The Working Group of the Human Rights Committee recommends that the Committee consider for adoption the annexed draft as the Committee’s decision on admissibility.
Decision of the Human Rights Committee under the Optional Protocol to the International Covenant on Civil and Political Rights (ninety-eighth session)
Communication No. 1747/2008 **
Ms. Mireille Boisvert (not represented by counsel)
Mr. Michel Bibaud (her husband)
Date of communication:
23 July 2008 (initial submission)
The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,
Meeting on ... March 2010,
Adopts the following:
Decision on admissibility
[Note: Explanatory footnotes in brackets will be deleted from the text of the final decision.]
1.1The author of the communication is Ms. Mireille Boisvert, a Canadian national born on 23 December 1966 in Montreal (Quebec). She considers that her husband, Mr. Michel Bibaud, is a victim of a violation by Canada of articles 2; 5; 14, paragraph 1; 16 and 26 of the Covenant. She is not represented by counsel. The Optional Protocol entered into force for Canada on 19 May 1976.
1.2On 6 June 2008, the Special Rapporteur on new communications, acting on behalf of the Committee, decided that the admissibility of the communication should be considered separately from the merits.
The facts as submitted by the author
2.1On 29 July 1999, Mr. Michel Bibaud, the author’s husband, had a car accident. Since the accident, he has suffered from chronic back and leg pain. To ease the pain, and on medical advice, he consumes cannabis for therapeutic purposes. Mr. Bibaud filed claims for compensation following his accident. In 2002, dissatisfied with the decisions handed down on his claims, he brought an action for damages against the Régie de l’assurance maladie du Québec (the Quebec health insurance fund) and the Société de l’assurance automobile du Québec (a car insurance company). He filed this action himself, without the aid of a lawyer, as permitted under article 61 of the Code of Civil Procedure of Quebec, because of a previous bad experience with a member of the Bar and for financial reasons. He was unable to obtain legal aid, which is only granted in Canada to defend oneself and not to institute legal proceedings. After filing the action, the author filed an application for voluntary intervention under article 208 of the Code of Civil Procedure. As part of this procedure, she asked to be allowed to represent her husband as, in her view, he would not be capable of representing himself due to his state of health. A note from the family doctor and a notarized power of attorney were submitted to the court.
2.2On 22 October 2002, the Superior Court of Canada dismissed her application to intervene as being inadmissible. According to this decision, the sole purpose of the application for voluntary intervention was to represent Mr. Bibaud, as a lawyer would do, and not to assert any personal interests, as specified in the provision. It was also argued that only lawyers could represent another person in court. On 8 November 2002, the Quebec Court of Appeal dismissed the appeal against the decision. On 10 June 2004, the Supreme Court of Canada dismissed the request for appeal. It considered that, pursuant to the provisions in force, the application does not conform to the usual intervention circumstances provided for in the Code of Civil Procedure. The author gave as her sole purpose for intervening the representation of her husband’s interests, meaning recognition of her right to represent him. The application had been considered not only incompatible with the legislative provisions but also with the protective supervision for incapable persons under Quebec civil law. The author asked for a review of that decision, and it was dismissed by the Supreme Court on 28 October 2004.
2.3The author has since submitted a brief to the Committee on Institutions for general consultation on the reform of the Code of Civil Procedure of Quebec, on the recommendation of the Associate Director General of Legislative Affairs. However, the Government has changed and there is now no guarantee that the procedures will be followed up. She has also written to several eminent persons and organizations, including the Minister of Justice, the Office for Disability Issues and the Canadian Human Rights Commission. The author intervened in this action, pursuant to article 208 of the Code of Civil Procedure, to ask to be allowed to “aid, assist and represent” her husband.
3.1The author claims that the State party has violated articles 2, 5, 14, 16 and 26 of the Covenant. She considers that, under Canadian law, persons may choose either to represent themselves or be represented by a lawyer. However, persons who are mentally or physically incapable and who cannot represent themselves must be represented by a lawyer. According to the author, persons with disabilities who are incapable of representing themselves should not have their choices restricted and must have the same rights as any other person. Currently, if such persons cannot have access to legal representation by a lawyer because of their financial situation or personal choice, they must abandon legal proceedings.
