2022 QCCQ 10242, 2022 QCCQ 10242

Solutions d'affaires D&A Ltée c. Barreau de Montréal 2022 QCCQ 10242 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL LOCALITY OF MONTREAL « Criminal and Penal Division » N° : 500-61-523543-214 DATE : March 24, 2022 ______________________________________________________________________ PRESIDED BY GENEVIEVE CLAUDE PARAYRE PRESIDING JUSTICE OF THE PEACE ______________________________________________________________________ SOLUTIONS D’AFFAIRES D&A LTÉE Appliquant v. BARREAU DE MONTRÉAL Respondent ______________________________________________________________________ JUDGMENT ON A MOTION FOR STAY OF PROCEEDINGS, DISMISSAL OF A COUNT AND DISMISSAL OF A STATEMENT OF OFFENCE (

Section 7 , 11 (b) , (c), (

d) and 24(1) Canadian charter of rights and freedoms , sections 174(8) , 184(2) , (5) , (7) et

(8) Code of penal procedure ) ______________________________________________________________________ [ 1 ] The applicant presents a preliminary motion for stay of proceedings, dismissal of a count and of a statement of offence issued on June 2, 2021, accusing it of having violated sections 132 and 133 (

c) of the Act respecting the Barreau du Québec [1] (hereinafter "the Act ") and

section 188 of the Professional Code [2] (hereinafter "the Code "), that is, of having acted in such a way as to lead to the belief that it was authorized to carry out the functions of a lawyer or to perform the acts of a lawyer. [ 2 ] This statement of offence is not the first contact between the parties.

Since 2015, the applicant was the subject of proceedings on the part of the respondent. [ 3 ] Indeed, on July 10, 2015, the respondent sent the applicant a formal notice alleging illegal practice of the profession on various websites. [ 4 ] On December 17, 2015, a second formal notice was sent to the applicant for the same complaints. [ 5 ] At the heart of its arguments, the applicant criticizes the respondent's actions since 2015 which, according to it, constitute an abuse of power and unjustified harassment.

As an example, the applicant states that the respondent attempts to indirectly implicate its president and sole director, Alexander Shaulov, through the wording of the statement of offence in order to prejudice him. [ 6 ] The applicant alleges that the Act does not apply to a legal person and, therefore, the charge is null and void. Moreover, the statement of offence is prescribed. [ 7 ] Finally, according to the applicant, the statement of offence, its wording and the actions of the respondent infringe its rights and those of Mr.

Shaulov protected under the Canadian charter of rights and freedoms [3] (hereinafter the “ Charter ”). LITIGATION ISSUES [ 8 ] The applicant filed a written motion in support of its arguments, as well as several exhibits. With the exception of Mr. Shaulov, no witnesses were called in support of the motion. [ 9 ] The Court must therefore answer these questions: 1. Does the Act apply to legal persons? 2. Is the statement of offence prescribed? 3. Are the applicant’s Charter rights infringed? 4. Is the Court facing an abuse of power?

ANALYSIS [ 10 ] Prior to hearing this motion, a pre-hearing conference was held before the Honorable Justice Compagnone on October 12, 2021, and November 30, 2021. [ 11 ] Mr. Shaulov represents the applicant as its president. Although he is not a lawyer in good standing, he mentions on several occasions that he has legal training in both Ontario and Quebec. [ 12 ] The Court is therefore not dealing with a neophyte. However, since Mr.

Shaulov is not acting as a lawyer but as the president of the applicant, the Court explained the course of the proceedings, the rules of evidence and allowed much more time than the three hours that had been announced during the pre-hearing conferences. [ 13 ] In certain circumstances, the Court has the discretion to exempt or modify certain rules in force in the spirit of the sound administration of justice [4] . [ 14 ] Thus, the Court relieved the applicant from its failure to file a sworn motion in accordance with the rules in effect [5] . [ 15 ] Although certain situations are conducive to a more flexible application of certain principles and regulations, the rules of procedure and evidence remain applicable [6] . [ 16 ] Therefore, the Court informed Mr.

