Barely a couple of weeks after a special mediator was appointed to settle a fall-out between the Court of Quebec Chief Justice and the Quebec Justice Minister, the minister openly questioned the integrity of the Quebec Judicial Council.
Justice Minister Simon Jolin-Barrette brazenly derided the provincial Judicial Council (Conseil de la magistrature) at the National Assembly during a clause-by-clause consideration of an access to justice bill, asking members of a parliamentary committee if they “really believe” statements issued in a brief by the Judicial Council.
Under the proposed legislation, free mediation mandatory and arbitration will be automatic for small claims cases, and more divisively, allow notaries to be appointed to the bench of provincial courts.
But Bill 8 will also compel the provincial Judicial Council to publish an annual report and be audited every five years by the Auditor General, a development viewed positively by the Quebec Bar .
The Quebec Judicial Council, which did not have the benefit of pre-introduction consultations on the bill under consideration that directly affects them, acknowledges it used to publish on its website annual reports but has stopped over the past few years because it did not have the budget and had no webmaster, information officer or computer technician to keep it up to date. In its brief, presented before the National Assembly during the hearings of Bill 8, the Judicial Council asked for more monies to be able to publish annual reports and train notaries.
“The Council readily acknowledges its responsibility to contribute to the legal education of citizens, but unfortunately lacks the staff in its Secretariat to carry it out satisfactorily,” said the 18-page brief. “At present, therefore, the possibilities of increasing the Council’s visibility and public awareness of its role, as it would like to do, remain extremely limited due to a lack of resources.”
Justice Minister Jolin-Barrette undisguisedly derided the Judicial Council:
“I ask the members of this committee if they believe that. I think we have a collective reflection at that level, when the Conseil de la magistrature writes to us and tells the members of this commission of the National Assembly, which is sovereign of the people who were elected by the people of Quebec in each of the electoral districts, if there is anyone who really believes what is written on page 9 of the brief.”
No one at the hearings voiced concerns about the disparaging remarks made by the Justice Minister.
The Judicial Council is also concerned about another controversial provision in Bill 8. Under the proposed legislation, the Quebec Judicial Council will fall within the scope of the province’s Act respecting Access to documents held by public bodies and the Protection of personal information. (Act), “except when exercising its judicial functions in matters of ethics.”
It would not be surprising if the matter ended up before the courts. The Quebec Appeal Court at the turn of the century in Québec (Conseil de la magistrature) c. Québec (Commission d’accès à l’information), 2000 CanLII 11305 (QC CA) declared section 4 of the Act to be inoperative with respect to the “ethical activities of the Conseil de la magistrature.”
According to the Judicial Council’s brief:
“The first question raised by this amendment is the following: what exactly does the legislator envisage by referring to “the exercise of judicial functions in matters of ethics”? Does it refer to all of the “ethical activities” in respect of which the Quebec Court of Appeal declared the Access to Information Act inoperative on the grounds that it infringed judicial independence? Or a narrower exemption? Would the scope of the exemption be limited to the Council’s activities at the investigative stage?”
During the National Assembly, Jolin-Barrette replied:
“It is very clear to me and to the Quebec state that all state agencies must be as transparent as possible. Regardless of the body that was created by law, in this case, in the Courts of Justice Act, they manage public funds, they must be subject to transparency obligations.
“We, as parliamentarians, as legislators, must send a very clear signal that, for all state bodies, apart from certain exceptions in the context of deliberative functions, that the laws on access to documents apply.
“So that’s what we’re doing, we’re clarifying so that there’s no ambiguity, so that it’s clear to everyone. We’ll see later that a State body has to submit an annual report every year, which is, I think, very surprising that an activity report was submitted once every four years.”
The Judicial Council is not the only one concerned about this development. André Albert Morin, a member of the National Assembly of Quebec, representing the Liberal Party, fears that the independence of the organization is at stake.
“They want to include the Council or bring the Council into a law that deals with access to documents and public bodies with other bodies that do not have the same nature and independence as the Conseil de la magistrature. So, personally, I think that this is an erosion, as I pointed out, of the institutional independence of the Conseil.”
So does Université de Montréal law professor Martine Valois. She believes it is yet another attempt by the government to bring in line the Quebec judiciary.
“It is clear that the Minister is still in conflict with the Quebec judiciary and really wants to bring the Court, and especially the Quebec Judicial Council, to heel, as he feels it is controlled by the Court of Quebec,” said Valois, author of “Judicial Independence: Keeping Law at a Distance From Politics.”
The head of the Quebec Judicial Council is Court of Quebec Chief Justice Lucie Rondeau. The Quebec Justice Minister and Chief Justice Rondeau have been at loggerheads in the past year over a slew of issues, with little signs of abating. In an unprecedented move, a former Quebec Appeal Court justice was appointed earlier this year as a mediator to resolve the dispute between them.