3.2There are exceptions to this principle, involving small claims and immigration matters in the administrative courts. In such cases, it is not compulsory for a lawyer to represent another person. The Code of Civil Procedure provides that no one has to be represented by a lawyer, with the exception of legal persons, trustees, collecting agents and persons acting on behalf of another person pursuant to Act 59 of the Code. This provision specifies that “A person cannot use the name of another to plead, except the State through authorized representatives.” However, when several persons have a common interest in a legal action, one of them may institute legal proceedings on behalf of all the other persons if given authorization to do so. Tutors, curators and others representing persons who are not able to fully exercise their rights may appear in court in their own name and respective capacities. The same applies to trustees in administering all aspects of the property of another person and to proxies in executing the power of attorney granted to them by an adult making provision for when they become incapable of taking care of themselves or administering their own property. Thus, no one wishing to represent an incapable person, by virtue of a notarized power of attorney or a mandate in case of incapacity (advance directive), may represent that person in court; there is an obligation to engage a lawyer.
3.3The author also refers to article 208 of the Code of Civil Procedure, according to which “any person interested in an action to which he is not a party, or whose presence is necessary to authorize, assist or represent a party who is incapable, may intervene therein at any time before judgment”. She considers that she has a clear interest in representing her husband. She therefore contends that, by not allowing her to represent her husband as would a lawyer, he is a victim of discrimination.
State party’s observations on admissibility
4.1On 3 June 2008, the State party challenged the admissibility of the communication on the grounds that it is incompatible with the provisions of the Covenant with respect to articles 2, 14 (1) and 26 of the Covenant, that there has been no prima facie violation of articles 5 and 16, and that domestic remedies have not been exhausted.
4.2Commenting on the facts, the State party explains that on 29 July 1999 Mr. Bibaud was a victim of a car accident, followed by an operation in 2002, which left him in an almost total state of incapacity, needing permanent help. Given his state of health, on 30 May 2002 he signed a general power of attorney in favour of his wife, Ms. Boisvert (the author) in front of a notary, empowering her, where the law allows, to institute any legal action, lawsuit or proceedings on his behalf. He also agreed to a power of attorney appointing her as a proxy should he become incapable. The State party notes in this respect that, as the mandate in case of incapacity had never been approved and his incapacity had never been registered and declared in a court, its author is still legally presumed to be capable of representing himself.
4.3On 12 June 2002, the author signed a statement on behalf of her husband to file an action for damages in the Superior Court of Quebec against the Société de l’assurance automobile du Québec and the Régie de l’assurance maladie du Québec, alleging that certain acts by these bodies (false diagnoses, falsification of reports and withholding of information concerning the health of the author’s husband) might have caused him prejudice. In October 2002, through a declaration of voluntary intervention made pursuant to article 208 of the Code of Civil Procedure, the author asked the Court for permission to represent her husband, claiming that he was incapable of representing himself physically or mentally, and that he did not wish to be represented by a lawyer. This provision allows a person who has an interest in an action to which he/she is not a party, or whose presence is necessary to authorize, assist or represent a party who is incapable, to intervene therein any time before judgement. In the latter circumstance, the incapacity must be registered and declared in court, which had not been done in Mr. Bibaud’s case. The application for intervention was dismissed by the Superior Court, invoking in support of its decision the provisions of the Code of Civil Procedure of Quebec and the Act respecting the Barreau du Québec, reserving the right for lawyers to represent another person as counsel in the courts.
