Historical and legal study by Louise Loiselle, Publisher of Flammarion-Québec
Twenty-eight years after his death in 1969, businessman Paul-Hervé Desrosiers is the subject of a dispute between Pierre and Claude Michaud, his heirs, and writer Pierre Turgeon. Of very modest origins, P.-H. Desrosiers (better known by the diminutive P.-H.) was born in 1898 in a small town in Quebec. From a simple worker, he became one of the most powerful business leaders of the Duplessis years. P.-H. rubbed shoulders with political power while prospering. His companies grew so rapidly that Conrad Black, in his biography of Duplessis, referred to him as a colorful entrepreneur who would have benefited from government contracts under the Duplessis regime. Val-Royal, founded in 1933, rose to become one of Quebec’s largest employers within a few decades, supplying construction materials throughout the province. To clearly define his control over the field, P.-H. sat on the boards of directors of major mining and manufacturing companies. As a backer of the party led by Maurice Duplessis, it is suspected that he also exerted a great deal of influence on successive premiers up to Robert Bourassa.
P.-H. Desrosiers bequeathed almost all of his fortune to his grandnephews Claude and Pierre Michaud. In 1992, one of the companies of the Val-Royal Group gave birth to the R√©no-D√©p√¥t chain. Pierre Michaud, its president, came up with the idea of a biographical work to celebrate the anniversary of the founding of Val-Royal and at the same time honor the memory of his great-uncle. P.-H. Desrosiers should, he thought, enjoy the same notoriety as Alphonse Desjardins and Armand Bombardier for his contribution to the development of Quebec and be at their side in the economic history of the Belle Province. He could not have known that he would unleash a judicial saga that continues to this day.
In December 1992, Jacques Lefebvre, a public relations consultant for Réno-Dépôt, approached Pierre Turgeon to initiate this project. A journalist, former publisher, novelist, essayist and screenwriter, he is the recipient of several prestigious awards, including the Governor General’s Literary Award twice and, more recently, the Montreal Historical Society Award. From the very first meeting, Pierre Michaud stirred the writer’s instincts by offering him the possibility of discovering a picturesque, truculent character who held a certain power in the conduct of Quebec politics, acknowledging, moreover, that he was no saint either. Pierre Turgeon, who had never heard of P.-H., was seduced by the animated story the grand-nephew told him and by his promises of unconditional collaboration. To this end, Mr. Michaud will provide access to confidential documents and put the writer in contact with people who can provide him with interesting and relevant information. According to Mr. Turgeon, no restrictions will be imposed on him, the idea is to draw a portrait of the Duplessis era through this personality.
In June 1993, mandated by Pierre Michaud, Jacques Lefebvre, who believes he knows the publishing industry, prepares, without the advice of a legal advisor, a memorandum of understanding that he signs as publisher with Pierre Turgeon. Divided into two parts, the agreement provides that the author will receive honoraria and reimbursement of expenses for research and interviews. Once this step is completed, Pierre Turgeon must submit and obtain approval for a plan of the work before beginning the writing process. However, if the plan is rejected, he agrees to hand over the documentation he has gathered to the publisher, who may entrust the writing to someone else.
The author in search of his or her character browses historical works and biographies of famous politicians. Alfred Hardy’s Patronage and Patronage of Alfred Hardy, which he published when he was a publisher, discusses the political patronage that characterized the governments of the time, which confirms the way P.-H. did business and, above all, how he obtained his contracts. For his information gathering, if Pierre Turgeon cannot truly consult the family’s personal archives, the heir keeps his word and opens the doors to him, giving him access to the great-uncle’s close collaborators or their descendants who agree to entrust him with their memories, correspondence or any other document that could be used to depict that era. Along the way, the author discovers unpublished facts that go beyond the known revelations about the practices of “patronage” under the Great Darkness, practices that have been amply documented and denounced by the Salvas Commission.
Pierre Turgeon transmits the plan of the book he proposes to write and receives the full assent of Jacques Lefebvre and Pierre Michaud, and thus the green light to begin the narration. He also obtains the first cash advance provided for in the agreement, namely the payment of a capital advance deductible from future royalties. We even go so far as to decide on a title: P.-H. le Magnifique: L’éminence grise de Duplessis (P.-H. the Magnificent: The Grey Eminence of Duplessis). Without any further instructions or constraints, Pierre Turgeon sits down to write.
