“Judicial independence”, at the heart of the dispute between the Chief Justice of the Court of Quebec and the province

The Court of Quebec is expected to launch a new divisional court to deal with marital and sexual complaints by early 2022, potentially paving the way for a legal battle with the provincial government over judicial independence and the administration of the justice.

The government tabled a bill in mid-September that will create a “specialized” court that should take a different approach to dealing with victims of domestic and sexual violence by moving away from the traditional framework of criminal justice and making it work. judicial institutions in collaboration. with specially trained lawyers and specialized police units in tandem with social and community services to cultivate a victim-centered approach. Bill 92 prescribes a phased approach towards the development of the “Specialized Tribunal in Sexual Violence and Domestic Violence” within the Criminal and Penal Division of the Court of Quebec, with pilot projects being launched across the province. The bill also empowers the Minister of Justice of Quebec to determine by regulation the types of proceedings to be heard by the specialized tribunal.

Chief Justice Lucie Rondeau

But it is an initiative to which the Chief Justice of the Court of Quebec, Lucie Rondeau, does not want to be part, and has clearly indicated to those responsible for justice in April 2021 and to the Minister of Justice Simon Jolin-Barette to him. – even in July that she planned to create a division dedicated to family and sexual affairs. charges (ACCESS). “It is not a question of semantics,” explained Chief Justice Rondeau, who announced the creation of the new division on September 28, two weeks after the tabling of Bill 92. “There are substantial grounds which justify the court’s position to deviate from this designation of a court specializing in sexual and domestic violence.

It is not the role of a court to be an “umbrella” organization that will integrate the services offered by various legal, social and community interveners aimed at helping victims of domestic and sexual violence, declared Chief Justice Rondeau. . There is a need for a better integration of services aimed at helping these plaintiffs but it is not a responsibility that falls to the courts, added Chief Justice Rondeau. “Not all of these organizations fall under the jurisdiction of the tribunal,” Chief Justice Rondeau said. The Lawyer Daily. “We must move away from this perception that is emerging in society of a specialized tribunal that may have links with the way in which the police intervene, with the way in which the Crown organizes the work of its prosecutors, with the way in which community organizations provide psycho-social assistance. These measures have nothing to do with the courts. The tribunal is a different, independent organization.

The designation of a “tribunal specializing in sexual and domestic violence” is also problematic because it implies that the cases before it are of a violent nature, which goes against the presumption of innocence and undermines the obligation. neutrality and impartiality of the court, principles that are “absolutely essential” to maintaining public confidence in the courts, the chief justice said. The specialized court label also suggests, Chief Justice Rondeau added, that the specialized court would apply fundamental principles of the rule of law differently to cases of sexual and spousal violence when this is not the case. “We must avoid expressions likely to create expectations among the public, and particularly complainants,” said Chief Justice Rondeau.

It is also very unlikely that the Court of Quebec will implement a recommendation made by a task force that has been given the mandate to lay the foundations for the specialized tribunal. One of the recommendations called for greater coordination between the various courts, including the Court of Quebec, the Superior Court and the municipal court, “to ensure that the needs of individual victims are better met”.

“We never even discussed this issue,” said Chief Justice Rondeau, who was on the task force. “That’s why I was surprised to see it in the report. Moreover, coordination between courts is not so easy, especially since cases are so far on paper. And that’s not even taking into account all the privacy rules that apply and are different.

The ACCES division of the Court of Quebec intends to reorganize the handling of conjugal and sexual complaints. The dedicated division intends to bring together in a single hearing, on the same day and in the same room, all cases involving accusations of domestic and sexual offenses, a time-saving exercise supposed to improve interactions between the various stakeholders and which should by Therefore ensure that plaintiffs are better informed of the progress of the case, according to Chief Justice Rondeau. Each region will decide on the number of hearings and courtrooms that will be devoted to handling these cases.

