Since the tabling and adoption of Bill 26, An Act to amend the Courts of Justice Act in order, in particular, to give effect to the Agreement between the Chief Justice of the Court of Québec and the Minister of Justice, suggested that the Minister of Justice of Quebec harbors contempt for judges. He would be showing bad faith and would like to cut off funding from the Conseil de la magistrature du Québec (CMQ), if not undermine the public’s confidence in him.
However, such criticism fails to highlight the multiplication of legal challenges launched by the CMQ since 2018 against the regulations and laws emanating from the government and the Parliament of Quebec, or even a real resistance to respecting these laws and regulations. Doesn’t the principle of the separation of powers require that “the courts and Parliament strive to respect their respective roles in the conduct of public affairs” and that Parliament can “exercise its legislative activities free from any interference from outside bodies or institutions, including the courts,” as the Supreme Court pointed out in 2005 in the Canada (House of Commons) v. OK?
The CMQ does not seem to accept that the power to create and develop the law in the name of which the courts exercise their power belongs in the last resort to the legislator, who embodies the democratic will of Quebecers.
In recent years, the CMQ’s resistance to the Quebec legislative framework has increased. Thus, the CMQ attempted to evade the obligations of the Act respecting access to documents held by public bodies and the protection of personal information. Similarly, this government body has so far refused to respect the Law on the Secularism of the State (Law 21), which provides that the state apparatus and its components, including the courts, respect in fact and in appearance the principle of separation of religions and the state.
Unlike the Canadian Judicial Council (CJC), the CMQ refuses any prohibition or ethical suggestion related to the wearing of religious symbols by judges in the exercise of their functions. This position was also based on a legal opinion from a person who contravened the Act respecting the Barreau du Québec and pleaded guilty to an offense of illegal practice of the legal profession.
Of the judicial activism of the courts
Similarly, the CMQ contests the new provisions of the Charter of the French language regarding the language of justice as amended by the Act respecting the official and common language, French (Bill 96), using in particular the pretext of judicial independence and the responsibility of the Court to establish its needs. However, systematically requiring bilingualism for all judges practicing in Quebec, and therefore discriminating against potential unilingual French-speaking candidates, is less an expression of the Court’s real needs than the imposition of a political vision of society. Quebec and its institutions. Need we remind you that in Canada, the right to be understood by the courts is limited to the right to benefit from interpretation services?
Does the CMQ’s new judicial activism really emanate from its desire to enforce the principle of the independence of the courts, or is it rather the result of the undue stretching of the concept of the independence of the courts for the purpose of limiting prerogatives of the executive and legislative powers? In our opinion, the CMQ’s position in the face of the recent amendments to the Courts of Justice Act (Bill 26) is more political than legal, since this law only harmonizes the practices of parliamentary review of court appropriations with those prevailing in Ottawa, other Canadian provinces, the United Kingdom, France and many other countries around the world.
The Conseil de la magistrature du Québec and its leaders, the vast majority of whom are judges, obviously do not like democracy. In the name of the principle of judicial independence and wrongly, in our opinion, they refuse, in a completely unjustified way, democratic accountability. And it should come as no surprise that the CMQ contests the new provisions of an Act respecting the courts of justice, which now provide for a parliamentary review of the appropriations that will be granted to it.
If the judges of the Superior Court and the Court of Appeal of Quebec as well as those of the Supreme Court of Canada were to agree with him, no doubt it would be necessary to once again consider appealing to the notwithstanding clause to ensure the democratic accountability of judges in the exercise of parliamentary sovereignty.