The recent revelations concerning Minister Simon Jolin-Barrette’s modus operandi with regard to certain appointments of judges to the Court of Quebec raise many questions. The choice of a personal friend of the Minister of Justice and the cancellation of four judge selection processes, including the last in the judicial district of Sept-Îles (Mingan), testify to an attitude that borders on casualness on the part of of the minister and the government about the importance of this task.
Contrary to what has been conveyed recently, the Bastarache commission did not limit itself to criticizing the taking into consideration of political allegiance in the choice of judges, but also, and above all, of undue influences which pervert the appointment process judges, whether because of political allegiance, nepotism or favouritism. In his report tabled on January 19, 2011, Commissioner Bastarache wrote that “the secrecy surrounding the selection process has the effect of reinforcing this negative perception which generally undermines public confidence in the judicial system”, adding that this process, which must be based on merit, was “permeable to interventions and influences of all kinds, in particular those of deputies, ministers, members of political parties, lawyers or the candidates themselves”. It is important to add that these words were written even though an independent selection committee was already in place.
The Bastarache report made 34 recommendations to change this process. In Recommendation 28, the Commissioner “recommends that nepotism, patronage and political affiliation be specifically listed as not relevant to the appointment of a judge”.
Only political allegiance is mentioned in article 26 of the regulations with regard to the selection by the independent committee. But what about nepotism and favoritism in the appointment of a judge? These influences are likely to show up not in the selection of candidates by the independent committee, but in the recommendation of the minister and in the decision of the government.
Not a minister’s privilege
According to Courts of Justice Act, it is up to the government to decide who will be the magistrates who will judge, in particular, the commission of crimes in Quebec and will have the power to deprive an individual of his liberty if necessary. This is a very serious matter that should not be taken lightly. It is not enough for the Minister to say that he “fully assumes his choice”, because on the one hand, it is not his power to appoint judges, and on the other hand, the appointment of judges is not a privilege of the minister. It is a duty regulated by law and regulation.
PHOTO EDOUARD PLANTE-FRÉCHETTE, LA PRESSE ARCHIVES
It is not enough for Minister Jolin-Barrette to say that he fully assumes his choice of a friend as a judge, according to Martine Valois.
The posture of Minister Jolin-Barrette in response to the legitimate questions put to him is at odds with the principles and values underlying the recommendations of the Bastarache report. These principles and values are merit, independence and transparency of the selection process and the limitation of undue influences, including nepotism and favouritism. Unnecessarily canceling selection processes that have been completed is tantamount to deciding for the independent committee.
A parallel reading of the recommendations of the Bastarache commission and the regulation on the process of selection of judges reveals that few recommendations have in fact been implemented.
First, the independence of the Secretariat for the Selection and Appointment of Judges was a key issue for Commissioner Bastarache. This secretariat was to include a coordinator for the selection of judges who would no longer depend on the Ministry of Justice, but on the National Assembly. An annual report of the work of the secretariat was to be made to the Assembly. Not only was this recommendation not followed, but quite recently Minister Jolin-Barrette had the regulation amended to remove the obligation to consult the Chief Justice of the Court of Quebec and the Barreau du Québec for the appointment of the selection secretary. The selection committee was to be permanent and composed of members appointed for three years. Commissioner Bastarache wanted “the work of the permanent selection committee to take place with the greatest possible transparency”. This is still not the case today.
Finally, recommendations 32 and 33 sought to oblige the Minister to justify his recommendation of the candidate to the Council of Ministers “as well as the reason for the choice according to the situation in the judicial district”, and to make a public announcement of the appointment containing the reasons for choosing the candidate. The higher interests of justice demand that the process for selecting and appointing judges be reviewed with the objective of establishing a culture of justification and transparency. The secrecy that surrounds the current process undermines public confidence in the integrity of the process and serves neither the judges nor the government.