Quebec lawyer guilty of contempt of court over First Nations governance dispute
A Baie-Comeau, Que., lawyer has been found guilty of contempt of court after a Federal Court judge ruled he helped his clients avoid paying fines imposed following their own previous convictions for contempt.
According to Justice Sébastien Grammond’s recent ruling, lawyer Kenneth Gauthier acted for several council members of the Innu Nation of Pessamit whose election was successfully challenged by a defeated rival in court.
However, when Gauthier’s clients failed to hold a new election as ordered, they were convicted of contempt and ordered to pay a fine.
After his clients appealed and sought a stay of the order, Gauthier offered to hold the amount of the fine in trust instead of paying it into court, according to Justice Grammond’s ruling.
The fine was eventually paid after the Federal Court of Appeal rejected the motion for a stay, but by that time, the deadline set by the original order had already passed, resulting in the fresh contempt hearing.
Gauthier testified that he never meant to disrespect the Court, explaining that he was attempting to “build a bridge” between his clients and the justice system. However, Justice Grammond was not convinced:
“I can easily see that representing clients who say publicly that they will not respect a Court judgment can put a lawyer in a difficult position. There is no doubt that the dilemma was particularly acute for Mr. Gauthier, whose work largely comes from the Innu Nation of Pessamit,” he wrote. “Nevertheless, such situations do not exempt a lawyer from the obligation to obey the law or from the prohibition against helping clients evade a court order.”
The case has its roots in the Innu Nation of Pessamit’s 2016 elections, which took place under a brand new electoral code, with René Simon returned as chief, alongside Gérald Hervieux, Raymond Rousselot, Marielle Vachon and Diane Riverin as councillors.
However, one of the losing candidates for councillor – Jérôme Bacon St-Onge – successfully challenged the election in December 2017, convincing Federal Court Justice Martine St-Louis that the new code had been adopted without following proper procedures. She ordered fresh elections to be held in August 2018, but suspended the effect of the decision to give the council a fresh chance to amend the code.
With no amendments implemented or election scheduled by August 2018, Bacon St-Onge brought a motion for contempt of court, and Justice Roger Lafrenière found Simon, Hervieux, Rousselot, Vachon, and Riverin guilty of contempt.
Following the sentencing hearing, the judge ordered the payment of fines by the guilty parties within 90 days for redistribution among non-profits in the Pessamit community. Each of the convicted councillors was to pay $10,000, while Simon was required to pay $20,000. The parties were also ordered to jointly pay Bacon St-Onge $35,000 in costs by the same deadline.
Gauthier then filed an appeal on behalf of his clients, requesting a stay of the decision out of fear the fines would be too hard to recover from the non-profit groups in the event the appeal was successful.
When it became clear the Federal Court of Appeal’s ruling on the stay request would not arrive before the deadline to pay the fine, Justice Grammond’s decision says Gauthier offered to hold the funds in trust until the Appeal Court result was announced.
Simon transferred $25,000 to the lawyer, Vachon transferred $15,000, and Hervieux forwarded cash and post-dated cheques to cover his share, according to Justice Grammond’s decision. Rousselot did not transfer any amount, while Riverin stuck to her position from the outset - that she could not afford to pay anything.
Gauthier eventually paid the money into court 19 days after the deadline following the Federal Court of Appeal’s decision to dismiss the stay application.
In his ruling, Justice Grammond cleared Riverin of contempt after concluding that her financial situation prevented her from complying with the order.
However, he convicted Simon, Hervieux, Rousselot and Vachon each for their second time, and Gauthier for his first.
“The evidence shows beyond a reasonable doubt that they implemented a scheme to avoid complying with Justice Lafrenière’s order. They were fully aware of the scope of this order. They chose to disobey a court order because they wanted to protect their personal interests. In making this decision, they usurped the role of the Federal Court of Appeal and defied the authority of this Court,” the decision reads.
“At the hearing, Mr. Gauthier sought to make ‘amende honorable,’ a concept akin to purging the contempt. Instead of admitting the unlawful nature of his conduct, however, he sought to justify it as being in the interests of his clients. The best interests of the client do not permit lawyers to disobey court orders or to help their clients to,” Justice Grammond continued.
A sentencing hearing for Gauthier and his clients has been set for Sept. 14 via Zoom.
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