most worrisome is the generation of this data, the storage of this data and the accessibility of this data,” said Ménard. “It is the State that monitors the person.”

There are three levels of access to geolocation data yielded by tracking devices, points out the report by the criminology professors. There is passive which records travel data, but the information is relayed to the control center passively at a predefined time, or transmitted retrospectively. There is active in which the data is always transmitted in real time, which “requires permanent mobilization, 24 hours a day, 7 days a week, of the entire information processing chain,” noted the professors. And there is a hybrid level, in which there is real-time transmission when there is a violation that details the street, direction and speed the person is moving. “The hybrid system appears to be more compatible” with Canadian law, said the report.

“If there were a way to have this data only from the moment the person is in breach of the conditions, this would greatly restrict the invasion of the person’s privacy,” said Ménard. “But at the moment what it seems to be doing is generating the data at all times and tracking the person at all times and that data could be accessed quite easily.”

In fact, Simard said the Quebec government has yet to establish a data and privacy policy.

But in spite of the outstanding issues that have yet to be resolved, legal observers appear to be in favour of the initiative.

“It is a tool that can be useful while guaranteeing the fundamental right of defendants under the Constitution released pending trial,” said Trois-Rivières criminal lawyer Michel LeBrun with Lacoursière LeBrun LLP and head of the criminal defense lawyer’s organization, Association québécoise des avocat(e)s de la défense (AQAAD). “However, it is neither desirable nor feasible to generalize this procedure and make it an automatic requirement.”