This text is part of the special Acfas Congress notebook
If it can be seen as an immutable institution, which resists the times and the movements that cross society, would justice not benefit from evolving to respond to the challenges of our time? As part of 91e Acfas Congress, the conference entitled Innovations and changes in justice activities: elements of a theory of change will attempt to provide answers to this question or, at least, to explore its ins and outs.
While society is constantly in motion, questioning, evolving, the justice system is stable, solid, organized. Although the judicial institution cannot reform itself at the slightest upheaval observed in society, it must be able to respond to the needs that society expresses if it does not want to become obsolete or disconnected from reality.
It is this tension that will interest the researchers who will participate in the conferences and discussions planned for May 13, as explained by one of the co-leaders of the conference, Pierre Noreau, professor at the Faculty of Law of the University of Montreal and researcher at the Public Law Research Center.
“Very structured institutional systems like this exist everywhere in society because they are one of the conditions of social organization,” he explains. This is not a problem in itself, except when this rigidity ends up becoming dysfunctional on a collective level. »
It is at this moment, when the system and social demands reach a stumbling point, that justice can be led to evolve, to innovate.
Changes and innovations
The changes observed by researchers can take place in different areas of law and occur on different levels: in practices, in standards or in the perception we have of the justice system.
These changes are rarely driven by the judicial institutions themselves, underlines Mr. Moreau. Most often, they manifest themselves through strong external demand. “And the legitimacy of this request is only truly recognized once it results in concrete changes in the practice of law or in institutional standards,” adds the researcher.
A telling example is that of sexual violence to which the justice system did not seem capable of responding adequately. “The #MeToo movement was also born from dissatisfaction with the way in which the courts handled these situations,” notes Mr. Moreau.
In Quebec, this demand expressed for better support ended up bringing concrete changes, in particular with the creation of a court specializing in sexual violence and domestic violence.
Despite progress in this area, the co-leader of the conference Chloé Leclerc, full professor at the School of Criminology at the University of Montreal and deputy director of the International Center for Comparative Criminology, emphasizes that initiatives are still taking place outside the justice system.
“We can therefore think that justice does not yet fully meet the needs of litigants in this area,” she explains, recalling that a conference on the subject will take place during the conference.
The development of the use of mediation is another example which allows us to understand how changes take place. It was first of all a request made by citizens who expressed the need to be able to resolve disputes other than by going to court, says Mr. Moreau.
Since 2016, the use of a mediator has been included in the Code of Civil Procedure (C-25.01). “Here, we have therefore modified the standard in the hope that it will change practice,” comments the law professor.
Overcoming resistance
Except that all these developments take time and can often encounter obstacles. In the case of mediation, Mr. Moreau explains that the request took nearly 30 years before resulting in an addition to the Code of Civil Procedure and that, in practice, it remains a tool that is still relatively little used.
On the criminal law side, Mme Leclerc notes that very few changes have been made in recent decades. The most recent reforms date back to the Harper era and have mainly aimed to systematize and toughen incarceration sentences, indicates the researcher.
Since then, things have seemed static in this area of law and the only developments observed have taken place outside the justice system, as illustrated by initiatives linked to restorative justice.
“There is resistance which is very conscious, ideological, but sometimes it requires an effort to change. And in a system where everything goes quickly, where we lack time, it becomes easier to do what we have already learned to do, to continue in the same vein,” she explains.
“It’s a phenomenon that we observe in all major institutions. The older and more hierarchical the institution, the more difficult it will be to adopt new practices or to question oneself. »
To overcome this, it is important to think collectively about the possible developments that litigants and practitioners are demanding, she believes. This is one of the ambitions of the conference, which will allow dialogue between researchers from several areas of law.
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