Law in Quebec

The new monies, investments that the Quebec legal community have been clamouring for years, come on the heels of revelations that approximately 288 criminal cases may be dropped following the precedent-setting ruling by the Supreme Court of Canada last July in R. v. Jordan 2016 SCC 27. The decision criticizes the country’s legal system for its “culture of complacency” and sets out new rules for an accused’s right to be tried within a reasonable time frame. The Jordan decision laid down a ceiling of 30 months for matters before Superior Court cases to be completed. Provincial court trials should be completed within 18 months of charges being laid, but can be extended to 30 months if there is a preliminary inquiry.

The Quebec criminal justice is struggling to comply with the new rules, implicitly acknowledged the Quebec Minister of Justice Stéphanie Vallée when she announced the new investments and introduced Bill 125. This past fall Quebec Superior Court Justice James Brunton threw out gangsterism and fraud charges against a high-ranking Hells Angels member because of a 96-month lag between his arrest and his trial. More recently still in late November, Superior Court Justice France Charbonneau released the former president of a security firm that allegedly defrauded the provincial government of millions of dollars from all charges because of delays that amounted to more than 70 months. With nearly 300 so-called Jordan applications having been filed asking Quebec judges to stay proceedings, other high-profile criminal cases are at risk. “The extra funding will be used to hire the staff needed to bring the processing times back within the thresholds prescribed by the SCC in the Jordan case,” said Vallée.

Under Bill 125, which received royal assent in mid-December, the number of judges from the Quebec Court of Appeal will increase from 20 to 22, Quebec Superior Court judges from 152 to 157, and Court of Quebec judges from 290 to 306. As well, the new monies will lead to the hiring of 69 more Crown prosecutors and 114 support staff at the Director of criminal and penal prosecutions (DPCP), the recruitment of 252 court support staff and 121 correctional services officers, special constables and probation officers. The new funds will also be used to add seven new courtrooms, including five in greater Montreal.

“We have been asking for years for new funds to be injected into the chronically underfunded justice system so we are pleased with the new investments, and we hope it will help the justice system function better,” said Claudia Prémont, president of the Barreau du Québec. “The Jordon decision sent a shock wave and it appears to have whipped up the troops. Now there’s other things we have to work on.”

The head of Montreal’s defence lawyers association welcomed the new measures but is disappointed that no new monies were injected to increase the rate of fees and expenses for lawyers who take on legal aid cases. “The new funds are a beginning but nothing was envisioned for legal aid,” noted Daniele Roy, a Montreal criminal lawyer. “So while we’re pleased that we have injected new monies to hire more judges, more prosecutors, and more support staff, more resources have to be provided to lawyers who take on these cases under legal aid. Our fees are way, way below compared to other provinces.”

Negotiations to review the 2013 “Agreement between the Quebec Minister of Justice and the Barreau du Québec respecting the tariff of fees and expenses of advocates under the legal aid plan” are scheduled to take place in the near future, added Roy. In the fiscal year 2015-2016, $46.8 million in legal aid fees and $8.6 million in legal aid expenses were doled out to 2,200 lawyers in private practice, according to the latest annual report of the Commission des services juridiques, the provincial agency charged with administering Québec’s legal aid system.

According to Giuseppe Battista, a Montreal criminal lawyer who is the Chair of the criminal law committee of Quebec’s legal society, the new funds are “long overdue” and will likely make a difference in the medium term. “But there are some other things that need to be dealt with from the get-go” to be able to make a dent in the bottleneck of criminal cases in Quebec, added Battista, who was the lead Commission counsel at the Bastarache Commission of Inquiry. Widespread use of mandatory minimum sentences introduced by the Conservative federal government have to be eliminated and judges have to be given back judicial discretion over punishment, said Battista. A review of how preliminary inquiries are conducted should also be undertaken. There is no reason why preliminary inquiries cannot be conducted in the same way it is in the civil system, with witnesses being questioned out of court, under oath, with a stenographer which could then be part of the record, suggests Battista.

“On the one hand the judicial system was incapable of dealing with the complexities of modern day cases because judges were overwhelmed, and there were not enough prosecutors, not enough support personnel and not enough courtrooms,” said Battista. “At the same time, you add to that minimum jail sentences and the harshness in the treatment within the criminal justice system – and you have an explosive mix,” said Battista.

Besides the new investments, the Quebec legal community is counting on an action plan unveiled last October and put together by a roundtable of judges from the Quebec Superior Court and the Court of Quebec as well as the DPCP, the Barreau and the Quebec defence lawyers association to help end the “culture of delays” plaguing the criminal court system. The action plan identified 10 principal causes behind the logjam afflicting the criminal court system, including lack of resources, the management of megatrials, an increase over the use of preliminary inquiries, the growing complexity of criminal cases, and outdated technology. The action plan includes 22 measures aimed at making the justice system more efficient, including calls to encourage more admissions being submitted into evidence, reducing the number of pretrial requests, and greater reliance of sharing evidence electronically. “The action plan is a good initiative and calls for a cultural change to improve the justice system by all actors of the justice system, not only lawyers but also judges and the DPCP,” said Prémont.

Battista is optimistic that the new monies and the action plan will make a difference but so long as the “structural problems” are addressed too. “Everyone agrees that there has to be a sort of change in attitudes that some have described as culture of postponements,” said Battista. “There is a problem, and there are many solutions that are being looked at. But I think the real problem are structural problems and they can be adjusted. When the system is put in place to make things function properly, I believe the lawyers – both prosecutors and defence attorneys – will adapt favourably.”