4.4A request made by the author for permission to appeal to the Court of Appeal was dismissed on the grounds that the first instance judgement was well founded. In June 2003, the Supreme Court of Canada granted the author’s request for permission to appeal and a lawyer was appointed by the Court to help her to analyse the legal issues involved. After the hearing, and noting that the author’s intervention was not to ensure a personal interest, separate from her husband’s interest, but to act for him as would a lawyer, the Supreme Court dismissed the appeal on 10 June 2004. The Supreme Court recognized that Quebec had made a legislative choice in recognizing, on the one hand, the right of a physical person to represent himself while, on the other hand, imposing the requirement to engage a lawyer to represent another person. For the Court, the option of intervening in a case, pursuant to article 208, changes nothing since persons who represent another person must themselves be represented by a member of the Bar. The appeal was therefore dismissed by the Court, which concluded that the intervention requested did not conform to the usual circumstances for intervention set out by the Code of Civil Procedure. It was also incompatible with the legislative provisions governing representation in the Quebec civil courts. On 7 July 2004, Ms. Boisvert lodged an appeal with the Supreme Court for a new hearing, invoking articles 7 and 15 of the Canadian Charter of Rights and Freedoms and articles 47-50, 53 and 55 of the Charter of Human Rights and Freedoms of Quebec. On 28 October 2004, the Supreme Court dismissed the appeal.
4.5The State party invokes three grounds for inadmissibility. First, pursuant to article 3 of the Optional Protocol, the communication would be incompatible with the provisions of the Covenant. According to the State party, the Committee already decided that making it a requirement to be represented by a proxy in court does not constitute a violation of articles 14 and 26 of the Covenant. In this respect, it refers to general comment No. 18 and the Committee’s Views and argues that article 26 recognizes the possibility of allowing, with the use of certain criteria, for differentiation in applying equality before the law. Moreover, the Committee considered that imposing the requirement for legal representation in the highest court of Spain was based on objective and reasonable criteria and was therefore in conformity with articles 14 and 26 of the Covenant. The State party considers that the requirement in Quebec to be represented by a lawyer is based on objective and reasonable criteria and that the need to protect the public (see article 26 of the Professional Code of Quebec) is a pivotal argument that justifies making certain activities the exclusive reserve of particular professions, such as making representation of persons in court the exclusive reserve of lawyers. The Supreme Court dismissed the author’s appeal, considering that “the special rules governing the practice of the legal profession are justified by the importance of the acts that advocates engage in, the vulnerability of the litigants who entrust their rights to them, and the need to preserve the relationship of trust between advocates and their clients”. The State party concludes that when persons have no wish to represent themselves, the requirement in Quebec to be represented by a lawyer is based on objective and reasonable criteria and does not constitute a violation of the Covenant.
4.6The communication is incompatible with the Covenant in that the right that the author wishes to see enforced is not included in the right to a fair trial provided for in article 14, paragraph 1, and neither is it a right protected elsewhere in the Covenant. The author requests the Committee to recognize her right to be allowed to represent her husband freely in any court, regardless of whether or not she is empowered to act as a lawyer. The State party maintains that this right is not included in article 14, paragraph 1, or in any other provision of the Covenant. It cannot therefore constitute a violation. In addition, article 2 does not confer a right free-standing to reparation. The State party refers to general comment No. 31 and to the Committee’s case law in this respect and considers that this part of the communication is incompatible with the provisions of the Covenant.
4.7The State party does not consider that articles 5 and 16 are relevant to the issues raised in the communication. Moreover, there are no facts or evidence to substantiate or uphold the author’s allegations concerning these articles.
4.8Lastly, the State party argues that the rights that the author wishes the Committee to enforce could have been the subject of an appeal under article 24 of the Canadian Charter of Rights and Freedoms and article 74 of the Charter of Rights and Freedoms of Quebec if reference was made to the rights in those two instruments that correspond with those of the Covenant. Unfortunately, they were never invoked by the author. She did try to bring her case once more before the Supreme Court, and specifically referred to the rights provided for by the Canadian Charter of Rights and Freedoms, but this request was dismissed as the Court had already handed down its decision and thus could not grant the author’s request. The State party recalls the Committee’s case law that requires the author to raise the substantive issues submitted to the Committee in the domestic courts. Similarly, the Committee decided that the rule on exhaustion of domestic remedies includes, in addition to traditional remedies, complaints of a constitutional nature (such as provided for in the Canadian Charter of Rights and Freedoms) when fundamental rights are in question. These remedies were available to the author, but she did not take the opportunity to make use of them.
