Law in Quebec

“There are substantive issues that are central to the case when viewed from a distance,” noted Patrick Taillon, a constitutional law professor at the Université Laval. “The independence of judges, the autonomy of the judiciary in the organization of its operations, the autonomy of Quebec in the administration of justice. There is a kind of power struggle.”

In a clear setback for the provincial justice Minister, Quebec Superior Court Justice Christian Immer held that under a regulation introduced a decade ago following the Bastarache Commission, a 2010 inquiry into alleged political interference in the nomination of a judge, the Chief Justice of the Court of Quebec can require bilingualism in the judicial appointment process even it runs against the wishes of the minister.

“The minister was chewed out by the judge,” said Martine Valois, a Université de Montréal law professor who wrote the book “Judicial Independence: Keeping Law at a Distance from Politics.” “The judgement says that the minister was unreasonable, which he has shown since he took office. The minister abused his power.”

According to Robert Leckey, dean of the Faculty of Law at McGill University, the decision is significant because there is very little jurisprudence, “less than people might imagine,” over the judicial appointment process. “It’s very rare that these issues are litigated,” said Leckey who served as the research director for the Bastarache Commission. “This decision is a clear loss for the justice minister, a loss because his reduced role has been confirmed by a judge and conduct by the minister has been declared to be illegal.”

Tensions between the executive and the judiciary have been brewing since last spring when Quebec Justice Minister Jolin-Barrette and Court of Quebec Chief Justice Lucie Rondeau were at odds over the need for bilingual judges in the Greater Montreal region. The justice minister refused to require bilingualism in the selection of a new Court of Quebec judge in a Montreal borough, in spite of a longstanding tradition of naming bilingual judges in the Greater Montreal area. More recently still, the pair skirmished over disparate visions on how to deal with domestic and sexual violence.

Remarkably, the clash over language requirements wound up before the courts, over six notices calling for candidates for judge positions in the civil and youth divisions of the Court of Quebec. The Quebec Ministry of Justice argued that it is the executive that has the prerogative to appoint judges, and nothing in the regulation strips away this power away from the executive, and hence the minister. It also argued that the separation of powers prevents the identification of needs from solely being in the purview of the judiciary, otherwise the “Chief Justice could impose her wishes on the State, and in particular, her vision of the language rights that litigants should enjoy.”

The Chief Justice maintained that the selection process established by the Regulation assigns the identification of needs to the Chief Justice alone, given the text and context of the adoption of the Regulation and the constitutional principles governing the institutional administrative independence of courts. Justice Rondeau also asserted that having Court of Quebec judges unable to hold hearings in English would result in “unequal treatment” of litigants who choose to express themselves in English, an increase in judicial delays due to the increased use of interpreters, and unavoidable postponements “due to the impossibility of planning judicial activities according to an unknown factor: the language that the litigant will choose to use.”

Justice Immer sided with the Chief Justice, largely basing his conclusions on an analysis of the regulation itself as opposed to examining in-depth notions such as judicial institutional administrative independence, pointed out legal experts.

“Justice Immer had several paths that he could have taken to give reason to the Chief Justice but he chose to interpret the regulation,” noted Taillon. “It is not a reasoning based on the fact that there are language rights for litigants in Canada and that if in such districts there are only bilingual judges, these language rights will not be respected. He did not make that connection. Had he done so he would have developed a rationale that would have made the presence of unilingual judges at the Supreme Court of Canada highly problematic.”

The regulation sets out the terms and conditions of the selection procedure of candidates for the office of judge of the Court of Québec, municipal court judge and presiding justice of the peace. The regulation established a secretariat for the selection of candidates for the office of judge, headed by a secretary, which receives applications and assesses them against the criteria set out in the regulation itself. Under s. 7 of the Regulation, the secretary is supposed to take into account “the needs expressed” by the Chief Justice of the Court of Quebec. The secretary then holds, at the minister’s request, a competition. An independent selection committee is then set up for each appointment process, and it prepares a report, providing a list of three individuals suitable for appointment and a personal assessment of each candidate. In the end, it is still up to the Minister of Justice to make a recommendation to the Council of Ministers, which will then appoint the judge from among these three candidates.

That’s not what happened in this case. The Quebec Justice Minister “ignored the needs expressed” by the Chief Justice with respect to the English language requirement and instructed the secretary to publish a notice for the Civil Division with residence in a Greater Montreal borough without any mention of such a requirement, noted Justice Immer.

Justice Immer found that Jolin-Barrette’s intervention was ultra vires and illegal. Justice Immer concluded that following the adoption of the regulation in 2012, which he described as a paradigm shift, the justice minister has an extremely limited role in the process and has no authority to draft selection notices for candidates for the position of judge of the Court of Quebec. “The Regulations give the Chief Justice a much more important role in the selection process than the Minister, until the selection panel has issued its report,” held Justice Immer, adding that the justice minister has no control over the Secretary and cannot tell to the Secretary to disregard prerequisites expressed by the Chief Justice.

“It’s almost like judicial review 101 in the sense that the standard of judicial review is the standard set in Vavilov, the standard of correctness, whether the Minister understood the Regulation correctly,” explained Stéphane Beaulac a constitutional law professor at the Université de Montréal and and counsel at Dentons LLP. “The judge came to the conclusion that his understanding was incorrect and without foundation because since 2012 the justice minister clearly has no more role to play other than he obviously remains the actor who decides to open a post.”

But Justice Immer also held that there is nothing to prevent the executive, which ultimately has the power to appoint, from delineating in a regulation the role that the justice minister plays in the preliminary selection process. But changing the regulation in order to have the justice minister play a bigger role than he now plays is easier said than done, pointed out Valois. The provincial government would have to take into account the powers granted to the Court of Quebec Chief Justice by the Courts of Justice Act as well as the administrative independence of the judiciary, added Valois. “So there is very limited scope for the Minister of Justice to amend the Regulation,” remarked Valois.

Leckey underlines that there is also a constitutional imperative to have Court of Quebec judges who can hold hearings in English. “The judge clearly affirms and reminds people of the constitutional basis for the need for judges who do justice in English and French in parts of Quebec and that the process has been formalized such that it is a long way from pure ministerial discretion at all the stages,” said Leckey. “Over time we have worked out which regions need bilingual judges and which can get by without them. So the idea that a Justice Minister sits in Quebec City and decides that it is not necessary, it is a strange intervention to make.”

Justice Immer did allude to the practical realities and challenges that would arise of having unilingual provincial court judges in some judicial districts. He held that “it was not up to the Court to determine whether, with numerous accommodations and a significant provision of resources, including the appointment of additional judges, the Minister’s objective of not preventing a candidate who is not proficient in English from running for office in all regions of Quebec is achievable.”

But he also did find that it would not be in the best interests of justice to have unilingual judges in some judicial districts, points out Valois. “If judges are not able to hold a hearing in English there will be immeasurable delays and this is not in the interest of justice,” said Valois.

P.S. The title of the regulation is: Regulation respecting the selection procedure of candidates for the office of judge of the Court of Québec, municipal court judge and presiding justice of the peace.