Shaulov that, unless the opposing party consents, the allegations of a motion must be proven by way of testimonial or documentary evidence [7] . [ 17 ] Thus, no evidence was submitted in support of the allegations in paragraphs 2 to 12, 15, 21, 24, 31, 32, 48 to 52, 81, 84, 85, 90, 93, 94, 105, 110 to 113, 119 and 127. [ 18 ] Consequently, the Court considers these allegations as not proven. 1.

Does the Act apply to legal persons ? [ 19 ] The applicant‘s opinion is that the Act does not apply to a legal person since the legislator does not demonstrate a clear intention to create regulatory liability for a legal person in the wording of the offences. [ 20 ] The Applicant refers to the formulation of the statement of offence in which Mr. Shaulov is directly involved.

This fact shows, according to it, that the respondent knows that he cannot prosecute a legal person and leads to an ambiguity as to the identification of the defendant. [ 21 ] Based on the identification theory of corporate criminal liability [8] , the applicant alleges that the acts committed by officers can be imputed to a corporation only in mens rea offences. [ 22 ] The applicant’s opinion is that the respondent must show, in the case of regulatory offences, that the allegations were committed by a legal person alone, that is, without the intervention of a natural person. [ 23 ] For these reasons, the applicant requests that the statement of offence and the charge be dismissed [9] .

The application of the Act to legal persons [ 24 ] The Court must analyze this argument in light of the provisions of the Act and of the Code .

Indeed, the Act specifies " the nature of the practice of the profession but also refers to the interrelationship between the scheme it establishes and the Code [10] ” . [ 25 ] It is recognized in law that the words of a statute must be interpreted in their entire context according to the ordinary and grammatical meaning of the words in harmony with the spirit and purpose of the statute and the intention of the legislator [11] . [ 26 ] The spirit of the Act is to regulate and supervise the practice of law and to ensure the protection of the public. [ 27 ] It is therefore relevant to consider the wording of the following provisions of the Act and the Code .

Act respecting the Barreau du Québec 1. In this Act and in the by-laws made thereunder, unless the context requires a different meaning, the following words mean respectively: (…) “person”: a corporate body or an individual , as well as an association, partnership or corporation. (…) 4. The Bar and its members shall be governed by the Professional Code (chapter C - 26 ), subject to the contrary or inconsistent provisions of this Act . (…) 128. ( 1) The following acts, performed for others, shall be the exclusive prerogative of the practicing advocate or solicitor:

(…)

(2) The following acts, performed for others, shall be the exclusive prerogative of the practicing advocate and not of the solicitor: (…)

c) to prepare, draw up and file the declaration of value of an estate, required by the taxation laws; this paragraph c) shall not apply tolegal persons authorized by law to act as liquidators of successions or as trustees; (…) 132. Notwithstanding any law to the contrary and without limiting the scope of this Act, whoever practices the profession of advocatewithout being entered on the Roll is guilty of an offence and is liable to the penalties provided in

section 188 of the Professional Code(chapter C-26). 133. Any person other than a member of the Bar practices the profession of advocate illegally within the meaning of

section 132 and ineach of the following cases, who: (

a) usurps the functions of an advocate; (

b) acts or claims to act as such; (

c) acts in such manner as to lead to the belief that he is authorized to fulfil the functions of or to act as an advocate. 134. Any advocate who has become disqualified, or any person other than a member of the Bar, shall be presumed to practice theprofession of advocate illegally within the meaning of

section 133, who: (…) Professional Code 188. Every person who contravenes a provision of this Code, of the Act or letters patent constituting an order or of an amalgamation orintegration order is guilty of an offence and is liable to a fine of not less than $2,500 nor more than $62,500 in the case of a naturalperson and of not less than $5,000 nor more than $125,000 in other cases. In the case of a subsequent offence, the minimum and maximum fines are doubled. 188.3. Where a legal person is guilty of an offence under

