Canadian Lawyer

8 M A Y 2 0 1 7 w w w . C A N A D I A N L a w y e r m a g . c o m REGIONAL WRAP-UP uebecers have grown accustomed to seeing police officers and special constables wearing camouflage pants to protest everything from provincial pension reforms to working conditions. But Superior Court Judge André Vin- cent was having none of it in his court- room in the Montreal suburb of Longueuil on March 20. Vincent refused to swear in two camo- clad special constables and threatened to find them in contempt of court if they didn't change into their regular uniforms. "I exercised my power, it's an ancestral right," the judge was quoted in a Journal de Montréal story as telling special constables' union lawyer Jacqueline Bissonnette dur- ing a lunch-hour hearing on the matter. "I am ensuring the decorum in my courtroom. I don't want someone who's dressed like a kangaroo and I'll take the necessary measures. They can do what they want in the courthouse hallways, but jurors have a right to be respected." The judge eventually granted the spe- cial constables 24 hours to change. They did, but the union launched a legal chal- lenge against the judge's order. Some Quebec jurists, however, believe any decision in that case will be pre- empted and likely resolved by a Supreme Court of Canada ruling on a case that stems from another Quebec civil service labour saga: the months-long strike by government lawyers and notaries that started in October 2016 and ended this February when the provincial government passed a special law to force them back to work. Shortly before the strike began, Que- bec's Tribunal administratif du travail, a two-year-old hybrid of the province's old labour relations, workplace accidents and essential services commissions, ruled that in the event of a strike government lawyers could be granted continuances on non-urgent cases so they wouldn't have to cross their colleagues' picket lines. But on Nov. 9, when the strike was on, Quebec Court of Appeal Justice Julie Dutil refused to grant a continuance to government lawyers in an appeal of a 2014 Superior Court of Quebec decision in a workplace injury case. "The chief justice of Quebec considers hearings of the Court of Appeal constitute an essential service," Dutil wrote in a terse three-paragraph letter to government law- yers in the case. But on Dec. 3, a Saturday, SCC Justice Clément Gascon ordered an immediate stay of proceedings in the matter. A week later, the Quebec Court of Appeal issued a rectified decision, granting the continu- ance until the end of the strike. The SCC then granted a leave of appeal on Dutil's decision on Dec. 22. From their French-only factum filed to the Supreme Court, the Quebec govern- ment lawyers' union will challenge Dutil's decision on several grounds, including its perceived infringement of Charter rights. According to Université de Sher- brooke law professor Finn Makela, both the Quebec government lawyers' case and Vincent's threat to the special con- stables revolve around the same princi- ple: the extent to which sitting judges, in the exercise of their judicial discretion, are required to respect strike mandates. "The traditional position is that the Charter doesn't apply to judges when exercising their func- tions," says Makela. "But it sets up vague guidelines that judges should respect Charter values." He adds that while judges are masters in their courtrooms and must ensure proper decorum, they have to be reasonable and not overstep their authority by being intolerant to innova- tive ways of expression by groups such as special constables, who don't have the right to strike. "It's hard to see how wearing camo pants is incompatible with judicial pro- cess," says Makela. He also noted the Tribunal administratif du travail specifi- cally authorized the special constables to derogate from their uniforms before Vincent's decision. "Judges need to take a finely calibrated look at things," says Makela. Maude Choko agrees. An associ- ate law professor at the University of Ottawa, she sees several potential lines of Charter-based arguments against both Dutil's and Vincent's rulings. "The right to using non-regulatory clothing as part of a collective action by a group has already been recognized," says Choko, referring to a 2010 Quebec admin- istrative labour tribunal case over police wearing blue jeans to protest government wage offers. She also pointed to two recent SCC rulings (Saskatchewan Federation of Labour v. Saskatchewan and Canadian Broadcasting Corp. v. Canada (Attorney General)) that show the ongoing seesaw battles between people's right to strike and judges' rights to maintain proper court- room procedures. "The trick is finding reasonable restric- tions on both," says Choko. "It's a delicate balancing act." — MARK CARDWELL Q \ AT L A N T I C \ C E N T R A L \ W E S T Montreal judge cracks down on camouflage pant protest C E N T R A L

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