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Suspended president’s case headed to court now

Thursday, August 27, 2015 @ 8:00 PM | By Luis Millan

A simmering battle between the board of directors of Quebec’s legal society and its suspended president is heading to court after negotiations during a settlement conference before Quebec Superior Court Chief Justice François Rolland failed, to the disappointment of Quebec’s legal community.

“This is very unfortunate because everyone is suffering from the situation,” said Pierre Chagnon, former president of the Barreau du Québec in 2009-10. “This unfortunate incident is unfortunately having an impact on the whole profession, and may lead to cynicism within the public. Nobody is happy with what is going on.”

Lu Chan Khuong, a prominent Quebec City lawyer who was elected Barreau president in May, filed a motion July 9 seeking to quash a July 1 decision by the society’s board of directors to suspend her, after allegations surfaced that she was involved in a shoplifting incident last year in Lav, Que. She was arrested for allegedly stealing two pairs of jeans worth $455. Khuong, who maintains her innocence and says distraction was to blame, was never charged.

Under the counsel of her lawyer, Khuong accepted an offer of non-judicial treatment to avoid media coverage that likely would have taken place during a trial, particularly since she is well known in the province and is married to former provincial justice minister Marc Bellemare. She also said in an interview that she wanted to avoid “wasting” her time at court.

Under the non-judicial program for minor offences, a record of the alleged infraction is held for five years in a confidential registry that is accessible only by Crown prosecutors. The slate is wiped clean after five years if the person is not charged with another offence. More than 100,000 Quebecers have resorted to the program since its inception in 1995. The Khuong case marks the first time that confidential information was leaked from the non-judicial program.

“The board of directors considers that the role of president demands a high level of integrity necessary to maintain confidence in the institution,” said the Barreau in a statement announcing her suspension. It also said that some of Khuong’s statements (namely, that she wanted to avoid “wasting her time at court”) about the justice system to the Montreal French-language newspaper La Presse were troubling.

Critics counter that the Barreau’s board of directors have mishandled the case. The board failed to follow the rules of natural justice, including the presumption of innocence, by acting as both judge and party, asserted Jean-Pierre Ménard, a Montreal medical malpractice lawyer who has helped the Barreau draft reports on health issues. He noted that following the revelations made by La Presse, the board adopted a resolution demanding Khuong’s resignation at an emergency meeting July 1. When Khuong refused, the board responded by suspending her indefinitely. The following day, the board adopted a resolution that created an ethics and governance committee, composed of three members from the board of directors, to analyze the case. On July 7, the president of the committee recommended to the board that given the “particular circumstances of the case, it would preferable if the mandate was assigned to an ad hoc committee.” The three person ad hoc committee has a mandate to analyze the matter and write a report with recommendations to the board of directors. Their recommendations are not binding.

“The problem is that the board of directors has already taken a position,” said Ménard. “They have an obligation to follow the rules of natural justice and act in an impartial manner. But how can a reasonable person think that the board of directors can objectively decide on a matter in which they already decided? This is all the more astonishing given that we are speaking about lawyers. I find it so sad that we are in the midst of discrediting the organization.”

Other critics say the board of directors has gone beyond the powers conferred to it by the Act Respecting the Barreau du Québec, the Professional Code, and the Civil Code of Québec.

“When you look at those three laws, there is nothing that comes close to allowing a board of directors of a professional order or corporation to either remove from office or suspend the president of an order,” said law professor Finn Makela, a view shared by Chagnon and other former law society presidents.

Makela noted that the board gave itself this power through what it calls a “code of conduct” for members of the board of directors. Under the act and the Professional Code, the board of directors has the power to adopt regulations that must be filed and accepted by the Office des professions, a provincial regulatory body that oversees Quebec’s 46 professional corporations. The code of conduct was never officially adopted, was not promulgated, and has not appeared in the Gazette officielle du Québec, pointed out Makela, who teaches employment and labour law at the Université de Sherbrooke.

Makela said he believes that the board of directors will argue before the court that since Khuong signed the code of conduct, the board of directors has the power to suspend her.

“I just don’t buy it,” said Makela. “You could conceivably see that situation in a corporate person incorporated for instance in the Business Corporations Act, where they would have bylaws that would allow the majority of boards of directors to suspend members. Except that the Barreau is a public body, and the powers that are granted to it are specifically granted to it by legislation.”

Julie Latour, former president of the Bar of Montreal, says the episode highlights the glaring shortcomings of the new governance structure adopted by the Barreau du Québec after Bill 17 was enacted last December. Previously, the Barreau, the executive, and the bar council “were deeply rooted in the local bar sections,” said Latour, an in-house counsel at Loto Québec. The executive committee was in essence composed of the presidents of the Montreal and Quebec City bars while the bar council consisted of 15 presidents from different regions of the province. Decisions were made only after presidents consulted with their local bar councils. That is no longer the case. Board members now make decisions on their own without consulting local bar councils, according to Latour.

“The new governance structure is more opaque and less rooted in the local bar sections, which can give the impression that it is a small clique or that the Quebec bar is run like a private club,” said Latour. “There used to be a check-and-balance process that would have prevented the hasty decisions that we saw on July 1, when the board of directors very expeditiously requested the president’s resignation, and then a few hours later suspended her and denied her access to the premises at the bar.”

Khuong was elected to a two-year term with 63 per cent of the vote over Montreal lawyer Luc Deshaies.

“I am extremely disappointed by the reaction of the board members who should have denounced” the leak, said Jean-François Bertrand, Khuong’s lawyer. “And I am profoundly disappointed for my client, who is being prevented from returning to the position that she was elected to.”

Bertrand maintains that Khuong was under no legal obligation to divulge her alleged offence to the board. Doing so would have defeated the purpose of the non-judicial program, added Bertrand. Besides, Bertrand pointed out there is an agreement between the Quebec bar and the director of criminal and penal prosecutions that the Barreau will be notified if a lawyer faces criminal charges. That did not take place in Khuong’s case.

Khuong has received support from several regional sections of the Barreau who have demanded the suspension be revoked. The Quebec section of the Canadian Bar Association also joined in the fray, saying in a statement that the board’s decision runs “contrary to the principles of fundamental justice that underlie our profession.”

Given the impasse, some lawyers are calling for new executive elections. Khuong has already made such a proposal but “that was rejected out of hand by the board of directors,” said Bertrand.