Pierre Lespérance, president of the Sogides Group and a friend of Pierre Michaud, suggested publishing the biography at Éditions de l’Homme. Jacques Lefebvre abandoned the idea of playing publisher and accompanied Pierre Turgeon, in January 1994, for the signing of the contract with the Éditions de l’Homme’s official representative, the publisher James de Gasp√© Bonnar. Still mandated by Pierre Michaud, it is as the initiator of the project that Jacques Lefebvre signs the clause providing for the reimbursement of the sum advanced on future royalties. Here, it is important to specify that the standard contract of Les Éditions de l’Homme contains a cancellation clause for any previous agreement. Another clause, which appears in all book publishing contracts, specifies that the publisher reserves the right not to publish the work if it does not deem it appropriate. This wording, also present in the first contract, reassures Pierre Michaud’s agent as to the control they will be able to exercise over the final manuscript.
Even before Pierre Turgeon had completed his first draft, Les Éditions de l’Homme announced in two successive catalogs the forthcoming publication of the biography (Appendix 2).
In February 1995, Pierre Turgeon deposited a 180-page manuscript in the office of James de Gaspé Bonnar. There follows a complete silence that the author does not understand. He inquired to learn that Pierre Michaud disapproved of certain revelations without specifying which ones. Pierre Turgeon is all the more astonished by this reaction since the most crispy anecdotes were told to him by the heirs and his main source, Juliette Baby, the 30-year power of attorney of the director of Val-Royal, confirms what is exposed in the manuscript from the first to the last line. In an interview, she said she was all the more surprised by the reaction of the heirs because she is convinced that P.-H. would have wanted this book to be published with a provocative side and, she adds, she loves that people talk about him. Pressed by the author to express his dissatisfaction by citing specific examples, Pierre Michaud, always very cordial, remains evasive. A date is set to continue the discussion, which has no follow-up, and Pierre Turgeon again remains without news.
Sixteen months after the manuscript was handed over, in June 1996, Pierre Turgeon and his attorneys sent a formal notice to Éditions de l’Homme asking them to respect their commitment and to publish the work. Faced with their refusal, the author terminated his contract and offered the biography to Lanctôt Éditeur, who agreed to publish it as is.
Pierre Michaud, who claims to be the copyright holder of the biography on his great-uncle since he commissioned it, filed a request for an injunction in September 1996. According to him, the manuscript “presents in its entirety an unfavorable image of P.-H. Desrosiers”, “damages P.-H. Desrosiers’ reputation, memory and right to privacy and intimacy” and “damages Michaud’s reputation and right to privacy and intimacy”. In the book, “it is allegedly a question of bribes and influence peddling with the government”.
Pierre Turgeon contests the action and asserts that he never transferred his rights; he claims to be the sole owner of the copyright on the biography of P.-H. Desrosiers and the only person responsible for its content. The writer assures the professionalism of his approach. He also certifies that the son of former Premier Antonio Barrette knew that he was preparing a book when he gave him his father’s correspondence and that all those who offered testimonials wanted to contribute to the history of Quebec.
The procedure undertaken on this great question of principle worried the literary and journalistic community, which was not long in mobilizing, fearing that if this case became a precedent, writing the history of Quebec would become extremely difficult because, since January 1994, the Civil Code of Quebec has introduced an article which maintains that “No invasion of a person’s privacy may be made without his or her consent or that of his or her heirs, or without the authorization of the law”.
While Me Marek Nitoslawski, Pierre Michaud’s lawyer, pleads the right to anonymity and solitude and maintains that “the publication of the work would cause harm or sorrow to living persons”, Alain Saulnier, president of the Fédération professionnelle des journalistes du Québec, believes that article 35 of the Civil Code of Québec constitutes in itself a “true infringement of freedom of information and the public’s right to information”. The Union des Écrivains du Québec, which invokes the functions and powers reserved to it by the Act respecting the professional status of artists in the visual arts, arts and crafts and literature and their contracts with presenters, was granted the right by the Court to intervene in the litigation to defend the interests of its members. Its president, Louis Gauthier, expressed his concern in the following terms: “Will we no longer be able to write only complacent works?
It is by invoking the Constitution and the Charter of Human Rights and Freedoms that Me François Shanks intends to defend his client Pierre Turgeon because, he said, there is no provision in the Constitution requiring the consent of the heirs before revealing information about their ancestor. On the other hand, the notion of the public’s right to information is the subject of a section in the Quebec Charter.
To counter the application for an injunction, Pierre Turgeon and his lawyer proposed to the judge a safeguard order until the Superior Court rules on the permanent injunction on the merits.
P.-H. the Magnificent: the eminence grise de Duplessis as well as several documents are under seal pending trial at the end of January 1998.
Our solution is developed in three steps. The first part establishes that Pierre Turgeon is the copyright holder of the biography he wrote, the second postulates that his work does not violate article 35 of the Civil Code of Quebec from the perspective of the right to privacy and its extension, the third part exploits, to reach the same conclusion, the public’s right to information.
Part I: Contract of employment or contract of enterprise?
