Former Quebec Superior Court Chief Justice reflects on challenges posed by pandemic and lack of resources

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.”

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Report calls for paradigm shift to Quebec’s legal aid system

An independent panel of experts is recommending sweeping reforms to Quebec’s administration of the legal aid system to simplify the process to seek legal aid and alleviate the administrative encumbrances faced by private sector lawyers who take on legal aid mandates.

The experts, while affirming Quebec’s decentralized legal aid model because it ensures the independence of staff counsel and “respects” regional diversity, are nevertheless calling for a “paradigm” shift that would be anchored by the introduction of a secure digital platform to help establish a province-wide one-stop shop to receive, process and manage legal aid applications.

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Academics studying effects of Covid-19 pandemic on law

Quebec law faculties, having decided to offer courses remotely next fall in light of health and safety concerns stemming from Covid-19, are now also ramping up research efforts to assess the impact pandemics may have on law and the practice of law.

Public safety measures that have been introduced following the onset of pandemics such as Covid-19, SARS, and H1N1 have shaken up several areas of established domestic and international legal order, pointed out law professor Louise Langevin who is leading a team of 15 law professors at the Université Laval that will examine a wide gamut of legal issues that affect public and private spheres in the wake of  pandemics.

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Quebec ombudsman urges province to provide healthcare to Canadian children of parents with precarious immigration status

Nine months ago Amnesty International and Doctors of the World launched a joint petition to request health coverage for children born in Quebec whose parents are beset by a precarious immigration status.

The petition obviously went unheeded.

The Quebec ombudsman too is now calling on the provincial healthcare administrator to cease its “restrictive” and “faulty” interpretation of the Quebec Health Insurance Act and regulations to deny children of parents with a precarious migratory status healthcare coverage even though they are born in Quebec.

“The Quebec Ombudsman considers that the solution lies in applying the Act as written,” said an 18-page report by the Protecteur du Citoyen.

The Quebec ombudsman maintains that under the Act and its respective regulations a child born in Quebec and settled in Quebec is entitled to healthcare coverage. Article 5 of the Act stipulates, among other things, that in order for a person to qualify for public healthcare coverage a Quebec resident must be “domiciled” in Quebec and must be a Canadian citizen or a permanent resident within the meaning of the Immigration and Refugee Protection Act.

Article 5 of the Act also states that “an unemancipated minor who is not already domiciled in Québec for the purposes of article 80 of the Civil Code of Quebec is considered to be domiciled in Québec, if the minor has settled in Québec.” The admissibility of a child into Quebec’s healthcare plan therefore is not supposed to hinge on whether a parent is domiciled in Quebec. Rather it is supposed to be dependent on whether the child is “settled” in Quebec, regardless of the status of the parents, maintains the ombudsman.

Debates that took place in 1999 at the National Assembly of Quebec when the provincial government amended article 5 bolster the ombudsman’s position. Pauline Marois, at the time Minister of Health and Social Services, testified that in spite of proposed legislative changes children who were born in Quebec but whose parents were not domiciled in Quebec would still eligible to receive provincial healthcare.

But the provincial health insurance board has a different take. The Régie de l’assurance maladie du Québec (RAMQ), are denying these children their right to healthcare because it ties their eligibility with their parent’s status. RAMQ contends that it is applying the letter of the law. It also maintains that it is preventing an influx of clandestine migration into the province – a stance that the ombudsman plainly states exceeds its mandate. It is not up to RAMQ to “base its decisions on considerations dealing with migration control,” said the ombudsman.

Even the way RAMQ administratively handles these cases is different. By virtue of the Civil Code, when a child is born in Quebec the Registrar of Civil Status of Quebec must be notified. That entails a series of formal steps that need to be taken: upon birth, the hospital hands out a birth registration document which the parents need to complete and send to the Registrar. The Registrar in turn sends the document to RAMQ. RAMQ then creates a file, and looks up the status of the parents. When RAMQ finds out that the child is born to parents with a precarious immigration status, a RAMQ agent is expected to complete the file by calling the infant’s parents.

