Law in Quebec

“It is of primary importance to recognize that the system, as it currently exists, has failed in many respects,” said the report, which was mandated by the Quebec Ministry of Justice and the Makivik Corporation, the Inuit’s legal representative under the terms of the 1978 James Bay and Northern Quebec Agreement. “Reoffending rates have not declined, the Inuit have not been included, and bridges with traditional dispute resolution methods have not been used.”

The report, the latest in a long series of reports that has examined the justice system in the northern reaches of Quebec, issued 60 sweeping recommendations to tackle systemic delays occurring at the circuit court, “optimize” pre-trial hearings, and foster and promote active community involvement in dispute resolution.

“The report once again denounces a situation that has gone on for too long and involves the violation of many important fundamental rights,” remarked Louis-Nicholas Coupal, a Montreal lawyer who is behind three class actions involving Nunavik, one dealing with bail delays, another alleging systemic discrimination against Inuit seeking crime victims’ compensation, and the final one alleging that both the federal and Quebec government have breached their duty to provide basic child welfare and essential health and social services to Inuit children.

“Personally, I question the usefulness of an additional report,” added Coupal of Coupal Chauvelot avocats. “There have been several reports since 1993 that have denounced the situation. These reports overlap, intersect and converge at several points. The Latraverse report continues in this vein. Now we have to wonder about the government’s inaction, despite the passing years and despite the many reports.”

Éric Lépine, now a coroner working in the North but who for years worked as a legal aid lawyer in Nunavik, too wonders about the pertinence of yet another report describing problems with the justice system that affect the Inuit, particularly in light of voluminous 2019 report issued by retired Superior Court Justice Jacques Viens. “It’s a very good report, as were, I would say unfortunately, several other reports before it,” said Lépine. “So it’s just another report among several others that essentially underline the same difficulties, the same problems.”

Jean-Claude Latraverse, author of the report entitled “Report on the Situation of the Itinerant Court in Nunavik,” does not dispute that numerous reports have appraised the same legal challenges that he outlined. But Latraverse, a Quebec prosecutor and former legal aid defence lawyer, maintains that he has issued pragmatic recommendations that could beckon a long-needed paradigm change.

“There are things that should have been done a long time ago, but were not done,” noted Latraverse. “We’re always in a contemplative state. We know we have a problem, but we don’t know what to do about it, or we’re afraid to take action to change it. “

The situation is dire, and Latraverse pins the blame on all legal actors, and also faults the Inuit, and in particular Makivik, for “extremely random” interventions in the administration of justice. In mid-July, some 250 provincial court cases were postposed because there were no judges available to sit on the court that travels between the region’s 14 communities. More alarmingly, there is no let up with the over-representation of Inuit in the court system and and prisons, all of which is exacerbated by high reoffending rates. In 2019-2020, nearly 3,000 files were opened for 1,356 single offenders, out of a total population of 12,400, according to the latest figures from the Quebec Ministry of Justice.

The usual culprits – housing shortage and over-consumption of alcohol — are cited by the report but it also adds that the “tendency of some prosecutors” to authorize proceedings in all cases that meet the criteria, without looking at the advisability of laying charges is another factor. So too are court delays, added Latraverse. Statistics show that delays are on par with the South but the inconvenience and impacts are not comparable, said Latraverse. Delays may stretch as long as two years in some communities, and in many cases offenders are held in custody. On average, the various circuits deal with 20 cases per week involving an offender in custody, and “these cases must be dealt with swiftly,” notes the report.

But efforts to reduce excessively long delays have not been successful. The Criminal Division of the Court of Quebec has increased the number of sessions nearly every year over the past two decades, sitting every other week in Kuujjuaq and communities on the same circuit, but it has had little impact in reducing delays, according to the report. Few defence lawyers and prosecutors work in the North, and they are overworked. Minutes from hearings are seldom available quickly, delaying payments to lawyers working on legal aid mandates, and the dockets are drawn up at the last minute, creating problems for prosecutors trying to prepare cases.

