Three of the main Quebec judicial authorities accuse the Minister of Justice, Simon Jolin-Barrette, of wanting to sow chaos with a selection process for judges that would make it possible to recommend candidates unsuited to exercise this function.
A 30-page analysis written by the Conseil de la magistrature du Québec, the Court of Québec and the municipal courts of Québec harshly criticizes a draft regulatory amendment tabled on May 3 by the minister, before a controversy broke out because it appointed a personal friend to a judgeship.
In their analysis, made public on June 8, the representatives of the judiciary mainly attack the new obligations to which the committees responsible for selecting candidates would be subject in order to make recommendations to the Minister of Justice for appointments.
The Chief Justice of the Court of Quebec, Lucie Rondeau, as well as her partners and assistants responsible for the various courts and chambers of the Quebec judicial system, are concerned that the draft regulation changes the notion on which the committees are based. of selection to make their choice.
The current provisions ask committee members to declare who are the “suitable candidates” for the bench, while the text proposed by Mr. Jolin-Barrette suggests submitting the names of the “three best candidates”, a “drastic” change, according to judicial authorities.
If adopted, this amendment would mark a setback since the finalists recommended to the Minister for appointment to a post of judge would no longer be chosen according to their aptitude but on the simple fact that their candidacy meets the criteria sought, denounces the memorandum.
The obligation to propose three finalists to the minister would force the committee to suggest candidates who are not currently nominated, the analysis indicates.
“It will then be a question of proposing the appointment of three people, among those unfit to exercise the function of judge, who best meet the criteria”, conclude Mr.me Rondeau and his fellow magistrates.
According to them, this proposal is “a radical change” that would damage public confidence in the courts.
“The proposal denies the rigor required to ensure the credibility of the process and opens the door to magistrates who do not have the minimum qualities necessary to assume the function”, they write.
Risk of chaos
Among the ten or so amendments proposed in the draft regulations, which take up three pages of the Official GazetteMr. Jolin-Barrette also wishes to review the composition of the selection committees in order to add notaries and representatives of groups of victims, in the case of appointments to the criminal and penal division.
Lucie Rondeau and her colleagues are “greatly” concerned about this initiative to include a member “who defends specific interests” on the committee.
“This is a misunderstanding of the responsibility of each member of the committee to act as fiduciary of the mission of the committee and not to represent the organization, institution or person who appointed him as such “, they write.
The representatives of the judiciary are concerned that it is the minister who appoints this person after consultations with victim support organizations, a provision they associate with the “worrying allegations” tainting the appointment of judges, which led the government to mandate a commission of inquiry in 2010.
“This is a return to the process of the past that was the subject of significant criticism that led to the Bastarache Commission,” they say in their analysis.
In their conclusion, Mr.me Rondeau and his colleagues say the proposed changes open the door to “politicizing” the judicial selection process.
They maintain that Mr. Jolin-Barrette should have waited for the end of a dispute between them before provoking a new collision with this draft settlement.
In October, their appeal will be heard against the provisions introduced by the minister in the Charter of the French language, concerning the bilingualism of judges. Resulting regulatory changes are also a subject of litigation, they point out.
“The executive power proposes instead, without prior consultation, to publish a project aimed at modifying the regulations at the risk of creating a chaotic situation”, they warn.
The Department of Justice indicated that as part of the consultations on the proposed regulatory amendment, five briefs were received.
After these amendments were filed, Mr. Jolin-Barrette was forced to defend his decision to appoint a longtime friend to the Court of Quebec. In the process, he opened the door to other changes to the regulations in order to avoid such a situation.
Ministerial discretion
Professor of law at the University of Montreal, Martine Valois estimated that the modifications would simplify the cancellation of the competitions when the minister is dissatisfied with the candidatures submitted by the committee which, in such a case, can simply submit new ones.
“He is the one who wants to choose and if he is not happy with the work of the selection committee, he cancels the competition and he does another, hoping that the committee will propose other names that suit him” , did she say.
In May, Minister Jolin-Barrette explained that he used the provisions of the regulations five times to relaunch calls for candidates. He was then content to justify this decision by his desire to protect the interests of justice.
Mme Valois, who was an editorial adviser to the Bastarache Commission, believes that all of the changes tend to increase the discretionary power of the minister in the selection process. According to her, this goes “in the opposite direction of the spirit” of the recommendations of the commission, which led to changes in the process of selection of judges.
“It tends to bring the question of the choice of judges back to the minister,” she said.