Within the framework of the ACCES divisional court, case management will also be adapted to the “particularities” of these cases, which is likely to improve judicial delays. Judges are expected to be more proactive, with increased and focused interventions on issues such as the state of discussions between lawyers, the preliminary steps needed to set a trial date, or the reasonable and appropriate time to complete them.

At the same time, the ACCES Divisional Court will set up regional liaison committees which will “federate” the Court with social and legal actors. These committees will have the mandate to ensure that the procedures put in place by ACCES are optimal. Discussions are already underway in certain regions of Quebec, with the participation of the Director of Criminal and Penal Prosecutions (DCPC), criminal defense associations and social and community groups to discuss the establishment of the new dedicated division.

Rachel Chagnon Law Professor

Rachel Chagnon Law Professor

“This project seems more realistic to me than the creation of a new chamber because it will require fewer new resources,” said Rachel Chagnon, professor of law at the University of Quebec in Montreal (UQAM). “But that will undoubtedly mean more work for staff in criminal and penal chambers across the province.”

Chief Justice Rondeau recognizes that the new division will mean more work for criminal and penal judges sitting on the Court of Quebec, but does not yet intend to ask for more resources. “I suggest that we move forward with the resources we have,” said Chief Justice Rondeau. “We will make mistakes, for sure. We will make adjustments. This is why I favor a project based on the power of assignment, assignment of cases to judges, organization of the work of judges. This gives us all the flexibility to adjust when we run into difficulties. And this will also allow us to assess the impact of the implementation on our resources in order, if necessary, to possibly request additional resources.

The Court of Quebec says it rests on solid legal foundations to establish a new division and issue new practice guidelines, unlike the Quebec government which encroaches on the administration of the courts Рa position that the Montreal author and lawyer criminal lawyer and administrative Jean-Claude H̩bert agrees with this.

“Bill 92 clearly undermines the institutional independence of the Court of Quebec and its chief justice,” said Hébert, former assistant professor of law at UQAM. “Any draft regulation or decree on the operation of a specialized tribunal is liable to be invalidated by the Superior Court. The determination of the type of procedure is the exclusive competence of the Court of Quebec and the Superior Court of Quebec. The government cannot legally interfere in this area of ​​the administration of justice. Therefore, a pilot project based on an unconstitutional invasion could be invalidated.

Chagnon also believes that in accordance with the principle of the separation of powers, all administrative issues related to the creation and management of this new body fall under the jurisdiction of the court. “The pilot projects will have to be carried out by a gradual establishment of the ACCES division,” said Chagnon.

The case law certainly seems to favor Chief Justice Rondeau’s interpretation of the powers conferred on her. The Supreme Court of Canada in R. c. Valente, [1985], 2 SCR 673, held that a provincial court judge was an independent and impartial tribunal within the meaning of the Constitution Act, 1982. Taking into account Valente’s guidance and other more recent Supreme Court decisions on the same issue, a recent court case from the Manitoba Court of Queen’s Bench in R. c. Siwicki, 2021 MBQB 42 underlined that judicial independence includes a “basic administrative component”, which extends to administrative decisions which directly and immediately relate to the exercise of the judicial function. “The proper oversight and control of this administrative work of the court is essential to the court’s tasks of ensuring the proper administration of justice and facilitating access to justice, broadly and well understood,” said the courtyard.

Hébert points out that the provincial government may want to “legitimately” change the “dominant culture” by funding and consolidating social services for sexual and family violence, but “the state cannot legally encroach on the constitutional jurisdiction of the courts”.

Hearings on Bill 92 are scheduled to begin October 19. In the meantime, Jolin-Barette has raised the bar and published a brief editorial on his Facebook account and in French-language newspapers that was co-signed by 150 signatories, many of whom are lawyers and law professors, calling for a change. culture in the justice system. “This requires the establishment of a specialized tribunal and the training of all stakeholders, including judges,” writes Jolin-Barette. “We will not allow anyone to stand in the way of this important change for victims. “

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