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.

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