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.
Jacques Chamberland, a former Quebec Deputy Minister of Justice and Deputy Attorney General of Quebec for five years until 1993 when he was appointed to the Quebec Court of Appeal where he sat for more than 28 years, has a “well-stocked toolbox” and the experience to end the stalemate, affirm legal pundits.
“Given the obvious pride of those in authority, diplomacy becomes an indispensable tool,” remarked Jean-Claude Hébert, Ad.E., a prominent Montreal lawyer specializing in criminal, administrative and disciplinary law. “The use of a conciliator is in the air of the times. Over the past ten years in Canada and Quebec, there has been a marked trend towards the diversion of problems through conciliation. With his extensive experience and expertise, Mr. Chamberland was a good choice. I dare predict that a balanced agreement between the “belligerents” will be reached as soon as possible.”
The Quebec Justice Minister had no alternative but to appoint a mediator because the Chief Justice was not ceding to his pressure while the Chief Justice had little choice to accept one because she needs new judges following the work schedule reforms she introduced last year and he refuses to appoint them, noted Martine Valois, a law professor at the Université de Montréal and author of “Judicial Independence: Keeping Law at a Distance From Politics.”
“It’s a good thing there’s a conciliator,” said Valois, who acted as Principal Drafting Advisor to the 2011 Commission of Inquiry on the nomination process of judges in Quebec, the so-called Bastarache Commission. “He wants to make the Court bend absolutely, and the Court refuses to bend. I think she’s right to refuse. It takes a mediator, and the good thing about it is that Chamberland was once a deputy minister of justice and a former judge. He’s the best person to understand. And I think that the Chief Justice has confidence in Justice Chamberland, and it’s a way to stop the Minister of Justice. As for the Justice Minister, Chamberland is a safe bet because he was once Deputy Minister of Justice.”
The Quebec government has had no qualms about pinning much of the problems facing the justice system on the shoulders of Chief Justice Rondeau, particularly since she, the Associate Chief Justice and members of the Board of Directors of the Conférence des juges du Québec unanimously passed in 2021 a resolution fully supporting the 1:1 ratio for judges presiding over criminal cases “in order to carry out their mission of dispensing justice effectively.” As of this year, the amount of days that 160 provincial court judges who preside over criminal proceedings will be curbed from two days out of three to one day out of two so that they can spend more time writing judgments and managing cases. That represents the equivalent to a loss of 4,617 hearing days, and the Chief Justice is calling for the appointment of 41 provincial court judges to attenuate judicial delays.
But the Quebec government is vehemently opposed to the new work schedules, with Premier François Legault going so far as to state last December in a television interview that he had spoken to judges and they are “a little embarrassed by the situation,” adding that the judges say to each other that “it doesn’t make sense what we’re doing.” The Premier’s comments are disturbing and is symptomatic of the Quebec government’s efforts to “make the clashes and power struggles between the legislature and the judiciary into a political matter,” remarked Valois. “The Supreme Court has said in black and white that the executive must avoid putting pressure on the judicial system.”
According to the Quebec Ministry of Justice, between 48,000 and 55,000 cases will exceed the 18-month cap set by Jordan if the judge’s work schedules are reorganized, prompting the Quebec government to ask Quebec Superior Court late last year to seek a judicial review of the “unreasonable” decision and an application for a stay to “avoid irreparable harm to the victims, the accused, public confidence in the judicial system and the sound administration of justice.”
Quebec Superior Justice Pierre Nollet rejected the motion for a stay in Procureur général du Québec c. Rondeau, 2022 QCCS 4081, noting that the median age of active cases has risen from 217 days in 2017-2018 to a projected 329 days in 2021-2022, before the reform was even considered. “What is the Ministry doing about it?” asked Justice Nollet. “Despite all the measures put in place … the median age of active cases is exploding. The mere fact that the (reform) may cause additional delay cannot establish irreparable harm separate from that which already exists without the (reform).”
Justice Nollet, who noted that the assignment policies and practices of the judges of the Court of Québec in the Criminal and Penal Division were in place for more than four decades before the reform, paid heed to a 42-page report written issued in February 2022 by the Court of Quebec Deputy Judge Maurice Galarneau that laid the foundation for Chief Justice Rondeau’s new course of action.
