The debate on the creation of an entity specializing in matters of sexual and domestic violence within the Court of Quebec (Bill no.o 92) has recently taken on an unusual and disturbing appearance. Without regard to her duty of reserve and deference, without regard to Quebec’s legislative jurisdiction over the administration of justice and without regard to the institutional autonomy of the National Assembly, the Chief Justice of the Court of Quebec, Lucie Rondeau, has multiplied interviews and media interventions in order to interfere in the legislative process.
Since then, the Chief Justice has added more by taking the Minister to court on the degree of bilingualism of her institution. All this, in a context that is becoming more and more “explosive” where Quebec must – imperatively – redefine the jurisdiction and the role of the tribunal headed by Chief Justice Rondeau by next summer, due to the of the opinion delivered on June 30 by the Supreme Court of Canada.
On the merits of things, Justice Rondeau mobilizes fundamental and largely consensual principles. However, the appeal to these principles does not stand the test of reality: specific and concrete examples of infringement of the administrative independence of the courts are simply not there.
In the name of an important principle, the judge practices a one-way separation of powers, by engaging in a debate of political expediency on the virtues and weaknesses of a specialized justice.
First, to claim that the designation “tribunal” poses a problem with regard to judicial independence presupposes a very unusual conception of this principle. Whether it is a “tribunal” or a “division” does not matter. At no time does the proposed designation imply an acknowledgment of the veracity of the allegations of violence or a form of presumption of guilt. On the contrary, the name of the entity proposed in Bill no.o 92 does not include the word “victim” or any term prejudging the status of complainants and accused. Just as the names “small claims” or “Human Rights Tribunal” or “Parole Board” imply that there are specialized jurisdictions responsible for deciding these issues, a tribunal or a sexual and domestic violence division simply means that such phenomena exist in society.
Second, Rondeau J. contends that the “classification of prosecutions”, that is, the fact of identifying cases of sexual and domestic violence, violates the administrative independence of the courts. However, various laws of Quebec distinguish, in civil and penal, several types of files according to their subject: small claims, protection of youth, family affairs, etc. The Director of Criminal and Penal Prosecutions already practices a classification of cases similar to that provided for in Bill 92. In a gesture of appeasement on the part of the Minister, this classification is currently the subject of an amendment, but he is frankly hard to imagine how the fact of “classifying the subject of litigation” would prejudge the result of an investigation and a judicial hearing.
Third, the issue of training judges and other stakeholders is, of course, a delicate one. This is why Bill no 92, in accordance with the principle of administrative independence of the courts, entrusts the Judicial Council with the task of organizing this training and drawing up an annual report on its implementation. It is therefore a “peer” training program, at least organized “for” and “by” judges, under the authority of the Judicial Council. The legislator recognizes in the latter all the leeway and institutional autonomy necessary to design and adapt training. The fact that annual statistics on attendance at these training courses are produced testifies to the necessary distance between the court and the political power: through this obligation of transparency, the court must make public the results of its training courses, while at the same time avoiding any direct contact and interference in the internal functioning of the judiciary.
Modeled on an almost similar federal law, initially proposed by the former minister Rona Ambrose, and supported by the senator and former judge of the Court of Appeal Pierre Dalphond (Press, September 9, 2021), it is difficult to see how a training obligation that is otherwise consistent with the independence of federally appointed tribunals could not be suitable for tribunals which fall entirely under the legislative sovereignty of Quebec.
Ultimately, this is one of the important problems of Judge Rondeau’s brief and public outings: her – extensive – conception of the administrative independence of the courts seems the only one possible in her eyes.
However, many of them think the opposite: his colleagues and predecessors, several academics, the many professionals and state lawyers who worked on the drafting of this bill as well as the political parties represented in the National Assembly. In these matters, Justice Rondeau’s point of view is obviously not the only one possible.
Expressing one’s philosophical opposition to specialized justice is a choice of political expediency. Even if our experience tends towards general justice, specialized justice is an avenue that political power can mobilize by virtue of Quebec’s jurisdiction over the administration of justice. That this choice displeases the Chief Justice does not, in itself, constitute an infringement of judicial independence. Comparative law shows that a specialized approach to sexual violence is possible, particularly in Spain and in some Commonwealth countries, such as New Zealand and South Africa, as well as in Canada, at least in Moncton.
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