Quebec legal world divided over notaries gaining access to bench

Law360 Canada (March 7, 2023, 12:16 PM EST) -- The Quebec government, after scant debate and without the input or testimony of several major legal actors, is forging ahead in spite of forceful opposition by lawyers organizations with a controversial proposal that will allow notaries to be appointed to the bench of provincial courts.

Under the guise of an access to justice bill that will make free mediation mandatory and arbitration automatic for small claims cases, Quebec Justice Minister Simon Jolin-Barrette will amend the Quebec Courts of Justice Act to allow notaries with more than 10 years of experience to be appointed as a Court of Quebec judge, justice of the peace or municipal judge in order to “diversify” the makeup of the judiciary, a line of reasoning that has perplexed a slew of lawyers organizations. ”In essence, notaries and lawyers are put on an equal footing,” said Jolin-Barrette at the Quebec National Assembly during the clause-by-clause consideration of Bill 8. “I believe that notaries are as competent as lawyers to become judges. We do not have the luxury of depriving ourselves of all the jurists we have in Quebec.”   

But for Martine Valois, author of Judicial Independence: Keeping Law at a Distance From Politics, this part of the bill is yet another striking example of the provincial government acting hastily without fully taking into consideration its impact nor the necessary financial and human resources it will require. “The Quebec justice minister introduces bills that are drafted in a rush, without asking himself how we are going to implement them,” just as was the case with Bill 92, said Valois, a Université de Montréal law professor. Bill 92, passed in November 2021 with much fanfare, created a new division within the Court of Quebec to deal with conjugal and sexual violence offences but has yet to be implemented.

Lawyers organizations such as the Barreau du Québec and the Quebec division of the Canadian Bar Association (CBA Quebec), are calling on the government to withdraw the “surprising” amendments that would open the door for notaries to accede to the provincial judiciary as it raises important issues that must be carefully analyzed after consultations with all stakeholders, something that did not take place given the accelerated timetable to study Bill 8. “It was certainly a surprising [development] because we had not been consulted, and I understand that there are many other important players who had not been consulted,” said Jérémy Boulanger-Bonnelly, head of the CBA Quebec Legislation and Law Reform Committee. “But what is important for us is to take the time to think about it because it is an important reform. There are arguments in favour of the eligibility of notaries, but also arguments against this reform. Perhaps it would be better to postpone the reform and then have a debate among the stakeholders to ensure that it’s done in a considered manner.”

CBA Quebec, while open to “reflection” on the eligibility of notaries to the provincial judiciary, points out as does the Quebec bar that while lawyers and notaries share the same undergraduate law degree, the professional training of notaries, including their continuing education, diverges significantly from that of lawyers. In a brief, CBA Quebec recognizes that the expertise of notaries can be “useful” in certain areas, such as non-contentious matters, successions and matters relating to real rights, but their expertise is “difficult to transpose” to certain other fields, such as criminal law cases that are dealt with by municipal court judges and presiding justices of the peace. CBA Quebec also underlines that “any coherent law reform” should consider the “obvious tension” between the potential eligibility of notaries to join the judiciary and the principled prohibition under the Act respecting the Barreau du Québec against pleading or acting before the courts while practising their profession.

The Quebec bar is taking a harder stance, and is opposed to the reform. “We don’t see a direct correlation between better access to justice and allowing notaries to become judges,” Catherine Claveau, the bâtonnière of the Barreau du Québec, told Law360 Canada recently. “The problem is not in the number of candidates who apply to be judges. The problem is that there are not enough who are appointed in certain regions.” In a brief and in testimony before the National Assembly, the bar asserts that only lawyers have the skills and experience to maintain and uphold confidence in a strong and independent judiciary. “It is very surprising to consider that professionals who are neither empowered nor authorized to act in litigious matters can enter the judiciary,” testified Claveau. “In our view, for the protection of the public, for confidence, for a strong judiciary, that militates for the best trained and most experienced lawyers in the field to be eligible for this position.” The proposed legislation, added the bar, is also “extremely paradoxical” as it will create two classes of judges and will likely create a divide between judges from the notarial practice and those from the bar as only judges from the bar can gain access to the Superior Court, the Court of Appeal or the Supreme Court of Canada. That would engender the impression that there are two classes of judges in the public eye, added the bar.

The Professional Association of Quebec Lawyers (APAAQ), an organization that defends and promotes the professional and socio-economic interests of bar members, is also vehemently against the initiative. “We have great respect for the work of notaries, but before becoming a judge, it takes, in our opinion, courtroom experience,” said Julie Hamelin, APAAQ’s president, who was not invited to testify before the National Assembly despite several requests. “Expertise is essential, and to have expertise, you have to learn from experience in court. So for us, that is the main drawback.”

