By validating a law, the judiciary strengthens the credibility of the legislator. The State thus finds there a gratifying support for its action and its political projects. On the other hand, faced with a political retraining maneuver, a negative legal reaction can depreciate the government’s approach and undermine citizen confidence.
Sponsor of Bill 92 – concerning a specialized tribunal – the Minister of Justice, Jolin-Barette, fostered a belligerent attitude by modeling his acrimony towards Chief Justice Lucie Rondeau. On Facebook, the minister insisted on “the urgency of establishing a specialized court and of better training all the actors in the realities of the victims”. According to him, ” [l] Judges should be no exception ”. Angered, he added: “No one will be able to prevent a change of culture in the courts, in the justice system”. Of which act!
During a daily interview The duty, Judge Rondeau candidly said that she felt “more than uneasiness” in the face of the special tribunal project. This initiative raises “fundamental questions”, she argued confidently.
The government’s desire to improve the support and services required before the crucial stage of judicialization is commendable. However, this administrative and budgetary function remains outside the jurisdictional competence of a court of justice.
In this regard, Chief Justice Lucie Rondeau fears that the bill raises a fundamental issue for judicial independence. She’s damn right. Since 1985, the Supreme Court (Valente judgment) has ruled that the concept of judicial independence has two components: one individual, the other institutional.
The second part concerns usual or administrative relations with governments and elected officials. Concretely, according to the Canadian Constitution, institutional independence reserves to the magistracy the exclusive control of the assignments of judges, the creation of the hearing rolls and the activity inherent in the functioning of justice, including the permanent training of magistrates.
As desirable as it is, the “culture change” mentioned by the minister must imperatively respect the constitutional constraint.
Parallel courts
The desire of the Minister of Justice to entrust a specialized court with jurisdiction over conjugal or intra-family violence is likely to encroach, in large part, on that already exercised by the Superior Court, the family chamber.
Jurisconsult of the Executive Council, the Minister of Justice cannot ignore the inability of the Quebec National Assembly to conceive of a parallel court exercising powers inherent to those of the Superior Court.
This summer, the Supreme Court ruled unconstitutional the attribution to the Court of Quebec (by the National Assembly) of exclusive jurisdiction over civil claims, thus depriving the Superior Court of fully playing its role. This amendment transformed the Court of Quebec into a prohibited parallel court.
According to the high court, a common law jurisdiction such as the Superior Court interweaves and interprets a large number of principles and general rules applicable to several areas of law. As for a specialized tribunal, it derives legal consequences from a limited number of principles and rules related to its field of expertise.
The Criminal Code (federal law) recognizes the general jurisdiction of the Court of Quebec to try most offenses. With regard to the harmony of jurisdictional powers between superior and provincial courts, can the Quebec legislator unilaterally upset the current division defined by the federal legislature? A strong doubt exists.
A priori, Judge Rondeau is right to point out the issue of “fundamental questions”. The need for a change in the culture of the courts has nothing to do with Minister Jolin-Barette’s bad temper towards the Chief Justice. Both in civil and criminal matters, we must avoid a transfer of vast areas of jurisdiction to parallel courts of justice, says the Supreme Court.
That said, the Court recognizes that a significant social objective, such as access to justice, could justify the attribution of certain powers to provincial courts. However, a parallel court cannot undermine the mission of a superior court. In Quebec, it is the constitutional guarantee of judicial independence that seriously limits the jurisdictional autonomy of a specialized tribunal.
In order to soften the sharp angles, the Minister of Justice must review the copy of his bill… and show modesty.