r v. TANYA KELLEY, 2022 QCCQ 6293

Director of Public Prosecutions (AGQ) c. Kelley 2022 QCCQ 6293 COUR DU QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF GATINEAU LOCALITY OF GATINEAU « Chambre criminelle et pénale » N° : 550-61-073855-211 DATE : July 8 2022 ______________________________________________________________________ PRESIDING JUSTICE HONORABLE JUDGE CHRISTINE AUGER, J.P.M. ______________________________________________________________________ DIRECTOR OF PUBLIC PROSECUTIONS Prosecutor v. TANYA KELLEY Defendant, Applicant and ATTORNEY GENERAL OF QUEBEC (hereinafter AGQ) Mis en cause ______________________________________________________________________ JUDGMENT ON

SUMMARY DISMISSAL ______________________________________________________________________ [ 1 ] The Attorney General of Québec has filed a Motion for

Summary Dismissal of the Applicant’s Motion [1] to have Ministerial Order 2020-078 and the Order in Council 1020-2020 inoperative, both ordered pursuant to

Section 123 , para. 1 (8) of the Public Health Act [2] . [ 2 ] All parties recognize that as of March 2020, the world has been in the midst of a worldwide Covid-19 pandemic, recognized by the World Health Organization on March 11, 2020 and as of March 13, 2020, the Québec government declared a state of emergency, by Order of Council 177-2020, under s. 118 of the Public Health Act . The decrees were adopted by the Québec government in virtue of section 123 (8) of the Act . [ 3 ] On October 11, 2020, by way of Ministerial Order 2020-078, there were limitations imposed on indoor gatherings in the Province of Québec.

In light of this Ministerial Order, which was applicable on the territorial jurisdiction of the City of Gatineau, the Applicant was served with a statement of offence on January 29, 2021 for the penal offence of having refused to obey the order limiting the number of persons in a residence. [ 4 ] It is in light of this statement of offence that the Applicant presents her Motion to have the decree adopted by the Government of Québec declared inoperative and as Applicant, it is incumbent on the party to demonstrate violation. Once the violation is shown, the AGQ must justify the violation.

However, prior to the hearing on the merits of the Constitutional Notice, the AGQ has filed a Motion for

Summary Dismissal.

POSITION OF THE ATTORNEY GENERAL OF QUEBEC [ 5 ] The AGQ argues that the Constitutional Notice fails to identify how the Order in Council and the Ministerial Order are the source of the alleged violations that it fails to demonstrate how Public Health Act decree creates a “serious imbalance” between the legislative and executive powers [3] , under s. 52 of the Charter and lastly that it fails to support the allegation [4] of unlimited powers to the police, in particular, as to how the Order in Council or the Ministerial Order granted the alleged unlimited powers. [ 6 ] In light of the orientation determined in R v.

Cody [5] , the issue of dismissal must be raised at the earliest possible occasion, if, at its face, a motion has no basis upon which it could reasonably succeed. It is the trial judge’s duty to dismiss applications when it becomes apparent that they are frivolous. [ 7 ] The AGQ invites the Court to conclude that the Constitutional Notice does not clearly state the contentions that the Applicant intends to assert nor how it is well founded in law, which are mandatory thresholds under ss. 76 and 77 of the Civil Code of Procedure .

[ 8 ] The AGQ argues that

summary dismissal on penal matters is governed by common law and civil law principles [6] in a suppletive fashion, as well as the Code of Penal Procedure [7] , which provides that notices of constitutional questions may be dismissed summarily if they are deemed unfounded in law [8] . In particular, S. 168, para. 2 requires the Court to make a finding that the alleged facts give rise to the conclusions sought in the constitutional notice. In support of the AGQ’s Motion for

Summary Dismissal, it is submitted that the Applicant’s Constitutional Notice does not respect the threshold set out in by Art. 77 of the Code of Civil Procedure, which states: Art. 77.

To be validly given, the notice to the Attorney General of Québec must clearly state the contentions the person intends to assert and the grounds on which they are based , and be served on the Attorney General by a bailiff as soon as possible in the course of the proceedings but, in a civil matter, at least 30 days before the case is ready for trial and, in other matters, at least 30 days before the trial; in addition, the notice must be accompanied by all pleadings already filed in the record.

The Attorney General becomes a party to the proceeding without further formality and may submit conclusions to the court, in which case the court must rule on them. Only the Attorney General may waive the notice period.

