Court of Québec’s Plans to Alter Judges’ Workload Concern Legal Community
Originally published in The Lawyer’s Daily, © LexisNexis Canada Inc.
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 Québec 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.
“It is important to stress that the current work organization of judges in criminal matters, which has been in place for 40 years, is a major concern that has been the subject of reflection and discussion within our institution for some time now,” said Chief Justice Rondeau in an e-mail to The Lawyer’s Daily. “The judges of the Criminal and Penal Division are currently the only ones to have only half a day of work under advisement for each day they sit.” The restructuring will put these judges on par with judges from the Court of Québec’s Civil and Youth Division, as well as Québec Superior Court justices.
At least 50,000 criminal cases annually could exceed the 18-month time limit set by R. v. Jordan ( 1 S.C.R. 631,  S.C.J. No. 27), according to a report prepared by the Quebec Ministry of Justice obtained by the French-language newspaper Le Devoir. Chief Justice Rondeau said the court is holding ongoing discussions with the Ministry, and it is assessing the impact of the reorganization on judicial timeframes, which varies from region to region. “The Court of Québec is aware of this impact and is participating in this work in a spirit of cooperation aimed at gradually deploying additional resources so that, in accordance with the public’s expectations, it can provide quality services within a reasonable timeframe,” said Chief Justice Rondeau, adding that she is waiting to meet with Jolin-Barrette.
The secretary of the Commission des services juridiques (CSJ), the provincial agency that oversees the legal aid system, is concerned, particularly since approximately 75 percent of cases heard by the Criminal and Penal Division of the Court of Québec are covered by legal aid. “This orientation does indeed raise certain questions and concerns within the commission,” said Richard La Charité. “We are certainly concerned about the impact that this measure will have on the increase in judicial delays in general.” He added that the CSJ has expressed their qualms to the chief justice and are hoping to “exchange and collaborate” with her court.
The head of the Association of Defense Counsel of Québec is also concerned about the announced change, asserting that it will lead to “serious problems.”
“If provincial court judges end up sitting every other day, new judicial appointments will have to be made,” said Marie-Pier Boulet, a Montreal criminal lawyer with BMD Avocats. “If they don’t go hand-in-hand, I’m telling you it’s going to explode in terms of delays.”
Catherine Claveau, the head of the Québc bar, declined to comment on the move by the Court of Québec but noted that Chief Justice Rondeau is one of several legal actors seeking to improve legal services. “All stakeholders in the justice system will get together to try to solve the problems that affect them,” said Claveau. “We offer our co-operation both to the Ministry of Justice and to all the other stakeholders to try to find other options that could help prevent justice from running into a wall.”
Université de Montréal law professor Martine Valois understands the shift that Chief Justice Rondeau is instigating. The role and responsibilities of judges have evolved over the past few decades, particularly since the adoption of the Charter, noted Valois, author of the book Judicial Independence: Keeping Law at a Distance from Politics. Nor does Valois believe that the new policy is a way for the chief justice to apply pressure on the Québec government to appoint more provincial court judges.
“The government wants us to believe that it’s a pressure tactic, but it’s not,” said Valois. “By law, the management of the court and the assignment of cases is the responsibility of the chief justice. She can see if cases are delayed because the judges don’t have time to write their judgments. This was something we saw perhaps less often before — we had more judgments given on the bench. But now judges have to manage proceedings and write judgments, and it has become much more complex since the adoption of the Charter.”
Those observations also form the thrust of a report written by Court of Québec Deputy Judge Maurice Galarneau, issued this past February. Titled “ Evolution of the function of judge at the Criminal and Penal Division of the Court of Quebec ,” the 42-page report laid the foundation for Chief Justice Rondeau’s new course of action. 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 landmark 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.”
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.
The report also points out that the growing phenomena of self-represented litigants has substantially lengthened procedures as has the Charter. The development of new methods of police investigation and evidence derived from new technology has also had an impact on the work of the judge in chambers, said the report, pointing out that quite often judges have to spend hours listening to wiretaps stemming from organized crime investigations. Moreover, the Québec Court of Appeal in a number of recent decisions has made it plain 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. “Although the form of the judgment is always a matter for the judge’s discretion, writing reduces the risk of unfortunate and inappropriate expressions,” added the report.
While the report asserts that the Court of Québec does not seek “perfect symmetry” between the resources allocated over the years to the Director of Criminal and Penal Prosecutions (DCPP) and those dedicated to its own Criminal and Penal Division, it does highlight that when the DCPP was created in 2007, it employed 478 prosecutors and the Court of Québec had 270 judges. According to the latest figures, the DCPP now has 772 prosecutors, while the Court of Québec has 308 judges. “It does not take long to convince anyone that these prosecutorial reinforcements have led to increased judicial activity at the court,” said the report.
Quebec Superior Court Chief Justice Jacques Fournier also believes it is time for more resources to be allotted to the courts. “Unfortunately, over time, we have been a little bit neglected,” he said. “Judicial resources have not kept up with the evolution of society.”