But that is not what happens. The ombudsman’s investigation revealed that when RAMQ discovers the status of the parent, it “suspends” the infant’s dossier and does not communicate with the parents of the infant. Because the file was never completed, the child does not have access to public healthcare.

The ombudsman also invokes international commitments made by Quebec and Canada to give all children in this country access to healthcare. The right of access to healthcare for all children is enshrined in the Convention on the Rights of the Child. The Convention also recognizes the autonomy of children as  the “holders of their rights as being integral to their best interests,” said the ombudsman.

And like Amnesty International and Doctors of the World, the Quebec ombudsman asserts that children pay the price.

“This means that these children could be deprived of the health services and social services they need if their parents cannot afford the cost,” said the ombudsman. “The consequences can be physical as well as psychological and can hinder the children’s integration with school and the community.”

Quebec Bar and Ombudsman want to make it easier for alleged victims of sexual assault

The Quebec Bar and the Quebec Ombudsman want to make it easier for alleged victims of sexual assault to gain access to the legal system and are calling on the provincial government to follow in the footsteps of the overwhelming majority of Canadian provinces and eliminate the prescription period for civil actions in cases of sexual assault.

Unlike most provinces, a Quebec resident who has suffered a sexual assault may launch civil proceedings against his aggressor within 30 years, a figure that was increased from three years in 2013. But under the Civil Code of Quebec, the calculation of the prescription period is unnecessarily complex and has proven to be an obstacle for victims to launch civil proceedings against their aggressors, said Marie Rinfret, Quebec’s ombudsman, who also wants the time limit to be eliminated in cases of violence suffered during childhood or violence committed by a spouse or ex-spouse.

In Quebec the calculation of the prescription period begins on the date when the person becomes aware that the harm they suffered can be attributed to the assault or act of violence. But there are exceptions where the prescription period may be suspended. If the victim was minor at the time he became aware of the harm, then the calculation of the prescription period will begin on the victim’s 18th birthday. Time limits may also be deferred if victims can prove that it was impossible for them to act despite being aware of the harm they suffered.

“These victims are amongst the most vulnerable in our society and they live through inequities in the justice system,” said Rinfret. “The patent inequity is visible in the application of the prescription period and in the burden of proof placed on the shoulders of victims. It is not only complicated to make the calculations but also difficult to prove when they became aware of the harm they suffered.”

Louise Langevin, Ad.E., a law professor at the Université Laval who wrote a book about compensation of victims of sexual and spousal violence, echoes Rinfret’s observations, pointing out that Quebec is “behind the times.” Langevin notes that the vast majority of provinces eliminated the limitation period for victims of sexual violence following the Supreme Court of Canada ruling in M.(K.) v. M.(H.) [1992] 3 SCR 6.

“As the SCC said in 1991, the biggest barrier for victims who decide to launch this type of action is the limitation period,” said Langevin. “It’s a question of access to justice for these victims who are above all women and children. The Civil Code must respect the rights of these victims. The Civil Code must adapt to new realities.”

The Quebec Bar wants the provincial government to go even further. Following the Jian Ghomeshi sexual assault trial and the stunning revelations by a Globe and Mail investigation that found one of every five sexual assault allegations in Canada are dismissed as baseless, the Barreau established a committee to look into the “judicial treatment” of sexual assault. In a brief and pointed review, the Quebec Bar issued seven recommendations, some of which the Quebec government has already enacted.

The Barreau would like to see victims of sexual violence receive free or affordable legal consultations that will be provided by non-profit organizations. It also wants to increase the visibility of referral services so that victims can more easily find lawyers. The provincial government announced in mid-December, two days after the Quebec Bar issued its recommendations, that it will invest $25 million over three years to fight sexual violence. Most of the money is expected to go towards improving access to aid services for victims. The Barreau is hoping that some of these monies will also be used to provide free or affordable legal services for victims of sexual assault.

“The justice system is extremely complicated, and it’s important for these victims to know what to expect from the justice system,” said Paul-Matthieu Grondin, the Barreau’s bâtonnier. “We want victims to be able to meet with lawyers, and money not be an issue.”

