The civil trial taking place at the Montreal courthouse against Gilbert Rozon could have repercussions well beyond his personal case. Indeed, the founder of Just for Laughs announced his intention to invalidate two articles of the Civil Code of Quebec which were recently adopted by the CAQ government with the aim of facilitating the civil prosecution of certain victims, particularly in cases of sexual assault. The judgment that will be rendered at the end of this trial could affect the rights of many Quebecers.
One of these contested provisions provides that there is no longer a time limit for prosecuting an attacker: financial compensation can now be claimed for physical or psychological injuries when they result from acts which may be criminal offenses, and this, even if the attack occurred 40 years ago — or more. Article 2926.1 of the Civil Code of Quebec (CCQ) provides that these actions are now “imprescriptible”.
The other article aims to prevent the putting into evidence of certain elements considered as “myths and prejudices” about victims of sexual and domestic violence. Coming into force only a few days ago, 2858.1 CCQ provides that certain facts are now presumed “irrelevant” in the context of legal proceedings. This concerns, for example, any fact related to the sexual past of the alleged victim, the fact that she did not immediately file a complaint with the police or even that she remained in contact with her alleged attacker.
These two provisions facilitate and simplify the procedures for victims, while improving access to justice for them, believes Me Sophie Gagnon, the general director of Juripop, a legal organization which specializes, among other things, in sexual and domestic violence.
Mr. Rozon is currently being sued for damages by nine women who accuse him of sexual assault. He denies everything he is accused of, and maintains that these two articles of law undermine his right to full defense. He wants to ask that they be declared unconstitutional.
The prescription
Gilbert Rozon intends to argue that article 2926.1 violates his fundamental rights and freedoms protected by the charters, including the right to protect his dignity and reputation and the right to an impartial hearing of his case. In his written request, he adds that this article violates his right to psychological safety.
Given the serious allegations against him, the defendant maintains that it is essential that he be able to present “full answer and defence”, a right that is “hampered by the passage of time” given the possible destruction of evidence or the unavailability of witnesses.
The sexual assaults with which he is accused by some of the plaintiffs date back more than 30 years, and without article 2926.1, they would not have been able to prosecute him. The abolition of the 30-year limitation period had been a request from several victim defense groups, and the Public Protector also recommended it in 2017.
For what ? Because becoming aware of having experienced violence, and making the link with the consequences, “it can take years, decades”, explains Me Gagnon, especially since the trauma experienced can cause memory lapses. The abolition of the statute of limitations helps ensure that these victims have access to justice.
But the passage of time can still have an impact on the trial. It “is not to the advantage of the victims either”, notes the lawyer, “because it affects the strength of their means of proof”.
It must be remembered that there is no statute of limitations in criminal law. When the defendant invokes his right to peace of mind, this is relative for acts which are also crimes and for which he could in any case be criminally prosecuted at any time, she adds.
The statute of limitations was repealed in 2020 under the current Minister of Justice, Simon Jolin-Barrette. He had been carrying this issue for a long time: when he was an opposition MP, he had already tabled a bill for this purpose. We can think that he will defend article 2926.1.
Myths and prejudices
The second provision, 2858.1, was adopted at the end of November by the National Assembly. It tends to reduce the number of debates used to determine what evidence is admissible or not — which reduces trial time and costs — while preventing victims from having to relate things that could be distressing for them, like everything else. details of their sexual past.
The article does not prohibit these elements of evidence in all cases: it introduces the presumption that they are not relevant, recalls M.e Gagnon. The defendant can still offer them in court, but he will have the burden of demonstrating that they are necessary for his defense.
In criminal law, it is already prohibited to use many myths and prejudices in evidence. “We are establishing the same protections in civil law as in criminal law,” declared Minister Jolin-Barrette when presenting his bill in October.
On Monday morning, at Mr. Rozon’s trial, his lawyers argued that his entire defense had been prepared before this article existed and that evidence useful to his case could now be excluded. “We are going to have to review our entire trial strategy,” said Me Laurent Debrun. “It gags and ties up the defendant, like anyone who faces these types of extremely serious charges. »
Such myths and prejudices were already unacceptable in civil law, replied Mr.e Bruce Johnston, who represents the plaintiffs. The legislator did not change the rule, he added, he only wrote it in black and white. The lawyer goes even further: “If I understand my colleagues correctly, their client’s right to full defense rests on his ability to assert myths and stereotypes about rape! »
Without getting into the “obvious and known” stereotypes, the article is far too broad, replied M.e Debrun.
These two legal issues will be argued at the end of the trial.
As for the Attorney General of Quebec, he “will defend the constitutionality of laws validly adopted unanimously by the elected representatives of the National Assembly,” the office of the Minister of Justice underlined by email on Wednesday.
