T-769-98
Constance St-Hilaire (Plaintiff)
v.
Attorney General of Canada, Treasury Board of Canada (Defendants)
Indexed as: St-Hilaire v. Canada (Attorney General) (T.D.)
Trial Division, Blais J., Québec, April 16; Ottawa, April 30, 1999.
Public Service " Pensions " Judicial review of refusal to pay plaintiff, resident of Quebec, benefits under PSSA as surviving spouse, legal heir " Plaintiff guilty of manslaughter in stabbing death of husband, former public servant, contributor to pension fund under PSSA " Defendant citing rule of public order person may not profit from crime " PSSA, s. 12(4) rules of allocation to surviving spouse, children silent as to disentitlement in this regard " Federal statute wishing to depart from law applicable in province within its field of jurisdiction must do so expressly, as stipulated in preliminary article of Civil Code of Québec " Presumption legislation not intending to change law beyond that which declares expressly " Ordinary law of Quebec accepting person convicted of manslaughter may inherit from deceased " Rule of public order not applicable because not expressly stated in Act, contrary to ordinary law " As legal heir, surviving spouse entitled to benefits under PSSA.
Civil Code " Preliminary article of Civil Code of Québec stating Code foundation of all other laws, although other laws may complement, make exceptions to Code " Art. 620 providing persons convicted of making attempt on life of deceased unworthy of inheriting " Predecessor providing those convicted of killing or attempting to kill deceased unworthy of inheriting " While old wording excluding need for any conscious intent, since person can be convicted of killing without having intended it, phrase "making an attempt on the life" in Art. 620 implying intent to kill " Homicidal intent necessary condition for unworthiness.
Administrative law " Judicial review " Declarations " Plaintiff guilty of manslaughter in husband's death " Seeking declaratory judgment Treasury Board not entitled to withhold payment of pension benefits under Public Service Superannuation Act on basis rule of public order person cannot profit from crime " Such rule not expressly incorporated in Act, contrary to ordinary law of Quebec person convicted of manslaughter may inherit from deceased " Declaration granted, order to go as asked.
This was an application for judicial review seeking a declaration that the Treasury Board's refusal to pay the plaintiff benefits under the Public Service Superannuation Act as the surviving spouse and heir of Gérard Morin was illegal, for an order directing the Attorney General to pay the sums of money owed to the plaintiff, and an order for provisional execution notwithstanding appeal. The plaintiff resides in Quebec. Gérard Morin had been a public servant from 1975 until the time of his death, and had contributed to the pension fund created by the Act. The plaintiff and Gérard Morin were married in 1981. In 1995 the plaintiff fatally stabbed her husband while they were both drunk. The plaintiff pleaded guilty to manslaughter. The sentencing judge found that the offence had been prompted by anger, not fear, and occurred in a situation of marital violence.
The preliminary article of the Civil Code of Québec states that the Code is the foundation of all other laws, although other laws may complement the Code or make exceptions to it. The plaintiff argued that as the law of succession is within the exclusive jurisdiction of the provinces, for federal law to apply in this area the federal statute in question must expressly have excluded the application of the Civil Code of Québec. The defendants argued that the Public Service Superannuation Act must be read in conjunction with the rule of public order that a person may not profit from his or her crime. The fact that Parliament did not include express rules on disentitlement was not conclusive since the rule of public order applied by implication. Alternatively manslaughter is a case of successoral unworthiness under Civil Code, Article 620 which provides that persons convicted of making an attempt on the life of the deceased are unworthy of inheriting.
Held, the application should be allowed.
As the right claimed by the plaintiff originated in Quebec, the law applicable in that province must be considered. A federal statute which wishes to depart from the law applicable in a province within its field of jurisdiction must do so expressly, as stipulated in the preliminary article of the Civil Code of Québec. Public Service Superannuation Act, subsection 12(4) lays down the provisions of allocation to the survivor and children, and nowhere is there any mention of a restriction in this regard. According to the principle of stability of law, statutes should be interpreted, as much as possible, in harmony with the general law. The legislator is presumed to have no intention to change the law beyond that which he declares expressly.
The ordinary law of Quebec accepts that a person convicted of manslaughter may inherit from the deceased. The wording of the Article 610 (the predecessor to Article 620) provided that those who have been convicted of killing or attempting to kill the deceased were unworthy of inheriting, and were excluded from successions. While the old wording excluded the need for any conscious intent, since a person can be convicted of killing without having intended it, the phrase "making an attempt on the life" in Article 620 implies the intent to kill. Homicidal intent is a necessary condition for causing unworthiness.
