The agreement reached on April 21 brought to an end a court challenge by the government that was going to be heard by the Court of Appeal over a reform instituted last September by Chief Justice Lucie Rondeau. The controversial reform unsettled the Quebec legal community and the provincial government because it curbed from 139 to 104 the number of sitting days that 160 provincial court judges who preside over criminal proceedings so that they could spend more time writing judgments and managing cases. The chief justice called for the appointment of 41 provincial court judges to ease judicial delays.
Under the terms of the agreement, Justice Minister Simon Jolin-Barrette will appoint 14 new provincial judges and new support staff this year to the Criminal and Penal Division. In exchange, the chief justice will add to the annual workload of judges who work in the same division to 121 days, with the remaining lost sitting days expected to be made up by more efficient case management.
But now questions surround the fate of the deal after the government introduced Bill 26, legislation that was supposed to concretely implement the accord but unexpectedly amended the way that the Quebec Judicial Council (Conseil de la magistrature du Québec) will be financed. Up until Bill 26 was introduced, the council subsisted on monies from the government’s financial reserve or the consolidated revenue fund. In other words, the council’s budget was not subject to an annual vote by the National Assembly, relieving the council of the obligation to prove its financial needs. Bill 26 changes that, and amends s. 282 of the Courts of Justice Act by replacing “out of the Consolidated Revenue Fund” by “out of the appropriations voted annually for that purpose by the National Assembly.”
This move was precipitated because the council exceeded its annual budget by more than 30 per cent in the last fiscal year. Its annual budget hovers around $3.2 million but projected expenditures indicate an “anticipated overspend” of more than $1 million by end of March 2023, mainly because it mounted legal challenges against provisions of the Charter of the French Language and its battle to require bilingualism among some provincial court judges, depending on where they are located. “The fact that more than $1.1 million was taken from taxpayers’ pockets to challenge a law duly adopted by their elected representatives in the National Assembly is not acceptable,” Jolin-Barrette told the French-language newspaper Le Devoir. “This is not part of the mandate of the Conseil de la magistrature.”
Chief Justice Lucie Rondeau
According to Martine Valois, a law professor at the Université de Montréal and author of Judicial Independence: Keeping Law at a Distance From Politics, there really never was a truce between two of Quebec’s leading actors. “The justice minister wants to return to a hierarchical model between the legislator and the judiciary,” said Valois. “Under this hierarchical model, the legislator legislates, decides on the norms — and judges are only enforcers, always looking for the legislator’s intention, like robots in the end.”
Under this model, adds Valois, judges cannot be a power unto themselves. Rather they must be subject to the will of the people and carry out the decisions taken in the National Assembly, explained Valois. The notion that judges, under the guise of a formal institution such as the judicial council, can launch lawsuits against the government is foreign to the Quebec justice minister, said Valois. “Now that he is the minister of justice, he is in a way implementing his conception of justice but it’s not an approach that is retained by the Supreme Court of Canada or by the doctrine of the administrative independence of judges.”
Jolin-Barrette landed in hot water late last week and over the weekend when it was revealed that he appointed a friend — Judge Charles-Olivier Gosselin — to the provincial court bench in early May and did not declare it to the council of ministers. Under the “Regulation respecting the selection procedure of candidates for the office of judge of the Court of Québec,” an independent committee, composed of seven individuals including the chief justice, proposes a list of up to three names to the justice minister following the publication of a notice of judicial vacancy. The minister then proposes a candidate to the council of ministers, which ratifies the choice. There are no provisions under the regulations that stipulates that the justice minister declare a conflict of interest, something that Jolin-Barrette said on May 14 that he intends to remedy by amending the regulations.
Martine Valois, Université de Montréal
The cancellation of a first call for candidates has led to disgruntlement in Sept-Îles, where a lawyer from Longueuil, Alexandre Germain, was recently appointed as a provincial court judge in the North Shore. Judge Germain was selected following the second call for candidates. Steeve Beaupré, the mayor of Sept-Îles and a former Crown prosecutor, said publicly that he is certain that Judge Germain has the professional competencies but is concerned about his knowledge of Aboriginal law, as the Innu are over-represented in youth protection cases in the North Shore.
Valois, who acted as principal drafting adviser to the 2011 Commission of Inquiry on the nomination process of judges in Quebec, the so-called Bastarache Commission, said the controversy could have been avoided had the government implemented several of recommendations made by the former Supreme Court of Canada justice.
The Bastarache Commission recommended that the justice minister be required to give reasons for his choice by providing the council of ministers with a summary of the curriculum of the chosen candidate, the list of persons consulted, the list of persons having made recommendations, the list of candidates deemed suitable and the criteria used. Another recommendation that should be implemented that stems from the Bastarache Commission is to publicly state the reasons for selecting the candidate, including his qualifications and the criteria that were applied. Valois also believes that the justice minister should be obliged to give reasons when he cancels the selection process.
“If these recommendations had been followed, there would be much more transparency,” noted Valois. “But it would limit discretion even more.”