Everyone was expecting the Quebec government to appeal the decision that ruled that the Quebec justice minister cannot bar bilingualism prerequisites for judicial candidates.
Failing that, legal experts reckoned the provincial government would change the regulation that prevented the justice minister from having a say on how the judiciary determines its professional and linguistic requirements. Even the judge that ruled on the case said there was nothing to prevent the Quebec government from changing the regulation to ensure the justice minister plays a bigger role in the selection process.
But the Quebec government went much further than anyone anticipated. It is using its legislative muscle “to make the necessary changes to ensure that mastery of a language other than the official language is not a systematic obstacle to accessing the position of judge in Quebec.”
The government intends to amend the Quebec Courts of Justice Act, and the regulation that 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. That regulation gives the Chief Justice of the Court of Quebec a much more important role in the selection process than the Minister,” said Quebec Superior Court Justice Christian Immer in a decision that is still wagging tongues.
On top of that, the Quebec government also will amend Bill 96, a controversial piece of legislation that aims to strengthen French as the only official language in Quebec, to change the rules for the procedure for the selection of Court of Quebec judges.
More alarmingly, the Quebec Justice Minister will have a say in the matter. Bilingualism will be required only when it is deemed to be “necessary,” “reasonable,” and in consultation with the justice minister.
Such changes, if passed, would not be surprising. Government do not like constraints placed on their discretionary powers. “They don’t like it, and try to roll it back,” said a constitutional expert.
It would nevertheless be disheartening, according to legal observers.
“The process of appointing judges in Quebec is exemplary, and is touted throughout Canada,” told me Martine Valois, a Université de Montréal law professor who wrote the book “Judicial Independence: Keeping Law at a Distance from Politics.”
“We’ve put an end to patronage by providing for a selection and appointment process that ensures that the most competent people are evaluated by a completely independent committee. And the files are confidential, so that people cannot demand letters of recommendation that can influence the selection committee and ensure that the minister chooses people whose candidacy is supported by influential people,” added Valois.
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Chances are the provincial government will have a fight in its hands. Quebec will have to take into account the administrative independence of the judiciary and the Constitution Act, 1867, according to legal experts.
“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 Robert Leckey, a constitutional expert and dean of the faculty of law at McGill University.
It’s not as if this is terra incognita. The Quebec Appeal Court issued two major decisions in 2021 dealing with the intersection of linguistic rights and the courts. In one, the Appeal Court castigated the Quebec government over recurring systemic unmitigated delays in securing trial transcripts that disproportionately affect English-speaking appellants. In the other, the Court of Appeal served a timely reminder over the importance of linguistic rights after it ordered a new trial for a convicted drug trafficker whose right to be tried in English was violated.
“Mere administrative inconvenience implementing this statutory right is not a relevant factor,” said the Appeal Court. “The availability of court stenographers and court reporters, the workload of bilingual prosecutors or judges and the additional financial costs of rescheduling are not pertinent factors since the language rights set out in the Criminal Code require that governments maintain proper institutional infrastructures and services for criminal trials in both official languages of Canada on an equal basis.”
One thing is clear. Both the executive and the judiciary are playing with fire. The friction between the two branches of power risk undermining confidence in public institutions.
“It is extremely rare to witness this kind of cockfight between representatives of the government and the judiciary,” said Stéphane Beaulac, a constitutional law professor at the Université de Montréal and and counsel at Dentons LLP. “Public confidence in our public institutions, and in particular the judiciary, do not win having a spat between political and legal, between the Minister and a Chief Justice of a court.”