r v. STEPHANE JETT, 2022 QCCQ 8113

Director of Public Prosecutions c. Jetté 2022 QCCQ 8113 COUR DU QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF GATINEAU LOCALITY OF GATINEAU « Chambre criminelle et pénale » N° : 550-61-075138-210 DATE : November 9th 2022 ______________________________________________________________________ PRESIDING JUSTICE THE HONORABLE JUDGE CHRISTINE AUGER, j.p.m ______________________________________________________________________ DIRECTOR OF PUBLIC PROSECUTIONS Prosecutor v. STEPHANE JETTÉ, Defendant, Applicant And THE ATTORNEY GENERAL OF QUEBEC Mis en cause ______________________________________________________________________ JUGEMENT ON

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

Summary Dismissal of the Defendant’s Notice [1] to have the Order in Council 1020-2020 declared in

part inoperative, ordered pursuant to

Section 123 , para. 1 (8) of the Public Health Act [2] . [ 2 ] Order in Council 1020-2020 imposed the wearing of a face covering, that is, a mask or tightly fitting cloth that covers the nose and mouth, when gathered to exercise their right to peacefully demonstrate. This Order was applicable on the territorial jurisdiction of the City of Gatineau when the Applicant was served with a statement of offence on April 10th, 2021 for refusing to wear a face covering during a peaceful demonstration. [ 3 ] At the hearing of the Attorney General’s Motion for

Summary Dismissal, in order to properly frame the arguments, the Court questioned the Applicant Jetté as to his legal arguments. He withdrew several arguments, namely those relating to ss. 1 a),

b) and

d) of the Bill of Rights [3] , the Criminal Code [4] and the Québec Charter of Human Rights and Freedoms [5] . [ 4 ] It was reiterated by the Applicant Jetté that he is not asking that the Canadian Charter of Rights and Freedoms [6] apply to this matter and argues that the Charter has not replaced the Canadian Bill of Rights . In fact, the sole basis of the constitutional [7] challenge is s. 1

e) of the Canadian Bill of Rights. [ 5 ] It is in light of this statement of offence that the Applicant presents his Notice to have the decree adopted by the Government of Québec declared in

part inoperative. Prior to the hearing on the merits of the Applicant’s Notice, the AGQ has filed a Motion for

Summary Dismissal. POSITION OF THE ATTORNEY GENERAL OF QUEBEC [ 6 ] First, the AGQ argues that the Notice fails to identify the precise nature of the constitutional and legal arguments at play, in relation to how the Order in Council violates Mr. Jetté’s rights under the Canadian Bill of Rights.

In sum, the AGQ submits that the lack of clear concepts and arguments make it impossible to enlighten the Court or the AGQ on the true nature of the debate. [ 7 ] Second, the AGQ argues that the government is allowed, by its laws, to impose penal sanctions [8] and there is no requirement for a signed contract between the government and the Defendant in order for him to be submitted the general application of the laws.

[ 8 ] The AGQ invites the Court to conclude that the Notice does not clearly state the contentions 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 .

POSITION OF THE APPLICANT ON THE CONSTITUTIONAL NOTICE [ 9 ] The facts supporting the Notice attest that on April 10, 2021 during the course of a pacific demonstration, the officers present had orders to ensure compliance of the mandatory face covering. [ 10 ] The Applicant argues that the Canadian Bill of Rights [9] creates God-given rights to freely assemble or associate without conditions [10] , such as mask wearing and that the provisions of s. 123 (8) of the Public Health Act indirectly infringe of his freedom of assembly and association under s. 1

e) of the Canadian Bill of Rights. [ 11 ] The Canadian Bill of Rights states:

Preamble: The Parliament of Canada, affirming that the Canadian Nation is founded upon principles that acknowledge the supremacy of God, the dignity and worth of the human person and the position of the family in a society of free men and free institutions; Affirming also that men and institutions remain free only when freedom is founded upon respect for moral and spiritual values and the rule of law; And being desirous of enshrining these principles and the human rights and fundamental freedoms derived from them, in a Bill of Rights which shall reflect the respect of Parliament for its constitutional authority and which shall ensure the protection of these rights and freedoms in Canada: Therefore Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

Part 1 Bill of Rights Recognition and declaration of rights and freedoms 1 It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely, (

a) the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law; (

b) the right of the individual to equality before the law and the protection of the law; (

c) freedom of religion; (

d) freedom of speech; (

e) freedom of assembly and association ; and (

f) freedom of the press. [ 12 ] The reasons why the Defendant has chosen to ask for the application of the Canadian Bill of Rights are unclear. The Court’s understanding from the Applicant’s representations is that, for the Defendant, the Canadian Bill of Rights applies without conditions or limitations, founded under the principle of the supremacy of God. ANALYSIS [ 13 ] It is a fact that since 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.

