Legal community concerned about Court of Quebec plans

The Quebec justice system, in crisis following an acute shortage of court personnel and strained labour relations that has led to walkouts and strikes, may face even more serious judicial delays if the Court of Quebec follows through with plans to have judges of the Criminal Division sit every second day as of this fall.

Court of Quebec Chief Justice Lucie Rondeau informed Quebec Justice Minister Simon Jolin-Barrette earlier this year that 160 provincial court judges who preside over criminal proceedings will curb the amount of days they sit, from two days out of three to one day out of two so that they can spend more time writing judgments and managing cases. The Chief Justice is calling for the appointment of 41 provincial court judges to attenuate judicial delays once the new work scheme is implemented.

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Quebec justice system in crisis

The Quebec justice system, buckling under the weight of years of chronic underfinancing, is stricken by such a serious manpower shortage that hardly a day goes by without a trial, a preliminary inquiry or a sentence being delayed or postponed, an untenable situation that could lead to “significant harm” to the public and undermine faith towards judicial institutions, warn top legal officials.

The “catastrophic” situation is exacerbated by tense labour relations with a host of different legal actors and the Quebec government, with legal aid lawyers recently launching half-day strikes, private sector lawyers who take on legal aid mandates now refusing to accept cases dealing with sexual and intimate partner violence, and court clerks launching walkouts that may metamorphose into a strike.

“The situation is at a minimum very troubling,” remarked Catherine Claveau, head of the Quebec Bar. “The system has reached its limits. At the moment, there are very real risks of breakdowns or disruptions of services that could cause significant harm to citizens and generate a great deal of insecurity towards judicial institutions.”

Former Quebec Superior Court Chief Justice Jacques Fournier is just as concerned by the turn of events, asserting that parts of the justice system is in the midst of cracking, a state of affairs that will unlikely improve with an ageing workforce progressively retiring – unless more monies are poured into the justice system.

“It’s very, very worrisome, very worrisome, because it’s not going to get better,” said Justice Fournier, who along with the chief justices of the Court of Quebec and the Quebec Court of Appeal wrote a letter to the Quebec government last year entreating it to boost the salaries of their judicial assistants. “To be satisfied with justice that is delivered in twelve, fifteen or eighteen months is not ideal. In my opinion, justice should be rendered almost in real time. It will take major investments to modernize, but modernizing in terms of access and in terms of speed of execution.”

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Quebec Auditor General report questions usage of courthouses

More than a year after the Quebec auditor general revealed that courthouses in the province are underused and that the provincial ministry of justice fails to analyze readily available administrative and financial data that would help it become more efficient and cost-effective, the justice department is tightlipped over what, if any, progress it has made to remedy the situation.

Already under fire for its handling of the labour conflict with its Crown prosecutors and government lawyers and castigated by the Quebec law society for failing to provide sufficient judicial resources, legal observers are urging the Quebec government to address the findings made by the auditor general.

“The Ministry of Justice has not adopted a set of indicators that would help it evaluate the performance of the system as is the case elsewhere in Canada,” observed Gilles Ouimet, the head of the Barreau du Quebec. “It would be beneficial to heed the auditor general’s recommendations.” Continue reading “Quebec Auditor General report questions usage of courthouses”

Committee recommends a modest salary increase for Quebec judges

Days before the Quebec government enacted a contentious back-to-work legislation to end an acrimonious labour standoff with its Crown prosecutors and government lawyers, a judicial compensation committee released an inconspicuous report that will likely once again test the government’s rapport with the principle players of the legal system.

A five-member blue-ribbon panel of legal and financial experts established under the Courts of Justice Act (Act) recommended handing Court of Quebec judges, municipal judges and justices of the peace a modest hike in their remuneration package, but it would be surprising if the provincial government embraces the recommendations, given past history.

Since 1998, there have been four judicial compensation committees (excluding the latest one), and the government almost always contested the recommendations, points out André Gauthier, who represented the Conférence des juges municipaux du Québec which represents judges of municipal courts outside Laval, Montreal and Quebec City. In almost every case, judges have had to launch legal proceedings to compel the provincial government to adhere to recommendations made by the independent committee.

