Quebec municipal court reforms draw mixed reactions from legal community

“Everyone agrees that the bill solves many of the problems that municipal judges and even the Court of Québec have been raising for, I would say, more than a decade,” said Michel Lalande, a lawyer with Therrien Lavoie Avocats who up until recently was a municipal court judge and the head of the Conference of Municipal Judges of Québec, an organization that safeguards and promotes the status and working conditions of its members, with the exception of the municipal court judges of Montreal, Laval and Quebec City. “We’re moving in the right direction with this reform of Bill 40. But it doesn’t solve everything.”

The Federation of Quebec Municipalities also endorses the municipal court overhaul, albeit with grave concerns over its undetermined financial outlay, said Sylvain Lepage, a member of the Quebec bar and the organization’s executive director. “Generally speaking, we are satisfied with the bill because we believe that it is a first step towards extending and strengthening the jurisdiction of the municipal courts,” said Lepage. Municipal courts are capable of handling many more cases than they do at present, and by entrusting them with more responsibilities, they can improve access to justice, added Lepage.

The Court of Quebec, while acknowledging that Bill 40 represents in some ways a step forward, bemoans that many of the amendments have never been discussed with Quebec’s main legal actors, and more alarmingly is in its current version “detrimental” to the “true integration” of an independent and “credible” municipal justice system.

“It is disturbing to note that, despite certain advances, Bill 40 makes municipal judges more accountable to the government, through their obligations to report to the minister of justice, and adds to the problems related to the independence of the municipal judiciary, particularly with regard to the financial interests of municipalities,” said Associate Chief Judge of the Court of Québec Claudie Bélanger, who oversees municipal courts, in a brief presented to a National Assembly committee examining the bill.

The Quebec bar also welcomes the changes proposed in the bill that are designed to provide a better framework for municipal judges by providing more robust financial security by offering all municipal judges the same salary, pension plan and other benefits as current municipal judges who practise exclusively — a development the bar says is in the interests of justice and strengthens judicial independence.

Institutional independence

However, the Barreau du Quebec, like other legal actors, is uneasy over several provisions of the bill that could put at risk the institutional independence of municipal courts, particularly in “the assignment of judges to cases, the sittings of the court (and) the role of the court” as defined by the Supreme Court of Canada in R. v. Valente, [1985] 2 S.C.R. 673, notes the Barreau.

Bill 40, introduced on Nov. 9 but still the subject of debate before the Quebec National Assembly, is a response to recommendations made by a series of judicial compensation committees that repeatedly denounced the precarious financial security of municipal judges who are paid on a per-sitting basis. In 2021, the five-member blue-ribbon panel of legal and financial experts, headed by arbitrator and lawyer Pierre Laplante, said the working conditions of 27 part-time municipal judges is “problematic, not to say disquieting” as they do not receive a fixed annual income, are paid by the sitting, do not participate in any government pension scheme and do not benefit from group insurance offered by the state.

“The committee believes that the precariousness of (part-time judges) seriously affects the principle of judicial independence,” said the so-called Laplante committee.

Quebec Justice Minister Simon Jolin-Barrette, however, went much further than the legal community expected. Bill 40 amends the Quebec Courts of Justice Act to create a new part about municipal judges, their appointment and their assignment, establishing a structure for municipal courts that is no longer under the direction of the Court of Québec; creates the office of chief municipal judge, under whose authority the municipal judges are placed; divides Quebec into four co-ordinating regions; and provides for the appointment of co-ordinating judges and, where applicable, associate co-ordinating judges. The bill also empowers municipalities to institute penal proceedings in connection with any offence under the Act respecting municipal taxation.

“It’s a good thing that municipal courts will become a completely independent structure, as was the case 22 years ago,” said Lalande, who will represent the conference in the upcoming judicial compensation committee as a lawyer. “How would Court of Québec judges like to be directed by a judge of the Superior Court? They wouldn’t like it. Municipal judges are led by a judge who is not from their ranks. That doesn’t mean Judge Bélanger doesn’t do a good job; on the contrary, she does a good job. But there are often conflicts of orientation. We don’t always have the same objectives as the Court of Québec.

“You also have to bear in mind that the primary goal of municipal courts is to be a court of proximity. It’s a court that has to be close to citizens, that has to adapt to the schedules that citizens demand, whereas at the Court of Québec it’s much more centralized. It doesn’t sit in the evening, and so on. So there are different orientations, and there are different needs to be met, which I think will be better served by an independent structure.”

The new municipal court division will have to establish new services, such as a training committee for judges and a research department, that it will no longer have access to once it becomes autonomous, but “these are technicalities that will be resolved over time,” added Lalande.

Lalande also hopes that some of the thorny provisions in Bill 40 that “definitely” undermine judicial independence will be straightened out. Under the bill, the chief municipal judge is compelled to “meet the performance targets” of municipal courts and “consider” the needs of municipalities and litigants.

“There is no court, in my humble opinion, in democratic countries that is subject to performance targets dictated by a third party,” said Lalande.

This provision is troubling because it eviscerates the essential distance to be maintained between the municipal administration (executive power) and the municipal court (judicial power), asserted Associate Chief Judge Bélanger. It also undercuts the autonomy and independence of judges and the chief municipal judge.

“What, moreover, is a ‘performance target’?” asks rhetorically Judge Bélanger. “Is it a specific number of cases to be heard per day, regardless of their content or complexity? Is it a threshold of fines to be reached in order to fill the municipal coffers? Are we aiming for ‘quotas’ in terms of the desired number of acquittals or convictions? Will these objectives and needs vary from one municipality to another?”

Bill provides new powers to government 

Equally disturbing is that under Bill 40, the government “shall,” after consultation with the chief municipal judge, designate from among the municipal judges a co-ordinating judge for each of the co-ordinating regions and shall fix the term of office of each of them. This amounts to the government acting as an administrator of the institution, contrary to the established principles of independence, noted Judge Bélanger.

Just as disconcerting is a provision under Bill 40 that compels co-ordinating judges and the chief municipal judge to send a detailed report at least twice a year “without delay” to the minister of justice that must contain information such as the number of days on which sittings were held and the average time devoted to them, the name of the municipal judge who presided over each sitting, the number of cases heard and the backlog of cases.

While the Conference of Municipal Judges of Québec allows that in the interests of sound administration of justice that the data should be collated to the justice minister at regular intervals, it warns that this provision as drafted could “potentially” cause problems of institutional independence.

“In our view, it is neither useful, necessary nor relevant for the name of each judge sitting in a session to be clearly identified and for there to be an obligation to send a report containing this information to the minister of justice without delay,” said the conference in a brief to the National Assembly.

“I’m confident that these irritants, which are definitely irritants, will eventually disappear from Bill 40,” said Lalande.

Lepage in the meantime, is hoping that the Quebec government will address the financial costs of the new reform, which have yet to be tabulated.

Bill 40 does not provide for any financial compensation for municipalities so that they can shoulder the additional burden of this possible change to the status of judges, points out Lepage. Nor does the new system take into consideration additional costs that will emerge over the remuneration of the municipal court chief judge and co-ordinating judges.

“It’s important to us that the additional costs don’t result in some municipal courts becoming financially in debt,” said Lepage. “We don’t think it’s up to citizens to absorb these costs. So we suggested to the minister that there should be a transition period during which he could initially assume all the costs and then the government’s share could be reduced.”

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This story was originally published in Law360 Canada.