(Montreal) The independence and depoliticization of the appointment of judges will take a step backwards if the changes to the process proposed by Minister Simon Jolin-Barrette are adopted as they stand.
This is the warning issued Friday by the Barreau du Québec, which says it is raising a “red flag” in the face of the amendments presented by the Minister of Justice.
The current Regulations on the procedure for the selection of candidates for the office of judge stem from the recommendations issued by the Bastarache Commission, which had conducted a public inquiry in 2010 following allegations of influence peddling surrounding the appointment of judges by the Liberal government of Jean Charest.
” A flashback ”
“The settlement partly responded to Bastarache’s recommendations. We are in the process of bringing it back. We are raising the red flag on certain provisions which not only do not respond, but seem to be a step back, ”warns the President of Quebec, Ms.e Catherine Claveau, in an interview with The Canadian Press.
“The legitimacy of the justice system rests on the trust of citizens,” she says, trust that is largely based on the separation of powers and the independence of the judiciary from government.
In its 33-page brief presented alongside the proposed amendments to the Regulations, the Barreau points out that the amendments, which at first glance look like minor adjustments, will ultimately have the effect of weakening the checks and balances put in place by the original Regulation “for the benefit of the Executive power”.
Worrying omissions
In its analysis, the Bar criticizes the Minister in particular for sinning by omission. “We note that out of the total of the 36 recommendations of the Bastarache Commission concerning the Rules, 15 recommendations were followed (42%) and 21 were not followed (58%). Some of these omissions raise extremely pertinent questions of independence.
For example, Judge Michel Bastarache had recommended “that information relating to political commitment be revealed by the candidates […] considering public concerns about political engagement and contributions to the funding of political parties”. Ignored in the original Regulations, this recommendation remains unimplemented.
Also, the report recommended “that a rule of ethics be established prohibiting the members of the Council of Ministers and the deputies from taking any steps to favor a candidate”, a suggestion which remains a dead letter. “It was not taken up in the regulations, but it is an expected standard of ethics, even if it is unwritten. If we want to have a watertight separation of powers, we expect there to be no political interference, ”sighs M.e Claveau.
Recommendations for minister ignored
Judge Bastarache also had some for the Minister himself: “I recommend that the Minister of Justice be required to justify his choice by giving the Council of Ministers a summary of the curriculum vitae of the chosen candidate, the list of persons consulted, the list of people who made recommendations, the list of candidates deemed suitable, the criteria used, as well as the reason for the choice according to the situation in the judicial district”, recommendation still ignored.
He went on to enjoin “that a public announcement be made of the candidate’s choice. This announcement should contain the reasons that motivated the choice of the candidate, including his qualifications, the criteria applied and the specific needs of the judicial district where the position is to be filled”, a call for transparency also remained a dead letter.
The Barreau’s list is still long, but the organization protests against certain changes to the process that add delays, obligations that are difficult for selection committee members to fulfill, a formula that requires more judges when there is a shortage and a mechanism that obliges the selection committees to present candidates even if they do not meet the criterion of fitness to sit.
Appeal to government and opposition
“What we hope is that the government and the opposition will be sensitive to our comments and accept that we do a more in-depth reflection”, launches the chairman.
“Let’s take the time, let’s involve the people concerned, including the Conseil de la magistrature, and let’s review together what would be the best way for Quebec to choose our judges in Quebec in complete transparency and with full respect for the separation of powers” , she concludes.
This appeal by the Barreau is in addition to the one launched on June 8 by the three judicial bodies, namely the Conseil de la magistrature du Québec, the Court of Québec and the Municipal Courts of Québec, which primarily blamed Minister Jolin -Barette for not having consulted them before presenting these proposed changes. Some of the recriminations found in their 31-page brief are similar to those of the Barreau, while others relate more to their specific concerns, but the whole thing is tinged with the displeasure of the judiciary with Minister Simon Jolin-Barrette, with whom the disputes have been piling up for some time.