The rule of public order that a person cannot profit from his crime did not apply because it was not so expressly stated in the Act, or because it was contrary to the ordinary law, which permits a person convicted of manslaughter to be the heir of the deceased. The plaintiff was not unworthy by operation of law as a result of the nature of her crime. As the legal heir and surviving spouse, the plaintiff was entitled to the benefits associated with the Gérard Morin's pension under the Public Service Superannuation Act.
| statutes and regulations judicially considered |
| Civil Code of Lower Canada, Arts. 610, 813. |
| Civil Code of Québec, S.Q. 1991, c. 64, arts. preliminary disposition, 620, 623, 3098. |
| Federal Court Act, R.S.C., 1985, c. F-7, s. 18(1) (as am. by S.C. 1990, c. 8, s. 4). |
| Public Service Superannuation Act, R.S.C., 1985, c. P-36, s. 12(4). |
| cases judicially considered |
| considered: |
| R. c. St-Hilaire, [1996] A.Q. No. 597 (Que. Sup. Ct.) (QL); Cleaver v. Mutual Reserve Fund Life Association, [1892] 1 Q.B. 147 (C.A.). |
| referred to: |
| Banque Canadienne Nationale v. Carette, [1931] S.C.R. 33; Lamontagne v. Quebec Railway, Light Heat & Power Co. (1914), 50 S.C.R. 423. |
| authors cited |
| Brière, G "Le nouveau droit des successions", La collection bleue , Montréal: Wilson & Lafleur, 1994. |
| Brière, G "Les successions", coll. Traité de droit civil, 2e éd., Cowansville (Qué.): Éditions Yvon Blais, 1994. |
| Brun, Henri et Guy Tremblay. Droit constitutionnel, 3e éd., Cowansville (Qué.): Éditions Yvon Blais Inc., 1997. |
| Côté, Pierre-André. The Interpretation of Legislation in Canada, 2nd ed., Cowansville (Qué.): Éditions Yvon Blais Inc., 1991. |
APPLICATION for judicial review seeking a declaration that the Treasury Board's refusal to pay the plaintiff benefits under the Public Service Superannuation Act as the surviving spouse and heir of Gérard Morin was illegal, and for an order directing the Attorney General to pay the sums of money owed to the plaintiff, and an order for provisional execution notwithstanding appeal. Application allowed.
| appearances: |
| Suzy-Guylaine Gagnon for plaintiff. |
| René Leblanc for defendants. |
| solicitors of record: |
| Rochon, Belzile, Carrier, Auger & Associés, Québec, for plaintiff. |
| Deputy Attorney General of Canada for defendants. |
The following is the English version of the reasons for order and order rendered by
Blais J.: This is an application for judicial review pursuant to subsection 18(1) of the Federal Court Act [R.S.C., 1985, c. F-7 (as am. by S.C. 1990, c. 8, s. 4)] seeking a declaratory judgment that the refusal by the defendant, the Treasury Board of Canada, Pensions Division, to undertake a reconciliation in the plaintiff's case is illegal, and seeking an order directing the Attorney General of Canada, acting through the Treasury Board of Canada, to pay the sums of money owed to the plaintiff and an order for provisional execution notwithstanding appeal.
This application was made by a plaintiff residing in Quebec and is based on the Public Service Superannuation Act, R.S.C., 1985, c. P-36 (the Act) and on the Civil Code of Québec [S.Q. 1991, c. 64].
FACTS
The undisputed facts giving rise to the application at bar may be summarized as follows:
The plaintiff claimed that she was entitled to benefits under the Public Service Superannuation Act first as a surviving spouse of the late Gérard Morin, and second as heir to the property of Gérard Morin.
Until the date of his death on February 3, 1995 Gérard Morin had been, since at least June 10, 1975, a public servant of Her Majesty the Queen in right of Canada employed by the Department of Transport, and as such a "contributor" within the meaning of the Act to the pension fund created by the Act.
Gérard Morin was also on the date of his death the plaintiff's spouse: the couple had no children.
Gérard Morin died tragically from a knife wound to the abdomen.
On January 8, 1996 the plaintiff pleaded guilty to a charge of manslaughter of Gérard Morin.
On February 27, 1996, as a consequence of the said guilty plea, she was sentenced to a term of imprisonment of two years less one day, accompanied by an order of three years' probation effective on her release.
The circumstances surrounding the death of Gérard Morin are set out in the judgment on sentencing rendered by the Superior Court of Quebec on February 27, 1996 [[1996] A.Q. No. 597 (QL)] at the conclusion of three days of hearing presided over by André Trottier J.S.C.
It thus appeared from the said judgment:
" that the plaintiff and Gérard Morin began cohabiting in 1978 and married in 1981;
" the couple consumed an excessive amount of alcohol, and the plaintiff also consumed drugs (cocaine) from time to time;
" their relationship was stormy and violent;
" the aggressiveness both verbal and physical between them was mutual;
" on February 2, 1995, the day before Gérard Morin died, the couple had consumed an excessive amount of alcohol, resulting in a visit by the police;
" on February 3, 1995, the day Gérard Morin died, the couple again became drunk, hurled accusations and insults at each other and went on to physical acts, Gérard Morin pushing the plaintiff against the wall of the kitchen and the plaintiff responding to this attack by dealing Gérard Morin the fatal knife wound to his abdomen.
