Law in Quebec

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.

A 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.

So 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.”

In 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.”