The notice to the Attorney General must also be served on the Attorney General of Canada if the provision or rule of law concerned comes under federal jurisdiction; it must be notified to the Director of Criminal and Penal Prosecutions if the provision or rule of law concerned relates to a criminal or penal matter. [ 9 ] To this end, the AGQ submits that Art. 76 requires that no application may be ruled upon unless the Constitutional Notice has been validly given and the Court must solely adjudicate with respect to the grounds set out in said Notice. [ 10 ] In keeping with the guidance set out in s. 168, para. 2 of the Code of penal procedure, the Court at this stage must exercise prudence in order to avoid putting an end prematurely to the argument sought in the Notice and in the event of doubt, continues to a full hearing [9] .

The AGQ submits that the Constitutional Notice has no reasonable chance of success, it is frivolous and the alleged violations are of a general, imprecise nature upon which no credible argument is founded. The Court of Appeal reaffirmed in Paul v.

DPCP , the necessity that the arguments setting out the violations be precise in nature. [ 11 ] It is the AGQ’s position that even if the facts alleged were deemed to be true, the Constitutional Notice filed by the Applicant is unfounded in law in that there is no demonstration of the manner in which the Order in Council or the Ministerial Order infringes of the constitutionally protected rights under Ss. 7 , 8 or 9 of the Canadian Charter of Rights and Freedoms [10] . [ 12 ] To that end, the AGQ submits that the Constitutional Notice clearly states that, it is rather the police actions or omissions that are alleged sources of violations under 7, 8 and 9 of the Charter and not deriving from the Order in Council or the Ministerial Order and that the remedy sought by the Applicant should be rather under s. 24 (1) and not s. 52 (1) of the Charter [11] . [ 13 ] The remedial structure of the Charter requires that breaches be addressed by sections 24 (1) and 52 (1) of the Constitution Act, 1982 .

The Supreme Court in Ferguson [12] clearly states that when the “law produces an unconstitutional effect” or purpose, the prescribed remedy under 52 (1) results in that law having no force or effect either for the party seeking or a third party. Section 24 (1) is a remedy for unconstitutional government conduct and not unconstitutional laws. In keeping with this distinction, it is the government agent’s action that may violate Charter rights that is under scrutiny, as opposed to the “result or effect” of a law under 52 (1).

The applications of these remedies are constitutional exemptions to the principle that “the law must be accessible and so far as possible intelligible, clear and predictable [13] . POSITION OF THE APPLICANT ON THE CONSTITUTIONAL NOTICE [ 14 ] The facts supporting the Constitutional Notice attest that on January 29, 2021, the police arrived at [...] Street at 6:12 pm to inquire about an illegal gathering. There were multiple vehicles parked near the house. The police observed 5 or 6 adults and about 7 children inside the house due to the window near the front door.

Backup police officers arrived at 6:40 pm and the house was surrounded, to avoid anyone from leaving. [ 15 ] The officers knocked on the door and Shane Miller told the officer he lived at this residence and nobody would be leaving the house, as he refused to order the other persons to leave. However, approximately one hour later, the persons inside the house decided to leave the premises and the police officers were still outside the premises waiting. [ 16 ] The Applicant resides at [...] Street and decided to leave the premises with other guests at approximately 7:40 pm.

The police was waiting outside and the Applicant was put under arrest, identified and was served with a statement of infraction of refusing to obey the order as relates to limiting the number of persons in an indoor gathering. [ 17 ] The Applicant recognizes that the Public Health Act was adopted on September 20, 2001 and grants the Québec government the ability to declare a state of health emergency and it also can impose, by decree, all necessary measures to protect the population, including the creation of penal provisions to ensure compliance. [ 18 ] In Bricka c.

P.G.Q [14] ., the Court of Appeal ruled on the validity of the renewal of the declaration of emergency and used as a premise that the measures taken under the emergency powers must be linked to the threat, real and imminent, to the health or to the population, that initially justified the state of emergency. This is to avoid any abuse in the exercise of these emergency powers. [ 19 ] The Applicant takes issue with the fact that

section 122 of the Act does not contain any review or control process by the Québec National Assembly [15] in relation to the penal provisions put in force in virtue of s. 123 (8) of the said Act . The Applicant argues that this creates a serious imbalance between the legislative and the executive power. [ 20 ] In essence, the Constitutional Order seeks a conclusion of unconstitutionality of Ministerial Order 2020-078 because of its creation of penal provisions limiting gatherings that consequently, engaged policing authorities to enforce the provisions. The violations

include entering the dwelling house without a warrant, trespassing on private property, questioning her and engaging in a perimeter search prohibited by ss. 8 and 9 of the Charter . Therefore as a result of the decree, police officers infringed principles of fundamental justice under s. 7 of the Charter . [ 21 ] It is pertinent to summarize the key elements of the Constitutional Notice, as these arguments are the substance of the alleged infringement.