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 . [ 14 ] In light of the orientation given by the Supreme Court in R v. Cody [11] , the issue of dismissal must be raised at the earliest possible occasion, if, at its face, a motion or Notice 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. [ 15 ]

Summary dismissal on penal matters is governed by common law and civil law principles [12] in a suppletive fashion, as well as the Code of Penal Procedure [13] , which provides that notices of constitutional questions may be dismissed summarily if they are deemed unfounded in law [14] . In particular, s. 168, para. 2 requires that the Court 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. [ 16 ] 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. [ 17 ] In order to alleviate the concerns of the Applicant, the Court did emphasize that the requirements for the Notice set out in articles 76 and 77 are primarily focused on the arguments contained therein, over and above the format of the Notice.

The Applicant’s preoccupation that he did not adhere to the precise format may prejudice his arguments on the merits are unfounded.

The Court is not preoccupied by the format nor the presentation of the Applicant’s arguments, but rather their legal basis and it is solely the legal principles that guide the Court. [ 18 ] 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, must continue to a full hearing [15] . [ 19 ] The Court must exercise prudence in the analysis of the Motion for

Summary Dismissal, in light of Patrick Ouellet v. The Queen [16] , wherein the Court of Appeal reiterates that

summary dismissal should only be used in cases wherein the constitutional challenge is, at its face value, frivolous [17] . [ 20 ] 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. [ 21 ] In Bricka c.

P.G.Q [18] ., 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. [ 22 ] Rights must be interpreted broadly as relates to the values and the protection of personal autonomy [19] .

The Applicant submits that the state has deprived him of the guarantees under the Canadian Bill of Rights and that the deprivation is contrary to the principles of fundamental justice [20] . [ 23 ] Did the Québec government, by forcing the citizens to wear a mask like any other form of clothing, violate the freedom of assembly and association, under s. 1

e) of the Canadian Bill of Rights ? The Canadian Bill of Rights [ 24 ] The Canadian Bill of Rights was the country's first federal law to protect human rights and fundamental freedoms and was enacted by Parliament in 1960. It applies to legislation and policies of the federal government and it provides Canadians with certain rights in federal law in relation to other federal statutes and is not part of the Constitution of Canada.

The Canadian Bill of Rights is considered as having quasi-constitutional status because it was enacted as an ordinary Act of the Parliament of Canada. [21] . [ 25 ] Although it is still in effect, the Canadian Bill of Rights was superseded by the Canadian Charter of Rights and Freedoms in 1982. As the Applicant insists, the Court agrees that it has not replaced the Canadian Bill of Rights . However, it is limited in its effectiveness because it is a federal statute and is not directly applicable to provincial laws.

It cannot invalidate nor impact any provincial legislation. [ 26 ] These legal and constitutional limitations were the reason that the Canadian Charter of Rights and Freedoms was enacted and governs the application of both federal and provincial law in Canada [22] .

In sum, the Canadian Bill of Rights is a quasi-constitutional statute, which gives it special status relative to other federal statutes and the courts have not interpreted it generously [23] . [ 27 ] The Court does not see how the Canadian Bill of Rights could be applied to the Québec legislation in this matter and moreover how it could invalidate the provisions of the Québec Public Health Act .

More precisely to the present Motion, the Applicant has not provided this argument. [ 28 ] The Charter has constitutional status and has a remedial structure, as stated by the Supreme Court in Ferguson [24] which 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. [ 29 ] In order for the Notice, to have a reasonable chance of success, it must be precise , it must clearly outline its well-foundedness in law, outlining arguments and conclusions sought, supported by detailed facts. [ 30 ] The Applicant on the Notice , faced with a Motion for

Summary Dismissal, does not have to convince the Court of the existence of a violation of his fundamental rights, but only that its Notice i s not frivolous and has a reasonable chance of success [25] . [ 31 ] The Court must have a clear context as to how the legislation of mandatory mask wearing during the peaceful demonstration

impacted the rights of the Applicant himself, namely his freedom of assembly an association. The violations cannot exist in a legal vacuum and must be set out clearly and not merely as hypothetical assumptions. [ 32 ] In Kutynec [26] , 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”. [ 33 ] These same principles apply to a Notice based on the Canadian Bill of Rights .

In the exercise of the Court’s discretion, the Court of Appeal in R. v. Loveman [27] 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 [28] , reaffirmed in the principles set forth in Kutynec , Loveman and Vukelich [29] . CONSIDERATIONS [ 34 ] 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 Notice have no reasonable chance of success. [ 35 ] Second, there must be a reasonable chance of success in demonstrating that the Québec legislation violates the Applicant’s freedom to assembly and association, as per the Canadian Bill of Rights [30] . The Notice , by no means, demonstrates this argument. [ 36 ] The Notice has no reasonable chance of success. It is frivolous and the alleged violations are of a general, imprecise nature upon which no credible legal 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. FOR THESE REASONS, THE COURT: GRANTS the Attorney General of Québec’s Motion for

Summary Dismissal. __________________________________ JUGE CHRISTINE AUGER, J.P.M. Stépĥane Jetté Self-represented Me Marie-Philippe Tanguay Attorney for the Attorney General of Québec Me Sophie Ouellette Director of Public Prosecutions Date of hearing: September 8 th , 2022