section 188.1, 188.1.2, 188.2, 188.2.1 or 188.2.2, every director, officer,representative, attorney, or employee of the legal person who authorized, encouraged, ordered or advised the commission of the offenceis guilty of an offence and is liable to the fine prescribed in

section 188. (Bold and underlined characters added) [28] A reading of these provisions shows a clear and manifest intention that a legal person is covered by the application of the Actand the Code. Contrary to the applicant's argument, there is no ambiguity to this effect. [29] As an example, the legislator is careful to include in subparagraph 128(1)(

c) an exception for a legal person. If the intention hadbeen to exclude them, there would be no point in including an exception for a legal person to do

an act within the exclusive jurisdictionof a practicing lawyer. The identification theory [30] The identification theory concerns the criminal liability of a corporation for acts and/or omissions committed by the directingmind of a corporation. This doctrine therefore refers to the retrieval of the mens rea[12]. [31] The offence for which the applicant is charged falls within the spectrum of the presumption to the effect that regulatoryinfractions are presumed strict liability offences[13].

Both parties also agree that the present offence is of strict liability. [32] In strict liability offences, the prosecution doesn’t have to prove a mens rea element.

Therefore, the identification theory doesnot apply to this case. [33] Indeed, in the case of a strict liability offence, the liability of a legal person arises by operation of the law without the need toprove the intentional element in order to establish guilt: Where the terminology employed by the legislature is such as to reveal an intent that guilt shall not be predicated upon the automaticbreach of the statute but rather upon the establishment of the actus reus, subject to the defense of due diligence, an offence of strictliability arises. See R. v. City of Sault Ste. Marie, (SCC), [1978] 2 S.C.R. 1299.

As in the case of an absolute liabilityoffence, it matters not whether the accused is corporate or unincorporate, because the liability is primary and arises in the accusedaccording to the terms of the statute in the same way as in the case of absolute offences. It is not dependent upon the attribution to theaccused of the misconduct of others. This is so when the statute, properly construed, shows a clear contemplation by the Legislature thata breach of the statute itself leads to guilt, subject to the limited defense above noted.

In this category, the corporation and the naturaldefendant are in the same position. In both cases liability is not vicarious but primary.[14] [34] The authors of the Traité de droit pénal canadien indicates that for strict liability offences, it does matter whether the offenderis a natural or a legal person since the liability is direct and arises from the terms of the statutes. A defendant’s guilt arises from evidence

of an actus reus that is not countered by a defense of due diligence [15] . [ 35 ] Moreover, on a similar matter, in Marcel Laforest et associés Inc. c. Ordres des architectes du Québec , the Court of appeal rejected the claim that a legal person cannot be found guilty of illegal practice of the profession for

an act that only a natural person can perform [16] . [ 36 ] The applicant's reasoning cannot succeed since it has the effect of distinguishing the liability of a legal person from that of a natural person. [ 37 ] It is with this reasoning in mind that the statement of offence refers to the applicant’s president, Mr. Shaulov. Contrary to what the applicant alleges, there is no ambiguity in the wording of the statement of offence as to the identity of the defendant. [ 38 ] It is true that the statement of offence refers to Mr.

Shaulov as the sole director of the applicant, but this has no effect or ambiguity as to the identity of the defendant. [ 39 ] Consequently, there is no violation of paragraph 11(

g) of the Charter or of paragraphs 184(5) , (7) and

(8) Code of penal procedure [17] (hereinafter “ C.p.p. ”). 2. Is the statement of offence prescribed ? [ 40 ] On the statement of offence, the respondent indicates having acquired knowledge of the alleged offence on April 6, 2020. Giving the statement of offence was served on June 10, 2021, the applicant argues that the statement of offence is prescribed under

section 14 of C.p.p. [ 41 ] Moreover, according to the applicant, the respondent has been aware of the alleged offence since 2015 and not 2020. To that effect, the applicant refers to the 2015’s correspondence in which the respondent indicates having investigated the websites on which the applicant is present. [ 42 ] For the applicant, this indication means the respondent knew from 2015 of the existence of its Facebook page. In addition, the applicant states that the alleged facts do not constitute a continuous offence. Continuous offence [ 43 ]

