Failed justice

Errors and omissions by defence counsel, the Crown prosecutor and even the trial judge were not “determinative” after a man who sought to withdraw his guilty plea to sexual assault failed to establish that he sustained subjective prejudice, ruled the Quebec Court of Appeal.

The unusual case has spurred at least one criminal lawyer to state that the justice system failed the appellant and his family while another held that the Quebec Court of Appeal issued a fair and reasonable decision that heeded guidance by the Supreme Court of Canada in the 2018 leading decision in R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. In Wong, the SCC held that guilty pleas must be informed.

Continue reading “Failed justice”

Quebec appeal court rebukes trial judge over stereotypical attitudes towards sexual assault

The Quebec Court of Appeal admonished a trial judge who acquitted a father accused of incest for holding biases and stereotypes over the way a sexual assault victim should behave.

The appellate court, in a brief but unusually blunt and forceful six-page ruling, ordered a new trial against a father who allegedly assaulted his daughter for a 16-year period, from the age of nine until 25. She came forward in 2010 when she was an adult and while living with her parents.

On February 10, 2017, Court of Quebec Judge Denis Mondor acquitted the father in an oral ruling so incoherent, so void of reasoning that “it is at best difficult to understand what the judge means,” said the three-judge Court of Appeal panel in J.F. c. R., 2018 QCCA 986. “It is not clear why a deliberation of more than eight months could lead to such confusion.”

The appeal court could only infer that Judge Mondor believed that the complainant did not explain why she waited to denounce her aggressor even though she testified that she wanted to spare her mother from the suffering she was going through.

The appeal court also inferred that Judge Mondor was surprised by the amount of time it took the alleged victim to file a complaint because of her “behaviour and personality.” They also deduced that Judge Mondor was yet again surprised that the complainant accompanied her father to concerts or vacations even though she alleged her father assaulted her. The appeal court noted that Judge Mondor acknowledged that some victims take time to denounce sexual assaults but point out that Judge Mondor found it difficult to reconcile the length of time she took to come forward with her personality.

“In all likelihood, this conclusion also stems from preconceived ideas that victims of sexual assault should have a different behaviour,” found the appeal court. “The conclusion that it is incoherent that the complainant continued to share such moments with her father rests on preconceived ideas.”

Judge Mondor also found it “contradictory and disturbing,” as the appellate court put it, that the complainant did not warn her younger sister about her father – a position the appeal court found to be anchored by yet another preconceived notion on how victims of incest ought to behave.

Judge Mondor, a former Montreal criminal defence lawyer who headed the Barreau du Québec in 2004-2005, also stated in his oral ruling that the “simple solution” for the alleged victim was to leave home because she was financially independent.

The appeal court, heeding guidance by the nation’s highest court in R. v. D.D., [2000] 2 SCR 275, underlined there is “no inviolable rule” on how people who are the victims of trauma like a sexual assault will behave. The appeal court concluded that the “expectations expressed by the (trial) judge are based on stereotypes or generalizations tainted by prejudices.”

Another Court of Quebec judge, Jean-Paul Braun, landed in hot water last year after suggesting in a sexual assault case that a 17-year-old girl who was kissed and groped by a taxi driver was probably “a bit flattered” by the gesture. Judge Braun, presiding over the trial of the 49-year old taxi driver on May 2017, also commented on the victim’s appearance, stating that she was a “little overweight but has a pretty face.” The Quebec judicial council, the Conseil de la magistrature, has launched proceedings to determine if Judge Braun breached the code of conduct.

It remains to be seen if Judge Mondor will be the subject of an inquiry by the Quebec judicial council.


Here are  passages from Judge Mondor’s oral ruling on the case:

“Le Tribunal s’interroge également sur comment tout à coup à vingt-trois (23), vingt-quatre (24) ans, vingt-quatre (24) ans, vingt-cinq (25) ans, adulte, diplômée, indépendante d’une certaine façon, frais assumés en grande partie par la famille, dispute sur un remboursement de prêt et bourse qui aurait fait en sorte de la cloîtrer, de faire en sorte qu’elle se serait retrouvée prisonnière encore du père qui, lui, continue ou aurait continué ou venait d’arrêter quand, tout à coup, solution simple qui aurait pu se présenter, autonomie, je quitte cet endroit, je n’accepte plus que les choses se passent, mais plus loin encore, plus loin encore.

