The pension plan of Quebec's justices of the peace is skewing their ranks in favour of former public-sector employees – creating a potential appearance of bias – and that imbalance may have been instrumental in Montreal police obtaining warrants to track the cellphone of a high-profile journalist.
Because the JPs' pension plan makes the job more appealing to lawyers who had worked for the government or as prosecutors, there have been worries about their independence, especially since they hear warrant applications from police and bureaucrats without the benefit of an opposing point of view.
The arcane but contentious pension issue went all the way to the Supreme Court of Canada, pointing to a broader debate about the Quebec government's inability to hire JPs from a broader pool of candidates.
The uproar started with the disclosure this week that the Montreal police obtained 24 warrants this year to collect the phone numbers of people who had been in contact with journalist Patrick Lagacé's smartphone, and to follow his movements through the device's GPS.
(Mr. Lagacé is not a suspect but had once been in touch with a detective who was under an internal-affairs investigation.)
Some of the warrants were granted by presiding Justice of the Peace Josée De Carufel, a former prosecutor and government lawyer whose career illustrates the concerns about bias created by Quebec's heavy reliance on appointing JPs from the ranks of former public-sector workers.
About 85 per cent of presiding JPs come from the public sector, according to a report last September by an independent panel reviewing Quebec judicial salaries.
"The fact that the great majority of presiding JPs have previously worked for the government can lead litigants to question themselves about their impartiality," the report warned.
The situation stemmed from the overhaul of the Quebec JPs' system after judgments in 2003 by the Supreme Court of Canada and the Quebec Court of Appeal that raised questions about the independence of justices of the peace.
Until then, Quebec JPs were mostly civil servants.
Justices of the peace handle a range of judicial proceedings such as bail hearings, issuing arrest warrants and other authorizations for searches, wiretaps and other investigative methods.
Because of the 2003 court decisions, the Quebec legislature had to amend its statutes to create two new categories of JPS, administrative JPs and presiding JPs, who are required to have been lawyers for at least 10 years.
The new law also decreed that presiding JPs would be members of the government pension plan for public-sector management personnel.
That pension clause has been challenged in court by the professional association representing JPs, which argued that such a setup runs counter to the principle of judicial independence.
In a judgment two weeks ago, the Supreme Court ruled that some of the Quebec government's unilateral decisions about the JPs' wages were unconstitutional but not the pension-plan clause.
Nevertheless, both the JPs' professional group and the independent panel reviewing judicial salaries have provided evidence that the pension plan is stacked against applicants from private-law practice.
In their legal brief submitted before the Supreme Court, the association of JPs noted that the public-sector pension plan was designed for people who had worked decades in the civil service, not for people who are typically appointed to judicial jobs between the age of 40 to 50, who would only get a pension of 33 to 44 per cent of their average annual salary, rather than the standard 65 per cent.
Similar concerns were raised by the independent committee reviewing judicial salaries, whose members included former Supreme Court justices Louise Arbour and Marie Deschamps.
"Inevitably, the presiding JP position is more appealing for 10-year lawyers who are already members of the [public-sector pension plan for management personnel] than for their counterparts from the private sector," the committee report said.
The report underlined furthermore that presiding JPs render many decisions that are not challenged by another party and are solely based on documents prepared by peace officers and public servants.
"The main origin of the problem of attracting [candidates] is the fact the pension plan of presiding JPs is not adequate and perpetuates the imbalance toward hiring candidates from the public sector," the report said.
Ms. De Carufel's background exemplifies such concerns.
Before she was appointed as a presiding JP in March, 2012, she spent much of the previous two decades in the public sector and was a prosecutor on two separate occasions.