My experience at the Quebec Court of Appeal

This morning I witnessed everything that is wrong with our justice system.

An error in law, during a judicial recount of an election, was made by a judge of the Court of Quebec. A judge. The guy in the process who is supposed to understand the law better than anyone. He pooched a black and white law because, well, we have no idea why. It could be because he had a bad day. It could be because the day started off with proof that the process was compromised in other ways before it even got to him. It could be because one set of lawyers were more aggressive than the other. It could be because the judge didn’t take time to fully understand the law, and the context in which it is applied.

A judge is supposed to be able to flush out the distractions and stay focused on the case; on the law. A judge is supposed to be above all of this.

This judge, Judge Antonio De Michele, was not above any of this. He was tasked by law to settle a dispute about the validity of ballots. Instead, he caused more, and greater, problems than there were when the parties first entered his courtroom.

Fast forward about six months (it is unclear who is ultimately responsible for this delay) and today, finally, the Quebec Court of Appeal was convened to hear a challenge to Judge De Michele’s decision. That never happened.

It never happened because the judges, yesterday, sent a memo to the plaintiff’s lawyers questioning whether they had the jurisdiction to even hear this appeal. Their assertion was that the proper court for this process should have been the Superior Court, the court designated to hear “Contestation of Election” challenges, even though this was not a contestation of the election, but rather a review of Judge De Michele’s inconsistent-with-the-law rulings. An appeal, if you will, at the Quebec Court of, you guess it, “Appeals”.

I know that appealing a judge’s decision at a lower court to the aptly-named Court of Appeals sounds reasonable to most of us, but in their decision, the Court of Appeal judges claimed that Judge De Michele was not, in fact, acting in the position of “Judge” when he presided over the judicial recount. The Court of Appeal’s (QCOA) position is that *Judge* De Michele was merely a “persona designata” which, according to Black’s Law Dictionary, means “A person considered as an individual rather than as a member of a class”. So, in essence, the QCOA position was that this person who was treated like a judge all day when performing their functions, was not actually acting in the capacity of a judge. And therefore, any appeal of their decisions must go to the court of first instance, which is the Quebec Superior Court. Ironically, the building that this Judge-not-acting-as-a-Judge was operating in at the time of the errors in law he committed.

What?

The fact that the law requires the person who presides over the recount to be a judge didn’t matter to the 3 QCOA judges who heard the argument this morning.

The fact that the process of recounting votes is called a “judicial” recount didn’t matter to them.

The fact that the process took place in a courtroom didn’t matter to them.

The fact that the process took place in front of opposing sets of lawyers, pleading their cases to a person whose main profession is a judge didn’t matter to them.

The fact that the person required to make rulings was supposed to rule based on the law, the main responsibility of a judge, didn’t matter to them.

The Chief Judge of the QCOA said, repeatedly, that Judge De Michele (should we be calling him “Mister” instead, given the court’s positon?) was merely conducting a recount, not rendering any legal decisions. I cannot disagree more. In fact, Judge De Michele rendered dozens of decisions which should have been based on the elections law, but weren’t.

And because the deadline to file a “challenge to a recount” (rather than an “Appeal”) is 30 days, that means that the plaintiff now has no further recourse. Game over. Case closed.

So Judge De Michele’s arbitrary decisions as to the validity of ballots in an election go completely unchecked.

So why do I care about this?

I don’t have any horse in this race. I don’t care who ultimately wins the commissioner’s seat. I was fighting, from day one, for the rights of electors to have their legally valid votes counted. I was fighting for the principle that voters are supposed to decide elections, not courts. Judge De Michele let electors down and today, the Quebec Court of Appeal, the highest provincial court, gave this travesty their stamp of approval. On a technicality that might not even be one.

This is not my fight, but I have made it my fight because the people who should have led the charge all ran and hid, each with their own pass-the-buck excuse.

