Quebec justice minister refers two questions to Appeal Court on anticipated criminal justice delays

Law360 Canada (July 15, 2022, 6:13 PM EDT) -- The Government of Quebec has referred two questions to the province’s appellate court related to the Court of Quebec’s plans to reduce the number of days Criminal Division judges will sit as of this fall.

The questions are:

1. Considering the responsibilities that R. v. Jordan [2016] 1 S.C.R. 631, places on courts of justice regarding the observance of reasonable time limits in criminal matters and considering the judicial independence of courts of justice, can the Chief Justice of the Court of Québec unilaterally decide, in exercising the power conferred notably by s. 137 of the Courts of Justice Act (chapter T-16), to reduce the number of days on which the judges assigned to the Criminal and Penal Division sit, which will have the effect of lengthening judicial delays?
2. In the affirmative, what are the limits on this power imposed by the responsibilities that R. v. Jordan [2016] 1 S.C.R. 631, places on courts of justice?

Marie Pier Boulet, a Montreal criminal lawyer with BMD Avocats, said she was surprised by the questions.

Boulet, who is also president of the Association of Defense Counsel of Quebec, has been concerned about delays resulting from the Court of Quebec’s announcement that judges sitting on criminal and penal matters would sit only every second day. But she said she was surprised that Quebec’s justice minister would have brought references in the matter to the Quebec Court of Appeal.

“What we think is very important is the séparation des pouvoirs,” or division of powers, she told The Lawyer’s Daily. Although government may appoint judges, it’s up to the courts to decide “what’s going on in the courtroom.”

While Quebec’s criminal defence bar is concerned about “decisions being rendered in good time,” it’s “not for the government to decide on the schedule of judges,” she said.

As reported by The Lawyer’s Daily in June, Court of Quebec Chief Justice Lucie Rondeau told Quebec’s justice minister Simon Jolin-Barrette earlier this year that 160 provincial court judges who preside over criminal proceedings will sit fewer days come autumn, from two days out of three to one day out of two, in order that they may spend more time on decision writing and case management.

Chief Justice Rondeau has called for the appointment of 41 provincial court judges to alleviate court delays once the new work schedule comes into effect.

Boulet agrees that “the solution is to nominate more judges” rather than “the government of Quebec … trying to intervene in Justice Rondeau’s decision.”

However, she added, the reference to the Quebec Court of Appeal will at least give the provincial high court an opportunity to rule on the separation of power between the executive, legislative and judicial branches of government.

The Court of Quebec’s announcement earlier this year to reduce Criminal Division judges’ sitting days “will have a noticeable effect on court delays,” Montreal criminal lawyer Zayid Al-Baghdadi said in an e-mail.

“Trial dates, especially those exceeding one day, are already being scheduled at quite distant dates in many districts,” he added. “Come September, I think it may start to reach a critical point, especially with all the COVID-related postponements that have occurred thus far.”

At the same time, he said, “judges have an increasingly challenging job at hand, especially now that trials are becoming more complex and often include many preliminary motions. I have noticed that there are far more written decisions being made today due to this.”

Al-Baghdadi is also encouraged by the announcement of plans to appoint an additional 41 judges. “This will surely help considerably in maintaining the efficiency of the criminal justice system in Quebec, which is already under quite a lot of stress due to the pandemic,” he said.

Quebec’s order in council concerning the two reference questions was filed with the Office of the Court of Appeal for the District of Montreal under docket No. 500-09-030125-223 on July 7.

“Pursuant to section 4 of the Court of Appeal Reference Act, all attorneys general have until August 22, 2022 to file a representation statement with the Office of the Court of Appeal and notify it to the Attorney General of Quebec,” including by e-mail to bernardroy@justice.gouv.qc.ca.

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