The Supreme Court of Canada will hear an appeal from a slew of media organizations challenging confidentiality orders issued in a secret criminal trial, with no paper trail, that was held in Quebec.
The secret trial only came to light after the defendant chose to appeal the verdict before the Quebec Court of Appeal. The trial did not have a case number and was never filed in the province’s judicial archives. As disturbingly, the names of the defence lawyer, the Crown prosecutor and the judge were excluded from the public record as were the offence, date and location of where the trial took place. Moreover, witnesses were interviewed out of court, and the parties asked the judge to decide the case based on transcripts.
The Quebec government, after scant debate and without the input or testimony of several major legal actors, has forged ahead in spite of forceful opposition by lawyers’ organizations with a controversial and divisive bill that will allow notaries to be appointed to the bench of provincial courts.
Under the guise of an access to justice bill that will make free mediation mandatory and arbitration automatic for small claims cases, Quebec Justice Minister Simon Jolin-Barrette has amended the Quebec Courts of Justice Act to allow notaries with more than 10 years of experience to be appointed as a Court of Quebec judge, justice of the peace or municipal judge in order to “diversify” the makeup of the magistrature, a line of reasoning that has perplexed a slew of lawyers’ organizations. ”In essence, notaries and lawyers are put on an equal footing,” said Jolin-Barrette at the Quebec National Assembly during the clause-by-clause consideration of Bill 8. “I believe that notaries are as competent as lawyers to become judges. We do not have the luxury of depriving ourselves of all the jurists we have in Quebec.”
But for Martine Valois, author of “Judicial Independence: Keeping Law at a Distance From Politics,” this part of the bill is yet another striking example of the provincial government acting hastily without fully taking into consideration its impact nor the necessary financial and human resources it will require. “The Quebec Justice Minister introduces bills that are drafted in a rush, without asking himself how we are going to implement them,” just as was the case with Bill 92, said Valois, a Université de Montréal law professor. Bill 92, assented in November 2021 with much fanfare, created a new division within the Court of Quebec to deal with conjugal and sexual violence offences but has yet to be implemented.
Barely a couple of weeks after a special mediator was appointed to settle a fall-out between the Court of Quebec Chief Justice and the Quebec Justice Minister, the minister openly questioned the integrity of the Quebec Judicial Council.
Justice Minister Simon Jolin-Barrette brazenly derided the provincial Judicial Council (Conseil de la magistrature) at the National Assembly during a clause-by-clause consideration of an access to justice bill, asking members of a parliamentary committee if they “really believe” statements issued in a brief by the Judicial Council.
In an unprecedented move in recent history, a former Quebec Appeal Court justice was appointed as a mediator to resolve a dispute between the provincial Minister of Justice and the Court of Quebec Chief Justice over new judicial appointments and new work schedules for provincial court judges, a development viewed as regretful but necessary by legal observers.
Quebec Justice Minister Simon Jolin-Barrette and Court of Quebec Chief Justice Lucie Rondeau have been at loggerheads in the past year over a slew of issues, ranging from professional and linguistic requirements for judicial candidates to the establishment and implementation of a new domestic and sexual violence specialized court to a reform instituted by the Chief Justice that will curb the number of days that 160 provincial court judges who preside over criminal proceedings will sit — a deadlock that has led to several court battles, all of which were lost by the Quebec government.
The impasse between Quebec’s leading actors has taken place at a time when the provincial justice system is in dire straits, wilting under the weight of underfinancing and plagued by an acute shortage of court personnel, prompting Quebec Bar president Catherine Claveau to tell me late last year that the “crisis in the justice system has led to a crisis of confidence.” Claveau, alarmed that the conflict between the two protagonists will further undermine public confidence and mask the reasons behind the dismal state of the justice system, called on both to turn to conciliation to find common ground.
An access to justice bill that will make free mediation mandatory and arbitration automatic for cases under $5,000 took the Quebec legal community by surprise as it also unexpectedly opens the door for notaries to be appointed to the bench of provincial courts.
Bill 8, tabled by the Quebec government this month, aims to curb long delays afflicting small claims courts, implements a simplified and accelerated civil procedure for matters brought before the Court of Quebec with a value of between $15,000 and $75,000, and will compel the provincial Judicial Council to publish an annual report and be audited every five years by the Auditor General, all of which are developments viewed positively by the Quebec Bar.
“We are pleased that several provisions of Bill 8 echo requests made by the Barreau to the Justice Minister on measures that could help facilitate access to justice,” said Catherine Claveau, the bâtonnière of the Barreau du Québec. “The provisions relating to mandatory mediation and arbitration is an excellent avenue to improve access to justice and a concrete way to promote alternative methods of dispute resolution.”
The chief justices of four courts, addressing hundreds of judges and lawyers in person at the Montreal courthouse for the first time since the onset of the pandemic, broadly outlined their priorities and concerns at the Quebec’s opening of the courts ceremony, from the promise and pitfalls of technology to modernize the justice system to the debilitating impact of chronic underfinancing to the erosion of decorum in the courtroom and the pernicious effects of disparaging social media comments.
