Law in Quebec

The Quebec spring budget, issued in mid-March, almost at the same time as the National Assembly began its clause-by-clause examination of Bill 54, dashed those hopes. The Quebec government, saddled by a staggering $11 billion deficit and weighed down by a stagnant economy and public-sector wage increases, set aside $140.3 million over five years to “strengthen” legal support and services for “vulnerable individuals.” The provincial government will deploy $91.9 million for the court specialized in sexual and domestic violence, $31 million to boost security in courthouses, $15 million to “strengthen the actions” of the Public Curator to prevent and detect abuse of persons under private tutorship, and $2.4 million for providing guidance and legal support to employees during the filing and handling of a complaint for psychological harassment of a sexual nature in the workplace.

But those were not the priorities, aside from the investment in courthouse security, set out by the Quebec Bar and other organizations. The Barreau du Québec had hoped the provincial government would invest “sufficient” funds to make up for labour shortages, particularly among courtroom staff, add at least $60 million more to the legal aid budget, provide “sufficient” funding to bring the justice system “in line with the times,” anchored by a coherent digital transformation strategy that could be rapidly implemented, and provide further funding for targeted measures aimed at youth law and Indigenous communities. Due to the “complex economic situation” Quebec is “currently navigating,” the Quebec Bar welcomes the fact that the budget for the justice system has been maintained, said Catherine Claveau, bâtonnière, in a press release. “However, there are no laurels on which to rest; the Quebec government will have to redouble its efforts, step up the pace and invest in its justice system, for the protection of all Quebecers,” she added.

Guillaume Michaud, the head of the Quebec Association of Public Prosecutors for Criminal and Penal Prosecutions (APPCP), is concerned that the budget of the Director of Criminal and Penal Prosecutions (DCPC) in in real terms is being cut, from $221 million this fiscal year (though expenditures are expected to be more than $7 million than anticipated) to $219 million next fiscal year. “We’re worried about cuts to casuals who are hired to do extra work,” said Michaud. “We’ve already had announcements about cuts to our training. Half of our training courses have been cut to reduce the budget. We’ve been told that overtime will be restricted, but when we do overtime, it’s because we have a surplus of work.”

BILL 54

Bill 54 is an part of an overall effort to obtain “efficiency gains” in the justice system, said Quebec Justice Minister Simon Jolin-Barrette at the National Assembly hearings. “In an ideal world, we could give unlimited resources, but that’s not the case,” said Jolin-Barrette. “Resources are not unlimited. It’s no longer just a question of resources. We need to rethink the way we do things. We need to be more effective, more efficient. We need to give the justice system a jolt, and that’s what we’re doing with the various measures, in civil, criminal and youth matters too.”

Bill 54 proposes to amend the Quebec Code of Penal Procedure and ease the rules of evidence in cases where the defendant fails to appear at the hearing or where the defendant is deemed to have entered a plea of not guilty. It also intends to amend the Quebec Courts of Justice Act to broaden the jurisdiction of the 39 presiding justices of the peace. At present, presiding justices of the peace hear criminal trials under various Quebec and federal statutes, but cannot preside over preliminary enquiries or hear criminal trials, which are the exclusive jurisdiction of judges of the Court of Québec. They also have the jurisdiction to authorize search warrants and other judicial authorizations.

Under the proposed amendments, justices of the peace will be able to preside over appearances and bail hearings, enter guilty pleas in summary proceedings, and have the power to summon an accused to trial following his decision to proceed under section 549 of the Criminal Code or an admission on his part that the evidence against him is sufficient for him to be committed for trial. These changes have the potential of freeing up 15 to 20 provincial court judges to hear other matters, according to Jolin-Barrette.

The Quebec Bar and the Canadian Bar Association, Quebec division (CBA-Quebec), welcome these developments just as they laud proposed amendments to the the Courts of Justice Act to add seven new judgeships to the Superior Court. To date, the Quebec Superior Court is still nine judges short, and CBA-Quebec is calling on the Jolin-Barrette to “convince” his federal counterpart to fill the existing vacant positions and the seven new positions authorized by Quebec once Bill 54 is adopted and assented to. “These are clearly necessary in order to reduce delays in criminal and penal matters and to offer high-quality judicial services to citizens,” noted the Quebec Bar in a brief submitted to the National Assembly.