In essence, even though the object of the Ministerial Order 2020-078 is to protect the health of the public, it fails to identify which part of the population has to be protected from Covid-19 and that there is no rational connection between the prohibition at large for indoor gatherings and the protection of the health of the citizens. It points out that the Covid-19 virus poses serious risk to the elderly and immunosuppressed individuals, while children and most healthy adults develop no symptoms.

It submits that the Ministerial Order was overbroad in that all citizens had to comply and the consequences on the Applicant’s liberty was disproportionate from the object of the law. Alleged

section 7 Charter violation [ 22 ] S. 7 of the Charter guarantees: Life, liberty and security of person Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. [ 23 ] The Constitutional Notice also argues that the measures taken by the executive branch must be compliance with the Charter , in particular, s. 7 that must be interpreted broadly as relates to the values and the protection of personal autonomy [16] . [ 24 ] The Applicant submits that the state has deprived her of the guarantees under s. 7 of the Charter , of life, liberty and security and that the deprivation is contrary to the principles of fundamental justice [17] . [ 25 ] The Applicant alleges a violation of physical liberty and freedom of movement. [ 26 ] The AGQ submits that the Applicant has failed to show how the Order in Council or the Ministerial Order are sources of the alleged infringement and failed to invoke, identify nor demonstrate the violation of fundamental justice. [ 27 ] The Applicant reiterates that Ministerial Order 2020-078 produces an effect which violates her Charter right to liberty and security, to make personal choices in limiting the way she governs her personal life, in limiting her choices to attend as a guest for dinner at a residence.

Once the decree creates penal provisions, the municipal and provincial policing authorities were responsible for enforcement. Alleged

Section 8 violation [ 28 ] S. 8 of the Charter guarantees : S earch or seizure Everyone has the right to be secure against unreasonable search or seizure. [ 29 ] The Constitutional Notice states that the Applicant has a right to challenge the legality of a search in the event of a violation of her personal right to privacy, which is constitutionally protected.

The threshold is to prevent the action of the State of conduct outside the legal framework of what is authorized [18] , especially in criminal matters where reasonable search and seizure [19] . [ 30 ] The AGQ submits that the Applicant has failed to show how the Order in Council or the Ministerial Order are sources of the alleged infringement and failed to invoke, identify nor demonstrate the violation of the right against unreasonable search and seizure. [ 31 ] The Constitutional Notice states [20] that the presence at Shane Miller’s house and property by the police, an alleged perimeter search, looking through windows and securing the premises was an unreasonable search and seizure, in violation of her Charter rights.

Alleged

Section 9 violation [ 32 ] S. 9 of the Charter guarantees : Detention or imprisonment Everyone has the right not to be arbitrarily detained or imprisoned. [ 33 ] The AGQ submits that the Applicant has failed to show how the Order in Council or the Ministerial Order are sources of the alleged infringement and failed to invoke, identify nor demonstrate the violation of the right against arbitrary detention. [ 34 ] The Constitutional Notice sets out the principles guiding lawful detention, in that it must not be illegal and authorized by common law or a rule of law.

It further sets out that a state of detention can occur if an individual is legally required to comply with a police order or if a reasonable person, not under an order, would feel compelled to obey. [ 35 ] The Applicant submits that her questioning by the officers is tantamount to infringement of s. 9 Charter rights. Justified infringement as per s. 1 of the Charter [ 36 ] The Applicant submits that the AGQ has not shown that the law has a pressing and substantial objective and the means chosen

are proportional [21] to that objective. He adds that the Order in Council 1020-2020 restricted the ability of Québec citizens to visit or receive members of their families and everyone was confined without any possibility of social contact, prisoners in their own homes, which is unjustified in a free and democratic society. [ 37 ] The Applicant sets out in her Constitutional Notice that the Order in Council is not a proportional response, no efforts were made to ensure minimal infringement and there were negative impacts on the health of citizens [22] , without targeting options.

