Justice Michaud at the Members' Convention of the Federation of Insurance and Corporate Counsel

The future isn't what it used to be

Joshua C. Borenstein, lawyer

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The future isn't what it used to be. This is how Chief Justice of Quebec, Pierre Michaud, paraphrasing the great philosopher and ballplayer Yogi Bera, preambled his presentation to the Members of the Federation of Insurance and Corporate Counsel, a predominantly American association of lawyers, 700 of them recently gathered in Mont Tremblant for their annual convention.

Chief Justice of Quebec, Pierre A. Michaud

Justice Michaud was asked to present a few aspects of the Canadian judicial system, namely cameras in courtrooms, punitive damages, the discovery process and the jury system in civil matters. Here is an abstract of his presentation.

Cameras in courtrooms

For Justice Michaud, lawyers generally would not be adverse to televised hearings. " Threatening a lawyer with T.V. a in the courtroom is like threatening a dog with a steak ". He also knows that judges would not be adverse to the idea of occupying central stage. " This being said grandstanding by judges and lawyers would serve no valid purpose and would stand in the way of the calm and efficient hearing. "

While a well-informed population is essential for the survival of democracy, most public information from the media industry, whose peculiar nature must be borne in mind. Its goals are twofold : first to inform, comment and educate, and second to generate profits. In order to achieve the first goal, profits must be realized. " It follows that the profit-making objective becomes paramount to the press while the information objective becomes a form of commodity to be handled such a way as to best serve the profit-making objective. "

" On the other hand, the openness of the court is what guarantees the impartiality of the judicial process. This does not give the media the unqualified right to instantaneously or subsequently publicise all the information revealed in open court. The overridding consideration must be to ensure a fair trial in order to achieve the final adjudication. After all, the business of justice is justice, not entertainment ".

For Justice Michaud, this is why the Canadian judiciary has so far closed its doors to cameras in their courtrooms. But there is more and more pressure to adopt the American way. At this time, the jury is still out.

Civil jury trials

The right to a trial by jury in civil matters is not entrenched in the Canadian constitution. In Quebec, the Civil jury trial has been abolished for more than 20 years. " This venerable institution died of old age without much fuss. No one hollered that tyranny was at our door-step, and democracy did not crumble ".

Over the years, the observation was made that 75 % of the cases ready for jury trial were settled a few days beforehand or sometimes on the very morning the trial, costing everyone time and money. Members of the jury were too easily guided by feelings of sympathy for the plaintiff, rather than motives strickly by motives of enacting justice, especially if the defendant was insured or was a major corporation. The observation was also made that it was much more difficult to change the verdict of a jury than that of a judge sitting alone, because the Court of Appeal intervened only if the decision totally lacked any hint of simple common sense.

The discovery process

Is the discovery process part of the trial and how much of it is public? In Quebec, the Court of Appeal decided that preliminary examination of a witness or a party was a judicial act and part of the trial. This public notion of the debate, which must be open to the media, was recently confirmed by the Superior Court in a case involving former Prime Minister Brian Mulroney.

Justice Michaud then explained the principles that apply to the process of discovery in Quebec, including who can be examined, on what subject, and what documents may be requested by the examiner. Of specific interest here is Justice Michaud's statement that the rules as they now exist are expected to change dramatically.

" The costs and delays of litigation make it almost impossible for the average citizen to go to court. The discovery process has been identified as time-consuming ans costly, and a committee of judges, lawyers and officials from the ministry justice is taking a very close look at how to improve the situation ". Court files will increasingly be placed under the direct control of a judge. He or she may be given the authority to decide if a discovery is useful, and to determine its scope. " I predict that within 3 to 5 years, dramatic changes will have taken place ". He added that he hopes he will have retired by the time such charges are implemented..

In Justice Michaud consideration, the diagnosis made by Lord Wolff in his final report on the civil justice system of England applies to our judicial system. It asserts that the civil justice system is : 1) too expensive in that the costs often exceed the value of the claim; 2) too slow in bringing cases to conclusion; 3) too inequitable : there is a lack of equality between powerful, wealthy litigants and those who have less sufficient resources; 4) too uncertain : the difficulty of forecasting what litigation will cost and how long it will last induces fear of the unknown, and is incomprehensible to many litigants; 5) too fragmented in the way it is organized, as no one has clear overall responsibility for the administration of civil justice, and; 6) too adversarial as cases are conducted by the parties, not by the courts, and the rules of court are all too often ignored by the parties and not enforced by the courts.

Exemplary or punitive damages

Exemplary or punitive damages may be awarded in Canada in which the wrongdoer acts advertently and in a manner in contradiction with fundamental values of society. Damages are awarded when the defendant's act in a high-handed and malicious manner, and shows contempt for the plaintiff's rights.

Recently, an Ontario jury awarded a plaintiff one million dollars in punitive damages against an insurance company. The latter contested a fire insurance claim grounds of arson, even though there was no proof whatsoever of arson.

" In Quebec, the basic principle regarding damages under our Civil Law is that of restitution in integrum. The indemnity one obtains can only serve to compensate for the actual loss sustained. Traditional Civil Law in Quebec was concerned only with compensation. A civil suit was not the appropriate forum for reprehensible conduct. The victim could obtain only what he or she had lost, since any additional gain would be immoral, according to the classic standards".

Punitive damages could only be awarded when specified by special legislation like the Tree Protection Act or the Consumer Protection Act. Also, the Quebec Charter of Rights provides that in case of unlawful and intentional interference with any right or freedom recognized by it, the tribunal may, in addition to compensation for moral or material prejudice, award punitive or exemplary damages. Recently, however, Quebec courts have occasionally adjudicated punitive or exemplary damages that were very moderate in comparison to much higher U.S. awards.

Love Thy Enemy ­ after all, you made him!

Graciously only mentioning the O.J. Simpson trial peripherally to point out the contrast between the Canadian and american legal systems, Justice Michaud stated that our legal system enjoys unprecedented and unparalleled esteem internationally, with numerous developing countries seeking our aid to set up systems based on our model. But domestically our system is underfire more than ever before. " The public groups us with politicians, the politicians treat us like functionaries, and the press is always on the lookout for misplaced comments, human error or failings, and decisions, however sound, that are socially unpopular or politically incorrect".

" Very largely, our image suffers partly because it is in fact too good. We are generally held to unattainably lofty standards, personal and professional. Every failing of an individual judge, or of the system itself, therefore attracts disproportionate and sensationalized attention ".

" In a very real sense, this kind of reaction reflects a degree of disappointment that can only be explained by high standards we are expected to meet ­ and normaly do. Any lapse would otherwise hardly be newsworthy ".

 

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