The Bar would also like to see the Quebec government introduce an amendment to make it easier for victims of sexual violence to be able to receive compensation under the Quebec Crime Victims Compensation Act. Under article 20 of the Act, benefits are not provided if victims — including victims of sexual assault – “through his gross fault” contributed to their injuries or death. That is an untenable situation, said Grondin. “We believe that gross fault should never, never, never apply to victims of sexual assault simply because we do not believe that a victim of a sexual assault can contribute to their own misfortune,” added Grondin. The Quebec government said it is looking into the issue.

The Barreau is also recommending that Quebec adopt the so-called Philadelphia model, something that the provincial government announced it would do early December. Under the Philadelphia model, unfounded sexual assault cases are reviewed by advocacy groups alongside high-ranking police officers. When the system was put in place in Philadelphia following a high profile murder and sexual assault, the number of cases deemed unfounded dropped significantly. It has since caught the eye of other jurisdictions, including Quebec which launched a one-year pilot project that will see provincial police review sexual assault cases that were considered to be baseless.

Besides calling on police officers to receive an hour-long sensitivity training about how to approach alleged sexual assault victims, the Bar would like to see defence lawyers too receive training for cross-examining victims of sexual assault.

In the wake of the #MeToo movement, the Barreau has also recently given four syndics or investigating officers and their staff five hours and a half of training on sexual harassment, intends to encourage all law firms to implement a sexual harassment policy, aims to provide law firms with templates of sexual harassment policies, and expects to launch a survey of its member regarding sexual harassment. “We can’t put our heads in the sand,” said Grondin.

All of these recent developments, said Rinfret, “signals that we must remove all barriers that constrains access to justice for these victims, be it in civil or criminal justice.

“It is necessary to make restorative justice accessible which means ensuring that victims of sexual assault can exercise their rights in all confidence and liberty and in the simplest manner possible.”

This story was originally published in The Lawyer’s Daily.

Free legal advice provided this weekend by Young Bar of Montreal

The Young Bar of Montreal will provide free legal advice by telephone this weekend. Volunteer lawyers and notaries will be available to answer questions on a wide range of subjects, from consumer to family law to labour to the management of estates.

People can call the hotline at 1 844-779-6232 on Saturday, October 14th and Sunday, October 15th from 9:00 to 16:30.

“The Clinic is an efficient and accessible service for all that allows us to respond to the growing needs of the community when it comes to justice,” said Sophia Rossi, president of the Young Bar of Montreal, adding that she hopes to offer this service more frequently. The Bar has 5,000 members, composed of lawyers with ten years and less of practice.

The 29th edition of the “Legal Helpline” is an initiative conducted in partnership with the Barreau du Québec and the Centre d’accès à l’information Juridique (CAIJ).

“The activity, which is very much appreciated by our fellow Quebeckers, provides access to justice and, year after year, has proven to be an event not to be missed,” said Paul-Matthieu Grondin, president of the Québec Bar.

Quebec chips away at government transparency

Quebec, once a pioneer that lead the movement towards greater government transparency, is now among the least transparent provinces in Canada after successive provincial governments introduced more than 150 legislative exemptions that undermined the province’s access to information legislation, according to a recently published comprehensive report by Quebec’s Commission d’accès à l’information.

With Quebec ranking 10th out of 14 jurisdictions in Canada, and 57th in the world, behind Honduras and Romania, the Quebec government should overhaul the provincial access to information legislation to compel all public bodies, even those partially financed by the provincial government, to be subjected to the access to information law, noted the 214-page, five-year report that issued 67 recommendations. The Commission, which also oversees provincial privacy legislation, also called on the Quebec government to beef up privacy protection measures.

“The access to information law has not been the subject of a thorough reform in 35 years, and the privacy legislation in 22 years,” remarked Diane Poitras, the Commission’s vice-president. “It’s time to re-establish the balance between the rights of citizens — who are calling for greater transparency and stronger privacy protection measures — and the needs of business and government organizations to collect and use” — and in some cases safeguard — information.

The Quebec government last year published a 191-page discussion paper that pledged to curb the culture of secrecy that is seemingly well-entrenched within the public sphere by relaxing restrictions and vowing to taking a proactive approach towards releasing information. But the Commission said the government’s proposals do not go far enough to close the loopholes that currently exist and nor does it introduce measures to strengthen the province’s privacy legislation, both of which should be “modernized” simultaneously to ensure the harmonization of rules and concepts, said the report.