“The government cannot do what it wants as the Supreme Court of Canada laid out the framework that must be followed,” noted Gauthier of Cain Lamarre Casgrain Wells LLP in Montreal. “But since 1998, the government has generally not taken into account recommendations by various judicial compensation committees. We’ve had to go before the courts. These are the reasons that explain why I am not optimistic.”

Headed by Alban d’Amours, the former head of Quebec’s largest financial institution, the Mouvement Desjardins, the committee tabled a report before the National Assembly recommending a 5.05 per cent salary increase over a three year period for Court of Quebec judges, from the current $221,270 to $232,443 by July 2012. It also recommended that as of January 2012 changes be made to the insurance plans of Court of Quebec judges, which would increase premiums drawn from their annual salaries from 1.07 per cent to 1.81 per cent. The committee examines every three years issues such as remuneration, pension packages and benefits of provincially-appointed judges.

The government, pleading fiscal restraint, argued that Court of Quebec judges should receive a 2.25 per cent increase over three years, in line with what Quebec’s 450,000 public sector workers received last June during contract negotiations.

The d’Amours committee partly bought into the government’s reasoning. After taking into consideration factors such as judges’ responsibilities, the need to attract “outstanding candidates,” the cost of living index, the economic situation prevailing in the province, trends in real per capita income in Quebec, the state of public finances and the remuneration paid to other judges exercising a similar jurisdiction in Canada, the d’Amours committee determined that fiscal restraint is a factor that must be taken into consideration when examining the remuneration of judges.

“The committee considers that the remuneration of judges cannot escape the constraints that is imposed by the state of public finances and the economic forecasts of the next three years,” said d’Amours in his 128-page report.

All of which prompted Chantal Chatelain, who represented Court of Quebec judges before the d’Amours committee, to observe that “there never seems to be a good time to discuss salary increases, in Quebec or elsewhere. All public administrations plead fiscal constraint.”

The modest hike would still make Court of Quebec judges among the best paid judges in the country. Only Superior Court judges who earn $271,400, Ontario provincial court judges who make $252,274 and British Columbia provincial court judges who gross $231,138 make more than Court of Quebec judges.

The salaries of the 270 judges of the Court of Quebec have nearly doubled since 1997, from $113,492 to $221,270 in 2009, after a landmark decision on judicial independence by the Supreme Court of Canada in Remuneration of Judges of the Provincial Court (P.E.I.), [1997] 3 S.C.R. 3. Court of Quebec judges also successfully argued before other judicial compensation committees that salary hikes would help attract candidates from the private sector and that the court is without equal in the rest of Canada, with a jurisdiction more akin to a Superior Court than any other provincial court. The Court of Québec, whose judges are appointed by the government of Quebec, is a court of first instance that has jurisdiction in civil, criminal and penal matters as well as in matters relating to youth. It also has jurisdiction over administrative matters or appeals, where this is provided for by law.

“If it wasn’t for the Supreme Court’s landmark ruling, I believe judges would be in the same situation as Quebec Crown prosecutors and government lawyers,” said Gauthier, who received four years ago the Medaille du Barreau, the highest distinction a Quebec lawyer can earn.

The committee also recommended reimbursing part of the legal fees incurred by the Conférence des juges du Québec, which represents the Court of Quebec judges, while pleading its case. The Conférence argued that the government should put in place a permanent mechanism, either through a government decree, regulation or by legislation, that would compel the government to refund its legal expenses in lieu of being at the mercy of the committee’s recommendations. The committee instead recommended that the government reimburse 12 per cent, or $60,000, of the $485,000 legal tab the Conférence incurred to present its case before the judicial compensation committee.

“It is just, equitable and reasonable that judges be able to receive financial support, in part or in whole, to present their positions,” maintained Chatelain. “The judges have no means of pressure. They are bound by a constitutional framework to present their positions.”

Aside from proposing a salary increase for Court of Quebec judges, the committee also recommended a salary hike of 3.3 per cent over three years for municipal court judges, from the current $191,507 to $197,889 by July 2012, and a 10.1 per cent increase for presiding justices of the peace, from the current $110,000 to $121,091 by July 2012.

The committee also laid bare the “difficulties” it experienced in executing its mandate. It castigated the provincial government for belatedly appointing members of the committee, which proved to be a “source of inefficiency and discontent” as it gave the committee barely six months to fulfil its mandate.