First, I brought this issue to the attention of the Directeur General des Elections du Quebec (DGEQ). Their response was that even though they are responsible for provincial elections, that school board elections are not their responsibility. Rather, they said, school board elections fall under the Ministry of Education.

So I called the Ministry of Education and shared the issue with them. They told me that it’s not their responsibility. Yup, you guessed it. They told me to call the DGEQ. I explained that I had and shared what I was told. They checked and said that they couldn’t get involved because it would be perceived that they were taking sides (one candidate over the other). I responded that they needed to get involved to take the elector’s side. They said they’d get back to me. I told them that time was short, given that the 30-day delay would expire a few days later. I never got another call.

And today, the Quebec Court of Appeal said that they are not responsible for settling this issue. The highest court in Quebec – “not responsible.”

IS ANYONE RESPONSIBLE IN QUEBEC?

Once the last ballot was in the ballot box, this process completely forgot about the most important participant in the process: the elector. Lawyers fought for their clients to be elected, Judge De Michele ignored the law, and the judges on the Court of Appeal never even allowed a conversation about their best interests.

The 3 judges today argued with jurisprudence presented to them by the plaintiff’s lawyer, who argued beautifully. Their argument was that the cases he was citing were all in Federal courts. Fine. It’s an important distinction, but no jurisprudence exists in provincial court on this issue, in this context. Instead of taking hold of an opportunity to create new jurisprudence in the interest of building confidence in the electoral system, these judges – who admitted openly in court that they agreed there was no direct example for them to follow – took the easy road and walked away.

Our justice system is supposed to be about following the rules. Today, it was not. Today, it was about convenience. These judges came into the courtroom today looking for arguments on jurisdiction and the burden of proof was on the attorney to convince them. Sitting in that courtroom today, it was clear they were not going to be convinced. At one point, the attorney made a very strong point about their choice of venue at the QCOA being deliberate and not an error on their part. Instead of acknowledging the argument being made, Judge Marie St-Pierre chose to focus on how that fact was not mentioned in the plaintiff’s brief. Why should it have been? They chose a court based on their research and filed there. Isn’t intention obvious?

Our justice system is supposed to be accessible. Today, it was not. Today, in essence, the judges told the plaintiff that because his lawyers made what in the court’s mind was a bad decision, that he loses the right to have his say. Now I know that when we hire lawyers that they become our representatives, and that we are responsible for our representative’s actions. But consider that if a lawyer got this “wrong” (arguably, in the eyes of these judges) that the plaintiff would have had no chance in getting it right on his own. The issue wasn’t clear. The judges said that themselves.

I have been working in elections for over half of my life, managing them for the last 9 years at all levels of government. I have extensive training, both theoretical and practical. I have travelled internationally to observe elections in the interest of fairness. I’ve seen lots of unbelievable things. But this has me profoundly upset because I expected better at home. Today, neither the letter nor the spirit of the law was held up by those whose sole job it is to ensure the primacy of law.

Today, a school board commissioner candidate (who was the winner on election day, by the way, only to lose during the contested recount) lost his chance to have even a hearing to have even the chance to have a wrong righted. And for no good reason.

More importantly though, the public lost today. Countless people every election ask Deputy Returning Officers and Poll Clerks how to mark their ballots to ensure that their votes are counted. As a Returning Officer, I have led countless training sessions to make sure that I train these people to provide answers that will stand up to questioning and scrutiny based on the legal definitions and examples provided. I used to rely on the clear, black and white text of the law. Now I don’t know how to answer their question. Today, I lost confidence that I am in control of my vote. Today, I learned that a judge can decide that my mark is not valid because my pencil slightly left the circle, even though the law specifically and expressly declares that mark valid.

Many lawyers over the years have told me that when you bring a court case, there is always luck involved. If you have the facts on your side, you should win. There are cases where the facts are disputed, but this wasn’t one of them. This was an easy opportunity for the Quebec Court of Appeal to make this wrong right. And they chose not to.

Today, the people who were responsible for ensuring that justice is ultimately done when justice was not done let down the people of Quebec.