On May 25, 2017, the Quebec Court of Appeals ruled that a lawyer who had criticized the Youth Division of the Court of Quebec had violated the Code of Conduct For Lawyers and was not protected by her right to freedom of expression under the Canadian Charter of Rights and Freedoms.
The facts of the case were undisputed. The appellant is a lawyer and member of the Quebec Bar. In 2008, she gave a statement to the Journal of Montreal about her case in the Youth Division of the Court of Quebec:
“It works in a vacuum. It’s always the same judges, the same prosecutors of the DYP [Director of Youth Protection], the same legal aid lawyers who represent the children. The result is that the DYP gets what it wants in the vast majority of cases. It’s not just David against Goliath. It’s David against two or three Goliaths.”
The appellant was brought to the Disciplinary Board of the Quebec Bar for violating Article 2.00.01 of the Code of Conduct, which, at the time, stated, “[a] lawyer must act with dignity, integrity, honor, respect, moderation and courtesy.” The Board found the appellant guilty of the violation and imposed a fine of $2,000.00. This decision was appealed to the Professions Tribunal, the Quebec Superior Court, and finally the Quebec Court of Appeals.
At the Court of Appeals, the appellant argued that 1) the Superior Court erred in applying a reasonableness standard of review, and 2) even if the standard of review was correct, the Superior Court should have found the Tribunal’s decision unreasonable.
The appellant contended that the Superior Court should not have followed Doré in applying a reasonableness standard of review. Doré held that when an administrative decision-maker restricts a Charter protection, the reviewing court may only interfere with the decision if it was unreasonable. For a decision to be reasonable, the administrative board must have engaged in a proportional balancing of the objectives of the legislation in question with the fundamental Charter freedom at stake. The appellant argued that she deserved a different standard of review from Doré, since Doré involved a personal attack against a judge while her remarks were institutional criticisms. The Court of Appeals rejected this argument, reasoning that the nature of the criticism has no effect on the standard of review. Any case involving an administrative board restricting a Charter protection must apply Doré’s reasonableness standard of review.
Next, the appellant argued that the Superior Court should have concluded that the Tribunal’s balancing was unreasonable. She argued that the Tribunal, which had found that the Code of Conduct’s objective of ensuring civility in the legal profession took precedence over the appellant’s Charter right of freedom of expression, had not properly weighed the importance of lawyers being able to openly criticize the judicial process. The Court of Appeals disagreed with the appellant’s argument, and held that the Superior Court was correct in finding the Tribunal’s proportional balancing reasonable, as the Tribunal had weighed both sides.
On the appellant side, the appellant argued that her Charter right to freedom of expression entitled her to denounce the existing problems of the Youth Division. She testified that her goal was to prepare parents for the highly competent and well-prepared lawyers in the Youth Division. She also emphasized the importance of lawyers being able to criticize the judicial process without fear of punishment.
However, the Tribunal found that the appellant’s remarks did not deserve the protection of the freedom of expression because they harmed the judicial process more than they benefitted it. It found that the David and Goliath metaphor was not only unfair to the Youth Division, but also caused it to appear biased and less credible in the eyes of the public. It also reasoned that the criticisms was not constructive or justified, finding that they would be unhelpful and uninformative to parents with cases in the court, as well as the general public. Finally, the Tribunal emphasized that as a lawyer and member of the Quebec Bar, the appellant undertook the duty to respect the Code of Conduct and the limitations it imposes. As a result, due to the unhelpful nature of her criticisms, the Tribunal weighed the need to ensure civility in the legal profession over the appellant’s Charter right to freedom of expression.
In affirming the decision, the Court of Appeals further emphasized that lawyers play an important role in maintaining public trust in the judicial system. As such, lawyers must take extra care in their criticisms of the legal profession, knowing the weight that society will assign to their remarks. Accordingly, the Court of Appeals held that that the Tribunal’s balance was reasonable and affirmed the appellant’s sanction.
We are left with several questions after this case. First, where is the line drawn between permissible and impermissible criticisms? How much weight is the Disciplinary Board attaching to the Charter right of freedom of expression compared to the Code of Conduct? Furthermore, is the Disciplinary Board is even the right administrative institution to be making these judgments? Can the Board be truly impartial in its oversight when it is judging criticisms of its own system?
Even more importantly, do lawyers know how the Disciplinary Board weighs the various factors when making its judgments? If lawyers are unclear about what statements and criticisms are permissible, there could be an overall chilling on their free speech. It is important that lawyers maintain the right to openly discuss and criticize the legal system; their unique perspectives and experiences are critical to reforming and improving the legal system.
This blog post was written by a CCLA summer student. Views expressed do not necessarily reflect the view of the CCLA.
 Drolet-Savoie v. Tribunal des professions, 2017 QCCA 842 (CanLII), <http://canlii.ca/t/h3zwj>
 Doré c. Barreau du Québec,  1 SCR 395, 2012 SCC 12 (CanLII), <http://canlii.ca/t/fqn89>.
 See ibid at para. 54–57.
 The Tribunal’s analysis was examined in addition to the Board’s, since the Board’s decision came out before Doré’s framework was published.