Quebec's clogged justice system needs big culture change, say lawyers, academics

During the summers of 2015 and 2016 McGill University professor Jason Carmichael tried to study what factors influenced sentencing outcomes for people convicted of drunk driving — but he ran into a problem.

The researchers he sent to the Montreal courthouse couldn't track those criminal cases within a reasonable — and cost-efficient — time frame because of consistent delays.

"Every day, one out of five cases scheduled would actually take place — and even that one would get postponed," Carmichael said in an incredulous tone. "It was one of the most dysfunctional things I have ever heard of in my life."

Quebec recently announced $175 million over four years in funding for more judges, Crown attorneys and support staff to help alleviate the overburdened system.

But for Carmichael and other players in the industry who spoke to The Canadian Press, money alone is not the answer.

There is a culture of delay, they explain, that runs through all the actors in the system, from beat cops to attorneys to politicians who create new policies without providing the funding to implement them.

Courts across the country have been overburdened for years and the problem intensified after a Supreme Court ruling last July aimed at respecting the fundamental right of an accused to be tried within a reasonable period.

In a 5-4 decision, the court decided provincial court criminal cases cannot exceed 18 months from the moment a suspect is charged until the end of that person's trial.

At the Superior Court level, the ceiling was set at 30 months.

Only delays initiated by the state count toward the caps, meaning delays sought by defence attorneys are not factored in.

Provinces have had to scramble to adhere to the Supreme Court ruling.

In Manitoba, for example, its three chief justices and attorney general recently suggested a pilot project that would eliminate preliminary inquiries so cases can move straight to trial.

Crown officials in Quebec note that since last summer's ruling, lawyers in 574 cases have requested that charges be stayed against their clients due to unduly lengthy proceedings.

Criminal defence lawyer Isabel Schurman said governments are partly to blame for delays by creating new policies without the necessary funding.

"They want to make a strong statement against domestic violence — they create a zero-tolerance policy," she explained.

Schurman said some discretion has been taken away from beat cops. Instead of conducting a full investigation into a claim of domestic abuse, police will give a citation to appear in court, she said.

"There is no point doing an investigation because if a spouse complains, the other spouse must be arrested and given a court date and it must necessarily go before the courts," she said.

Other delays, Schurman explained, are the result of government policies, such as mandatory minimum sentences, which increase the likelihood suspects will contest charges.

For instance, when the Quebec government removed the right to obtain temporary driving licences in the 1990s after drunk driving convictions, the number of challenges soared.

A first drunk driving conviction means losing one's licence for at least one year.

"Before that, people just pleaded guilty and they could get a temporary permit to drive to work so their livelihood wasn't in jeopardy," Schurman said. "But now the consequences of not being able to keep a job are high enough that people contest."

Several recently retired police officers told The Canadian Press that beat cops, because of budget cuts, often give suspects citations to appear in court rather than conduct full investigations.

Manuel Couture, a Montreal police spokesman, said that when officers make a domestic violence call, they are often the ones who move the process forward "because the victim will often not do it because she is afraid of her aggressor."

He admitted, however, it's "very, very rare" that an officer will not initiate proceedings after being called to a home for suspected conjugal violence.

Carmichael, a sociology professor who studies criminology and the criminal justice system, said studies have indicated zero-tolerance policies for domestic abuse cases can end up hurting the most vulnerable.

He said research shows people who are unemployed are "substantially" more likely to return to the home and continue domestic violence if they are processed formally, while middle-class men with jobs don't want to ruin their lives by disobeying a court order.

"Policy-makers have their own agendas," he said. "And they like symbolic legislation (or policies) to make it look like they are effective and responding to problems but they don't back it up with infrastructure and money."