Legal community concerned about Court of Quebec plans

“It is important to stress that the current work organization of judges in criminal matters, which has been in place for 40 years, is a major concern that has been the subject of reflection and discussion within our institution for some time now,” said Chief Justice Lucie Rondeau in an email. “The judges of the Criminal and Penal Division are currently the only ones to have only half a day of work under advisement for each day they sit.” The restructuring will put these judges will on par with judges from the Court of Quebec’s Civil and Youth Division as well as Quebec Superior Court justices.

At least 50,000 criminal cases annually could exceed the 18-month time limit set by Jordan, according to a report prepared by the Quebec Ministry of Justice.  Chief Justice Rondeau said it is holding ongoing discussions with the Ministry and it is assessing the impact of the reorganization on judicial timeframes, which varies from region to region. “The Court of Québec is aware of this impact and is participating in this work in a spirit of cooperation aimed at gradually deploying additional resources so that, in accordance with the public’s expectations, it can provide quality services within a reasonable timeframe,” said Chief Justice Rondeau, adding that she is waiting to meet with Quebec’s justice minister Simon Jolin-Barrette.

But Jolin-Barrette, who has been publicly sparring with Chief Justice Rondeau over the new intimate partner and sexual violence specialized tribunals,  upped the ante. He has mandated the Attorney General of Quebec to file a reference to the Court of Appeal to seek its opinion on the Court of Quebec’s decision.

“This decision, taken by the management of the Court of Québec unilaterally and without prior consultation with the various partners in the justice system, is of great concern to the Government of Québec,” said Jolin-Barrette in a press release. “This goes against the efforts of all stakeholders to make the judicial system more efficient, to better respond to the needs of victims and to ensure that accused persons are tried within a reasonable time. It is important to get the Quebec Court of Appeal’s perspective on this issue.”

The secretary of the Commission Commission des services juridiques (CSJ), the provincial agency that oversees the legal aid system, is concerned, particularly since approximately 75 per cent of cases heard by the Criminal and Penal Division of the Court of Quebec are covered by legal aid. “This orientation does indeed raise certain questions and concerns within the Commission,” said Richard La Charité. “We are certainly concerned about the impact that this measure will have on the increase in judicial delays in general.” He added that the CSJ has expressed their qualms to the Chief Justice and are hoping to “exchange and collaborate” with her Court.

The head of the Association of Defense Counsel of Quebec too is concerned about the announced change, asserting that it will lead to “serious problems.” “If provincial court judges end up sitting every other day, new judicial appointments will have to be made,” said Marie-Pier Boulet, a Montreal criminal lawyer with BMD Avocats. “If they don’t go hand-in-hand, I’m telling you it’s going to explode in terms of delays.”

Catherine Claveau, the head of the Quebec Bar, declined to comment on the move by the Court of Quebec but noted that Chief Justice Rondeau is one of several legal actors seeking to improve legal services. “All stakeholders in the justice system will get together to try to solve the problems that affect them,” said Claveeau. “We offer our cooperation both to the Ministry of Justice and to all the other stakeholders to try to find other options that could help prevent justice from running into a wall.”

Université de Montréal law professor Martine Valois understands the shift that Chief Justice Rondeau is instigating. The role and responsibilities of judges has evolved over the past few decades, particularly since the adoption of the Charter, noted Valois, author of the book “Judicial Independence: Keeping Law at a Distance From Politics.” Nor does Valois believe that the new policy is a way for the Chief Justice to apply pressure on the Quebec government to appoint more provincial court judges.

“The government wants us to believe that it’s a pressure tactic, but it’s not,” said Valois. “By law, the management of the Court and the assignment of cases is the responsibility of the Chief Justice. She can see if cases are delayed because the judges don’t have time to write their judgments. This was something we saw perhaps less often before — we had more judgments given on the bench. But now judges have to manage proceedings and write judgments, and it has become much more complex since the adoption of the Charter.”

Those observations also form the thrust of a report written by the Court of Quebec Deputy Judge Maurice Galarneau, issued this past February. Entitled “Evolution of the function of judge at the Criminal and Penal Division of the Court of Quebec,” the 42-page report laid the foundation for Chief Justice Rondeau’s new course of action. The report, written after consulting with 15 Court of Quebec judges, notes that judges are now expected to demonstrate efficient management qualities, particularly since the landmark Jordan ruling. “The time spent by the judge in getting the parties and their lawyers to narrow the debate, simplify the procedure, shorten the hearing, try to find a partial or final solution to the case, etc., is important and must be recognized in the calculation of the additional resources that the Court of Québec expresses the need for,” said Judge Galarneau in his report. “In this context of pressure on the judicial system, the government has a role to play in ensuring that the criminal justice system is adequately resourced, particularly in order to support initiatives aimed at reducing delays.”

The report also points out that the growing phenomena of self-represented litigants has substantially lengthened procedures as has the Charter. The development of new methods of police investigation and evidence derived from new technology has also had an impact on the work of the judge in chambers, said the report, pointing out that quite often judges have to spend hours listening to wiretaps stemming from organized crime investigations. Moreover, the Quebec Court of Appeal in a number of recent decisions has made it plain that it favours written reasons, or at the very least oral reasons prepared as carefully as if they were given in writing, noted the report. “Although the form of the judgment is always a matter for the judge’s discretion, writing reduces the risk of unfortunate and inappropriate expressions,” added the report.

While the report asserts that the Court of Quebec does not seek “perfect symmetry” between the resources allocated over the years to the Director of Criminal and Penal Prosecutions (DCPP) and those dedicated to its own Criminal and Penal Division, it does highlight that when the DCPP was created in 2007, it employed 478 prosecutors and the Court of Quebec had 270 judges. According to the latest figures, the DCPP now has 772 prosecutors, while the Court of Quebec has 308 judges. “It does not take long to convince anyone that these prosecutorial reinforcements have led to increased judicial activity at the Court,” said the report.

Quebec Superior Court Chief Justice Jacques Fournier too believes it is time for more resources to be allotted to the courts. “Unfortunately, over time, we have been a little bit neglected,” said Chief Justice Fournier. “Judicial resources have not kept up with the evolution of society.”