Civil procedure, mental health and COVID-19
Social distancing requires, the Chief Justice of Quebec and the Minister of Justice recently adopted theOrder concerning the notification of a document by technological means during the period of the state of health emergency declared on March 13, 2020 (decree 4267) in order to simplify the notification of documents and procedural documents for the duration of the health crisis.
According to this decree:
- until the expiration of the state of health emergency, the service of a procedural document by bailiff may also be effected by a technological means according to the rules provided for in article 133 of Code of Civil Procedure (C.P.C.);
- the unrepresented party may refuse to receive a document by technological means only for a reasonable reason; and
- if the recipient does not have a technological means enabling him to receive notification of a document, the other methods of notification provided for in Code of Civil Procedure can still be used.
Other notification methods
Interpreting these rules, the Superior Court held in a recent case that recourse to other methods of notification, in the absence of technological means, could be done without first obtaining the authorization of the court provided for in article 112 C.P.C.
This judgment also highlights difficulties that may arise during a state of health emergency despite Order 4267, in this case in terms of institutional custody. The Charles-Lemoyne Hospital was looking for a provisional custody order in the establishment for a patient with psychosis. The request for a prescription had been faxed to the duty station and the patient had acknowledged receipt. Notified the day before the hearing, as is the practice, a legal aid attorney had attempted to meet with the latter to obtain a mandate to represent him, but had been unable to obtain access for reasons of medical order.
Impossibility of being heard or represented by a lawyer
The patient was therefore not represented on the day of the hearing (the prosecutor in question was, however, authorized to intervene in a friendly manner). In addition, he could not be present, even by videoconference. In fact, since the patient presented symptoms of COVID-19, he was placed in total administrative segregation, confined to a hospital room from which he could not leave and where no one was allowed to enter.
Insofar as it could not rule on the patient’s consent to notification by technological means (despite his signature on the acknowledgment of receipt), the court concluded that there was no service:
 Given his absence at the hearing and the fact that he is not represented, the Tribunal refuses to order notification by technological means without having been able to hear JS on the circumstances surrounding the notification, on the receipt of the documents and the understanding of their content, as well as on the reasonable grounds that JS could have to refuse to receive the documents by a technological means that constitutes the fax machine of the guardhouse.
Exemption from notification
In this context, the Hospital had to fall back on a request for exemption from service under the terms of article 123 paragraph 2 C.P.C. Such a measure may be granted when the notification would be detrimental to the health or safety of the person concerned or to that of others or if there was an emergency.
The court found that these criteria were met:
 In this case, given the importance of the health crisis, given the total confinement of JS, who is strongly suspected of being a carrier or suffering from the coronavirus, given the impossibility of entering and leaving his room without the obligation to implement laborious aseptic or decontamination protocols for the entire unit and possibly other units, given also the risks of running away, the Tribunal concludes that the notification would be clearly detrimental to health and safety d others.
 Also, there is an emergency. Without a custody order, unless other preventive measures are authorized by law, J.S. can leave the hospital as soon as he wishes.
For the same reasons, the court also decided that the custody order could be made without the necessity of conducting the usual interrogation of the person contemplated by article 391 C.P.C.
Responding to the arguments of the intervening prosecutor, the judge finally expressed the opinion that, in the absence of a constitutional challenge, the fundamental right to personal liberty and that of being represented by a lawyer should be bowed before express provisions such as Articles 391 and 123 CPC when their opening conditions were met.
Impact on the merits
In closing, it is interesting to note that the risks arising from the pandemic not only affect the procedural aspects of a request for custody in an establishment, but can also affect the substance.
In another recent case, a provisional custody order (for a psychiatric assessment) was partly motivated by the risk of contagion. This time, it is not that the person concerned is carrying the virus or showing symptoms. Rather, the court was sensitive to the risk that his unpredictable behavior and wandering episodes would expose him and his loved ones to the disease:
 Even if the defendant reports that he is getting better, this remains very recent and the preponderant evidence shows that there is a real risk of danger, notably an episode of wandering of the defendant during which he could place himself in a potential contagion situation.
- Montérégie-Center Integrated Health and Social Services Center (Charles-Lemoyne Hospital) c. J.S. (C.Q., 2020-04-03), 2020 QCCQ 1326, SOQUIJ AZ-51681390.
- Montérégie-Center Integrated Health and Social Services Center c. GO. (C.Q., 2020-03-26), 2020 QCCQ 1315, SOQUIJ AZ-51680867, 2020EXP-981.
As of the date of broadcast, the decisions have not been appealed.