Section 155 C.p.p. provides that where an offence lasts several days, there are as many offences as there are days. [ 44 ] The offence of unauthorized practice may be a continuing offence or a single offence. The Court has not had the benefit of hearing the evidence in support of the alleged offence. Therefore, it cannot make any findings to that effect. [ 45 ] However, the Court cannot exclude that, as long as the disputed information remains on a website, it may constitute a continuing offence. [ 46 ] In Ordre des technologues professionnels du Québec c.

Expert en bâtiment Champagne Inc. , the defendant is accused of having designated five professionals by a reserved title on its website. The Honorable Dumas concludes: Le Tribunal estime que l'infraction ne saurait être complétée et cesser dès la première parution de l'annonce sur le site Internet. En effet, comment concevoir que la publication d'une annonce puisse être interdite un jour et ne plus l'être le lendemain, alors que tous les éléments constitutifs de l'infraction demeurent réunis.

Il s'agit pourtant de la même annonce contenant les mêmes informations erronées [18] . [ 47 ] The Court also notices that the respondent's correspondence advises the applicant that the alleged acts may constitute a continuing offence and, by the same token, generate the imposition of fines for each day the offence is committed [19] . Prescription [ 48 ] It is true that

section 14 C.p.p. prescribes a limitation period of one year from the date of the commission of the alleged infraction. However, that

section also provides that “ the law may fix a different time limit or provide that prescription begins to run from the date the commission of the offence becomes known or from the date an event determined in the law occurs .” [ 49 ] To that effect,

section 189.0.1 of the Code provides that a penal proceeding for unlawful practice of a profession is prescribed by three years from the date of knowledge of the alleged offence. [ 50 ] The evidence submitted to the Court does not support the applicant’s argument. [ 51 ] Giving the fact that the respondent indicates knowledge of the infraction on April 6, 2020, the statement of offence is by no means prescribed. 3. Are the applicant’s Charter rights infringed ? [ 52 ] The applicant claims that its rights protected by sections 7 , 11(b) , (

c) and (

d) of the Charter have been violated namely by the actions of the respondent. Consequently, it requests that the proceedings be discontinued. [ 53 ] Mr. Shaulov also alleges, for the same reasons, a violation of his rights. However, he is not charged with the offence and cannot seeks those conclusions [20] . [ 54 ] The Court reiterates that the onus is on the party invoking a constitutional violation of its rights [21] .

Section 7 and paragraph 11(

c) of the Charter [ 55 ] It is well established that certain sections of the Charter do not apply to corporations. This is the case with sections 7 and 11 (c), which are intrinsically related to natural persons. [ 56 ] In Amway Corp , the Supreme Court confirmed that a corporation cannot invoke the protection of

section 11 (c): In my view, it would strain the

interpretation of s. 11(

c) if an artificial entity were held to be a witness. Such a metamorphosis could not be justified on the basis that the rules of evidence on an examination for discovery do not restrict the person testifying to personal knowledge. That person may answer questions based on belief as well as on information obtained from the corporation. (…) Applying a purposive

interpretation to s. 11(c), I am of the opinion that it was intended to protect the individual against the affront to dignity and privacy inherent in a practice which enables the prosecution to force the person charged to supply the evidence out of his or her own mouth. Although disagreement exists as to the basis of the principle against self-incrimination, in my view, this factor plays a dominant role [22] . [ 57 ] A few months later, in Irwin Toys , the Supreme Court made a similar finding with respect to

section 7 of the Charter : In our opinion, a corporation cannot avail itself of the protection offered by s.7 of the Charter . First, we would have to conceive of a manner in which a corporation could be deprived of its "life, liberty or security of the person". We have already noted that it is nonsensical to speak of a corporation being put in jail. (…) That is, read as a whole, it appears to us that this

section was intended to confer protection on a singularly human level. A plain, common sense reading of the phrase "Everyone has the right to life, liberty and security of the person" serves to underline the human element involved; only human beings can enjoy these rights. "Everyone" then, must be read in light of the rest of the

section and defined to exclude corporations and other artificial entities incapable of enjoying life, liberty or security of the person, and include only human beings. [23] [ 58 ] It should also be noted that the Supreme Court recently confirmed these conclusions when considering the application of

section 12 of the Charter to corporations [24] .