The chief justices, faced with no choice but to implement technological innovations at breakneck speed after COVID-19 struck in March 2020 in order to arrest the temporary paralysis of the justice system, now warn that while technological modernization of courts is inevitable and necessary, it is not the panacea that will resolve the host of challenges confronting the justice system.
“The digitization of the courts will not solve all the problems we face, and it may even raise new ones, but it is a step in the right direction,” remarked Quebec Court of Appeal Chief Justice Manon Savard who underlined that the appellate court is working “intensely” with the provincial Ministry of Justice to to establish a digital Court of Appeal within the next two years.
“This movement is irreversible. Society as a whole is increasingly turning to digital processes, in all sectors of activity. Courts must keep pace. In order to maintain or even improve the efficiency of courts in a post-pandemic context, the implementation of a reform focused on the use of technology will certainly be part of the solution,” said Chief Justice Savard in the summit entitled “Building the Future.”
After seven years at the helm of Quebec Superior Court, the last two particularly challenging and exhausting, Justice Jacques Fournier has stepped aside and became a supernumerary judge, with the reins being handed to Marie-Anne Paquette, a puisne judge of the Superior Court of Quebec for the district of Montreal.
In a tenure he described as not “not being a calm river” or not without obstacles, former Chief Justice Fournier began his mandate in 2015 dealing with the introduction of a new Quebec Code of Civil Procedure, a major reform that “needed to be assimilated” as it granted judges broader case management powers and bestowed a greater role to the principle of proportionality, followed by the landmark Jordan ruling and a legal battle with the Court of Quebec over monetary thresholds that wound up before the nation’s highest court, culminating with coming to grips with the “very demanding” pandemic.
“The decision (to step down) was very difficult, extremely difficult,” the 71-year old Justice Fournier told me. “I am going to miss it. But after seven years, you also have to know when to leave. At some point, it takes its toll without realizing it. I loved it, but there’s more to life than that.”
The Quebec justice system, in crisis following an acute shortage of court personnel and strained labour relations that has led to walkouts and strikes, may face even more serious judicial delays if the Court of Quebec follows through with plans to have judges of the Criminal Division sit every second day as of this fall.
Court of Quebec Chief Justice Lucie Rondeau informed Quebec Justice Minister Simon Jolin-Barrette earlier this year that 160 provincial court judges who preside over criminal proceedings will curb the amount of days they sit, from two days out of three to one day out of two so that they can spend more time writing judgments and managing cases. The Chief Justice is calling for the appointment of 41 provincial court judges to attenuate judicial delays once the new work scheme is implemented.
Everyone was expecting the Quebec government to appeal the decision that ruled that the Quebec justice minister cannot bar bilingualism prerequisites for judicial candidates.
Failing that, legal experts reckoned the provincial government would change the regulation that prevented the justice minister from having a say on how the judiciary determines its professional and linguistic requirements. Even the judge that ruled on the case said there was nothing to prevent the Quebec government from changing the regulation to ensure the justice minister plays a bigger role in the selection process.
But the Quebec government went much further than anyone anticipated. It is using its legislative muscle “to make the necessary changes to ensure that mastery of a language other than the official language is not a systematic obstacle to accessing the position of judge in Quebec.”
Barely a week after Quebec Superior Court ruled that the provincial justice minister does not have a say on how the judiciary determines its professional and linguistic requirements, the Quebec National Assembly passed a non-binding motion declaring that unilingual French-speaking applicants should not be barred from applying to become provincial judges.
In the wake of a decision that plainly states that the Quebec justice minister cannot bar bilingualism prerequisites for judicial candidates, the National Assembly adopted without debate and with the support of the four opposition parties a motion that “reiterates the importance of the principle of the State’s exemplary role in protecting the French language” and that “justice is no exception to this important principle.”
A day after the Quebec Minister of Justice suffered a stinging setback following a Superior Court decision that held that the Chief Justice of the Court of Quebec can require bilingualism in the judicial appointment process, even against the wishes of the minister, the Quebec government begrudgingly gave the green light to increase the salary of provincial court judges.
The Quebec executive and the judiciary have not seen eye-to-eye since Justice Minister Simon Jolin-Barette maintained last spring that bilingualism was not a prequisite to be appointed to the Court of Quebec, a position diametrically opposed by Chief Justice Louise Rondeau. Tensions between the two branches of power were further exarcerbated last fall over competing visions on how to deal with domestic and sexual violence cases.
A day later the Quebec government issued a 27-page report that stated it intends to approve a significant salary hike to provincial judges after a five member blue-ribbon panel of legal and financial experts recommended boosting the renumeration of Court of Quebec judges from the current $255,000 to $310,000 by July 2022, which would make them the third best paid provincially appointed judges, behind Ontario and Saskatchewan.