The Superior Court ruled in the standoff between two of the three branches of power of the Quebec state, namely the judicial power and the executive power. The Chief Justice of the Court of Quebec can indeed require bilingualism in the process of appointing judges against the will of the Minister of Justice.
The Quebec judicial council, chaired by Chief Justice Lucie Rondeau, sued the Department of Justice, Simon Jolin-Barrette and his team over a language issue. The latter had assumed a right of inspection in the calls for candidacies of the judges to be able to withdraw the requirement of “mastery” of English.
Conversely, Justice Rondeau considered that for reasons of court efficiency, she could require proficiency in English to fill one of the positions at the Court of Quebec without the Minister’s consent.
The Superior Court, by the signature of Judge Christian Immer, declared that “the Minister of Justice does not enjoy any power with respect to the drafting of notices of selection of candidates for the office of judge at the Court of Quebec. […] Its role is limited to asking the secretary to launch the competition.
The minister “has no control” over this secretary responsible for drafting the job offer, said Judge Immer. “Once he asked the secretary to open the competition, he had no say in whether the Chief Justice’s expressed needs were included in the notice or who he must name. »
By this judgment made public on Wednesday, the court invalidates five notices of judge appointments recently issued by Quebec. Calls for applications will have to be published again and this time they will have to include proficiency in English among the compulsory skills. These notices are for vacancies in the Montreal, Valleyfield and Saint-Jérôme regions.
To support her argument, the Chief Justice commissioned a survey of Court of Quebec judges to estimate the extent of bilingualism in Quebec courts. We speak English, according to this survey, at least once a day 42% of the time in Estrie, 26% of the time in the Laval-Laurentides-Lanaudière-Labelle district, 44% of the time in Montérégie, 74% of the time in Montreal and 71% of the time in Outaouais. “Significant arrangements are required to accommodate judges who do not speak English,” the court concluded.
Recognizing “the real and persistent need for protection of the French language”, Judge Immer mentions that English is not systematically required to access the position of judge of the Court of Quebec. ” […] Among the twelve posting requests since August 2020, eight positions are […] [dans] places of residence where English has not previously been included as a requirement. »
“What really worries the Minister is that the Chief Justice, under the guise of establishing needs, is creating what he perceives to be language rights on the fringes of what he believes to be Quebec legislation,” supposes do we in judgment.
In fact, the Minister of Justice had explicitly shown his colors when he took office. “The demonstration will have to be made that the number of judges in office who master English will not be enough to meet the needs,” he argued. The Chief Justice quickly expressed her disagreement with this vision of the administration of justice.
Change of direction
This relegation of the authority of the Minister of Health over the appointment of judges to a formal role “contrasts radically with what prevailed” under the previous interpretations of the regulation “where [le ministre] dominated,” acknowledged Judge Immer. When the first regulations on the process for appointing judges were adopted in the late 1970s in Quebec, the Minister of Justice played “a leading role at all stages of the selection process”.
“However, the interpretation of the context, the text and the scheme of the Regulations undoubtedly leads to the conclusion that the Minister no longer has any role in the process which leads to the selection of the three candidates by the selection committee, if this is only to launch the contest”, continues the judge Immer.
In other words, the Minister remains the one who, in the end, appoints the judges of the Court of Québec, but he no longer has any right to review the candidates that will be presented to him and from among which he will have to choose.
The report of the Bastarache Commission on the appointment of judges clearly indicated this. “The executive appoints the judges and that is fine. Political accountability in the selection of members of the judiciary is an important component of the judicial appointment process,” the judge wrote at the time.
The Court of Québec has 308 judges in office.