Being a Judge in the Court of Québec

Being a Judge in the Court of Québec

Becoming a judge

Who can be a judge?
How does one become a judge?
Who appoints judges?

What does a judge do?

The judge's role
How?
What a judge does not do
Alternate ways of solving disputes (mediation, conciliation, facilitation, etc.)
How does a judge make a decision?
Are a judge's decisions always final?
Does a judge have to render a decision within a set time limit?
In criminal and penal matters, how does a judge determine the sentence to be imposed?
Can a judge act independently?
Does a judge have more rights?
Can a citizen file a complaint against a judge?

Lexicon


Becoming a judge

Who can be a judge?

To qualify for the office of judge, you must be a member of the Barreau du Québec - the Québec Bar Association - since at least 10 years or have equivalent, relevant legal experience.

In addition to your legal knowledge, your experience and integrity, many personal qualities will be considered such as: sound judgement, insight, level-headedness, decisional ability, etc.

The selection committee will verify the candidate's level of awareness with respect to social realities and recognition by the legal community of the candidate's qualities and competencies.

How does one become a judge?

Upon notice published in a newspaper or journal, any lawyer meeting the above-mentioned criteria who wish to submit his application must send the form appearing in Schedule A to the secretariat.

The selection process begins with the appointment of a five-members selection committee. A judge of the Court of Québec acts as chair of the committee. It is composed of two persons designated by the Barreau du Québec, one being an advocate, and one working in law but whose professional activities do not include representation before the courts, and two persons who are nor judges nor members of the Barreau du Québec or the Chambre des notaires du Québec, designated by the Office des professions du Québec.

Each lawyer who has submitted an application is invited to come for an interview by the selection committee.

Once the interviews have been completed, the selection committee draws up its report in which are proposed, in alphabetical order, the names of 3 candidates qualified to be appointed as judges. In its report, the committee includes a personalized appreciation for each of the proposed candidates.

Who appoints judges?

The Minister chooses one person among the 3 proposed candidates and recommends it to the Cabinet.


What does a judge do?

The judge's role

Traditionally, the judge's role is to settle disputes in keeping with the rules of law.

How?

  • By presiding over the hearing;

  • By conducting the proceedings while ensuring decorum and good order;

  • By listening to the parties involved an to the withesses;

  • By deciding, if need be, on the admissibility of evidence;

  • By considering the factual evidence and the credibility of the witnesses;

  • By rendering an oral or written judgment.
What a judge does not do

  • Does not select the cases to be heard nor the days of the hearings. It is the chief judge who assigns the cases;

  • Never makes any accusations;

  • Generally speaking, does not conduct the inquiry, leaving it rather to the parties or to their lawyers to present the necessary facts and evidence to the court;

  • Does not draft or amend legislation. That is the legislator's responsability;

  • Is not responsible for insuring that the rendered decisions are carried out.

Alternate ways of solving disputes (mediation, conciliation, facilitation, etc.)

The judge also exercices a role to better facilitate communication between the parties or their lawyers in order to explore potential solutions that will settle their dispute.

How does a judge make a decision?

Rendering a decision in judicial matters is a structured, analytical process that is based on:

  • Proof of the facts established, for instance, by way of sworn statements, documents, tangible evidence or testimonies;

  • The laws and regulations adopted by the legislator;

  • Jurisprudence and legal doctrine:
    • jurisprudence consists of all the decisions rendered by the courts on the same or similar issues;
    • doctrine refers to legal articles, periodicals and texts that relate to the issues at trial;

  • A greater degree of required evidence in criminal matters (beyond a reasonable doubt) than in civil matters (balance of probabilities).

Are a judge's decisions always final?

No.

  • Decisions may be subject to appeal or to judicial review, depending on the case. However, in small claims court matters, the judge's decisions cannot be appealed.
  • The court of appeal or the review tribunal may modify the decision and, in criminal matters, may order a new trial.

Does a judge have to render a decision within a set time limit?

No.