“The committee did not have the time to meet with all the parties to put in place mechanisms that would ensure the efficacy and smoothness of its work.”

Under the Act, the government has 30 days to approve, amend or reject some or all of the committee’s recommendations, by way of a resolution.

Following back-to-work legislation, mass exodus of Quebec Crown prosecutors is feared

Several weeks after the Quebec government enacted back-to-work legislation that compelled striking Crown prosecutors and government lawyers, two Quebec Crown prosecutors have submitted their resignation, the beginning of what some fear may prove to a mass exodus.

Charles Levasseur, a crown prosecutor who handled many high-profile cases, notably the case dealing with former Quebec Court of Appeal judge Jacques Delisle accused of murdering his wife, is stepping down. He said that while other factors came into play, the labour conflict “probably” precipitated his decision to work for the law firm Thibault Roy Avocats. “The last conflict was difficult. It made me realize that the Crown will never be the same, and my motivation will never the same. That is the impact of the back-to-work legislation,” said Levasseur in an interview with a French-language legal website.

That is likely a sign of things to come, fears Gilles Ouimet, the head of the Barreau du Québec.

Bill 135, passed by the provincial Liberal government majority after an overnight debating session at the National Assembly, marked the second time in five years that Quebec crown prosecutors and government lawyers have had their working conditions dictated by government decree. Under Bill 135, which outlined stiff penalties if the 1,500 striking lawyers did not return to work, prosecutors and government lawyers will receive — retroactive to March 31, 2010 — a six per cent raise over five years, in line with what Quebec’s 450,000 public sector workers received last June during contract negotiations. And in a move perceived by legal insiders and observers as an affront and “disrespectful,” an offer made by the government during negotiations to increase salaries by 22 per cent was removed with the passage of the bill.

“The consequences of the back-to-work legislation are worse than the consequences incurred by the strike,” remarked Ouimet, a Montreal criminal lawyer. “With the passage of the law, the government has without a reasonable doubt unfortunately breached the bond of trust with lawyers working in the public sector. What is unusual and what must be noted is that the special law imposes working conditions that are worse than which the government appeared to offer during the negotiations. So by exercising their right that was imposed on them, the government is punishing them.”

While it is improbable that Quebec prosecutors and government lawyers will resign en masse in the coming weeks, many will no doubt begin to consider their options, particularly lawyers who are on the eve of their retirement, said Marc Lajoie, the head of the Association des juristes de l’État (AJE), a union representing nearly 1,000 lawyers, notaries, and other legal professionals. The average age of AJE members is 48 years old, and they make up approximately 25 per cent of the membership.

“There are many members who told me that their heart is no longer in it, and that they are considering leaving rather quickly,” Lajoie told me. “Morale is at the lowest I’ve ever seen in the 28 years I have been with the public service. Bill 135 risks accelerating the departure of many of those who are on the eve of their retirement.”

Christian Leblanc, head of the association representing Quebec prosecutors, concurs, adding that the new deal will make it far more difficult for the Crown to recruit and retain talent. Indeed, it may even put in jeopardy a new $31.5 million anti-corruption squad that was announced with great fanfare by the Quebec government days before Bill 135 was enacted. Modeled on New York City’s Department of Investigation, the anti-corruption squad is expected to have a staff of 189 employees, including police, prosecutors and staff. Quebec crown prosecutors, however, have said time and time again that they will not take part in any corruption probes if they are legislated back to work.

“Where are they going to find the lawyers for the anti-corruption squad?” asked rhetorically Leblanc, who admits that he is embittered by the way the government handled their negotiations. “We already have vacant positions that we cannot fill.”

Crown prosecutors and government lawyers sought a 40 per cent hike in salaries, which would have put them on par with the national Canadian average. At present, lawyers employed by the Quebec government can earn at most $100,756 or 45.5 per cent of the salary earned by a judge of the Court of Quebec, according to figures compiled by AJE. In contrast, the top salary of an Ontario crown prosecutor or government lawyer is $200,924 or 79.8 per cent of a provincial court judge, making it the highest in the country. In Nova Scotia that figure stands at $130,143, in Manitoba $133,697, in Alberta $176,628, and in British Columbia $177,653.