The Galarneau Report, written after consulting with 15 Court of Quebec judges, identifies a series of factors that explain the increased workload of judges, from the increase in and mandatory assistance to unrepresented persons to the time required to manage the file in order to meet deadlines to the impact of the Canadian Charter of Rights and Freedoms. The report also points out that there are increased requirements for the use of written judgments and that judges need to add more time for deliberations to ensure they are more rigorously reasoned. “In practice very few decisions of the Chief Justice could be analysed without regard to judicial independence,” said Justice Nollet. “The judiciary is one of the pillars of democracy. To play its role fully, the judiciary must be independent of the executive and the legislature. The guarantee of administrative independence relates to the institutional dimension of judicial independence, which is “historically conceived as a bulwark against the abuse of executive power”. The matter is now before the Quebec Court of Appeal.
That marks the second ruling in the space of ten months, and the third in a year that the Quebec government has lost against the Chief Justice. In February 2022, Quebec Superior Court Justice Christian Immer ruled in in Conseil de la magistrature c. Ministre de la Justice du Québec, 2022 QCCS 266 that the provincial justice minister does not have a say on how the judiciary determines its professional and linguistic requirements. More recently still, Justice Immer in Conseil de la magistrature c. Procureur général du Québec, 2023 QCCS 15, a decision issued on Jan 23, suspended a call for applications for a provincial court judge requiring only a command of French.
Quebec justice minister, judiciary locked in ‘power struggle’ over bilingualism requirements for judges
But it remains that in spite of the legal victories, the Chief Justice is in a bind. “The tug of war between Chief Justice Rondeau and Justice Minister Jolin-Barette is the result of a jurisdictional overlap,” said Hébert. The hiring of the court staff and judges as well as the salary scale is “entirely up” to the government and the responsible ministers while the administrative management of the provincial court is the exclusive responsibility of its management, that is, the Chief Judge and the coordinating judges, added Valois, who pins the blame on the current predicament of Quebec’s justice system on a number of circumstances, from chronic underfinancing to the “well-intentioned” Supreme Court decisions in Jordan and Stinchcombe. “When we started to take an interest in this issue and to decry the lack of funding, justice was three per cent of the budget, and it is now reduced to one per cent of the entire public administration budget,” said Valois. “So you can see that this is a problem, and in my opinion it is a good thing that there is a conciliator.”
An effective mediator will be able to offer both parties a way to decipher the “real causes of the judicial slowdown,” and can then recommend ways of breaking the deadlock, added Hébert. “A good mediator usually works to save the honour and face of the parties,” said Hébert.
According to University of Toronto law professor James Phillips, there have “certainly” been many “spats” between the executive and the judiciary in Canadian history, at least before 1914. The closest and most recent example of a clash between the Quebec judiciary and the Quebec government was the s. 96 case involving the progressive expansion of the jurisdiction of the Court of Quebec, noted Université Laval history Donald Fyson professor who was “to some extent” an expert witness in the case. In a 2021 ruling, the Supreme Court of Canada confirmed that the exclusive jurisdiction of the Court of Québec to hear civil cases in which the value is less than $85,000 overstepped the bounds of constitutionality. “The case always struck me as quite exceptional, since it was initially the judges themselves suing the government,” said Fyson. “There have been previous s.96 cases in Quebec, but I don’t recall seeing one which directly pitted the judiciary against the government, both as parties.”
But neither Hébert nor Valois believe that the current Quebec government is laying a pathway for future governments to play hardball when they disagree with a Chief Justice over the administration of justice. “This is really an isolated case,” said Valois. “I think that the Minister of Justice is someone who does not understand even his obligations as a lawyer to uphold the authority of the courts, which is an ethical obligation.”
According to Hébert, if this government or other governments consider playing hardball with the judiciary, a Chief Justice could always refuse conciliation. “However, this would be a delicate decision in the face of public opinion and could undermine public confidence in judges,” said Hebert.
This story was originally published in Law360 Canada.