In the first part of this presentation, we will establish whether Pierre Michaud or Pierre Turgeon owns the copyright on the work entitled P.-H. le Magnifique: l’Éminence grise de Duplessis. What are the rights and obligations underlying the two signed agreements? Does the initial agreement give ownership of the manuscript by private contract to Pierre Michaud, who employed Pierre Turgeon to write it, or, on the contrary, as Pierre Turgeon states, is it a contract governed by the Act respecting the professional status of artists in the visual arts, arts and crafts and literature and their contracts with presenters? Can Pierre Michaud be granted any rights whatsoever for having the idea of a biography of his great-uncle?
Faced with this problem of interpretation, will we follow the letter of the contracts rather than the spirit?
Under section 34(3)(b) of the Copyright Act (CA), “the author of the work is, in the absence of evidence to the contrary, presumed to be the owner of the copyright”. The plaintiff, Pierre Michaud, who is not the author, will have to prove his ownership before this presumption can be set aside. The plaintiff invokes section 13(3) of the same Act to claim ownership of the work commissioned from Pierre Turgeon and made, according to him, in the course of employment.
Pierre Michaud intends to hire Pierre Turgeon for a biographical story about his great-uncle. But in what spirit did he enter into this transaction? Did Pierre Turgeon, who is much more experienced in negotiations in this field, unwillingly give up his copyright? This is what we will try to determine by examining the terms of the two signed contracts.
The first agreement (Appendix 3), drafted by Jacques Lefebvre and signed by him as agent for Pierre Michaud and as publisher, creates a link with the writer Pierre Turgeon. Pierre Turgeon, who has signed numerous publishing contracts in the past as author and publisher, claims that he has been writing professionally for several years and that he would never have agreed to assign his copyright.
While Canadian case law has not given a definitive scope to section 13(3), Quebec civil law made the distinction between a contract of lease of services and a contract of enterprise in Les Amusements Wiltron inc. v. Mainville,  R.J.Q. 1930 (S.C.). The author had retained his copyright, the employer having been unable to prove an employer/author relationship.
The contract of employment (C.C.Q., art. 2085) is executed under the directives of the employer and restricts the employee’s freedom of expression and creation. “If the contract provides for certain standards to which the final work will have to conform, it seems to us that the artist will implicitly renounce his moral rights to the strict extent of these contractual stipulations”.
The Memorandum of Understanding provides that the project will be carried out in two stages: first, the research for which Pierre Turgeon will receive a lump sum and the reimbursement of all expenses incurred. Once this stage is completed, the parties will terminate their relationship if the publisher is not satisfied with the book plan submitted by the author. However, if it is decided to proceed to the next step, the author will be free to write as he or she wishes, as the agreement does not specify how the work will be completed. Based on the clause that reads as follows: “The publisher will have the choice not to publish the manuscript”, Pierre Michaud firmly believed that he could, without further formalities, interrupt or even cancel the project. It will be seen below that under this clause, the publisher does not have an absolute right on the fate of the work.
In response to this lack of direction, Pierre Michaud argued in his statement to the Court that he was speaking to a professional writer and did not feel it appropriate to tell him how to play his role. “You don’t tell a field hockey player where to shoot.” For his part, Pierre Turgeon stated by affidavit that at no time, neither verbally nor in writing, would his field of action have been defined.
With respect to the clause granting the author a deductible benefit from future copyrights, there is nothing to indicate that it is a salary, or a lump sum payment provided for in an employment contract. The wording of this clause follows established industry practice and does not change Pierre Turgeon’s status as a copyright owner.
Moreover, the plaintiff asserts that Pierre Turgeon did not know P.-H. Desrosiers and that he would never have had the idea of writing a book about him. According to federal law, “the author of a work is the first owner of the copyright in that work”, the author being the one who expresses his thoughts. Since the work is the expression of the author’s original thought, the person who provides the original idea for a work could not consider himself the author of the work. This hypothesis is based on Cuisenaire v. South West Imports Ltd,  S.C.R. 208. In the case at hand, the mere claim to be the instigator of the project of a biography on his great-uncle cannot grant Pierre Michaud a right to the work produced by Pierre Turgeon.
As Normand Tamaro points out in his annotated text on the Copyright Act: “Finding precisely the solution to be retained, mainly in a hypothesis where the employer is not directly involved in a sector of activity related to the functions of the work created, is more a matter of prophecy than of jurisprudential analysis.
From this first agreement, we must conclude that the plaintiff cannot prove that the author was employed within the meaning of section 13(3) and that Pierre Turgeon did not assign his moral rights in writing or verbally. The memorandum of agreement signed between Jacques Lefebvre and Pierre Turgeon corresponds to the description of a contract of enterprise as prescribed by articles 2099 and 2100 of the Civil Code of Québec. In accordance with the Act respecting the professional status of artists in the visual arts, arts and crafts and literature and their contracts with presenters, Pierre Turgeon must therefore be considered an independent contractor and retains full enjoyment of his copyright.
