Agreement between Quebec justice minister, chief justice will make little difference: pundits

Law360 Canada (May 9, 2023, 11:55 AM EDT) -- Barely two weeks after the Quebec justice minister and the Court of Quebec chief justice buried the hatchet with the assistance of a mediator and reached an agreement over new judicial appointments and new work schedules for provincial court judges, a shortage of special constables caused delays and closures at the Montreal courthouse, illustrating the limited scope of the deal, according to pundits.

The settlement halts a court challenge by the Quebec government that was going to be heard by the Quebec Court of Appeal over a reform instituted last September by Chief Justice Lucie Rondeau that curbed the number of sitting days that 160 provincial court judges who preside over criminal proceedings from 139 to 104 so that they could spend more time writing judgments and managing cases. The chief justice called for the appointment of 41 provincial court judges to temper judicial delays.

According to the Quebec Ministry of Justice, up to 55,000 cases would have exceeded the 18-month cap set by Jordan if the reforms implemented by Chief Justice Rondeau would have been maintained. Those figures prompted the Quebec government to ask the Superior Court late last year to seek a judicial review of the “unreasonable” decision and an application for a stay to “avoid irreparable harm to the victims, the accused, public confidence in the judicial system and the sound administration of justice.”

Superior Court Justice Pierre Nolet rebuffed the provincial government’s arguments and rejected the motion for a stay in Procureur général du Québec c. Rondeau, 2022 QCCS 4081, noting that the median age of active cases has risen from 217 days in 2017-2018 to a projected 329 days in 2021-2022, before the reform was even considered. “What is the Ministry doing about it?” asked Justice Nollet. “Despite all the measures put in place … the median age of active cases is exploding. The mere fact that the (reform) may cause additional delay cannot establish irreparable harm separate from that which already exists without the (reform).” Justice Nollet noted that the assignment policies and practices of the judges of the Court of Québec in the Criminal and Penal Division were in place for more than four decades before the reform. The Quebec government appealed the decision.

To the relief of the Quebec legal community, an agreement however was reached on April 21 with the assistance of Jacques Chamberland, a former Quebec deputy minister of justice and deputy attorney general for five years until 1993 when he was appointed to the Quebec Court of Appeal where he sat for more than 28 years.

Under the terms of the agreement, Justice Minister Simon Jolin-Barrette will appoint 14 new provincial judges this year to the Criminal and Penal Division, along with new support staff. In exchange, the chief justice will add to the annual workload of judges who work in the same division to 121 days, with the remaining lost sitting days expected to be made up by more efficient case management.

“The agreement puts an end to a disgraceful public dispute between the justice minister and the chief justice, where the minister took the opportunity to attack the judges for making a unilateral decision” over the work organization of provincial court judges, noted Martine Valois, a law professor at the Université de Montréal and author of Judicial Independence: Keeping Law at a Distance From Politics. “It’s bad faith to say that because the chief justice has power to decide the court’s sittings. That is part of administrative independence. It is a responsibility that is specifically given to her by the Courts of Justice Act. So she didn’t have to consult the minister of justice before taking that decision.”

The Quebec bar put a positive spin on the accord as did the Commission des services juridiques (CSJ), the provincial agency that oversees the legal aid system. “We welcome the parties’ commitment to greater efficiency of justice,” said the Barreau du Québec in a statement. “By relying on dialogue and conciliation to agree on a series of compromises, the government and the Court of Québec are proving that they place access to justice and the interests of litigants at the top of their priorities. We are grateful for this.” The head of the legal services commission, Daniel LaFrance, said in a curt press release that “this agreement is beneficial to all litigants by reducing delays and thus facilitating better access to justice access to justice.”

But Marie-Pier Boulet, a Montreal criminal lawyer with BMD Avocats and president of the Association of Defense Counsel of Quebec, is concerned “about the outcome of this agreement.” That’s because the pact calls for the judiciary and the Quebec Ministry of Justice to reach non-binding targets by the end of December 2025. Both parties want to reduce the median time for closing cases from 300 to 212 days, increase the ratio of cases that meet the Jordan ceilings from 79 per cent to 87.7 per cent, and boost the rate of closing cases from 0.91 to 1.10.

“Since statistics and indicators are an essential management tool to ensure that these objectives are met and that the criminal and penal justice system functions properly,” states the agreement, the minister of justice will entrust the Steering Committee on Judicial Statistics of the Quebec Ministry of Justice, of which the Court of Québec is a participant, to gather data on seven indicators. Figures will be compiled over the median time of case closure, closure rates, average number of hearings per case, average length of active cases, the average time from the filing of the report to the trial, the rate of cases closed before trial, and the percentage of cases where the accused pleads guilty on the first day of the trial.

“The problem for me is that in the terms of the agreement, we seem to be interested only in the performance of the system in terms of figures, in terms of statistics,” said Boulet. “And we are not interested in the quality of the system,” which includes coming to grips with a “catastrophic” shortage of court personnel, with more than 20 per cent of employees resigning in a year. In early May, several courtrooms had to be closed and hearings were postponed because there is a dire shortage of special constables. The Syndicat des constables spéciaux du gouvernement du Québec, the union representing peace officers, assert that more than 200 have quit their jobs since 2018, pinning the blame on low salaries, capping off at $59,000. Though negotiating for the past three years, a new collective agreement has yet to be reached.

Valois, too, believes that it makes little sense to expect provincial court judges to be more productive and deliberate more swiftly and issue rulings faster. That’s not the way the justice system works, and the issues faced by judges are largely out of their control, added Valois, who lays the blame on the current predicament of Quebec’s justice system on a number of circumstances, from chronic underfinancing to the “well-intentioned” Supreme Court decisions in Jordan and Stinchcombe. “Judges are not civil servants,” remarked Valois. “They are people who render justice. They do not have control over the number of cases that are brought to their attention. They don't decide how many petitions for release they are going to have in a year, or in a month, or in a week. They have no control over the number of appearances, the number of arrests. So we can’t impose an obligation on them to close files because they are not the ones who do it. So for me, it makes no sense to have performance indicators like that.”

A 42-page report titled “Evolution of the function of judge at the Criminal and Penal Division of the Court of Quebec,” written by Court of Quebec Deputy Judge Maurice Galarneau, made similar observations. The report, written after consulting with 15 Court of Québec judges, notes that judges are now expected to demonstrate efficient management qualities, particularly since the Jordan ruling.

“The time spent by the judge in getting the parties and their lawyers to narrow the debate, simplify the procedure, shorten the hearing, try to find a partial or final solution to the case, etc., is important and must be recognized in the calculation of the additional resources that the Court of Québec expresses the need for,” said Judge Galarneau in his report. "In this context of pressure on the judicial system, the government has a role to play in ensuring that the criminal justice system is adequately resourced, particularly in order to support initiatives aimed at reducing delays." Moreover, the Quebec Court of Appeal has made it plain in a number of recent decisions that it favours written reasons, or at the very least oral reasons prepared as carefully as if they were given in writing, noted the report.

Jean-Claude Hébert, a distinguished former Montreal criminal lawyer who just retired, has reservations that the accord will lead to concrete results. “I very much hope that the expected results will be achieved,” said Hébert. But “I am skeptical about the possible results of numerical targets. I doubt that all the objectives sought will be a success, although I very much hope so.”