Law in Quebec

They are finally delivering – and more. Quebec Justice Minister Stéphanie Vallée announced this week that 16 new judges were appointed to the Court of Quebec plus two more who will replace recent departures. The provincial government promised 45 more Crown prosecutors but they ended up hiring 52 since last December along with some 50 support staff to help them out. As well 38 correctional services officers were hired, 16 special constables, 32 probation officers and more support staff at the Quebec Ministry of Justice. All told more than 300 were hired. On top of that, three new hearing rooms are now operational in Montreal and Laval. All of which will have “a significant effect on the treatment capacity of our justice system,” Vallée said.

The hiring blitz was heartily welcomed by the legal community. They have for years been clamoring for the provincial government to inject new funds into the justice system, and almost heaved a sigh of relief now that the provincial government has come through. “This was long overdue so this is a good thing but it’s unfortunate it took a decision by the Supreme Court of Canada in Jordan to get it going,” told me Giuseppe Battista, a Montreal criminal lawyer who chairs the criminal law committee of Quebec’s legal society. Claudia Prémont, the head of the Barreau du Québec, concurred. “The Jordan decision sent a shock wave and it appears to have whipped up the troops,” said Prémont. “We are pleased with the new investments and hope it will help the justice system function better.”

The landmark decision by the nation’s highest court in R. v. Jordan 2016 SCC 27 has shaken up the legal world across the country. The decision, issued last summer, 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 repercussions of the decision are literally being felt on a daily basis. The Quebec Director of criminal and penal prosecutions (DPCP) revealed last week that there are 684 Jordan applications as of March 23, 2017, a figure that has tripled in the space of three months.

The new hirings and new investments in Quebec’s criminal justice system will likely make a difference, according to legal observers. But human and financial resources are only part of the equation. Now comes the hard part.

Quebec’s justice minister, the head of the legal society and the legal community at large are pinning much hope on an action plan that essentially calls for an end to the “culture of delays” that plagues the criminal court system. The action plan, forged last fall by a roundtable of judges from Quebec Superior Court and the Court of Quebec, the DPCP, the Barreau and the Quebec defence lawyers association, identifies 10 principal causes behind huge backlog of cases in the province’s criminal justice system. A lack of resources, the management of megatrials, an increase over the use of preliminary inquiries, the growing complexity of criminal cases, and outdated technology have all been pinpointed as the main reasons why the criminal justice system is in rough shape. 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. It’s a good initiative that “calls for a cultural change to improve the justice system by all actors of the justice system,” said Prémont.

Battista, who was the lead Commission counsel at the Bastarache Commission of Inquiry, has a slightly different take.

“Everybody agrees that there has to be a sort of a changing in attitudes,” explained Battista. “But the real issue is that there are real structural problems. Sometimes the culture of professionals adapts to the realities, and if the reality is that we all know we will never be able to get a trial within the next year, the culture adapts to that.”

Battista suggests that there are concrete and practical measures that can be implemented to address the delays plaguing the criminal justice system. To begin with, preliminary inquiries should be looked at. It structurally requires court time to be taken up, a courtroom to be used, a judge to be present “when in fact it may be not necessary,” said Battista. “That is something that can be adjusted and be arranged.” If judges were given the authority to intervene a little more persuasively by encouraging Crown prosecutors for instance to “focus their case on what the essential issues are” that too would help alleviate delays. So too would the requirement to demand defence to articulate a little more clearly “what the issues are without having to reveal any possible defence.” Getting parties to focus on the time that will be required for trial and getting as many admissions as possible, without affecting the right of either party, too would help.

“When the system is put in place to make things function properly, I believe lawyers – both prosecutors and defence attorneys – will adapt favourably,” added Battista.