2012 QCCQ 3816, 2012 QCCQ 3816

Morales c. Archambault 2012 QCCQ 3816 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-118324-096 DATE: April 24, 2012 ______________________________________________________________________ BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ ALA PAWLUS MORALES […] Montreal, Quebec […] Plaintiff v.

MTRE JULIEN ARCHAMBAULT […] Montreal, Quebec […] Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff, Ala Pawlus Morales, sues her former attorney, Mtre Julien Archambault, claiming the $7,000 limit admissible in the Small-Claims Division alleging that Mtre Archambault failed to properly carry out his professional duties as her attorney in connection with a charges brought against her in the Montreal municipal Court in 2007. [ 2 ] These charges arose from an altercation between Ms Morales and other individuals who were not charged occurring on June 9, 2007. [ 3 ] Although the other persons involved in altercation were not charged, the police had treated it as a case of " plaintes croisées impossibles de déterminer l'investigateur; SMA recommandée " .

In other words, the investigators did not know who had assaulted whom. [ 4 ] The history of the matter is related in a decision of the Tribunal administratif du Québec ("TAQ") in case # SASM144768- 0804, dated July 29, 2010. [ 5 ] The Court is not bound by the findings of this decision but they are useful in understanding the background to the events that led to the charges. [ 6 ] The conclusion of the TAQ, based on a balance of probabilities, was that Ms Morales had been victim of a criminal act and she was given the benefits available under the

Loi sur l'indemnisation des victimes d'actes criminels [1] . [ 7 ] At the time of the arrest and the charges, Mtre Archambault acted for Ms Morales as her defence attorney. [ 8 ] Ms Morales' situation became complicated as she was subsequently charged, after her first arrest, with a breach of conditions associated with her conditional release. [ 9 ] With the assistance of Mtre Archambault, Ms. Morales entered pleas of not criminally responsible on account of mental disorder. [ 10 ] On the basis of the assessment carried out at the Institute Philippe-Pinel ("Pinel"), the Court rendered a verdict pursuant to

article 672.34 of the Criminal Code that Ms Morales was not criminally responsible on account of mental disorder. [ 11 ] After being kept at Pinel for a period from October 16, 2007 until November 13, 2007, and then transferred to the psychiatric institute of the Jewish General Hospital, she was eventually released on January 30, 2008 by the TAQ. [ 12 ] Ms Morales has had other psychiatric assessment and follow-up since. [ 13 ] The gist of Ms Morales' complaint against Mtre Archambault is that he failed to have her acquitted on the charges, something that would only have been possible if there had been a plea of not guilty. [ 14 ] Her own recollection of the events and the evidence that was brought forward at the TAQ hearing in the case referred to above would seem to support Ms Morales' assertion that she should not have been found not criminally responsible but rather not guilty. [ 15 ] But, of course, no conclusion can be based on these findings in the present matter, there being no res judicata of any kind of between the two instances. [ 16 ] As well, it would not be appropriate for the Court to comment on the psychiatric evidence as to whether she really was suffering from the mental illnesses that led to the assessment on which the Court acted. [ 17 ] The issue as regards Mtre Archambault's conduct as an attorney does not depend on what really occurred during the day of the altercation, and whether Ms Morales had, truly, committed the actus reus of the offences of which she was charged nor whether she was or was not criminally responsible because of her mental condition. [ 18 ] The question is whether Mtre Archambault carried out his mandate properly in the context in which he was acting. [ 19 ] Faced with a matter where his client had been charged with some serious offences in connection with an altercation and had subsequently been arrested for breaching the conditions respecting contact with the alleged victims and, having on hand a psychiatric assessment pointing clearly in the direction of a plea of not criminally responsible, he spoke to his client and obtained instructions to make a plea and to obtain a verdict on that basis. [ 20 ] Mtre Archambault testified in the present case, and the Court is satisfied with his sincerity, that he was on good terms with his client that he explained to her the nature and consequences of the plea and that she accepted his recommendation. [ 21 ] The Court is aware that Mtre Archambault was cleared of any fault in the deontological sense having seen a copy of the disciplinary file produced, but the Court reaches its conclusions on its own assessment of the reliability of Mtre Archambault's testimony. [ 22 ] The Courts understands that Ms Morales feels aggrieved that she was subjected to a process involving confinement in a psychiatric institution and that she also has brought litigation against the persons involved in the altercation.

But in respect of Mtre Archambault, there is no evidence that he acted inappropriately. [ 23 ] Having accepted his testimony as accurate and sincere, the Court finds that the evidence is rather to the effect that he carried out his mandate as the circumstances indicated and with the client's compliance. [ 24 ] The action will be dismissed but, because of Ms Morales' sincerity, there will be no award as to costs. FOR THESE REASONS, THE COURT: DISMISSES the Plaintiff's action, without costs. __________________________________ DAVID L. CAMERON, J.C.Q. Date of hearing: February 6, 2012