Besides a significant increase in salaries, Quebec crown attorneys were asking the provincial government to hire approximately 200 more prosecutors. According to statistics compiled by the Quebec crown attorney association, Quebec has the worst ratio of prosecutor per inhabitants in the country. At present, Quebec has one prosecutor per every 16,526 residents compared to an average of one per 10,700 in the Atlantic provinces, one per approximately 10,000 in B,C. and Manitoba, one per 11,916 in Ontario and one per 13,000 in Alberta.

But those demands fell on deaf ears. Instead Quebec Treasury Board President Michelle Courchesne said that the provincial government will hire 80 new prosecutors, along with 40 researchers and 25 new government lawyers.  Pleading fiscal restraint and in fairness to the deal struck by the government last year with its 450,000 public sector workers, Courchesne also said that the government had no choice but to enact back-to-work legislation. The government also rejected the prosecutors’ call for binding arbitration to settle the dispute, with Premier Jean Charest observing that “it’s as if you asked your neighbour the responsibility of doing your budget without the responsibility of getting the money.”

Except critics point out that the Quebec government announced in mid-February that it will contribute $200 million to a new NHL calibre hockey arena in hopes that professional hockey will return to Quebec City. More pointedly, the Barreau notes that the justice system in Quebec is severely underfunded, an observation shared last year by a government committee that examined the province’s economy and state of public finances. The budget of the Ministry of Justice represents a mere one per cent of the government’s total budget.

“The budget of the Ministry of Justice has not increased over the past 17 years,” notes André Gauthier, a former batonnier and now head of the law firm Cain Lamarre Casgrain Wells. “That projects the image of a ministry that is not held with much regard by the government.”

Ouimet agrees. “The signals sent by the government is that justice plays a rather relative role in the Quebec state, and is treated just like any other services,” said Ouimet. “We cannot afford as a society to lose lawyers working in the public sector. We already face difficulties recruiting them. And if on top of that we demoralize them to the point where they are considering leaving, well then I think it will be as if we are driving a vehicle with three tires.”

In the meantime, to the astonishment of both the crown prosecutor and government lawyers association, the government is hoping that the prosecutors and government lawyers will return to the bargaining table to negotiate working conditions that were not included in the back-to-work legislation. That is not likely to happen, at least not in the near future.

“That is audacious,” Leblanc told me. “I spent two weeks with Madame Courchesne, and I will never meet with her again. I told her I no longer had any confidence in her. She betrayed our confidence. I will resign before meeting with her.”

An amended version of this story was originally published in The Lawyers Weekly.

Imposed settlement leaves bitter taste

Days after the Quebec government enacted back-to-work legislation that compelled striking Crown prosecutors and government lawyers, a movement appears to be afoot to mollify the rancorous atmosphere reigning between the principle actors of the province’s justice system.

It’s not going to be easy.

Louis Dionne, director of criminal and penal prosecutions, met with Quebec’s chief prosecutors and assistant chief prosecutors, the majority of whom asked for reassignment in a show of support with striking lawyers, for a five-hour stretch in Quebec City. Dionne, who refused to grant the reassignments, described the meeting as being “constructive.” He also admitted that the Quebec Crown is in need of “oxygen.”

But for many it’s too little, too late. The association representing Quebec crown prosecutors called for Dionne’s resignation, saying he should have spoken up during the labour conflict, and not after the back-to-work legislation was adopted. “Crown prosecutors do not understand, and are even angry, that their boss did not publicly come to their defence at a time when the Quebec criminal justice system was living through its worst crisis,” told me Christian Leblanc, the head of the Quebec crown prosecutors association.

The imposed settlement has been harshly criticized by Quebec’s legal community. One lawyer told me that lawyers – and judges — are discouraged by the turn of events. Another said that, while he is optimistic by nature, he is pessimistic that things will get better, adding that successive Quebec governments have paid little heed to the administration of justice.

In a letter to its 23,000 members, the head of the legal society the Barreau du Québec, said that the government has ruptured the bond of trust with public sector lawyers by enacting back-to-work legislation – a rebuke that a former Barreau administrator described as being too little, too late.

Morale is low, and the repercussions will likely reverberate throughout the corridors of justice for quite some time. Unless the Quebec government has a change of heart and begins to seriously address issues that need to be grappled with, assert legal observers, the very same that say that it is not likely.