The paramountcy of public interest should be at the heart of reforms to access to information legislation, asserts the Commission. Access to documents in the hands of public bodies should be the rule rather than the exception, something that is not the case. Legislative exemptions are often scripted in very broad terms, noted Poitras. In many cases exemptions allow a public body to deny access to a document simply because it corresponds to a certain category of information. In other cases, a public body can reject a request for a government report if the report is less than 10 years old. In yet others, the decision rests in the hands of civil servants who do not have to provide any justification for their refusal.

“Little by little, stroke by stroke, law after law there were exemptions that were added, and faced with these restrictions judges took a conservative approach and themselves added yet more restrictions,” said Vincent Gautrais, a Université de Montréal law professor and chair holder of the L.R. Wilson Chair in Information Technology and E-Commerce Law. “Even interpretations by the Commission’s  administrative adjudicators at times added to the restrictive jurisprudence.”

The Commission’s report recommends that public bodies should only be allowed to refuse access to information requests only if there is a “real” risk of harm. “Why should a report that contains advice or recommendations be in itself confidential,” asked rhetorically Poitras. “One must evaluate the context and possible consequences of divulging the information to decide whether or not it should be accessible.”

The Commission also “invites” the provincial government to close loopholes now in existence that grant professional corporations “quasi absolute” discretion to decide what documents it can release. And it urges the government to clarify access to information provisions surrounding professional secrecy because a growing number of public bodies are invoking professional secrecy to deny access to documents prepared by professionals covered by Quebec’s Professional Code. Though all Quebec professionals subjected to the Code can invoke professional secrecy, the report believes that professional secrecy should be summoned only in exceptional circumstances when refusing access to information.

On the privacy front, the Commission recommends following in the footsteps of the federal government and make it a mandatory requirement for organizations to give notice to affected individuals and the Commission when a data breach takes place. (The federal Digital Privacy Act received royal assent more than a year ago but is still not in force because the federal government has to complete the drafting of data breach notifications and reporting regulations). The Commission is also calling on the provincial government to bolster consentment requirements around the collection, use or disclosure of personal information by including the notion of “sensitive” information.

All in all, the Commission’s 67 recommendations fall broadly into three distinct categories, remarked Loïc Berdnikoff, an access to information and privacy expert with Montreal law firm Lavery, de Billy. Some of the recommendations essentially seek to legislate certain rules that were developed over the years by jurisprudence to “eliminate any ambiguities,” other recommendations such as data breach notifications strive for a “certain homogeneity” with Canadian jurisdictions, and yet others will impose new obligations on public and private organizations alike, said Berdnikoff. “The report seeks to address some of the difficulties the Commission has faced over the past few years or expects to face in the future,” said Berdnikoff. “The Commission is hoping for greater transparency within public bodies while providing greater protection around the collection and use of personal information. Obviously this was a very strong statement by the Commission that something needs to be done, and it’s not just a general statement. They have been able to identify at least 67 problems.”

Gautrais believes that the Commission’s recommendations are far too fussy and not nearly as ambitious and bold as they should have been. He also warns that careful thought should be given to a legislative overhaul as legislators, albeit with good intentions, end up creating more problems than solving them when trying to address issues sparked by new technologies.

“What the Commission is doing with this very long report is patch things up,” said Gautrais. “Almost all of the recommendations are centred on details. But judges on the whole already do a good job of adapting changes into current legislation. Each time legislators decide that because there are new technologies the legislation should be changed, there are new difficulties and challenges. As a general rule, jurisprudence does a relatively good job of adapting to new realities.”

This story was originally published in The Lawyers Weekly.

Report urges overhaul of Quebec megatrials

A cultural change that emphasizes collaboration between all players of Quebec’s criminal justice system is the only way to ensure that costly and unwieldly megatrials do not end up in fiascos, according to a well-received comprehensive report on multi-defendant trials.