The Copyright Act defines copyright as “the exclusive right to produce or reproduce a work, … to perform or represent … and to publish the work. These rights are referred to by many as economic rights. However, if the creator of the work is the first owner of the copyright in a work, he may assign part of his economic rights to a person or legal entity. Let us now see how the contract signed in January 1994 between Les Éditions de l’Homme and Pierre Turgeon confirms this transfer.
Let us return to economic rights which, unlike moral rights, can be assigned, but must be done in writing. The assignment must also be signed by the holder of the rights. This second agreement concerns the commercial exploitation of the work. Indeed, the author who wishes to see his work published and distributed must divest himself of part of his pecuniary rights in favor of a publisher who, in the hope of making a profit, will produce the book and see to its marketing.
The Copyright Act allows the parties involved to freely agree on the terms of the assignment or license, however, in reality, the publishing house imposes its standard contract on its authors. These contracts are similar from one company to another and include the usual clauses on duration, territory, scope of rights granted, author’s guarantee, royalties, foreign rights, etc. The content and wording of these clauses are quite similar. The Act respecting the professional status of artists in the visual arts, arts and crafts and literature and their contracts with presenters under Quebec law also regulates this type of agreement.
Pierre Michaud claims that this second contract effectively extends the memorandum of understanding of June 1993 and makes the parties solidary. As proof, he says, Jacques Lefebvre signed the clause stipulating that the advances must be reimbursed from the copyright.
First, a clause in the Éditions de l’Homme contract cancels any other previous agreement, thus the first memorandum of understanding. Then, at the top of the contract, where the undersigned identify themselves, only the name of Pierre Turgeon appears as “author”. Jacques Lefebvre’s signature bearing the mention “initiator of the project” can in no way confer on him the status of collaborator to the work as defined in the Copyright Act and does not grant him any right on the work. As for the amount advanced to the author as a down payment, there is nothing to suggest that Pierre Turgeon is not the sole beneficiary of the usual 10% royalties (progressive percentage with sales) since it is expected that he will receive all royalties on sales exceeding the amount of the down payment. This last element is not disputed by the plaintiff.
According to section 13(4), an assignment is equivalent to a sale, but it cannot be compared to any other item sold in commerce, since in this case, the seller (the author) retains control over the object of the sale: “[…] the author relinquishes the right to publish the work in order to derive value from it, and publication becomes an implied term of the contract and takes on the character of an obligation flowing from the intention of the parties”.
The plaintiff, who has always believed that he could exercise discretionary power over the publication of P.-H. Desrosiers’ biography, misinterprets the following clause: “Moreover, as a last resort, the publisher reserves the right not to publish the work if he deems that the publication of the text is inappropriate, or that it is of a defamatory or scandalous nature, violating any private or otherwise illegal right.” The plaintiff, who has always believed that he could exercise discretionary power over the publication of P.-H. Desrosiers’ biography, interprets the following clause incorrectly. The case law does not support this interpretation: “An author fulfills his obligation by delivering his manuscript to a publisher who, in return, must return his manuscript if he refuses to publish the work: Morang v. Lesueur , 45 S.C.R. 95, 99-100 (Fitzpatrick C.J.) and 115-116, 118-119 (Duff J.)”.
The Éditions de l’Homme, having failed in its contractual obligation to publish the work and availing itself of clause 25 cited above, returned the manuscript to Pierre Turgeon. In doing so, the contract became null and void.
Even if Pierre Michaud had been able to demonstrate that he was the copyright owner of his great-uncle’s biography – the Copyright Act protects the author’s moral interests, i.e. the right to claim the creation of a work and the right to prevent his work from being distorted by others – the heirs could not have removed the disputed content or modified any part of it or even published it (right of disclosure under French law) without Pierre Turgeon’s consent. The notion of moral rights has been recognized in Canadian law since Canada’s accession, in 1931, to the Rome Act of the Berne Convention:
12(7): Regardless of his copyright, and even after the partial or total transfer of his rights, the author retains the right to claim authorship of the work, as well as the privilege to punish any distortion, mutilation or other modification of the said work which would be prejudicial to his honor or reputation.