In determining the sentence Trottier J. mentioned the following factors [at paragraphs 21-23]:
[translation] "the objective seriousness of the crime committed, causing a man's death by the use of a knife; . . . in the circumstances, the offence committed was prompted by anger, not fear, and this precludes any claim that it was an accident; . . . this drama occurred in a situation of marital violence and in the circumstances the weight of judicial authority is that a fair balance must be maintained between human feelings and the legal bases of a sentence."
PLAINTIFF'S ARGUMENTS
The plaintiff maintained that the only point for discussion in this Court was as to the application of the law in the circumstances, and that the Court did not have to rule on whether the plaintiff was unworthy of inheriting. This argument was concurred in by counsel for the defendants.
Counsel submitted that it was the ordinary law applicable in Quebec that should be considered, not a common law principle as a result of which the defendants wished to apply a rule of public order not recognized by the ordinary law in Quebec.
The preliminary article of the Civil Code of Québec in fact states that:
The Civil Code comprises a body of rules which, in all matters within the letter, spirit or object of its provisions, lays down the jus commune, expressly or by implication. In these matters, the Code is the foundation of all other laws, although other laws may complement the Code or make exceptions to it.
Referring also to the writers Henri Brun and Guy Tremblay in their text Droit constitutionnel, 3rd ed., Éditions Yvon Blais Inc., at page 29, counsel added in support of his theory that:
[translation] The Canadian common law rules must also give way to inconsistent rules contained in the legislation of the imperial Parliament (so far as these are applicable to Canada) and the federal and provincial legislatures.
Accordingly, the plaintiff's status as heir under the ordinary law in Quebec suffices to entitle her to the benefits of the Public Service Superannuation Act, and there is no need to first proceed one step further by applying a rule of public order deriving from the common law.
As the law of succession is within the exclusive jurisdiction of the provinces, for federal law to apply in this area the federal statute in question must expressly have excluded the application of the Civil Code of Québec.
Unworthiness to inherit by operation of law, mentioned in Article 620 C.C.Q., only applies in the case of murder and so cannot be pleaded against the plaintiff.
Article 623 of the Civil Code of Québec provides that where there is no unworthiness by operation of law it is possible to apply to the court for a declaration of unworthiness within one year after the opening of the succession. Only successors have this right.
As no successors appeared the plaintiff retained her right to the estate of Gérard Morin.
Further, Article 3098 of the Civil Code of Québec provides that succession to movable property is governed by the law of the last domicile of the deceased: in the case at bar it is the law of Quebec which should be applied; and under that law there is nothing to prevent the plaintiff from succeeding to Gérard Morin.
Counsel further submitted that the official declaration of heredity contained in the record confirms the plaintiff's status as legal heir.
Further, the plaintiff meets the tests for a surviving spouse set out in the Public Service Superannuation Act, and is thus entitled both as legal heir and as surviving spouse to receive the pension benefits provided for by the Act.
Finally, counsel stated that it was not up to the Treasury Board to decide the fate of pension benefits owed to the estate of Gérard Morin. The Treasury Board had no interest in bringing an action and only successors concerned had such an interest.
DEFENDANTS' ARGUMENTS
Counsel for the defendants argued that the Public Service Superannuation Act applies everywhere equally and must be read in conjunction with the rule of public order, which should also be applied everywhere because it is part of the Act.
The rule of public order cited by the defendants originated in English jurisprudence in 1891 when Lord Justice Fry of the English Court of Appeal said, in Cleaver v. Mutual Reserve Fund Life Association, [1892] 1 Q.B. 147 (C.A.), at page 156:
It appears to me that no system of jurisprudence can with reason include amongst the rights which it enforces rights directly resulting to the person asserting them from the crime of that person.
It is not the status of heir or survivor which is in dispute, but entitlement to benefits. To the entitlement rules contained expressly in the Act a second stage should be added, the rule of public order that a person may not profit from his or her crime.
Counsel admitted that differences might exist in the circumstances in which the rule would apply, but there was no distinction between murder and manslaughter and these crimes called for application of the rule.
Counsel argued that nothing in our constitutional law prevents federal law from contradicting the Civil Code of Québec in its sphere of constitutional jurisdiction.
The fact that Parliament did not include express rules on disentitlement is not conclusive, since the rule of public order applies by implication. The fact that the Act is silent does not mean that Parliament intended to exclude the rule of public order.
