In the past few years, Quebecers have seen important modifications to the legal framework surrounding the right to privacy and the prevention of psychological and sexual harassment and violence, including in a professional setting, as we outlined in a previous blog post. In an attempt to further protect the Québec population, on October 3, 2024, Québec's National Assembly introduced Bill73—An Act to counter non-consensual sharing of intimate images and to improve protection and support in civil matters for persons who are victims of violence (hereinafter "Bill 73" or the "Act"). This legislation introduces a new legal avenue that empowers individuals to prevent or stop the non-consensual sharing of intimate images. Bill73 received royal assent, with most of its provisions coming into force on December 4, 2024.1
In addition to providing urgent legal measures to prevent or stop the unauthorized sharing of intimate images, Bill73 also introduces reforms to several other pieces of legislation, including the Labour Code and the Act to establish the Administrative Labour Tribunal. These reforms ensure that certain myths and stereotypes, already recognized as irrelevant in criminal law,2 are also inconsequential in civil or administrative matters involving allegations of sexual or spousal violence. As a result, these changes may have implications for employers who are managing employees affected by such violence and in the way that complaints and grievances are handled by the employer, employees and unions.
Main Objective of Bill73
The primary objective of Bill73 is to provide individuals with a legal mechanism to prevent violations of their right to safeguard their dignity, honour and reputation, as well as to protect their right to privacy, as enshrined in the Quebec Charter of human rights and freedoms and the Civil Code of Quebec.3 The Act recognizes the potential for irreparable harm caused by the technological dissemination of intimate images.4 Bill73 defines an intimate image as any image, whether a visual or sound recording, or live broadcast, that "represents or appears to represent a person either nude or partially nude, exposing their breasts, genital organs, anal region or buttocks, or engaging in an explicit sexual activity" where the individual had a "reasonable expectation that their privacy would be protected."5
Individuals who find that their intimate images are being shared without consent, or find that there is a threat of such sharing, can apply to the court to prevent further distribution of these images. The order can compel any person to: (i) abstain from sharing the image, (ii) cease any sharing of the image, and (iii) destroy the image. Additionally, the court can order the de-indexing of any hyperlink that provides access to the image.6 Crucially, the Act allows for these orders to be made on an urgent basis, even in the absence of the parties, and when the identity of the perpetrator is unknown. This provides victims with a timely avenue for relief, particularly in situations where traditional court procedures may be too slow or ill-adapted to address the issue.7
Penalties for non-compliance include contempt of court and fines ranging from $500 to $5,000 for individuals, and $5,000 to $50,000 per day in other cases, so as legal entities. In certain cases, imprisonment of up to 18 months may also be imposed.8
Amendments to the Labour Code and the Act to Establish the Administrative Labour Tribunal
One of the key features of Bill73 and of particular interest for employers, employees and unions, is its amendments to the Labour Code and the Act to Establish the Administrative Labour Tribunal. A new Section100.9 has been added to the Labour Code to address cases in which employees allege sexual or spousal violence. Similarly, the Act to Establish the Administrative Labour Tribunal has been amended to include Section35.1, which upholds the same principles. These amendments specify that, in cases involving allegations of sexual or spousal violence, the following facts are presumed irrelevant:
- any fact relating to the reputation of the person who is the alleged victim of the violence;
- any fact related to the sexual behaviour of that person, other than a fact pertaining to the proceeding, and that is invoked to attack the person's credibility;
- the fact that the person did not ask that the gestures, practices, verbal comments, behaviour or attitudes cease;
- the fact that the person did not file a complaint or exercise a recourse regarding the violence;
- any fact in connection with the delay in reporting the alleged violence, except to demonstrate the existence or absence of reasonable grounds for extending a time limit or for relieving a person or not from the consequences of failing to act within a time limit; and
- the fact that the person maintained relations with the alleged perpetrator of the violence.9
These changes are intended to make it easier for individuals to pursue claims related to violence or harassment without the fear of being unfairly judged for their personal behaviour or past decisions. By removing the influence of victim-blaming stereotypes, these amendments ensure that such prejudices no longer shape legal proceedings.
Key Point: What are the Implications for Employees, Employers, and Unions?
While Bill73 and its amendments to theLabour Codeand the Act to establish the Administrative Labour Tribunal introduce important changes, the direct implications for employers, employees and unions may be important in the context of the adjudication of internal complaints, hearings in front of the Administrative Labour Tribunal or grievance arbitration. Indeed, the various stakeholders may be limited in the information that they may wish to adduce into evidence, in their cross-examination of witnesses and, ultimately, in the strength of their cases that relate to, in whole or in part, the alleged existence of sexual violence.
Our Labour and Employment team will be closely monitoring the development of these changes and their application by courts in the coming months. For more information on this subject, or for advice on how to manage the impact of these changes on your operations, please do not hesitate to contact a member of our National Labour and Employment team.
* Special thanks to Benjamin Brown for his assistance in drafting this blog post.*
Footnotes
1. Bill73 (An Act to counter non-consensual sharing of intimate images and to improve protection and support in civil matters for persons who are victims of violence) s 21, Title II, Chapter V [Bill 73].
2. Criminal Code, R.S.C., 1985, c. C-46 ss. 276 and 277.
3. Bill73 s 1, Title I, Chapter I.
4. Bill73 s 1, Title I, Chapter I.
5. Bill73 s 2, Title I, Chapter I.
6. Bill73 s 6, Title I, Chapter I.
7. Bill73 ss 11 and 12, Title I, Chapter I.
8. Bill73 s 18, Title I, Chapter I.
9. Bill73 ss 18 and 21, Title II, Chapter IV, Division I.
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