Personal Rights and Fundamental Freedoms Lawyer in Gatineau

Situations where we can help

• A relative is being held in hospital against their will and you do not understand the deadlines or the remedies.
• You have been served with an application for confinement or for a psychiatric assessment concerning you.
• An institution is asking the court to impose care on your relative over their refusal.
• A parent is to be placed in a long-term care facility and objects to it.
• Your mother is losing autonomy and a tutorship to a person of full age must be opened.
• Your parent signed a protection mandate and it now needs to be homologated.
• You are a tutor or mandatary and do not know what obligations you carry.
• You are capable but need help with paperwork and want an assistant officially recognized.
• Only one act must be done — selling a house, collecting a sum — and a full tutorship seems excessive.
• You have been declared incapable and you disagree with the assessment.
• The family is divided over who should represent a vulnerable relative.
• Your personal information, your image or your private life was published without your consent.
• A public body’s decision restricts a freedom protected by the Charters and you want to challenge it.

Our personal rights and civil liberties services

• Representation of the person concerned in confinement and psychiatric assessment applications.
• Contesting authorized confinement and proceedings before the Administrative Tribunal of Québec.
• Representation in applications for authorization to provide care and for placement.
• Applications to open a tutorship to a person of full age, and contestation of such applications.
• Homologation of protection mandates, and contestation where the mandate or the mandatary is in issue.
• Applications for temporary representation for a specific act.
• Assistance in setting up an assistance measure with the Public Curator.
• Advising tutors, mandataries and assistants on their duties: inventory, accounting, respect for the person’s wishes.
• Replacement of a tutor or mandatary and remedies in cases of abuse or exploitation.
• Civil claims for unlawful interference with a right protected by the Charter of Human Rights and Freedoms.
• Claims for invasion of privacy, misuse of image, and injury to honour and reputation.
• Files involving freedom of expression, including content removal by digital platforms.
• Representation at first instance and before the appellate courts.

The Quebec framework, in plain language

Quebec is not Ontario: tutorship, not guardianship

If you moved from Ontario or hold Ontario documents, the vocabulary is a trap. Quebec has no “guardianship” and no “power of attorney” in the Ontario sense. It has tutorship to a person of full age, opened by the court, and the protection mandate, signed in advance and only effective once homologated by a court. A continuing power of attorney drafted in Ontario does not automatically operate in Quebec, and Ontario forms and terminology rarely map cleanly onto Quebec procedure. Families in the Ottawa area with a parent living, hospitalized or owning property in Gatineau routinely discover this at the worst possible moment. We handle these files in English and explain which Quebec instrument actually applies.

The November 1, 2022 reform: what changed

Quebec’s protective supervision regimes were overhauled effective November 1, 2022. Curatorship and advisership to a person of full age were abolished. Tutorship is now the only protective regime, and it is modulated: the court tailors it to the person’s actual capacities, and the person keeps every right that is not expressly removed. An application to open a tutorship rests on a medical assessment and a psychosocial assessment, then goes through a tutorship council and a hearing. Two newer measures round out the system. The assistance measure lets a capable but vulnerable person choose an assistant, recognized by the Public Curator and entered in a public register, who helps with dealings and information but never decides in their place. Temporary representation allows a single, specific act to be performed for an incapable adult without opening a tutorship.

Protection mandates and what a mandatary must actually do

A protection mandate is signed while the person is still capable, in anticipation of incapacity. It produces no effect until it is homologated by the court, on proof of the mandator’s incapacity and of the existence of the mandate. Homologation is not a rubber stamp: it hands one person the power to decide for another, and the court examines the conditions seriously. Once homologated, the mandatary carries real obligations — among them, drawing up an inventory of the mandator’s property within 60 days of homologation, rendering account of the administration, acting in the mandator’s interest, and taking the mandator’s wishes and preferences into account as far as possible. Two points deserve emphasis. First, the 60-day inventory requirement does not apply to protection mandates drawn up and homologated before 1 November 2022. Second, the mandate must designate the person to whom the mandatary will render account, at intervals that cannot exceed three years. A mandatary who neglects these duties can be replaced.

Confinement, psychiatric assessment and care

No one may be held in a health institution against their will without a legal basis. A physician — or a specialized nurse practitioner — may order preventive confinement where a person’s mental state presents grave and immediate danger; it cannot as a rule exceed 72 hours, though that period may be extended to the first following business day where it ends on a Saturday or a holiday and no judge is available and does not authorize a forced psychiatric assessment. To require psychiatric examinations over a refusal, the institution must obtain an order for provisional confinement from the Court of Québec. Two psychiatric examinations must then be carried out, and the deadlines are precise. The first must take place within 24 hours of the person being taken in charge. The second must be done no later than 96 hours after that, or, where the person was already under preventive confinement, within 48 hours of the order. If both examinations conclude that confinement is necessary and the person still refuses, the institution has at most 48 hours to apply to the court for authorized confinement, whose duration is fixed by the judge. Where that duration exceeds 21 days, the confinement must be reassessed by a psychiatric examination on the 21st day and every three months thereafter. Separately, where an adult incapable of consenting categorically refuses care, the institution must obtain authorization from the Superior Court, except for hygiene care or in an emergency (art. 16 C.C.Q.). Throughout, the person keeps the right to be informed, to communicate, to be represented by a lawyer, and to challenge the confinement before the Administrative Tribunal of Québec.

The two Charters, privacy and freedom of expression

Two instruments overlap in Quebec. The Canadian Charter of Rights and Freedoms governs state action: statutes, regulations and decisions of public bodies. The Quebec Charter of Human Rights and Freedoms goes further: it protects, among other things, the rights to life, integrity, dignity, honour, reputation and respect for private life, and it also applies between private parties. Unlawful interference with a protected right can support compensation for moral and material injury, and punitive damages where the interference is intentional. The firm has handled files in this area that received significant media coverage, including proceedings concerning the removal of content on YouTube and Facebook during the COVID-19 pandemic, and a file concerning the vaccine passport. These cases raise difficult questions, starting with which Charter applies to whom.

Why choose Virtulex avocats

• We are a litigation firm: these matters are argued in court, often on short notice, and that is our daily practice.
• We are used to complex files where personal rights intersect with family law, health law, successions and administrative law.
• The firm has handled fundamental freedoms files that received significant media coverage, before the ordinary courts.
• Me William Desrochers teaches at the École du Barreau du Québec and is an accredited mediator, which helps when a family is divided.
• We appear at first instance and before the appellate courts.
• Full service in English and French for clients in Gatineau, the Outaouais and the Ottawa area, with remote consultations when travel is difficult.