In the not so distant past, elected members of the National Assembly and influential members of the legal community fought hard to modernize the process of appointing judges and to prevent the process from being tainted by conflicts of interest, real or apparent. Have we already forgotten all about the Bastarache commission?
In 2010 and 2011, Quebec was in turmoil following revelations about a possible link between the funding of the Quebec Liberal Party (PLQ) and the appointment of judges to the Court of Quebec. An employee of the Prime Minister’s office, Jean Charest, attached “post-it notes” to the application files to specify the political allegiance of the candidates for the judiciary. It was a huge story, worrying enough for the Charest government to be forced to order the holding of a commission of inquiry, chaired by former Supreme Court justice Michel Bastarache. The final report did not criticize the Prime Minister, but Judge Bastarache was not kind to the appointment system of the time, saying that it was “permeable to interventions and influences of all kinds”.
The Charest government acted on the main recommendations of the report by reforming the appointment process to entrust it to an independent committee. This recommends candidates for the post of judge to the Minister of Justice. The Minister’s discretionary power and the risk of patronage remain intact, but the mechanism makes it possible to put a healthy distance between the appointment process and the risk of political influence.
Enter Simon Jolin-Barrette. The Minister of Justice has appointed a long-time friend to sit as a judge in the Criminal Division of the Court of Quebec, Charles-Olivier Gosselin. Ethics Commissioner Ariane Mignolet has launched an investigation into the matter. But there is even more worrying. Since 2020, Mr. Jolin-Barrette has canceled five calls for applications, in the comfortable anonymity of his office, without providing an explanation. Anger is brewing in the judicial districts hit by ministerial whims.
The opposition parties show their discomfort with the appointment of Judge Gosselin, a jurist whose competence and probity are in no way called into question in this case. In Quebec, the world is small, as the saying goes. It is even more so in restricted circles, such as business circles or the legal community. The possibility of a minister appointing a friend or acquaintance to an important position is not scandalous in itself, it is the secrecy surrounding the method that is the problem.
Thus, the appointment of friend Gosselin constitutes, for the Minister of Justice, an imprudent gesture which will leave its mark. The Parti Québécois (PQ) rightly denounces the circumvention of the “spirit of the recommendations” of the Bastarache report. The Official Opposition justice critic, Liberal MNA André Albert Morin, sums up the problem of perception that will never cease to haunt Simon Jolin-Barrette. “When we proceed to the appointment of a judge, it must give the image that it is above all suspicion, that is exactly what the minister missed here,” he said. .
There was a time when this story would have made noise, but already at the convention of the Coalition avenir Québec (CAQ), it was relegated to the rank of footnote. In the realm of the supermajority, there is nothing to be alarmed about. Prime Minister François Legault dismissed the criticism out of hand, saying that the era of partisan appointments was over since the work of the Bastarache commission.
There are still embarrassing questions for Prime Minister Legault. How is it that he learned of the appointment of a friend of Mr. Jolin-Barrette in the newspapers? How to explain the cancellation of five competitions, on the sly, without explanation? And above all, what will he say to the legal community? She looks at Minister Jolin-Barrette with a cautious eye in the broader context of his permanent confrontation with the Court of Quebec.
There is nothing to suggest that Simon Jolin-Barrette exceeded his ministerial prerogatives, but that should not prevent Premier Legault from worrying about the appearance of justice and the bond of trust that the public maintains with regard to the administration of the justice. It is not enough for justice to be independent, it must be perceived as such.
This was one of the great lessons of the Bastarache report, which the associate professor at the Faculty of Law of the Université de Montréal Martine Valois wisely recalls in a text published in The Press. “Appointing judges is a duty and not a privilege,” recalls the jurist who was the main adviser to the drafting of the Bastarache report. She denounces “an attitude that borders on casualness” on the part of the Minister of Justice and the Legault government.
We shouldn’t stop there. The Jolin-Barrette method does not pass the test of confidence in the appointment of judges.