  • To each case assigned, the judge must be given a sufficient period of reflection time to carefully consider all the relevant elements of evidence in order to render a sound decision; this reflection period is called a "period of deliberation".

  • The judge usually renders a decision rather quickly, sometimes even at the hearing, or in the following days.

  • Some cases require a longer "period of deliberation" to enable the judge to analyze all the relevant elements of evidence and to consider the rules of law that may apply.

  • Exceptionally, in certain matters, the legislator has set time limitations to render judgments.

  • The judge may render his decision orally or in writing, unless the law requires that the decision be made in writing.

In criminal and penal matters, how does a judge determine the sentence to be imposed?

  • Whether it concerns adults or adolescents, it is one of the judge's most difficult tasks;

  • The sentence is not something that can be improvised. It must be adapted to each individual;

  • The judge determines the sentence based on many factors and principles, such as those stipulated in the Criminal Code and the Youth Criminal Justice Act, including:
    • the maximum sentence stipulated by the law;
    • the seriousness of the offence and the circumstances under which it is committed;
    • the need to expose illegal conduct and to deter the offender;
    • the judicial record (e.g., previous convictions);
    • the possibility of rehabilitating the offender;
    • aggravating and extenuating factors;
    • the extent of the offender's responsibility.

  • The law provides for different types of sentences. The judge may choose to resort to a combination of sentences, such as:
    • an absolute or conditional discharge;
    • a fine;
    • a discharge with a probation order stipulating one or several conditions;
    • the performance of a number of hours of community services (for adults) or volunteer work (for adolescents);
    • compensation and restitution;
    • a conditional sentence to be served in the community;
    • imprisonment in a prison environment;
    • a custody and supervision order (for adolescents).

  • In some cases, in order to better determine the fair and appropriate sentence to be imposed, the judge may ask that a report be prepared on the offender's profile.

Can a judge act independently?

Yes. That is fundamental.

  • It is the judge's duty to enforce the law, without fear or favouritism, free from any pressure and without concern as to how the decision will be received.

  • Moreover, the judge's attitude and remarks must reflect impartiality. The judge must therefore be neutral, without bias. The judge must stay out of politics and avoid any activity or association that might compromise that impartiality.

  • In addition, the judge's independence is guaranteed, having been appointed during good behaviour, which means that only very serious reasons can remove the judge from office. Moreover, the judge is a member of a court, which is a separate institution from the government or any of its departments.

  • By insuring that the judge enjoys these three characteristics, society is assured that the judge will have nothing to gain or lose, regardless of the outcome of the case.

  • The judge's independence consequently ensures fair and equitable trials which, by the same token, is an essential guarantee bent on maintaining the public's confidence in our judicial system.

Does a judge have more rights?

No. The judge is not above the law and does not have more rights.

  • As any citizen, the judge must not only obey the law but conform to the additional obligations dictated by that function.

  • In fact, the judge must comply with a code of ethics that sets out rules of conduct and duties for judges, not only applicable towards the parties and their lawyers during trial, but also towards the general public.

Can a citizen file a complaint against a judge?

Yes. Anyone who feels that a judge has commited a breach of the code of ethics may file a written complaint to the Conseil de la magistrature du Québec.

An error committed in fact or in law does not constitute a breach of the code of ethics and therefore will not be considered by the Conseil.


Lexicon

Discharge
(...) Court decision, which, while finding the accused guilty of an infraction, imposes no sentence (...)

Swearing In
To have someone take an oath.

Québec Bar
Québec lawyers' professional Order.

Conseil de la magistrature
Body whose functions are to provide for the proficiency of judges and to watch over the respect of their ethical obligations.

Decorum
Body of rules to be observed for the peaceful conduct of hearings.

Legislator
The authority who, in a society, drafts the laws.

Small claims
Claims that do not exceed $ 7,000.

Without appeal
Without possibility of having a court decision reviewed by another tribunal.

Appeal Tribunal
Tribunal authorized to re-examine a court decision.



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