“It’s appalling how many cases are deferred just because there is no time to talk to the client, whether it’s the prosecution or defence,” said Latraverse, who recommends extensive use of videoconferencing and technology to mitigate delays and for the Court of Quebec to schedule two-week sessions at certain times of the year, with one week for offenders in custody and settlements, and the other for trials, sentencing arguments and motions.

Latraverse also recommends re-opening the legal aid office in Kuujjuaq to ensure that legal aid lawyers are present at all times and extending legal aid to all Inuit, regardless of income since defence lawyers spend an inordinate amount of time filling out legal aid applications. As it stands, nearly 95 per cent of court cases involve a legal aid mandate.

Those are recommendations that the head of the Association Of Defence Counsel of Quebec endorses. “That the Inuit be systematically be eligible for legal aid is an excellent recommendation as it would solve several irritants,” said Marie-Pier Boulet, a Montreal criminal lawyer with BMD Avocats. “Lawyers spend an enormous amount of time doing paperwork, doing bureaucratic work just to ensure their client is eligible for legal aid. This certainly causes delays.”

But Boulet disputes the report’s contention that defence lawyers are responsible for most of the postponements and the delays they cause. Boulet also strongly disagrees with the report’s claim that defence lawyers are “responsible for choosing the cases that will proceed, often with no regard for the time elapsed since the start of the case and the delays that will ensue.” That is simply not the case, states Boulet. “That is false,” said categorically Boulet. “It’s the Crown prosecutors who decide which cases are going to be scheduled for trial – I don’t know where this is coming from.”

The justice system must also be more open to “less heavy-handed” ways of dealing with offences of lesser importance, said Latraverse who is calling for an increased role of justice committees, local bodies of five-to-eight people that support both victims and offenders in their communities. Latraverse believes that a strong, well-balanced justice committee would significantly reduce the number of cases before the court. “You have to give people the tools so that they can take charge of it themselves so that they feel they are part of the process and that the justice system speaks to them,” said Latraverse. “As long as we don’t recognize the difference between the North and the South, in the way that conflicts are managed, then we’ll have problems.”

The Quebec Director of Criminal and Penal Prosecutions (DCPP) can play a key role, and in fact has begun taking steps to adopt a new approach, acknowledges Latraverse. But more can and should be done, he added. Latraverse urges the DCPP to follow guidance issued by the Supreme Court of Canada in R. v. Beaudry, [2007] 1 SCR 190, which recognizes the principle of discretion in submitting a case for indictment. The police could divert files, with the consent of the offender and the complainant, to a justice committee with strong ties to the community. That is why Latraverse is calling for protocols to be signed to cover more offences to be eligible for transfer to a justice committee. He also recommends prosecutors be given directives to increase the number of cases transferred to justice committees.

Audrey Roy-Cloutier, acting deputy chief prosecutor of the communications branch with the DCPP, said the organization welcomes recommendations made by the Latraverse report, and that it is one of its key priorities. Roy-Cloutier said that the DCPP has over the past year added more staff, provided more experienced prosecutors to help those with less experience, and created a mentoring program for prosecutors working in the North.

Latraverse is also calling on authorities to establish a regional, if not a municipal court, though he acknowledges that he would be surprised if the Quebec government forged ahead. The new court, composed of Inuit judges, would be more familiar with traditional concepts of justice among the Inuit, and could work with members of the justice committee, “and would be in a better position to suggest reparatory sentences in keeping with the concept of restorative justice,” said the report.

Providing the Inuit with the means to adapt and control the justice system is essential, according to Lépine.

“I’m hopeful that things will improve, but it won’t be through reinvestment for example,” said Lépine. “It’s not going to be through hiring more Crown attorneys, more legal aid lawyers, or sending more private practice lawyers. It’s just going to make the roles more cumbersome. We must listen, and it’s a matter of the Inuit taking charge through local stakeholders who will eventually take on more and more responsibility for the administration of justice.”

The Makivik Corporation did not reply to requests for comment, nor did the Court of Quebec.