It seems to us that Pierre Michaud commissioned, in good faith, a biography from Pierre Turgeon which he believed to be the sole owner. As a businessman completely unaware of the great debate on intellectual property, he undoubtedly thought he was buying a material product like any other, which is what he is used to doing in his companies. Not being familiar with the customs and habits that prevail in the publishing industry, he turned to Jacques Lefebvre, whom he mandated to negotiate with the writer. Unfortunately for Pierre Michaud, it seems obvious to us that his agent did not have the necessary competence and did not know the rules governing publishing contracts. Despite his initial intention to remain in control of the publication of his great-uncle’s biography, here is Pierre Michaud bound, as stipulated in article 2160 of the Civil Code of Québec, by the agreements signed by his mandatary.
Let us say, in conclusion of this first part, that Pierre Turgeon remains the sole owner of the copyright on the work entitled P.-H. the Magnificent: The Grey Eminence Duplessis.
Part Two: The Individual’s Right to Privacy
We have established that Pierre Turgeon owns the copyright to the biography he wrote. That said, we will now turn our attention to the issue of privacy rights, a slippery slope on which each of the parties to the dispute before us is trying to get the other one-off track.
Starting from the premise that the right to privacy is “likely to bring the interests of the individual and the public interest in knowledge into direct confrontation”, let us first identify the stakes involved.
Right to reputation, image, anonymity and solitude
Like Martin Michaud, we do not believe that it is useful, appropriate or even realistic to attempt to circumscribe the notion of privacy here because “the sphere of privacy varies according to different factors, for example, according to the situation of the persons involved or according to the values in force in society at the time of the infringement. However, we propose to explore some of its avenues, an exploration that will allow us to answer the following question: with respect to article 35 of the Civil Code of Quebec, relating to the respect of reputation and privacy, are Paul-Hervé Desrosiers’ rights to reputation, image, anonymity and solitude in any way affected because of Pierre Turgeon’s work? We will attempt to answer this question by illustrating our point with a few existing legal decisions and by putting forward the concept of public figure, the touchstone of our argument. This process will naturally lead to the last part of our reflection, mainly related to the public’s right to information.
In 1979, H. Patrick Glenn asserted that at least two types of behavior were incompatible with the right to privacy:
The first is unjustifiable intrusion, which has the effect of bringing personal information to the knowledge of the intruder or simply embarrassing the victim. It is the loneliness of the individual that seems to be affected by this intrusion, a condition of separation from other members of society or from most other members of society. Second, and again in the absence of supporting facts, there is the invasion of privacy that results from the dissemination of information or images. In this case, the prohibition of the act of dissemination protects the anonymity of the person, a situation which is that of not being identifiable.
The rights to solitude and anonymity would thus allow their holders to act freely and would imply that anyone wishing to override them would have to ensure the consent of those concerned. By the way, if we look closely, there is a fine line between the right to anonymity and the right to image, both of which are linked by the concept of dissemination. And “while it appears clear that the express consent of the victim will constitute a defense that will exonerate the perpetrator of the act in question when he or she can prove consent, the nature and extent of the consent may be problematic”. This raises the question of implied consent and, by extension, the purpose of the dissemination of the image, which we can support by way of Deschamps v. Renault Canada. In that case, the Court held that although the respondent Deschamps had consented to photographs of him being taken, he was nonetheless entitled to refuse to allow them to be used for commercial purposes for which he had not been consulted. “The Court also concluded that the public nature of the defendant’s profession and the traditional tolerance of actors (in the case of Yvon Deschamps) for advertising could not constitute implied consent to the use of his name or image. However, we would add, insofar as, as a public figure, P.-H. Desrosiers is the object of a biography, an undertaking which may reasonably be considered not to be carried out for purely profitable purposes but, because of the author’s reputation, in an artistic if not historical perspective, there is no reason for his nephew to plead that the author overstepped his consent and thereby violated the integrity of his great-uncle’s image.
Notion of public figure
In Field v. United Amusement Corp., the court dismissed the plaintiff’s application for an injunction – which had been filmed naked in a documentary shot at the Woodstock festival – citing, among other things, the public nature of the event. In the same vein, it does not seem reckless to us to postulate that the condition and actions of P.-H. Desrosiers undoubtedly make him a public, identified and identifiable character, that this condition therefore limits his right to anonymity and that consequently, his actions in a public setting are implicitly and legitimately diffusible.
The relationship of the individual having the status of public person to the concept of private life has attracted the attention of jurists. Pierre Trudel proposes a model for apprehending the invasion of privacy and does so in two axes, or strands, the second of which is developed according to the nature of the individuals at risk of invasion:
To determine whether there is an invasion of privacy, it is necessary to determine whether a disclosure of information or an intrusion involves an element of privacy. …] This area of privacy encompasses certain types of information that are, in principle, related to it. It also varies according to the qualities and status of individuals.
Traditionally, two major components of privacy have been identified. One is objective and refers to the facts and aspects of a person’s life that are included in a protected domain. But the concrete content of this domain varies according to the person, the position they occupy in society […]. It is the subjective aspect of privacy: the one that takes into consideration the persons concerned.