Author’s comments on the State party’s submission
5.1In her comments of 31 July 2008, the author first remarks on the facts given by the State party, which, in her view, omit certain important information. The State party did not state that one of the reasons why Mr. Bibaud was unable to represent himself in court is connected to his substantial consumption of cannabis, which is for medicinal purposes and exempt from prosecution under federal law. The author also pointed out that Mr. Bibaud would have liked to have received legal aid but it had been refused over the telephone, with no official confirmation. Mr. Bibaud therefore had the choice of either representing himself, while under the effects of cannabis and in chronic pain, or being represented by a lawyer, for whom he had no means of paying.
5.2The author adds that there are some exceptions to the requirement for representation by a lawyer. In fact, it is not compulsory for a person to have a lawyer in the small claims court for sums not exceeding Can$ 7,000, for matters relating to immigration in the Administrative Tribunal of Quebec or before the Commission de la santé et de la sécurité du travail du Québec (occupational health and safety commission). However, when the interests of persons with disabilities are involved, as in this case, there are no exceptions to this rule. For the author, this amounts to flagrant discrimination.
5.3The author also recalls that, despite the State party’s claim to the contrary, she has proved a personal interest before the Supreme Court, by stating that the outcome of the trial would have an indisputable direct bearing on the family’s wealth. She therefore clearly has an interest. As for the lawyer who, according to the State party, is supposed to have been involved in the proceedings in order to assist Mr. Bibaud and the author, she said that this amicus curiae called her only once, to talk about general matters.
5.4The author does not agree with the State party’s challenge to the admissibility of the communication on grounds of incompatibility with the Covenant’s provisions as, in her view, everyone is not treated equally in the courts. Equality is divided between healthy persons who are able to represent themselves, without having to pay for a lawyer in court, and persons with disabilities, who must engage a lawyer to represent them. This situation violates both article 14, paragraph 1, and article 26. As for article 16, which guarantees everyone’s right to a legal personality, the author notes that persons with disabilities are not recognized as legal persons since their right to represent themselves is not guaranteed. Concerning article 5, the fact that a person with disabilities is denied the same rights as a healthy person violates a fundamental right that should not be obstructed. Lastly, article 2, paragraph 1, specifies that the State must respect the Covenant without distinction of any kind. In this case, the State party is making a distinction, as it does not accord everyone the same rights and access to justice.
5.5Contrary to the comments made by the State party on the lack of facts and evidence establishing the prima facie violation of articles 5 and 16, the author maintains that the Quebec authorities were well aware of the allegations and that, despite the many letters sent to the various ministers concerned, they did nothing to remedy the situation.
5.6With regard to the exhaustion of domestic remedies, the author says that she cited the Canadian Charter of Rights and Freedoms and the Charter of Human Rights and Freedoms of Quebec during the Supreme Court hearing. The latter did not hand down a decision on these points. In addition, in letters addressed to various authorities, including to the Minister of Justice, the author asked for the issue of representation to be debated in Parliament. Despite the numerous attempts to contact them, it was clear that they had no desire to follow up on this case. The author recalls that there are exceptions to the requirement to exhaust domestic remedies when there is little chance of success or when additional remedies would cause unreasonable delays. Despite the author’s efforts, she has received only unsatisfactory answers on this case. Consequently, any other appeal would have been pointless.
Additional submission by the State party on the author’s comments
6.1On 18 November 2008, the State party submitted additional information in response to the author’s comments. On the issue of allowing representation by a non-lawyer in certain courts, it explains that such cases are an exception to the generally applicable rule of representation by a lawyer. In the small claims court, no one is allowed to be represented by a lawyer, even legal persons. The purpose of this measure is to eliminate formalities, reduce costs and expedite treatment of cases. The judge at the hearing is responsible for directing discussions, questioning witnesses and listening to both parties. A physical person may, however, authorize a relative to represent him or her in such proceedings. In exceptional circumstances, when a complex question is raised on a point of law in a case, the judge may allow parties to be represented by a lawyer. The fees are paid by the Ministry of Justice. Representation by another person in the Administrative Tribunal of Quebec is restricted to particular domains mentioned in the law, such as appeals submitted pursuant to the law on industrial accidents or compensation for asbestos victims.
