2020 QCCQ 8185, 2020 QCCQ 8185

Protection de la jeunesse — 206672 2020 QCCQ 8185 JR1585 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF [...] « Youth Chamber » N° : 505-41-009760-192 DATE : September 16, 2020 ______________________________________________________________________ BY THE HONOURABLE : MÉLANIE ROY ______________________________________________________________________ [SOCIAL WORKER 1], duly authorized by the Director of Youth Protection of the Centre intégré de santé et de services sociaux A Applicant X , born on [...], 2004 Child -and- A Mother -and- B, Father ______________________________________________________________________ JUDGMENT ON INELIGIBILITY

Section 192 , 193 Code of Civil Procedure and

Section 80 Youth Protection Act ______________________________________________________________________ WARNING: The Youth Protection Act forbids the publishing or broadcasting of information allowing for a child or the child’s parents to be identified. Any person who contravenes this provision commits an offence and is liable to a fine (sections 11.2, 11.2.1 and 135 Y.P.A.). THE CONTEXT [ 1 ] X is 16 years old. [ 2 ] On July 31, 2020, the Court decided that her security and development are endangered due to educational neglect from the parents and serious behavioural disturbances.

During the hearing, Mark Anthony Ciarallo represented the parents, B and A and Me Alissa Provost represented the child. [ 3 ] The Court made a one year order that included various protective measures, and entrusted X to a reception centre for ten months.

[ 4 ] Among other elements, the Court determined that X cannot be in the care of her parents particularly because she does not benefit from continuity of care and stable living conditions in her family environment. [ 5 ] On [...], 2020, X gave birth to a baby boy, Y . After he was released from the hospital, he was entrusted to a foster care family under emergency protective measures.

X was provisionally put under the care of her parents due to some health issues of her own. [ 6 ] The Director of Youth Protection filed an application for revision concerning X and an application for protection concerning her son Y . [ 7 ] Around September 4, the Director of Youth Protection was informed that X no longer wish Me Alissa Provost to be her lawyer and that Me Ciarallo is now representing her. [ 8 ] On September 24, during a hearing, Me Ciarallo requested a continuance and further informed the Court by phone that he now represents X and her parents.

The Court advised him of a possible conflict of interest and scheduled another hearing to hear submissions on that matter. [ 9 ] The Director of Youth Protection then filed two applications to declare the attorney ineligible for both pending files. [ 10 ] On the day the ineligibility application was heard, Me Ciarallo stated that he does not wish to be X ’s lawyer in both files and recognized that he is ineligible to represent her. [ 11 ] However, he argues that he is still eligible to represent Mr. B and Ms. A.

CONTESTED ISSUES [ 12 ] Is Mark Anthony Ciarallo ineligible to represent X ’s parents for future proceedings? [ 13 ] Ms. A suggests that she did not influence her daughter’s decision to change lawyers. She did ask for assistance from her lawyer because she did not want X to go to a group home due to health issues after giving birth. She wanted help to maintain her daughter at home. Ms. A gave some information to Me Ciarallo about what was happening to her daughter. According to Ms.

A, X felt that she was not represented to the best of her interest. [ 14 ] Me Ciarallo explains that he was there to protect the interest and security of X while nobody else was. He admits he talked to her and represented her solely for medical issues and her wish to remain as counsel to her parents. X texted him on many occasions. He explains that his mandate is “to save that child from the Director of Youth Protection”.

ANALYSIS AND DECISION [ 15 ] The Court is satisfied that a disqualifying conflict of interest exists. [ 16 ] It is the Court duty and within the Court’s powers to remove a lawyer from representing a party when there is a conflict of interest: The courts, which have inherent jurisdiction to remove from the record solicitors who have a conflict of interest, are not bound to a code of ethics. Their jurisdiction stems from the fact that lawyers are officers of the court and their conduct in legal proceedings which may affect the administration of justice is subject to this supervisory jurisdiction.

