New interim rules over judicial nomination given tepid praise

A series of new interim rules introduced by the Quebec government to tighten the judicial nomination and selection process has drawn lukewarm praise, not in the least because it fails to rein in the discretionary powers of the Premier and the Minister of Justice even though the Bastarache commission warned that the process was open to possible political interference.

In late January, the Bastarache commission made sweeping recommendations to address “several weaknesses” in the Quebec judicial selection and appointment process “vulnerable to all manner of interventions and influence.”

The new interim rules, described by legal insiders as a “step in the right direction,” makes a few minor changes to the judicial selection and appointment process, notably prohibiting political staff who work for the Minister of Justice and the Premier’s office from taking part in the process.

Heeding a recommendation made by the Barreau du Québec, the new rules also calls for the Office des professions, which oversees the 46 professional orders or corporations in the province, to choose the member of the public on the selection panel. At present a three-member ad hoc selection committee,  consisting of a judge, a lawyer and a member of the public, screens applications. Until now, the Quebec Ministry of Justice chose the member of the public who would sit on the ad hoc committee.

Under the new rules, members of the selection committee will receive training on the structure of the courts and the qualities they should be looking for in judges. After assessing the experience and personal and intellectual qualities of candidates, the committee will then submit its report on candidates it considers “apt for appointment as judges” to the Minister of Justice who in turn will then make his recommendation directly to his ministerial colleagues and the Premier. The recommendation must include the candidate’s curriculum vitae as well as the reasons why he was selected.

The head of the Barreau du Québec says he that he is partly satisfied with the new interim rules, in part because it will help address the woefully understaffed criminal section of the Court of Quebec in Montreal. Out of its roster of 32 judges, five have retired, one passed away, one is ill and one was nominated to Quebec Superior Court — and none have been replaced.

“The key here is that these are interim rules,” observed Gilles Ouimet, who will meet with the justice minister to discuss permanent amendments. “We’re now waiting for the follow-up. What’s important is that we move forward and reflect on the changes that must be made to improve the system.”

The new interim rules do not curb, however, the discretionary powers of the Premier and the Minister of Justice, points out a lawyer familiar with public inquiries who spoke on condition of anonymity. The justice minister, upon receiving the recommendation made by the selection committee, can still proceed with “consultations he regards appropriate, ” according to the interim rules. The new interim rules do not specify under what conditions a justice minister should conduct further consultations nor does it state the kind of information he should be seeking. It also does not spell out who he should or should not consult.

“This was at the heart of the problem – one of transparency,” noted the lawyer, referring to the Bastarache commission. “It seems to me that the justice minister could have placed more constraints. It would have been simple for him to state the categories of people he could consult, the kind of information he could seek during a consultation, and who he should speak to. That’s what the Bastarache commission recommended. The justice minister didn’t need to enact legislative changes to do that, it could have been done administratively.”

Quebec Minister of Justice Jean-Marc Fournier pointed that these new interim rules are temporary, and that the ministry is still studying permanent amendments to its judicial appointment process.

This story was originally published in The Lawyers Weekly.

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