The APAAQ asserts that to “constrain” the skills, qualities and experience required to become a judge to simply an undergraduate university education demonstrates a lack of understanding and appreciation of what such a position entails. Notaries, who have hardly ever set foot in a courthouse, will have to issue decisions in accordance with jurisprudence, often in the face of seasoned lawyers who have mastered the rules of evidence and procedure that serve to ensure that hearings are fair and that decisions are rendered on the basis of credible evidence, states the APAAQ brief. “A family doctor is not given the opportunity to perform heart surgery, thinking that he or she will learn by doing so, or that he or she has already used a scalpel for certain minor procedures,” said the APAAQ in its brief. “Yet they are both doctors.”

Valois, who acted as principal drafting adviser to the 2011 Commission of Inquiry on the nomination process of judges in Quebec, the so-called Bastarache Commission, believes that appointing notaries to the bench is incongruous. The Bastarache Commission called on selection committees to assess candidates beyond those working for big law firms, and draw from an assortment of profiles, explained Valois. But notaries do not have extensive knowledge of civil procedures and at the moment are not allowed to plead before the courts, said Valois, echoing concerns issued by lawyers organizations. “It would be discordant to allow notaries who do not have the right to represent before the courts but to allow them to be judges in the Court of Quebec,” said Valois. “To be a judge, one must have this knowledge or ideally have some experience in the procedure.”

That’s not a view shared by Roberto Aspri, head of the Union of Quebec Notaries, a professional union with more than 1,200 members. Aspri points out that there is nothing in the Courts of Justice Act (Act) that sets out any particular characteristics that a lawyer who seeks to become a judge should have. Nor does that Act distinguish between litigators and non-litigators in the judicial appointment process, and neither does it stipulate a prerequisite to have “detailed knowledge” of the Code of Civil Procedure or the Code of Criminal Procedure, noted Aspri.

“Many of these lawyers who became judges did not themselves plead much or were litigators who specialized in certain specific areas of law and had no knowledge of other facets of law,” said Aspri. “But they progressively developed an expertise. It’s an argument that, in our opinion, doesn’t really have much weight.” Notaries may even have an advantage over litigators appointed to the bench, added Aspri. When litigators become judges, it requires a paradigm shift as one from one day to the next, they no longer represent the interests of a party in court. For some, the transition is challenging, said Aspri. Notaries, on the other hand, are used to being impartial from the beginning of their practice, said Aspri.

That is a position shared by Jolin-Barrette, who dismissed concerns outlined by lawyers groups. Bill 8 is “modernizing” and simplifying civil procedure in order to encourage parties “to talk to each more” to settle their disputes — a conciliatory approach wholly espoused and embraced by the notarial profession. “I find it hard to understand the strong reaction of certain groups to be so apprehensive about making room for notaries in the judiciary,” said Jolin-Barrette before the National Assembly.

“I think notaries are as competent as lawyers to become judges. Their expertise is going to be assessed on its own merits, and then either they will not be recommended or they will be recommended. You have to trust, in particular, the selection committee that evaluates the applications.”

CBA Quebec also believes that the selection committee will play a key role. It is critical to maintain the “robustness” of the selection process to ensure that the judges who take office are of the highest competence and the highest legitimacy, said Boulanger-Bonnelly, a McGill law professor. Just as important will be to ensure that adequate training in the administration of evidence and case management for all judges whose professional experience prior to their appointment did not involve litigation, such as notaries, law professors and non-litigating lawyers, added Boulanger-Bonnelly. “We are confident that the judiciary, by potentially welcoming notaries, will give them the necessary training to be competent judges,” said Boulanger-Bonnelly.

The Quebec Judicial Council, which did not have the benefit of pre-introduction consultations on the bill under consideration that directly affects it, said in a brief that the possible appointment of notaries to the position of judge will have an impact on the establishment of training programs. New specific training will have to be developed to meet needs that are different from those of lawyers who enter the judiciary, and that will require additional resources, said the council. The council also warned that new judges who practised as notaries will “probably” face delays over when they can preside over hearings.

The judicial council is also concerned about another controversial provision in Bill 8. Following the passage of Bill 8, the Quebec Judicial Council will fall within the scope of the province’s Act respecting Access to documents held by public bodies and the Protection of personal information, prompting Valois to affirm that it is yet another attempt by the government to rein in the Quebec judiciary. “It is clear that the minister is still in conflict with the Quebec judiciary and really wants to bring the court, and especially the Quebec Judicial Council, to heel, as he feels it is controlled by the Court of Quebec,” said Valois.

The head of the Quebec Judicial Council is Court of Quebec Chief Justice Lucie Rondeau. The justice minister and Chief Justice Rondeau have been at loggerheads in the past year over a slew of issues, with little signs of abating. In an unprecedented move, a former Quebec Appeal Court justice was appointed earlier this year as a mediator to resolve the dispute between them.