The long-awaited 180-page report also urges the Quebec government to provide more resources to the province’s Director of Penal and Criminal Prosecutions (DPCP), recommends that Quebec crown prosecutors limit the number of accused and concentrate their efforts on criminals most involved in serious crimes, advises the creation of a permanent forum for stakeholders to share best practices, proposes that police and prosecutors take management training, and calls on judges to use the powers they have more effectively. All told, the report makes 51 wide-ranging recommendations.

“The outcomes of some highly-publicized court cases have undermined the confidence our society has in the capacity of our institutions to enforce the rule of law, preserve public order and curb the expansion of organized crime,” said retired deputy justice minister Michel Bouchard who headed a panel of four experts who met with 92 judges, lawyers, police and other stakeholders of the Quebec criminal justice system over the course of the year.

The report was commissioned a year ago by Quebec Justice Minister Stéphanie Vallée after a stunning decision by Quebec Superior Court Justice James Brunton who ended the murder trial of men alleged to have been members of the Hells Angels because the Crown had withheld relevant evidence from the defence for years and only divulged it four weeks after the trial had begun.

“Following a first reading of the recommendations, we believe that they can be put in place and that it will have a beneficial impact on the administration of justice,” said Vallée in a press release. “Since the report was tabled, we have launched a thorough analysis of its 51 recommendations and the government will follow through.”

Megatrials often become long and complex because police investigations are themselves long and accumulate “voluminous” evidence that is always difficult for judges, jurors and lawyers to absorb and process, notes the Bouchard report. Making matters even more complicated is that often times evidence is introduced that has no pertinence to the crimes that were committed, or the analysis of the evidence by police and crown prosecutors is flawed. “Inadequate preparation” is another reason why megatrials are challenging as is the absence of communication and cooperation between stakeholders in Quebec’s criminal justice system. It is no longer feasible for stakeholders to work in silos under the pretext of maintaining and preserving their autonomy and independence, emphasized the report. That’s why it recommends creating a permanent forum for stakeholders to discuss the challenges they face and the best practices to overcome them.

In that vein in order to ensure that a “trial emanating from a long and complex investigation be manageable throughout the judicial process,” the Bouchard report also recommends that the Crown prosecutor’s office follow in the footsteps of the federal government and the United Kingdom and adopt a “genuinely integrated policy” and structure to tackle megatrials. A megatrial should be viewed as huge logistical project, and the DCPC should appoint the chief prosecutor or the assistant chief prosecutor as the operational or project manager, who should be trained in administrative management, according to the Bouchard report. Such project managers should be involved in the case from the very beginning of a police investigation, and have the onus of taking into consideration the capacity of the judicial system to “successfully complete” the operation. They must therefore assign tasks to people early on in the process, set a calendar and develop a strategy for disclosing evidence. It also entails limiting the number of accused to those who are “most responsible and most involved” in criminal operations, added the report.

There are other means of getting at those who have committed less serious crimes, noted the report. Civil confiscation, unlike confiscation of criminal proceeds, has a lower threshold to satisfy. The Crown does not have to prove beyond a reasonable doubt of the existence of illegal activities nor a link to the proceeds or with the defendant as is the case in criminal matters. Under the civil standard, only the balance of probabilities is taken into account. That is a strategy therefore that the Crown should pursue systematically, said the report.

But that does not sit well with criminal defence lawyers. “That recommendation disturbs me,” said Daniele Roy, the president of Montreal’s defence lawyers association. “It’s not really necessary to reduce the burden because then we are beginning to erode on the presumption of innocence.”

The Bouchard report also says it’s time for judges overseeing megatrials to use the powers that they were handed by the federal government to more efficiently manage multi-defendant trials, said the report. “Even though these measures were introduced five years ago, it is clear that judges have up to now been slow to use these measures,” said the report. “The time has come for judges to use management practices that allow trial judges to take charge and to demonstrate leadership.”

But judges, who should be selected to preside over a megatrial based not only based on their availability or schedule, should also have a team of experienced lawyers and paralegals to help with the “colossal task” of managing a megatrial. “There is no sacrosanct principle attached to our rules of law or procedure that prohibit judges from receiving assistance,” noted the report.