Nonetheless, an expression of a professional standard in a code of ethics relating to a matter before the court should be considered an important statement of public policy [1] . [ 17 ] In

section 193, the Code of Civil Procedure [2] states: At a party’s application, a lawyer may be declared disqualified to act in a proceeding, as when the lawyer is in a conflict of interest situation and does not take steps to remedy it, has disclosed or is likely to disclose confidential information to another party or a third person, or is called to testify in the proceeding on essential facts. In the latter case, the lawyer may only be declared disqualified for serious cause. (our underlining) [ 18 ] At

section 80, the Youth Protection Act [3] states: Where the tribunal establishes that the interests of the child are opposed to those of his parents, it must see that an advocate is specifically assigned to counsel and represent the child and that he does not act, at the same time, as counsel or attorney for the parents. [ 19 ]

Section 72 of the Code of Professional Conduct of Lawyers [4] states clearly that a lawyer must avoid any situation of conflict of interest which is defined at

section 72: There is a conflict of interest when there is a substantial risk that the lawyer’s own interests or his duties to another client, a former client, or another person would adversely interfere with his duties to the client and, in particular: (1) when he acts for clients with conflicting interests; or (2) when he acts for clients whose interests are such that he might tend to favour certain among them or that his judgment and loyalty may be unfavourably affected. (…)

[ 20 ] As it was decided by our Appeal Court in R. v. Harrison [5] , even if the loyalty here refers to the client-lawyer relationship, this question also concerns the integrity of the judicial system. : Même si le devoir de loyauté s’attache principalement à la relation avocat-client, il n’en demeure pas moins que cette question concerne tout autant l’intégrité du système de justice dont la protection constitue une fin autonome en soi.

Le conflit d’intérêts réel ou apparent demeure une question d’ordre public qui dépasse le cadre restreint de la relation avocat-client et qui nécessite de s’intéresser à l’image de la justice dans une perspective plus globale.

La préservation de l’intégrité du système de justice sous-tend l’idée que les cours de justice doivent demeurer vigilantes à l’égard du respect des règles déontologiques et des principes éthiques notamment en matière de conflit d’intérêts : « Il [le devoir de loyauté] subsiste parce qu’il est essentiel à l’intégrité de l’administration de la justice et il est primordial de préserver la confiance du public dans cette intégrité […] ». (our underlining) Lorsque l’intervention d’une cour de justice est réclamée en raison de l’apparence d’un conflit d’intérêts allégué, c’est l’intégrité du système de justice qui est alors en cause.

Dans ces circonstances, il appartient aux tribunaux, gardiens des valeurs fondamentales et garants de l’équité procédurale, d’intervenir en vue de ne pas cautionner un manquement à ce devoir. [ 21 ] The Court is the guardian of the integrity of the judicial system and the best interest of the child.

In matters of youth protection, the child is a party and has the right to be represented by independent legal counsel. [ 22 ] The Court needs to evaluate the risk that the information obtained in this particular context, even if it only concerns the medical emergency, be utilized and be detrimental to the best interest of X . Me Ciarallo, as the parent’s attorney, had and still has access to confidential information. This risk is present and the appearance of justice is breeched. [ 23 ] The urgent need for counsel has no bearing on the Court’s evaluation.

The simple fact that counsel was given is sufficient to create a conflict of interest. [ 24 ] Even though X and her parents are on the same page today, this may be different in the near future. There is an important connectivity between the two cases and Me Ciarallo is still the lawyer of Mr. B and Ms. A as of today. [ 25 ] As an officer of the law, bound by his ethical obligations, Me Ciarallo should have known better and immediately referred the child to another attorney. By not doing so, he placed himself in a situation of conflict of interest as defined his code of conduct and case law. [ 26 ] Me.

Ciarallo now recognizes he cannot represent X . The Court finds that Me. Ciarallo received confidential information and gave legal advice to both X and her parents.

As a result, there is a clear conflict of interest and he is ineligible to represent either. [ 27 ] Although this unfortunately forces the parties to change attorneys, no other remedy is possible within the principles of the law regarding a conflict of interest and the best interest of the child. [ 28 ] To quote my colleague, Judge Gosselin [6] , impartiality and independence also applies to the lawyer, and the perception that a reasonable person would have of this particular situation leads to the appearance of a conflict of interest.

THEREFORE THE COURT: [ 29 ] DECLARES Me Anthony Ciarallo ineligible to represent the parents A and B. __________________________________ MÉLANIE ROY, J.C.Q. Me Alexandra Provost Attorney for the Director of Youth Protection Me Anthony Ciarallo Attorney for the parents Hearing date : September 16, 2020 Date of signature : November 16, 2020