This text is part of the special notebook The State of Quebec 2024
Beyond the traditional image it projects and the difficulties it encounters, the judicial institution is the site of transformations which promote the participation of citizens in the functions of justice. After having addressed various obstacles to legal equality (such as access to justice or limited institutional resources), Professor Pierre Noreau presents in this extract from a text published in The state of Quebec 2024 several debates surrounding confidence in the judicial institution.
Justice is the expression of the democratic principle only to the extent of its public legitimacy. The question of public trust and, therefore, that of the consent of citizens to the exercise of judicial power, is in fact a challenge to the very idea of democracy.
In this aspect, the judicial institution today largely benefits from public favor. While thirty years ago, confidence placed in the courts was below 50%, this opinion today rallies nearly two-thirds of the Quebec population. This support is partly associated with the positive image reflected by well-known judges, such as Judge John Gomery, Judge Michel Bastarache and Judge France Charbonneau, all three presiding over public commissions of inquiry whose visibility will have benefited the entire judicial institution, even if these commissions are not themselves judicial in nature.
On the other hand, certain unpopular decisions whose conclusions are relayed by the media are potentially likely to threaten the stability of this public support. The judgments rendered in the trial of Doctor Guy Turcotte and that of engineer Simon Houle thus had a direct, albeit temporary, effect on the confidence placed by the public in the courts. It follows that if the judicial system is perceived as a safe haven, its legitimacy remains fluctuating.
Debates surrounding the appointment of judges or their activity are also likely to undermine the reputation of the justice system. In matters of judicial ethics, decisions concerning the behavior of judges are therefore essentially based on the trust that the public places in the judiciary. Also, the Judicial Council measures the seriousness of breaches of ethical duties imposed on judges based on their impact on the image of the judiciary. This is a question of social acceptability. The criteria on which the evaluation of what is acceptable or not is based vary from one period to another depending on the expectations that are assumed to be those of the public. If the arrest of a judge for drunk driving merited a reprimand in the early 1990s, today it would lead to a call for impeachment.
The need to maintain public confidence requires by extension that the evaluation of judges’ behavior be subject to greater transparency. We are referring here to the requirements of judicial ethics. To this end, the Quebec Judicial Council systematically publishes its decisions on its website.
Getting away from the culture of secrecy is all the more necessary since, accession to the judiciary being established by public appointment, the office of judge is not elective and requires from its holders rectitude of behavior consistent with their Status. Also, beyond their legal skills alone, the selection of judges concerns the candidates’ abilities to fulfill their function.
Today, other considerations are associated with the legitimacy of the body of judges. We think in particular of the representativeness and diversity of origin of the judiciary. This requirement first concerned the presence of women on the bench, so much so that the majority of Quebec judges are today made up of women. It also affects a wide variety of identity referents based, in particular, on origin, ethnic and linguistic diversity or the diversity of sexual orientations, if not gender identity, requirements that only the diversity of student profiles admitted to the faculty of law can ensure, at least in the medium term. In return, the question arises as to whether this diversity is likely to modify the nature of the judicial decision.
About the Author :
Pierre Noreaupresident of the Quebec Institute for Law and Justice Reform (IQRDJ) and full professor at the Public Law Research Center (CRDP) of the University of Montreal
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