Besides encouraging the provincial government to examine whether pay for jurors in megatrials should be increased, the Bouchard report also recommends that the lawyer’s code of ethics be modified to deal with the unhealthy relationship between prosecutors and defence lawyers that has surfaced over the past couple of years. An “atmosphere of mistrust” has permeated to such an extent in megatrials that in one trial at least 14 complaints dealing with ethical misconduct were lodged before the Barreau du Québec. The report recommends that in such cases that the Barreau’s syndic, or investigating officer, deal with such cases immediately as opposed to the end of the trial as is now the case.

“The report does not provide solutions to all the problems that have surfaced in megatrials but attacks a good number of them,” said Roy. “This report addresses all the steps in a megatrial from the beginning of an investigation until the verdict is rendered. I’m optimistic that this report will not be shelved. I hope not.”

The DPCP, which views the recommendations made by the Bouchard report favourably, is already at work implementing some of them, according to spokesperson René Verret. “I don’t know how long it will take to implement the recommendations but we are already doing some of the things recommended by the report,” said Verret, a lawyer.

According to Montreal criminal lawyer Jean-Claude Hébert, the Bouchard report provides an excellent portrait and “fair diagnostic” of the challenges created by megatrials. “It remains to be seen however whether the recommendations will be efficient – only time will tell,” said Hébert.

This story was originally published in The Lawyers Weekly.

Quebec criminal justice plagued by delays

Quebec’s justice system will require more money and human resources, need to make more use of  technological advances to efficiently deal with routine appearances, and prioritize and encourage timely resolution of cases to be able to curb the unprecedented delays in criminal proceedings, according to the Chief Justice of the Court of Quebec Elizabeth Corte.

At a time when the Senate standing committee on legal and constitutional affairs is now holding hearings to identify the legal, policy, and operational issues that lead to court delays across the country, Quebec’s criminal justice system is facing an “extremely difficult situation,” with delays now reaching an average of 23 months before accused who are not behind bars go to trial at the Court of Quebec. The situation is similar at Quebec Superior Court, with trials now being scheduled for 2019.

“It’s been a long time since we have been talking about this issue, and perhaps the time has come to say that we have done everything we could — and to improve the way things are done, perhaps we have to realize that we have to inject a bit of money, resources, and technology,” said Justice Corte.

Stats Cda. Median length of cases completed in adult criminal court. c-g08-engA shortage of judges, clerks and courtrooms is often cited as one of the principal causes behind the unparalleled delays in Quebec’s criminal justice system particularly in large urban centers but there are other culprits, beginning with mega-trials, followed by growing mounds of evidence cluttering the system, questionable government policies that have put a strain on the courts, and growing tensions between prosecutors and defence lawyers. “A lot of things are going on,” remarked Justice Corte. “Questions of law are becoming more and more complex. Police investigations are increasingly longer, concentrating on serious crimes, which means that disclosure of evidence has taken on dramatic proportions. So there’s a slew of factors that come into play.”

The wisdom of holding large, multi-defendant trials to crush organized crime has been questioned since the early 2000s by several Quebec Superior Court judges who described them as “impossible missions.” Five years ago, Quebec Superior Court Judge James Brunton ordered a stay of proceedings for 31 Hells Angels members and sympathizers facing drug chargers because of unreasonably lengthy delays. Last October the same judge put an abrupt end to a high profile murder and conspiracy trial of five Hells Angels after prosecutors failed to disclose key evidence in a timely manner. The Crown in Quebec has since launched a full-scale review of mega-trials and an internal administrative inquiry to determine why it took years for prosecutors to disclose evidence to defence.

“The justice system is not equipped to deal with mega-trials,” remarked criminal lawyer Danièle Roy, president of the Montreal Association of Defence Lawyers. “It’s impossible to hold a trial with a huge number of accused, even the judges say so. These trials can last up to two years. That is an incredible monopolization of judicial resources — and extremely expensive. It will be interesting to see how the Crown, following its inquiry, will deal with such cases in the future because right now they are unmanageable.”