“Comment expliquer et comment voir qu’ayant été, elle, agressée de façon continue pendant ces années, comment ne pas, à un moment ou à un autre, avoir été inquiétée ou s’avoir inquiétée, n’avoir pas perçu qu’il se pouvait, parce que, dit-elle, lorsqu’ils étaient en vacances, elle privilégiait de coucher avec son père dans la chambre commune qu’ils partageaient, pour éviter qu’il arrive quoi que ce soit à sa jeune soeur ou même à son jeune frère, comment le Tribunal ne peut, ne voit ou ne peut suivre ou ne peut arriver à trouver de cohérence dans la situation, de ne pas avoir été inquiétée, de ne plus subir ou ne plus avoir, elle, à vivre cette situation-là quand elle a une jeune soeur de huit (8) ans, neuf (9) ans son aînée. C’est pour le Tribunal une situation très inquiétante qui amène et qui entache ou qui vient entacher une fiabilité du témoignage que le Tribunal n’arrive pas à situer ou à supporter dans le récit que X fait de ces événements-là.

[…]

“X dira et maintiendra dans son témoignage qu’elle a toujours voulu épargner à sa mère cette difficile réalité qu’elle vivait. Elle n’explique pas comment tout à coup, à vingt-quatre (24) ou vingt-cinq (25) ans, il n’y en a plus, il n’existe plus. Il n’y a pas de situations aussi graves et importantes qui se continuent avec elle, c’est-à-dire d’avoir des relations sexuelles avec son père, d’avoir une vie commune avec son père, ce qu’elle dit c’est que ça s’est ainsi terminé au moment où elle a eu cet âge-là et n’a pas quitté la maison avant et après les événements de janvier où elle a dénoncé, où elle a choisi de dénoncer ce qu’elle avait vécu pendant ces quinze (15) années.

[…]

“L’expérience du Tribunal est à l’effet que des drames aussi lourds avec une vie aussi, pour utiliser, enfermée, en silence, le Tribunal s’explique mal, après avoir vu la victime témoigner devant lui, comment, dans peu de moments de son témoignage, elle a été ou elle a pu être fragilisée par cette situation de vie au quotidien. On ne perçoit, et j’ai perçu, et je n’ai jamais perçu de sa personnalité, de sa façon d’être devant le Tribunal, une autre façon que de s’affirmer, d’être affirmative sur ce qu’elle est, d’avoir une assurance qui, dit-elle aujourd’hui, avoir parce qu’elle a continué dans son cheminement, dans sa vie, dans ses études, mais n’avoir jamais, à quelques occasions, plus jeune, tenté ou faire en sorte de se libérer de cette vie de tortionnaire qu’elle vivait, que son père lui imposait.

Quebec judge certifies class-action lawsuit against Just for Laughs founder Gilbert Rozon

A class action launched by 20 women who allege they were sexually assaulted or harassed by the founder of Just for Laughs was certified by Quebec Superior Court.

In a 36-page ruling, Quebec Superior Justice Donald Bisson highlighted that class actions have “shown their value” in sexual assault cases because they have allowed “hundreds of victims” access to justice.

“If the plaintiff was not authorized to file the current class action, it is highly likely that many victims would be deprived of their ability to exercise their rights,” said Justice Bisson in Les Courageuses c. Rochon 2018 QCCS 2089. A class action “like this one allows all victims to understand that they are not alone, that the assaults are not their fault and that if they have the courage to come forward to denounce the sexual abuse committed against them, they will make the versions of the other victims more likely.”

Gilbert Rozon, also the subject of a criminal investigation, has denied the allegations. He unsuccessfully argued that “the fact of being charming while using his power was not in itself a fault,” that it was necessary to question “the consent of the alleged victims which happens in their heads and for which Rozon is not responsible,” and that the class representative — Patricia Tuslane, the only one to publicly come forward – did not offer material evidence to buttress her allegations.

The class action is seeking up to $400,000 in moral damages for each individual complainant, and a total of $10 million for the group in punitive damages.

Quebec Bar and Ombudsman want to make it easier for alleged victims of sexual assault

The Quebec Bar and the Quebec Ombudsman want to make it easier for alleged victims of sexual assault to gain access to the legal system and are calling on the provincial government to follow in the footsteps of the overwhelming majority of Canadian provinces and eliminate the prescription period for civil actions in cases of sexual assault.

Unlike most provinces, a Quebec resident who has suffered a sexual assault may launch civil proceedings against his aggressor within 30 years, a figure that was increased from three years in 2013. But under the Civil Code of Quebec, the calculation of the prescription period is unnecessarily complex and has proven to be an obstacle for victims to launch civil proceedings against their aggressors, said Marie Rinfret, Quebec’s ombudsman, who also wants the time limit to be eliminated in cases of violence suffered during childhood or violence committed by a spouse or ex-spouse.