6.2As for the non-exhaustion of domestic remedies pursuant to the Canadian Charter of Rights and Freedoms and the Charter of Human Rights and Freedoms of Quebec, the State party contends that the author raised these issues for the first time when requesting a new hearing in the Supreme Court. This request was dismissed by the Court on 28 October 2004. Such a hearing is an exceptional measure at the discretion of the Court and has no bearing on the merits of a case. The State party recalls that under Canadian law, courts do not take up constitutional questions on their own initiative. Because of the contradictory nature of the judicial process, it is the parties to a legal action who must initiate a constitutional challenge. These issues must normally be raised at the court of first instance. Raising such issues on appeal is allowed only in exceptional circumstances. In this case, the late stage at which these arguments were introduced would have prevented the Attorney General from presenting counter arguments. Prior notice must be given to the Attorney General when the constitutionality of a law is called into question, but the author never gave such notice. This rule is justified by the fact that constitutional issues affect more than just the parties concerned and have an impact on the public interest. The State, represented by the Attorney General, should have enough time to enable it to defend its legislative choices. A judgement of unconstitutionality is a serious outcome, and a certain procedure must be followed. Judicial review is always accompanied by procedural rules, including the requirement to formulate new claims within a set time limit. Moreover, the right to be heard and to present the arguments in their defence is a fundamental principle that must be guaranteed for both parties. On this basis, the State party adheres to its argument that the communication is inadmissible.
6.3Regarding the incapacity of Mr. Bibaud, the author’s husband, the State party stresses that Quebec does not underestimate his condition. However, as his incapacity has never been registered or recognized by a court in compliance with the provisions of the Civil Code of Quebec, the author has never been legally empowered to represent him as a tutor or curator, which from the outset causes a considerable legal problem. This issue was addressed by the Supreme Court of Canada, which agreed with the reasoning of the Superior Court. The latter could not have granted this request, as it would have placed Mr. Bibaud in a situation where his legal capacity would have been compromised if he did not comply with the “legal requirements regarding control of the existence of the incapacity, its extent and choice of appropriate measures”. The State party concludes that this too would tend to argue in favour of the inadmissibility of the communication.
Issues and proceedings before the Committee
7.1Before considering any claim contained in a communication, the Human Rights Committee must, in accordance with rule 93 of its rules of procedure, decide whether or not the communication is admissible under the Optional Protocol to the Covenant.
7.2The Committee ascertained, as required by article 5, paragraph 2 (a), of the Optional Protocol, that the same matter was not already being examined under any other international procedure of investigation or settlement.
7.3The Committee notes the argument of the State party whereby the author has not exhausted domestic remedies for the purposes of admissibility of the communication. It recalls its standard case law, which rules that, in addition to ordinary judicial and administrative appeals, the authors must also avail themselves of all other judicial remedies, including constitutional complaints, insofar as such remedies appear to be effective in this case and are in fact available to the author. The Committee notes that the author did not take the opportunity, in respect of the rules of procedure established in domestic law, to challenge the constitutionality of the legal provisions in question. This constitutional remedy would have provided an appropriate vehicle in this case to highlight possible inconsistencies in the law or non-compliance with the fundamental principles that the author wished to defend for herself and her husband. The Committee cannot pre-empt the outcome of this constitutional procedure as, according to information supplied by the parties, there is a lack of similar judgements of unconstitutionality on this issue. The Committee therefore concludes that the author has not exhausted all available domestic remedies. Having arrived at this conclusion, the Committee does not consider it necessary to take action on the other grounds for inadmissibility maintained by the State party.
8.The Human Rights Committee therefore decides:
(a)That the communication is inadmissible under article 5, paragraph 2 (b), of the Optional Protocol;
(b)That this decision shall be communicated to the author and to the State party.
[Adopted in English, Spanish and French, the French text being the original version. Subsequently to be issued also in Arabic, Chinese and Russian as part of the Committee’s annual report to the General Assembly.]