The surging volume of evidence, thanks to new technology, increased electronic communications, police techniques, scientific evidence, and expert testimony have made even routine cases more complicated, let alone mega-trials, according to Montreal criminal lawyer Isabel Schurman, vice-chair of the Canadian Council of Criminal Defence Lawyers. Disclosure and management of evidence has become fodder for endless debates that exacerbate delays. Inadequate or untimely disclosure can mean counsel is unable to provide competent advice about the strengths and weaknesses of a case, points out Suzanne Costom, the chair of the Canadian Bar Association criminal justice section in a submission to the Senate standing committee.

Once disclosure is finally received, defence counsel then require additional time to review the material, noted Schurman. “We used to receive disclosure of evidence that might have been a folder or two,” said Schurman. “It’s rare now to get disclosure of evidence that is not on an external hard drive, with multiple megabytes, if not gigabytes, of information, which has to be properly evaluated.”

While encouraging and prioritizing early resolution is on everybody’s wish list, there are obstacles such as mandatory minimums and constraints on Crown discretion in resolving cases that have made it much more daunting. “It’s certain that minimum sentences are not entirely foreign to what we are going through,” remarked Justice Corte. Increased sentences, and particularly mandatory minimum sentences, have provided the accused with greater incentive to fight charges more vigorously, added Roy. “Things that once were resolved through fines – like an individual accused for having a couple of plants of pot — now have mandatory minimums so it’s obvious that there’s no reason for that person to try and settle a case before trial,” explained Roy. Another renown Quebec criminal lawyer said that repealing minimum sentences would be welcome by many judges, prosecutors, and of course criminal lawyers, because it would provide “flexibility” and “would go a long way” towards helping to fix the delays plaguing the criminal justice system in Quebec.

Stats Cda. 10 most common offenses for cases completed in adult criminal court. c-g02-engSo too would reviewing policies around impaired driving. People convicted of driving under the influence of alcohol can still obtain a restricted license but it’s much tougher now. A person in Quebec with a first conviction must wait three months before applying for a restricted licence, a second conviction six months, and for any more convictions after that, a year. That well-intentioned policy has ended up clogging the courts because people are no longer seeking to negotiate a guilty plea if they have a chance of being acquitted, particularly if their jobs are on the line, said criminal lawyers.

Also compromising the ability to settle cases rapidly is the unhealthy relationship between prosecutors and defence lawyers that has surfaced over the past couple of years. “That can’t be denied,” remarked Justice Corte. Roy, who heads the Montreal Association of Defence Lawyers, acknowledged that an “atmosphere of mistrust” exists at present that is not “conducive” to resolving  many cases rapidly. She did not want to expound what led to the situation, and neither did Richard Prihoda, the association’s former president. “It’s a fact that over the last several years that the relationship has been tense but in the last year especially there has been a lot of effort to improving it,” said Prihoda. Schurman suspects that the reason why things are strained is because prosecutors “almost never” put their “best offer” on the table at the beginning of negotiations. Instead there is a tendency to make offers that goes against what current case law suggests. “That’s a shame,” said Schurman. “If the communication or the ability to be able to trust the opposing counsel is broken down then that is not going to be doing much to getting cases settled.”

Stats Cda. Cases completed in adult criminal court. c-g01-engIn spite of the challenges she faces, Justice Corte remains hopeful and optimistic that delays afflicting the Quebec criminal justice system will eventually be curbed. Besides on calling on the provincial government for more resources, Justice Corte is now examining ways to more efficiently use courtrooms that would accommodate greater number of accused. Also being examined is equipping courtrooms with technology that would ensure better management of evidence and facilitate videoconferencing. Justice Corte also said that it might be time to introduce the notion of proportionality in criminal proceedings, something that Quebec’s new Code of Civil Procedure — which came into effect this past January — emphasizes.

“We are obliged to look at the situation head on, and we exploring and working on many solutions at the present time,” said Justice Corte. “I am never discouraged by the business of law. But one cannot deny that we are living extremely difficult moments, in criminal matters especially. We do not have the resources that justice demands.”

This story was originally published in The Lawyers Weekly.

University research group ushering justice system into digital age

An online dispute resolution pilot project to resolve small claims court cases is scheduled to be launched this fall by the Quebec government thanks to efforts by a university research group that wants to usher the justice system into the digital age.

