In an open letter published in The duty of April 26, the Dean of the Faculty of Law at McGill University, Robert Leckey, criticizes the amendments made to Bill 96 aimed at strengthening French as the language of justice in Quebec by invoking judicial independence and the risks of politicization of the appointment of judges.
To fully understand these amendments, they must be placed in the broader context of the bill. While French was consecrated as the only official language of Quebec by section 1 of the Charter of the French language in 1977, since then, under the effect of certain jurisprudential and legislative developments, a shift has taken place which has consequence of making this consecration symbolic by conferring on English a status equivalent to that attributed to French.
Indeed, the official language being that of the State, it must be that of the legislature, the executive and the judiciary. However, various judgments and legislative amendments since have imposed a strong dose of bilingualism in these three branches of the State. Added to other factors, including the weakening of the Charter of the French language linked to a host of judgments, this shift has had the effect of causing French to decline considerably in Quebec in general and in Montreal in particular.
This is why in 2021 Bill 96 was tabled, which proposes a series of measures aimed at strengthening French as a common and official language, which is reflected in particular in the legislative, executive and judicial fields. Unfortunately, at the very moment when this major reform of the language policy was taking place, the Chief Justice of the Court of Quebec, appointed to this position by the Couillard government, intervened to, on the contrary, reduce the scope of French as the language of justice by demanding that in the accession to the magistracy be discriminated even more often against Francophones who do not master English sufficiently.
This intervention would be justified in the eyes of some by sections 133 of the Constitution Act, 1867 and 530 of the Criminal Code. However, an equivalent of this section 133 is applicable in other provinces, and this section 530 is applicable elsewhere in Canada without this obliging the other provinces to almost systematically require a high level of knowledge of both languages among judges.
In this context, amendments were made to Bill 96 in order to limit this discrimination and this weakening of French as the language of justice. And there is nothing to indicate that they are contrary to the principle of judicial independence, since they in no way allow political power to directly influence issues such as the assignment of judges to cases or the management of courtrooms. .
Moreover, as the Chief Justice of the Court of Quebec had encouraged her to do, the Superior Court very wisely refused to consider the hypothetical issue relating to this principle in its recent judgment on the bilingualism of judges . This judgment therefore opened the door for the government to modify the rules governing the appointment of judges in order to ensure the protection of French, without this resulting in a politicization of these appointments.
In this regard, the Quebec process for appointing judges is exemplary (and the recent changes do not change that), especially if we compare it to the federal appointment process, which, until recently, has been the source of allegations disturbing. Those who wish to combat the risks of politicization of the appointment of judges should therefore rather look on the other side of the Ottawa River…