Section 11(

b) of the Charter [ 59 ] The applicant also alleges that its right to be tried within a reasonable time was violated. It refers to the fact that more than 14 months elapsed between the respondent's knowledge of the alleged facts and the service of the statement of offence. [ 60 ] The pre-charge delay cannot be considered in analyzing a violation of s. 11(

b) of the Charter unless it affected the right to make a full answer and defense or affected the integrity and fairness of the trial [25] . [ 61 ] No evidence was submitted by the applicant to this effect. Therefore, the argument must fail. 4. Is the Tribunal facing an abuse of power ? [ 62 ] Where there is evidentiary basis that the prosecution conducted itself in a way that renders the proceedings unfair or otherwise damaging to the integrity of the judicial system, the Court can remedy to the situation by granting a stay of proceedings [26] . [ 63 ] A stay should be ordered only in the clearest of cases and where evidence establish these criteria:

(1) The prejudice caused by the abuse in question will be manifested, perpetuated, or aggravated through the conduct of the trial, or by its outcome; and (2) no other remedy is reasonably capable of removing that prejudice [27] . [ 64 ] The Supreme Court stated that the “ mere fact that the state has treated an individual shabbily in the past is not enough to warrant a stay of proceedings [28] ”.

Only in exceptional and relatively rare cases will the past misconduct be “ so egregious that the mere fact of going forward in the light of it will be offensive [29] ”. [ 65 ] The applicant's allegations are numerous and the prose it uses is punctuated with serious and grave allegations that could have important consequences for a member of the Bar.

Such allegations should not be taken lightly by any of the parties to the proceedings. [ 66 ] The documents submitted by the applicant do not establish the attitude of which the respondent is accused and raises more questions for the Court than anything else. [ 67 ] For example, in its letter dated December 22, 2015, the applicant complained that the respondent had not replied to its e-mails. It refers to an e-mail of July 22, 2015. [ 68 ] However, at the bottom of this e-mail, the Court notes that there is a beginning of a correspondence from the respondent dated July 14, 2015.

Yet, this portion is not produced in evidence. [ 69 ] Moreover, the same letter transmitted on December 22, 2015, is also produced as exhibit C and dated July 17, 2015.

[ 70 ] The exchanged e-mails produced as exhibits F, G and H are incompletes and in no way they demonstrate that the respondent acted negligently, maliciously, or vexatiously. [ 71 ] There is also a complete lack of evidence to support the applicant’s claim that the respondent fabricated or falsified evidence. [ 72 ] The Court therefore concludes that there is no evidence of abuse of process on the part of the respondent. CONCLUSION [ 73 ] The Act and the Code allow the respondent to bring an action against a legal person.

The respondent has the authority to bring an action against the applicant. [ 74 ] Moreover, the evidence in the file shows that the statement of offence is not prescribed. [ 75 ] Finally, the applicant has not shown that its Charter rights have been violated. FOR THESE REASONS, THE COURT: [ 76 ] DISMISSES the motion in its entirety; [ 77 ] WITH COSTS against the applicant; [ 78 ] SETS the present file pro forma in room 13.03 at 14:00 on March 29, 2022. __________________________________ Geneviève Claude Parayre Presiding Justice of the Peace Mr.

Alexander Shaulov, President of the applicant Solutions d’Affaires D&A Ltée Applicant Me Nicolaos Strapatsas Barreau de Montréal Respondent Dates of hearing: February 1, 2022; February 2, 2022