On the basis of these considerations, we are of the opinion that, given his professional activities, the notoriety of his company as well as that of his numerous and constant contacts with political figures, P.-H. Desrosiers must be considered as a public figure and that the report of his actions in public places or for purposes worthy of public interest can therefore be revealed. As stated by Lebel J. in his judgment in Aubry v. Les Éditions Vice-Versa inc. and Duclos, “mere presence in a public place does not abolish a person’s right to anonymity, unless he is engaged in public life, because of his activities […] professional, political, etc”. The limits of a public person’s right to anonymity are obviated. The same applies to image rights, as Justice Baudouin points out in the same judgment:
Fault, as is almost unanimously accepted in French and Quebec doctrine and case law, consists either in the capture of the image itself or in its dissemination, when these acts are not authorized by the person himself or justified by one of the classic exceptions, namely, presence in certain cases in a public place; the role of the public figure; satisfaction of the right to information or history […]…..
Without wishing to encroach on our subsequent comments, let us point out that “this right to anonymity only gives way when a legitimate right to public information appears [and that] the latter prevails when the person whose image is captured has already voluntarily engaged in public life.
From his reading of French case law, Justice Lebel also reports that “the concept of private life would protect personal and family life. Furthermore, “the protection of honor or reputation would defend individuals against defamatory allegations relating to all their private and public activities”. And as Baudouin J. points out, among the areas of tort law where the right of the individual and the right of the public to know come into play, the most important and by far the oldest includes the various forms of injury to reputation which … tend to ridicule or humiliate a person, or expose him or her to hatred or contempt by the public or a group.
Drawing inspiration from the Superior Court judgment in Gravel v. Arthur, we should point out here that in no case did Pierre Turgeon engage in an insulting or defamatory exercise against the founder of Val-Royal, since his work is based on documented sources (contemporaries of P.-P. Turgeon). H. Desrosiers among others, who can testify to the truthfulness and fidelity of Pierre Turgeon’s remarks), and on the other hand that the allegations that could be reproached as undermining the character’s honor are rooted exclusively in his public acts and gestures.
Moreover, the general interest in information justifies the publication of photos of persons engaged in public life, such as (sic) politicians, artists, certain categories of businessmen, etc., subject to their right to protection against the denaturing or alteration of their image or against publications that would harm patrimonial interests, built on an image or a name.
Although we are not talking about photographs here, it is clear that in the case of P.-H. Desrosiers, the publication of “public” facts, witnesses and supporting documents, could not alter his image and even less harm his patrimonial interests, the man having, if only that, been dead for almost thirty years. And although the transmissibility character of article 35 of the Civil Code of Quebec could be invoked here, the fact remains that it can reasonably be argued that the temporal parameters of Pierre Turgeon’s work make it difficult for the ordinary reader to establish a link between events that took place more than thirty years ago and Pierre Michaud’s professional activities. Also, as Pierre Trudel specifies, the extra-patrimonial nature of the right to privacy is normally opposed to its having this character because it is a right attached to the individual based on a concern to guarantee respect for his or her privacy. With death, there is no longer any need to protect such interests. Interests that deserve to be protected after death are related to the memory of the deceased or are intended to prevent information disseminated about the deceased from infringing on the privacy or reputation of his or her relatives.
Part Three: Public Right to Information versus Right to Privacy
We have shown that no violation of the right to privacy of the public figure that is P.-H. Desrosiers has been made, and consequently that article 35 of the Civil Code of Quebec has been respected in his regard. We will now attempt to establish how the publication of Pierre Turgeon’s work does not in any way exceed the limits of freedom of expression and, more specifically, those of the public’s interest in being informed. The question that ultimately concerns us is that of “the social utility of disseminating this information”.
From this perspective, we pose the problems of the public’s right to information versus the right to privacy and the respect of articles 35 and 36 of the Civil Code of Quebec in the collection of data for the writing of the book P.-H. le Magnifique: l’Éminence grise de Duplessis.
The public’s right to information may conflict with other fundamental collective or individual rights, and that is why it must be exercised within its limits. This right is protected by the Charter of Human Rights and Freedoms in section 44 and by the Canadian Charter of Rights and Freedoms in section 2(b). However, this right remains vague because the definition of privacy is not completely circumscribed.
The concepts of privacy and the right to information become independent spheres that vary according to the following factors: the situation of the persons involved, the Pierre Turgeon transmits the plan of the book he proposes to write and receives the full assent of Jacques Lefebvre and Pierre Michaud, and thus the green light to begin the narration. For the solution of our case, it is necessary to identify the provisions protecting freedom of information (the public’s right to information) and the right to privacy as stipulated in articles 35 and 36 of the Civil Code of Québec. That said, “freedom of the press and the right to privacy are two components of human freedoms and dignity. Both are necessary to the existence of a state of freedom and dignity. Both are even inherent to the existence of a society governed by law.”