MORE FINANCIAL RESOURCES NEEDED

But the increase in judgeships at the Superior Court needs to be accompanied by further financial resources to be able to provide the new judges with administrative and support staff as well as IT resources, said Louis Sévéno, president of the CBA-Quebec. “Our system is fundamentally underfunded,” said Sévéno, a civil and commercial Montreal litigator at Woods LLP. “We’ve known and described this for a long time. The various measures taken by the government  will have to be accompanied, in our view, by much greater investment in justice and the judiciary. We hope that this measure is just the tip of the iceberg and that, ultimately, there will be more judicial resources.”

A similar message was echoed by Jean-François Benoit, a member of the Association Of Defense Counsel of Quebec (AQAAD), at the National Assembly hearings. While AQAAD supports some of the amendments that broaden the powers of justices of the peace and changes to the Code of Penal Procedure, AQAAD maintains that the root of the problem facing Quebec’s justice system is underfinancing. “When courtrooms close because there aren’t enough clerks, there’s a problem,” said Benoit, a criminal defense lawyer with CSG Avocats in Gatineau. “When a court clerk earns $38,000 a year, there’s a problem. The justice system is underfunded. That’s where the problem lies. We’re reaching a point where we can no longer keep up the pace and save the system.”

Michaud is even more pessimistic. He maintains that Bill 54 attempts to solve a “major problem” with minimal measures. While the proposed measures are a laudable effort to tackle delays plaguing the Quebec criminal justice system, it will not make a dent because the underlying “problem” is lack of financial and human resources, said Michaud. “They’re proposing to change a few things in the law, but they’re trivial and we’re not going to save any significant amount of court time with all that,” said Michaud. “There’s nothing in it that’s going to revolutionize our practice. Prosecutors find it banal.”

Bill 54 was spurred by an action plan unveiled earlier this year by Table Justice-Québec, a roundtable of Quebec’s leading legal organizations that was revived to find “practical and lasting” solutions to the long delays in criminal proceedings. Members of the think-tank include the courts, the ministries of justice and public security, organizations such as the Quebec Bar and the Chambre des notaires du Québec, and criminal defence lawyers’ associations. But the Association of Public Prosecutors for Criminal and Penal Prosecutions, the bargaining agent that represents 800 Quebec crown prosecutors, was not invited to the roundtable. It has several proceedings before the courts against the Quebec government over working conditions. “They invite the defence associations, they invite everyone, but they don’t invite us,” said Michaud. “That shows how much consideration the Ministry of Justice has for the association.”

SURPRISING PROPOSALS

But to the surprise of legal observers, Bill 54 introduced proposed amendments that were not part of the 39 recommendations issued by the 12-page Table Justice-Quebec report. The bill contentiously amends Quebec Court of Appeal Reference Act by specifying that references to the Court of Appeal must be heard by the Court of Appeal sitting in Quebec City. At present, there is no rule requiring a particular place of hearing in the Act respecting references to the Court of Appeal.

The proposed amendment was never discussed at the expert’s roundtable, will add more costs for taxpayers at a time when judicial resources are restrained, risks undermining the judicial administrative or institutional independence of the Quebec Court of Appeal, and should simply be discarded, said Sévéno. “Before we make such a major change, we need to identify a problem that we want to solve, and to date this problem has not been explained or explained in any way, and in our opinion it doesn’t exist, so we’re looking for a solution to a problem that never existed,” said Sévéno.

Bill 54 also proposes to modify the evidence required by the Attorney General for an application for civil forfeiture, introduces a regime for the administrative forfeiture and appropriation of proceeds and instruments of unlawful activity, and sets out the rules for contesting such confiscation. In other words, the bill broadens the scope of application to include offences under any Quebec or federal statute, as well as any statute of a legislative authority in or outside Canada. According to legal stakeholders, there is a real danger that the inclusion of any offence under all provincial and federal laws within its scope could be used for purposes that go beyond what was originally intended by allowing the confiscation of property that is not easily linked to crime or unlawful activities. That could lead to an increase in legal challenges to confiscations and create a potential backlog in the courts, running counter to the spirit of the bill which is to reduce delays in criminal and penal proceedings, added legal experts.

The bill expands the scope of the law on confiscation and extends it to any offence,” testified Benoit. “First, it removes the judge’s discretion to make orders in the interests of justice. It removes protections against bona fide third parties. So it’s all multiplier effects. The law has no limits.”

The goal behind the proposed amendment is unclear but its consequences could be far-reaching, said Sévéno. The law as it currently stands states that confiscation measures should be initiated only for serious crimes, and that is the way that it should be, added Sévéno. “In our opinion, apart from the fact that the legislator would like the government to make more money from confiscations or to be able to confiscate more property, we haven’t seen the reasons for this and it hasn’t been discussed with the main legal stakeholders,” said Sévéno. “It seems improvised.”