The alternative dispute resolution open source and interoperable software program is the latest innovative offering developed by the University of Montreal’s Cyberjustice Laboratory, a unique and world-class research organization that strives to put information technology at the service of the judicial system in order to make it more accessible, more efficient and more affordable.

“Access to justice is the driving force behind all of our work,” said law professor Karim Benyekhlef, the head of the Cyberjustice Laboratory, who was involved in the world’s first experiment in online resolution back in the mid-nineties.

The Cyberjustice Laboratory, driven by a multidisciplinary and international team of some 30 researchers, was officially inaugurated three years ago, with $6.2-million seed money from the federal government and a $500,000 donation from McCarthy Tétrault LLP. Besides developing software programs, the Laboratory transformed a former amphitheatre at the University’s law faculty into a virtual court room, with a seating capacity of almost 100, replete with video screens and built-in touch screens for judges and lawyers. Software applications can be tested in simulated situations in the mock courtroom . The Laboratory also has a “portable courtroom” located at McGill University.

Its work has already begun to draw international attention. Several Latin American nations have already expressed an interest in implementing the Cyberjustice Laboratory’s online dispute resolution software program. Last year, the Cyberjustice Laboratory conducted – in collaboration with the U.S. Center for Legal & Court Technology — a simulated bi-national marine commission hearing to determine how legislative hearings can best use modern technology to improve efficiency and transparency.

The World Bank also came knocking on its door last year and asked it co-lead a so-called a Community of Practice on alternative dispute resolution, with a special focus on computerization, networking and implementation in developing countries. (A Community of Practice is an informal group of practitioners that share knowledge on common development problems while pursuing joint solutions). The Community’s work is expected to lead to the creation of a dozen projects, including the development of software solutions to help deal with the long delays facing the courts in countries such as Brazil, India and Kenya.

Reaching out to the legal community is key, says Benyekhlef. Past attempts to put in place an integrated information technology-guided legal system in Ontario, Quebec, and the U.S. proved to be expensive flops in part because the legal profession, deeply rooted in rituals and traditions, resisted the introduction of technology. But the principal reason why past efforts failed miserably was because there was little consultation held with the legal profession, says Benyekhlef.

“These projects must be legally-driven, and not technologically-driven,” said Benyekhlef. “We do not want to develop software applications in the abstract. They have to be anchored by the needs and practices of legal stakeholders.”

That’s why before software programs are developed, researchers at the Laboratory meet with judges, lawyers, court administrators and representatives of various departments of justice to identify issues related to cyberjustice. Then, once the software program is developed they meet with them again for the design and testing of the program, and any eventual implementation.

Mindful that technological advances may transform court procedures, the Laboratory’s researchers are also examining past and current information technology efforts that have been implemented in legal systems to assess what has worked, what has failed, and why. They are also examining obstacles that may exist in the legal system that may impede the implementation of information technology. As well, researchers are studying whether it is possible to “re-engineer” procedural law through networking.

The legal profession is no longer averse to technology, in part because the younger generation is very comfortable with technology, in part because technology is far more accessible than it was even ten years ago, and in part because “report after report” has highlighted the ailments afflicting the legal system and “we must find solutions and technology is one of them,” says Nicolas Vermeys, the associate director of the Cyberjustice Laboratory.

“We hear all the time that judges, lawyers and the legal profession in general are very conservative,” remarked Vermeys, who is also the co-director of the law faculty’s e-commerce masters’ program. “But when you speak and meet with them, you realize that that is absolutely not the case. There is far less resistance to technological change than is imagined.”

The Cyberjustice Laboratory is now working on a plethora of software applications, including for e-filing and case management, even they already exist in the marketplace. The problem, points out Vermeys, is that they are software applications developed by private enterprises with proprietary code, and so the different applications “do not speak to each other.”

“We don’t want to compete with the private sector,” said Vermeys, who recently met with high-tech giant Cisco Systems Inc. to explore collaborative possibilities. “We want to really work with the stakeholders of the legal profession to analyse and understand their needs and develop applications that will be adapted to their needs. Once that is done, enterprises can then use what we have developed and add different applications to it.”

This story was originally published in The Lawyers Weekly.