She argues that the measures were imposed without adequate scientific sourcing. As well, she submits that the infringement is not minimal in that the measures violate the right to liberty and security of a person, as well as the protection against abusive search and seizure, in giving unlimited powers to the police.

ANALYSIS [ 38 ] In order for a Constitutional Notice in virtue of s. 52 (1) of the Charter to have a reasonable chance of success, it must be precise , it must clearly outline the well-foundedness in law of the arguments and conclusions sought, supported by detailed facts. [ 39 ] The Applicant on the Constitutional Notice, faced with a Motion for

Summary Dismissal, does not have to convince the Court of the existence of a violation of the constitutional rights, but only that its Constitutional Notice is not frivolous and has a reasonable chance of success [23] . [ 40 ] The Constitutional Notice cannot simply summarize the judicial principles set forth by the Courts, which in essence, constitute the legal framework in which the Court must then apply alleged facts.

Facts need to be addressed in the Notice and in particular, the Court must be able to define, develop and analyze each alleged constitutional violation as to the effect of the Ministerial Order 2020-078 and Order in Council 1020-2020 on the Applicant. [ 41 ] As well, the Court must have a clear context as to how the legislation enacted impacted the constitutional rights of the Applicant. The violations cannot exist in a legal vacuum and must be set out clearly and not merely as hypothetical assumptions.

The only facts that can be applied by the Court are those alleged in the Constitutional Notice summarized earlier, which must be considered as proven. [ 42 ] In Kutynec [24] , the Ontario Court of Appeal outlined the requirement that a Charter violation motion should not be heard when it has “no basis for a finding of a Charter infringement” and a judge should only choose to adjudicate those “with potential merit”. In the exercise of this discretion, the Court of Appeal in R. v.

Loveman [25] states that “where a Charter right is at stake, a trial judge will be reluctant to foreclose an inquiry into an alleged violation”. More recently, the Québec Court of Appeal in Antonio Accurso v. The Queen [26] , reaffirmed in the principles set forth in Kutynec , Loveman and Vukelich [27] . CONSIDERATIONS [ 43 ] First, in light of these principles that provide the framework for the Motion on

Summary Dismissal , the Court concludes that the arguments set out in the Constitutional Notice have no reasonable chance of success. The Court must assess the viability of the Notice under s. 52 (1) which does not create a personal remedy.

The Court must be in a position to conclude that the Applicant has a reasonable chance of success in demonstrating, at hearing, that the legislation targeted, has an unconstitutional purpose or effect. [ 44 ] Second, there must be a reasonable chance of success in demonstrating that the legislation is null and void, in concluding that the legislation poses a real risk of unconstitutional treatment for the Québec population [28] . The Constitutional Notice, by no means, demonstrates this argument, at its face.

The allegations supporting an argument that the legislation was enacted in a non-discretionary way are insufficient and unfounded [ 45 ] Thirdly, the Charter violations alleged by the Applicant are oriented specifically towards ss. 7 , 8 and 9 of the Charter .

The proper remedy for alleged violations of this nature is s. 24 (1) , which is appropriate when addressing the control of unconstitutional acts. [ 46 ] Lastly, what the Applicant is asking the Court to conclude, by this Notice, is that the enactment of the Order in Council 1020- 2020, the Ministerial Order 2020-078 and penal provisions have allowed unchecked police conduct and automatic infringement of ss. 7, 8 , 9 constitutionally protected rights. Consequently, it follows, because of these effects of the legislation, it is invalid under section 52 (1) .

This line of argument has no chance of success. [ 47 ] As a rule , Charter violations under 24 (1) are evaluated on a case-by-case basis within a well-defined constitutional framework and are assessed on alleged facts on each violation under ss. 7, 8 and 9 in their own right. Section 52 (1) is not the appropriate remedy in the present instance. FOR THESE REASONS, THE COURT: GRANTS the Attorney General of Québec’s Motion for

Summary Dismissal. __________________________________ JUGE CHRISTINE AUGER, J.P.M.

M e Sarah Brouillette Attorney for the Applicant Me Vincent Riendeau Attorney for the Attorney General of Québec Me Josiane Larose Directeur of Public Prosecutions Date d’audience : 24 mai 2022