In addition to being a novelist and screenwriter, Pierre Turgeon is a journalist. He has been recognized by his peers by winning several awards, including that of the Montreal Historical Society. The rights and obligations of a journalist are defined in two documents: The Journalist’s Charter (Appendix 4) adopted on December 6, 1987, in which moral rights prevail, and the Guide de deontologie de la Fédération professionnelle des journalistes du Québec (Appendix 5) adopted in May 1995. These documents do not have coercive powers but provide a guideline for respecting the dissemination of information. Pierre Turgeon respects these principles, namely articles 1, 2, 6 and 8 of the Journalist’s Charter and article 7 of the Guide de déontologie de la FPJQ. Pierre Turgeon wrote a book about the life of a public person, P.-H. Desrosiers. The collection of information for the writing of the biography was done in accordance with the ethics and deontology of the profession he practices. He had the consent of Pierre Michaud, heir of P.-H. Desrosiers, to conduct interviews with his close collaborators. Whoever gives a consent that appears clear can therefore exonerate the author of the alleged act or violate his privacy. Pierre Michaud knew that Pierre Turgeon was writing a biography, that the information would be used to write it and, moreover, he knew his uncle’s reputation. Among other things, during interviews with the individuals concerned, Pierre Turgeon informed them of the publication of a book and the use of their testimonies. He acted in accordance with journalistic ethics, which consists of self-regulation that determines the characteristics of prudent and diligent behavior that journalists must adopt.
Privacy and Information Gathering
Pierre Turgeon obtained the information in a way that did not infringe on the privacy of others and he describes a period known to all: the Great Darkness. Four fundamental notions are used to determine whether or not information is part of private life: the normative element, the circumstantial element, the identifying element and the contextual element.
The normative element is respected because Pierre Turgeon acted in accordance with the practices of the profession of journalist, as seen above, and the code of ethics was respected. The circumstantial element is defined as “the consideration of the normative element accompanied by an assessment of the circumstances. The collection of the information obtained during the research was done in agreement with the respondents and with public documents, archives and other available sources. Moreover, the openness shown by the heirs of P.-H. Desrosiers during the said collection allowed Pierre Turgeon to come into contact with people who knew the character intimately. The journalist was thus able to learn intimate facts about him.
The identification aspect – which must be objective, and which deals with aspects of private life – may vary according to the position that the persons concerned occupy in society. Pierre Trudel asserts that “private life is, a priori, opposed to public life”. Since legal decisions in this area are very few in number, we will try to delineate what is private in order to argue that Pierre Turgeon did not violate privacy. A person’s intimate life is their most fundamental right. By this we mean the intimacy of one’s home, health, anatomy, marital intimacy and sexual orientation. We can affirm that most of the information obtained came from the intimate knowledge of P.-H. Desrosiers and his close collaborator for 30 years, Mrs. Juliette Baby, who knew that her boss loved to be talked about and that he liked to provoke. Moreover, some of his political allegiances were already known because they had been published.
The contextual component is the component that takes into consideration the people involved. In doing so, it must be remembered that what is private can, over time, become of public interest given the political and moral changes of the times. P.-H. Desrosiers has, so to speak, played a role in a different historical context than that which prevails today. It is not a question of passing judgment on his person but on his era. With all the integrity that the literary world recognizes in him, Pierre Turgeon wanted to describe a character inscribed in his time.
It is now a matter of determining whether or not disclosures of information by witnesses are lawful. The lawfulness or unlawfulness of disclosures is a function of freedom of information and the legitimate interest of the public in knowing the purpose of the disclosure. In any event, the concept remains fairly abstract and can be interpreted differently depending on the situation, which does not contribute to its definition or generalization. In this case, the documents Pierre Turgeon used to write his biography were, despite their sometimes intimate content, hand-delivered to him. This undeniably attests to the willingness of the witnesses interviewed to disclose often intimate facts and gestures in the name of the desire to render the character and the era with the greatest authenticity and is not without marking their confidence in Pierre Turgeon.
Pierre Turgeon, as we have shown, is the sole owner of his copyright.
That said, P.-H. Desrosiers is a public figure. He is part of Quebec’s history. The right to information and the right to knowledge of history allow us to argue that the biography written by Pierre Turgeon is a classic exception of fault. Moreover, Martin Michaud points out that “if the information that the heirs refuse to divulge turns out to be of public interest, we believe that the media should have the right to report on it”.
