Inflation is in full swing. Imminent increase in the key rate, repeats the refrain every week. At the coffee machine, the pandemic is gradually replaced by inflation as a topic of conversation. However, if economic inflation is omnipresent in public discourse, a distinct type of inflation seems to be shunned: judicial inflation.
The expression — coined for the present text — of “judicial inflation” designates the increase in the duration of processing cases by the courts.
Judicial inflation is a real problem, but it does not benefit from any viral hashtags. This text describes this problem and proposes solutions that can be applied in the short term.
A few numbers
The pandemic has greatly disrupted court operations. Here are some numbers.
In Quebec, while historically, more than 85% of criminal cases closed either the same year or the following year, in 2020, this 85% drops to 35%1.
In civil matters, judicial inflation is just as dazzling. For example, a commercial civil case involving a six-day trial that is ready to be heard will not be heard until mid-2024. So, a year and a half of waiting while the file is ready.
In the Small Claims Division of the Court of Quebec, again, the same inflationary trend is observed: the median time to obtain a judgment increased by 38% between 2019 and 20201.
This phenomenon of judicial inflation is neither exclusive to Quebec nor caused solely by the pandemic. It existed long before. Let’s take civil cases at the Canadian level as an example. Between 2010 and 2019, the number of cases still active two years after their opening doubled2.
The measure of success
As in economic matters with the consumer confidence index, confidence in the judicial system is an important indicator: the success of the judicial system depends in particular on the confidence of its users.
Currently, the majority of Quebecers have confidence in the judicial system (63%)1.
However, this passable rating does not come from a poor performance of the actors of the judicial system, far from it. According to a comprehensive independent analysis, Canada ranks twelfth in the world on the Rule of Law Index. Similarly, a large majority of Quebecers (70%) trust judges3.
In fact, the majority of Quebecers (53%) perceive the delays in judicial processes as unreasonable or not at all reasonable.3. These delays color the perception of the judicial system.
Thus, if more than a third of Quebecers say they have no confidence in the justice system, judicial inflation is largely responsible. It is only likely to get worse. If the inflationary trend continues, the confidence index may inevitably drop from a D to a lower grade.
So what to do?
Two measures must be put in place quickly.
First, on the material level, the state must urgently increase the resources allocated to justice. The shortage is already systemic; it extends to several players in the judicial system, from special constables to court clerks, whose number has fallen by 63% in the last year alone4.
Judges are not spared. While Chief Justice of the Court of Quebec Lucie Rondeau is calling for the creation of more than forty judicial positions, for her part, the Legault government’s 2022 budget provides for the addition of new judges to the Court of Quebec. Quebec an infusion of $1.6 million for the year 2022-2023.
That’s the equivalent of five or six judges. Or a third of a giant ring in downtown Montreal.
Second, conceptually, the time has come for a paradigm shift. We must adopt pragmatic and effective standards which reflect the evolution of our society.
Consider optimizing court operations using technology and reducing unnecessary court appearances, as recommended by the Chief Justice of the Supreme Court of Canada, Richard Wagner, or the creation specialized courts or regimes, for example for drunk driving offences, which are among the most demanding users of judicial resources.
Even at the legislative level, many conceptual updates are required. Consider criminal drug possession offences, which represent the majority (56%) of drug offenses in the country.
We are witnessing many historic reforms all over the world, from the United States to Thailand. In Canada, we sometimes take comfort in thinking that our state is avant-garde, that it invests significant resources in supporting people who are dependent on drugs, whether through community workers or hospital and pharmaceutical resources.
However, if through these support measures, the State extends a hand to people addicted to drugs, with the other hand, in fact, it puts them in handcuffs.
Indeed, in the midst of the opioid crisis, police in Canada report a 30% increase in one year of criminal offenses related to the possession of opioids. These possession offenses will pass through the judicial system and will inevitably contribute to its congestion.
But what are we waiting for to put an end to this cognitive dissonance?
A modern legislative approach would move away from these legacies of a punitive approach to tough on crime whatever the cost, in favor of a more rehabilitative and pragmatic justice.
These normative updates are all the more necessary during this period of crisis, to prevent this judicial inflation from becoming persistent rather than temporary.