In Quebec the calculation of the prescription period begins on the date when the person becomes aware that the harm they suffered can be attributed to the assault or act of violence. But there are exceptions where the prescription period may be suspended. If the victim was minor at the time he became aware of the harm, then the calculation of the prescription period will begin on the victim’s 18th birthday. Time limits may also be deferred if victims can prove that it was impossible for them to act despite being aware of the harm they suffered.

“These victims are amongst the most vulnerable in our society and they live through inequities in the justice system,” said Rinfret. “The patent inequity is visible in the application of the prescription period and in the burden of proof placed on the shoulders of victims. It is not only complicated to make the calculations but also difficult to prove when they became aware of the harm they suffered.”

Louise Langevin, Ad.E., a law professor at the Université Laval who wrote a book about compensation of victims of sexual and spousal violence, echoes Rinfret’s observations, pointing out that Quebec is “behind the times.” Langevin notes that the vast majority of provinces eliminated the limitation period for victims of sexual violence following the Supreme Court of Canada ruling in M.(K.) v. M.(H.) [1992] 3 SCR 6.

“As the SCC said in 1991, the biggest barrier for victims who decide to launch this type of action is the limitation period,” said Langevin. “It’s a question of access to justice for these victims who are above all women and children. The Civil Code must respect the rights of these victims. The Civil Code must adapt to new realities.”

The Quebec Bar wants the provincial government to go even further. Following the Jian Ghomeshi sexual assault trial and the stunning revelations by a Globe and Mail investigation that found one of every five sexual assault allegations in Canada are dismissed as baseless, the Barreau established a committee to look into the “judicial treatment” of sexual assault. In a brief and pointed review, the Quebec Bar issued seven recommendations, some of which the Quebec government has already enacted.

The Barreau would like to see victims of sexual violence receive free or affordable legal consultations that will be provided by non-profit organizations. It also wants to increase the visibility of referral services so that victims can more easily find lawyers. The provincial government announced in mid-December, two days after the Quebec Bar issued its recommendations, that it will invest $25 million over three years to fight sexual violence. Most of the money is expected to go towards improving access to aid services for victims. The Barreau is hoping that some of these monies will also be used to provide free or affordable legal services for victims of sexual assault.

“The justice system is extremely complicated, and it’s important for these victims to know what to expect from the justice system,” said Paul-Matthieu Grondin, the Barreau’s bâtonnier. “We want victims to be able to meet with lawyers, and money not be an issue.”

The Bar would also like to see the Quebec government introduce an amendment to make it easier for victims of sexual violence to be able to receive compensation under the Quebec Crime Victims Compensation Act. Under article 20 of the Act, benefits are not provided if victims — including victims of sexual assault – “through his gross fault” contributed to their injuries or death. That is an untenable situation, said Grondin. “We believe that gross fault should never, never, never apply to victims of sexual assault simply because we do not believe that a victim of a sexual assault can contribute to their own misfortune,” added Grondin. The Quebec government said it is looking into the issue.

The Barreau is also recommending that Quebec adopt the so-called Philadelphia model, something that the provincial government announced it would do early December. Under the Philadelphia model, unfounded sexual assault cases are reviewed by advocacy groups alongside high-ranking police officers. When the system was put in place in Philadelphia following a high profile murder and sexual assault, the number of cases deemed unfounded dropped significantly. It has since caught the eye of other jurisdictions, including Quebec which launched a one-year pilot project that will see provincial police review sexual assault cases that were considered to be baseless.

Besides calling on police officers to receive an hour-long sensitivity training about how to approach alleged sexual assault victims, the Bar would like to see defence lawyers too receive training for cross-examining victims of sexual assault.

In the wake of the #MeToo movement, the Barreau has also recently given four syndics or investigating officers and their staff five hours and a half of training on sexual harassment, intends to encourage all law firms to implement a sexual harassment policy, aims to provide law firms with templates of sexual harassment policies, and expects to launch a survey of its member regarding sexual harassment. “We can’t put our heads in the sand,” said Grondin.

All of these recent developments, said Rinfret, “signals that we must remove all barriers that constrains access to justice for these victims, be it in civil or criminal justice.

“It is necessary to make restorative justice accessible which means ensuring that victims of sexual assault can exercise their rights in all confidence and liberty and in the simplest manner possible.”

This story was originally published in The Lawyer’s Daily.