There was no invasion of privacy; article 35 of the Civil Code of Québec was respected. The information was provided in accordance with article 36, with the consent of the holders of the information, who were notified of its potential publication.
Pierre Turgeon claims the right to publish a biography of a historical figure; his ambition is clearly not to satisfy curiosity but to serve the public interest. He obtained his information in a way that does not infringe on the privacy of others and he describes a well-known era, the Great Darkness.
For all these reasons, we believe that the publication of P.-H. the Magnificent: The Grey Eminence of Duplessis must be authorized.
Pierre Turgeon’s recourses are limited. Given that Pierre Michaud acted in good faith and that the scope of the lawsuit will have attracted a certain amount of publicity to Pierre Turgeon and his work, it is highly probable that no damages will be awarded to him. Moreover, there is no doubt that in the event of a decision in favor of Pierre Turgeon, Pierre Michaud would be entitled to ask for a refund of the advance deductible from future royalties. Many observers believe that this case could end up before Canada’s highest court.
A) Theoretical works and documents
COLLECTIF, De la Charte des droits et libertés : origine, nature et d√©fis, Montréal, Les Éditions Th√©mis, 1989, 339 p.
COLLECTIF, Droit du public √† l’information et vie privée : deux droits irréconciliables, Proceedings of the colloquium organized by the Centre de recherche en droit public de l’Université de Montréal, Montréal, May 9 and 10, 1991, [n.p.].
MICHAUD, Martin, Le droit au respect de la vie privée dans le contexte médiatique de Warren et Brandeis L’inforoute, Montréal, Wilson & Lafleur, 1996, 118 p.
MIKUS, Jean-Philippe, Droit de l’Édition et du commerce du livre, Montréal, Les Éditions Thèmis/Université de Montréal, 1996, 592 p.
S.A.], Charte du journaliste, Montréal, F√©d√©ration professionnelle des journalistes du Québec, December 6, 1987.
S.A.], Guide de d√©ontologie de la FPJQ, Montréal, F√©d√©ration professionnelle des journalistes du Québec, May 1995.
TAMARO, Normand, Copyright Act 1993: Annotated Text (Scarborough: Carswell, 1992), 674 p.
TRUDEL, Pierre, BOUCHER, Jacques, PIOTTE, Reno, BRISSON, Jean Maurice and EMERI, Claude, Contribution √† l’Étude de la notion de droit √† l’information en droit québécois, Montréal, Université de Montréal, Centre de recherche en droit public, 1980,
B) Press clippings related to the case
BOIVERT, Yves, “Le PDG de R√©no-D√©p√¥t veut un proc√®s secret,” La Presse, December 17, 1996, p. A9.
______, “Le secret de Réno-Dépôt : le juge tranche ce matin,” La Presse, 18 December 1996, p. A14.
______, ” Réno-Dépôt fait maintenir le bâillon pour un an”, La Presse, December 19, 1996,
L’affaire Réno-Dépôt : r√©actions d’amère indignation, La Presse, December 20, 1996, p. A12.
CARDWELL, Mark, “The biography blues,” Maclean’s, May 5, 1997, pp. 63-64.
CHARTIER, Jean, “Biographier d’un des bailleurs de fonds de Duplessis : injonction contre P.-H. le Magnifique”, Le Devoir, September 7, 1996, p. A3.
MONTPETIT, Caroline, “Une biographie litigieuse”, Le Devoir, December 13, 1996, p. A2 [S.A.], “L’UNEQ : gain de cause”, La Presse, May 29, 1997, p. A3.
Case Law cited
Les Amusements Wiltron Inc. v. Mainville,  R.J.Q. 1930 (S.C.).
Aubry v. Les Éditions Vice-Versa Inc. (15 August 1996), unreported, Montreal, 500-09-000568-915 and 500-09-000567-917, (C.A.).
Cuisenaire v. South West Imports Ltd,  S.C.R. 208.
Deschamps v. Renault Canada,  18 C. de D. 937 (S.C.).
Field v. United Amusement Corp,  (S.C.) 283.
Fonds Gabrielle Roy v. Les Éditions internationales Alain Stanké Ltd., J.E. 93 (S.C.).
Gravel v. Arthur,  R.J.Q. 2873 (S.C.).
Morang v. Lesueur,  45 S.C.R. 95.
Table of Contents
P.-H. the Magnificent: the grey eminence of Duplessis 1
Part 1: employment contract or contract of enterprise? 6
First agreement 6
Second agreement 9
Part Two: Individual’s Right to Privacy 11
Right to reputation, image, anonymity and solitude 12
Notion of public character 13
Part Three: Public Right to Information versus the Right to Privacy
right to privacy 16
Professional Ethics 17
Privacy and Information Collection 17
Case law cited 23