Quebec justice system in crisis, legal experts say

Law360 Canada (June 6, 2022, 11:38 AM EDT) -- 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 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 take on 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.”    

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 is unlikely to improve with an aging 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 Chief 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 12, 15 or 18 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.”

The situation is dire, due to an alarming dearth of bailiffs, court clerks, court stenographers, judicial assistants, special constables and translators that has rippled throughout the Quebec justice system, in both large urban centres and rural regions alike. Court clerks, who earn on average between $35,000 and $45,000, are leaving in droves, enticed by higher remuneration offered by Quebec municipalities and the private sector, where they can earn between $15,000 and $20,000 more, noted Christian Daigle, president of the Syndicat de la fonction publique et parapublique du Québec (SFPQ), the union that represents court clerks. The union has received a mandate from court clerks, whose collective bargaining agreement ran out two years ago, to go on strike for up to 10 days, three of which have already been used after negotiations with the Quebec government have reached an impasse.

“Working conditions are not up to scratch,” said Daigle. “We’re losing people who have been in the job for years, and we’re unable to recruit new people. We’ve warned the government years ago, and with working conditions not improving, and lately with the labour shortage, it just accelerated the process.”

Unless the provincial government improves its remuneration package, the situation will likely worsen. A recent poll taken by the union revealed that up to 42 per cent of court clerks are thinking or are actively looking for a new job. As it stands, some 40-odd court clerks quit last year, and at least 10 so far who work in greater Montreal courthouses have left for greener pastures, according to unofficial SFPQ figures. To pick up the slack, many court clerks who specialize in civil or family law matters have been compelled to work in criminal law proceedings after taking an “accelerated 101 criminal course” because of the landmark Jordan ruling, said Daigle. “So they prefer to sacrifice the time limits at the civil level to ensure that the criminal level can be maintained or be kept to a reasonable time limit,” added Daigle.

There is also a crying need for more judicial assistants, according to legal observers. At present, 20 per cent of Quebec judges do not have judicial assistants, and many judicial assistants end up having to divvy their time and work for two judges rather than just one as is supposed to be the case, pointed out Chief Justice Fournier. “There are new judges who have been appointed for whom it has taken almost a year or more to get an assistant,” said Chief Justice Fournier, who also bemoans the lack of court stenographers, particularly English-speaking ones. “At all levels the system is not equipped to cope with contemporary demand.”

The repercussions are being felt across the justice system. It now takes an average of 593 days in Quebec to get a small claims hearing, and in some places the figure reaches more than 1,000, compared to 223 days in 2018. At the Montreal Palais de Justice, five courtrooms were closed recently because of a lack of court clerks, which in turn led to delays in sexual assault and murder cases. “There are long delays in criminal law,” observed Claveau. “In small claims in some districts, they are staggering (and) in family and youth cases too which has led to many people to lose confidence, becoming discouraged with regard to justice, and have given up on asserting their rights.”

By all appearances, the situation is likely going to get worse as legal aid lawyers are upping the ante. Permanent full-time legal aid lawyers who work for the Commission des services juridiques (CSJ), the provincial agency that oversees the legal aid system, will be going on strike for two days next week after negotiations with the Quebec government have stalled. They are seeking remuneration on par with Crown prosecutors, something that has been the case for the past three decades. “We’re aware of their demands, and we’re holding discussions with the Treasury Board,” said Richard La Charité, the CSJ’s secretary, who pleads that the organization’s hands are tied. “When we negotiate, we basically receive our mandate from the minister (of justice), but also from the Treasury Board Secretariat.”

In the meantime, private sector criminal lawyers who take on legal aid mandates are turning up the pressure and have begun eschewing legal aid cases dealing with sexual and domestic violence. If those pressure tactics prove to be ineffective, then the private sector lawyers intend to increase the pressure by going on strike and refuse to accept all new legal aid mandates, said Marie-Pier Boulet, a Montreal criminal lawyer with BMD Avocats and newly anointed president of the Association of Defense Counsel of Quebec. The organization is collaborating with other defence lawyers’ associations to coerce the Quebec government to publish a report, issued in late April, by an independent panel of experts that examined and made recommendations for a thorough reform of the legal aid system and fees paid to private sector lawyers who work on legal aid cases. “We are asking not only that the justice minister to share the report with us, but also that he makes a commitment to follow recommendations issued by the report,” said Boulet. “We can no longer continue the way things are. The justice system is not well. We have our own fight but when you see that everyone at the same time has concerns that are just as serious as ours, it’s no longer a matter of just delays. The system is not working anymore.”

The independent group, created following an agreement reached between the Barreau du Québec and the Quebec government in October 2020, published a report last year that recommended sweeping reforms to Quebec’s administration of the legal aid system to simplify the process to seek legal aid and alleviate the administrative encumbrances faced by private sector lawyers who take on legal aid mandates. But above all, defence lawyers are counting on the report to endorse sizable increases in legal aid fees, said Élizabeth Ménard, a Montreal criminal lawyer and head of the Montreal Criminal Defence Lawyers Association (AADM). “It’s been at least 20 years since the legal aid tariffs have been increased, and what we want is a complete reform of the tariff grid or the billing system of legal aid,” said Ménard.

Even La Charité acknowledges that it is in the best interests of the legal aid system for lawyers to be fairly paid. “For us, it is important that both lawyers, whether permanent or private practice, are basically paid an appealing fee for the legal aid system to work,” said La Charité.