Legal Briefs

Until 2010, these legal briefs provide examples of judgments pertaining to everyday situations. Beginning in 2012, they deal with various topics of general interest, such as rental issues, family law, human rights, civil liability, insurance, dealings between spouses and social aid. They are intended to inform and to prevent undesirable situations.

2024
2023
2022
2021
2020
2019
2018
2017
2016
2015
2014
2013
2012
2010
2009
2008
All

Legal Briefs 2022

  Month

Number

Legal brief

December

 10

Elliot wants his red bicycle

Last week, Elliot's dad went to a big box store and bought the red bike his son had been dreaming about.

The bike was discounted to $100, instead of the regular price of $240. What a bargain!

However, the store could not deliver the bicycle right away, because it had not yet been assem more

November

 9

Discharges: Who, What, Why... and why not?

Discharge—a sentence that is not a sentence. Indeed, the law provides that a person who receives a discharge is deemed never to have been convicted. But who can benefit from such a discharge? Section 730 of the Criminal Code specifies that a person, whether the person pleads guilty or is found guilty, can obtain a discharge if the following conditions have been met:

• There is no minimum sentence for the offence or the offence is not punishable by imprisonment for fourteen (14) years or more: A discharge is therefore available for a multitude of offences: fraud under $5,000, mischief, theft, voyeurism, assault causing bodily harm, sexual assault and many others. Thus, when faced with an offence that qualifies for a discharge, the court must verify whether the following two criteria apply.

• It is in the best interests of the accused to obtain such a discharge: This implies that the offender is a person of good character. The offender usually has no prior criminal record and does not present a specific deterrence and rehabilitation problem, and a conviction could result in disproportionate consequences for the offender.¹ The real possibility of such consequences occurring is sufficient. For example, consider a young person who is at the beginning of their adult life and is still exploring their choices. Should we treat their situation as less important in weighing the consequences? The answer is no, as the Court of Appeal noted in Berish.² That being said, the offender’s job or academic profile are certainly relevant factors for the court’s assessment of the offender’s best interests.

• Granting a discharge would not be contrary to the public interest: IMPORTANT! The discharge does not have to be in the public interest—it must simply not be contrary to the public interest. The public interest is assessed in terms of the seriousness of the offence, the need for general deterrence and the importance of maintaining public confidence in the justice system. This refers to the reasonable and informed person, particularly regarding the principles and objectives of sentencing (i.e., deterrence, denunciation, rehabilitation, reparation and promotion of a sense of responsibility).

It is clear that the legislature has opened the door to this avenue being considered as often as is relevant, for a multitude of offences.

It is important to note that a discharge can be unconditional or conditional. When it is conditional, the offender may be required to perform a certain number of hours of community service, make reparations to any person for any loss or damage suffered as a result of the commission of the offence, as well as abide by other conditions, such as abstaining from the use of drugs and/or alcohol or refraining from communicating with the victim or witness. It is important to note that the court may impose any reasonable conditions that it considers desirable to ensure the protection of society and to facilitate the reintegration of the person concerned.

The following is one of the features of a conditional discharge: If the offender fails to comply with the conditions imposed by the court, the court may revoke the discharge and impose the sentence for the original offence in addition to any other sentence if the offender has committed a new offence.³

In a recent judgment, the Honourable Éric Côté stated the following: [TRANSLATION] “No punishment, no matter how severe, can make up for the victim’s suffering. Nevertheless, the Court must be wary of imposing an inappropriate sanction in a vain attempt to console the victim. Certainly, a sentence is a punishment intended to repress and punish, but it must never become an instrument of revenge.”⁴

In short, a discharge should be considered whenever the circumstances warrant!
__________________________
¹ Rozon v. R., 1999 CanLII 11146 (QC SC), para. 33.
² R. v. Berish, 2011 QCCA 2288.
³ Section 730(4) Criminal Code.
⁴ R. v. Côté-Nault, 2020 QCCQ 1975, para. 33.

**************************************************************

Don’t hesitate to have your eligibility for legal aid evaluated by making an appointment at a legal aid office near you. You can also check your eligibility online here.

To find the contact information for your legal aid office, please click on the following link www.csj.qc.ca/

Legal brief *
November  2022
Number  9
Text prepared by   Me Valérie Thiffeault Duchemin, Trois-Rivières
 
* The information set out in this document is not a legal interpretation.
The masculine is used to designate persons solely in order to simplify the text.

Octobre

 8

The Hospital Won’t Let Me Go. What Are My Rights?

You’ve been brought to the hospital without your consent and your doctor refuses to let you leave. Or, perhaps you came to the hospital voluntarily, but now they won’t let you leave. You’ve probably been placed under preventive confinement.

Indeed, the law¹ allows a physicia more

August - September

 7

Types of indemnities from the SAAQ

The public automobile insurance plan provides for compensation, under certain conditions, to people who have been involved in automobile accidents.

The following are some possible indemnities:

(1) Income replacement indemnity

This is an indemnity paid to any more

July

 6

JULIE AND CHRISTIAN HAVE TWO CHILDREN, OWN A HOME AND HAVE MONEY IN THEIR BANK ACCOUNT. ARE THEY FINANCIALLY ELIGIBLE FOR LEGAL AID?

Julie and Christian have been married for three years. Christian works full time at an annual salary of $50,000. Julie works part-time for annual income of $5,000.

Their combined annual income is $55,000. They have two young children. They own a family home worth $200,000 with a mortgage of $ more

May

 5

Protection Orders: A Tool for Protecting Victims of Spousal Abuse During a Separation

Are you experiencing emotional abuse or excessive control from your partner and fear their reaction if you leave them? more

April

 4

Applying for a Canadian Passport for a Child — What if One Parent Cannot be Located?

Sarah has sole custody of her daughter Rosalie, who is 8 years old. At the time of their separation, Rosalie’s parents had gone before the Superior Court to obtain a judgment granting Sarah custody of Rosalie, and the father had been granted access rights.

Rosalie has not seen her father for more

March

 3

Breaking and entering

Remy and his friends decide to meet in an old dilapidated building to party. They climb the fence, rip off the plywood covering the door and party into the wee hours of the morning. 


The next day, Remy and his friends are awakened by the police who had been alerted by the neighb more

February

 2

Protection orders in civil matters

Since January 1, 2016, individuals whose life, health or safety is threatened have had access to a tool to protect them—a tool that is still not well known or understood: the protection order. This tool is even more relevant in the current context where there is a growing social awareness of the imp more

January

 1

Abuse of Vulnerable Persons

With the aging of our population, the abuse of elderly and vulnerable individuals is undoubtedly an extremely important societal issue. It is essential that safety nets be put in place in order to prevent abuse and to be able to identify who the victims might be so as to intervene in order to protec more