Counsel added that a public official may not assign his or her pension and it is the Act which determines the conditions of division. The plaintiff thus has no right of ownership so long as the conditions of entitlement have not been met. As the rule of public order precludes the plaintiff's entitlement here, the Treasury Board properly refused to pay the plaintiff the money claimed in her capacity as surviving spouse.
Alternatively, counsel for the defendants submitted that manslaughter is a case of successoral unworthiness.
There was no substantive change in the new wording of the cause of unworthiness mentioned in Article 620 C.C.Q., formerly Article 610 of the Civil Code of Lower Canada.
Counsel suggested a parallel with Article 813 of the Civil Code of Lower Canada to interpret the concept "making an attempt on the life" contained in Article 620 C.C.Q., according to legal analysis at the time, that included manslaughter, and in particular causing death in a fit of anger occasioned by sudden provocation.
The defendants therefore submitted that as the fact that she caused Gérard Morin's death in a fit of anger precludes any argument that it was an accident, and she pleaded guilty to manslaughter, in the present state of the law and the applicable case law the plaintiff is unworthy by operation of law to succeed to Gérard Morin.
ANALYSIS
As the right claimed by the plaintiff originated in Quebec, the Court considers that the law applicable in the province of Quebec cannot be disregarded.
The Court accepts the plaintiff's argument that a federal statute which wishes to depart from the law applicable in a province within its field of jurisdiction must do so expressly, as stipulated in the preliminary article of the Civil Code of Québec.
In subsection 12(4) the Public Service Superannuation Act lays down the provisions of allocation to the surviving spouse and children and nowhere is there any mention of a restriction in this regard. The principle of stability of the law identified by Pierre-André Côté in his text The Interpretation of Legislation in Canada, 2nd ed., 1991, Éditions Yvon Blais, at page 419, refers us to decisions of the Supreme Court:
A fundamental rule is that statutes should be interpreted, as much as possible, in harmony with the general law. The legislator is presumed to have no intention to change the law beyond that which he declares expressly.1
The ordinary law of Quebec accepts that a person convicted of manslaughter may inherit from the deceased. Article 620 C.C.Q. states:
Art. 620. The following persons are unworthy of inheriting by operation of law:
(1) a person convicted of making an attempt on the life of the deceased;
The wording of the old Article 610 C.C.L.C. reads:
610. The following persons are unworthy of inheriting and, as such, are excluded from successions:
1. He who has been convicted of killing or attempting to kill the deceased;
Whereas the old wording excluded the need for any conscious intent, since a person can be convicted of killing without having intended it, the new wording introduced an important dimension involving intent.
In his volume titled Les successions2 the writer Germain Brière explains that homicidal intent is a necessary condition for causing unworthiness by operation of law. He repeats this more positively in his volume titled Le nouveau droit des successions:3
[translation] The question of whether manslaughter entails unworthiness by operation of law arises under art. 620 C.C.Q., as it arose under art. 610 C.C.L.C. It seems clear that such homicide does not entail successoral unworthiness, as the phrase "making an attempt on the life" implies the intent to kill.
The other writers cited by counsel for the defendants in support of the contrary view expressed their opinions prior to the new law and so far no Quebec courts appear to have ruled on the point.
Having found that the rule of public order relied on by the defendants, to the effect that a person cannot profit from his crime, does not apply in the case at bar because it is not expressly stated in the Act or because it is contrary to the ordinary law, which permits a person convicted of manslaughter to be the heir of the deceased, this Court has decided to allow the plaintiff's application.
The plaintiff is not unworthy by operation of law as the result of the nature of her crime and no successor has applied for a judicial declaration of unworthiness. The plaintiff is the legal heir of the deceased Gérard Morin and in that capacity, and in her capacity as surviving spouse, is entitled to the benefits associated with the pension of Gérard Morin pursuant to the Public Service Superannuation Act.
FOR THESE REASONS, THE COURT
" Declares that the refusal by the respondent, the Treasury Board of Canada, Pensions Division, to pay the plaintiff the money to which she is entitled since the opening of the estate of the late Gérard Morin is illegal;
" Orders the Attorney General of Canada, through the Treasury Board of Canada, Pensions Division, to pay within 15 days of this judgment the money owed to the plaintiff since the opening of the estate of the late Gérard Morin; and
" Orders provisional execution notwithstanding appeal;
" The whole with costs.
1 Banque Canadienne Nationale v. Carette, [1931] S.C.R. 33, at p. 42 (Rinfret J.). See also Lamontagne v. Quebec Railway, Light, Heat & Power Co. (1914), 50 S.C.R. 423.
2 G. Brière, Les successions, 2nd ed., Cowansville (Qué.): Éditions Yvon Blais, 1994.
3 G. Brière, "Le nouveau droit des successions", La collection bleue : Montréal: Wilson & Lafleur, 1994 at p. 51.