The Chief Justice of the Court of Quebec, Lucie Rondeau, managed to make the Minister of Justice, Simon Jolin-Barrette bite the dust, who cannot intervene to reduce the number of judicial positions requiring English proficiency .
In a judgment rendered last Wednesday, Judge Christian Immer of the Superior Court declared “ ultra vires and “illegal” the publication of competition notices to fill judicial positions that did not include a bilingualism requirement, even though the Chief Justice had made it a condition.
The Minister “has no say” on the needs expressed by the Chief Justice with regard to the appointments. What the Chief Justice wants, God wants, can we summarize.
For the past ten years, the Court of Québec has required fluency in English for the vast majority of judicial positions. Simon Jolin-Barrette believes that this general requirement, for positions as judges of the Civil Division in the districts of Longueuil or Saint-Jérôme, for example, is exaggerated. He argues that valid candidates could be unnecessarily excluded simply because they speak only French. As responsible for the administration of justice, he would like the Court to take into account the language policy of the State and avoid imposing this bilingualism all over the place. The Chief Justice considers that this is an interference by the executive power in the judicial power, an “attack on the constitutional principle of the institutional independence of the Court”.
Although he didn’t mince his words when he spoke of illegality, Judge Immer could not question the power of the executive to select and appoint judges.
Moreover, speaking about the bilingualism of judges, the Chief Justice of the Supreme Court, Richard Wagner, during a press conference last June, indicated that he was in favor of the appointment, within the highest legal body in the country, judges who know both official languages, which is not the case for some of them. But he recalled that obviously, it is up to the public authorities, that is to say the executive, to make these choices. “They are the ones who name,” he said. “I am expressing my opinion to you. »
Demonstrating an esprit de corps that the judiciary no doubt greatly appreciated, Judge Immer circumvented this difficulty. Without denying the constitutional power of the Council of Ministers to select judges, he accused the Minister of Justice of having violated the regulations governing the appointment process. Following the Liberal scandal of judicial candidates whose partisan allegiance was marked by “post-it notes” and the Bastarache commission, the government adopted by regulation an appointment procedure that goes through a selection committee and its Secretary. The minister no longer has any other role than to point to a name in a short list of proposed candidates, believes the Superior Court. It is an interpretation. But what we can remember is that the executive has not abandoned its power to appoint judges and that it can modify these regulations to specify their content.
The Chief Justice has found another way to assert her independence and show that she doesn’t give a damn about whoever is responsible for the administration of justice. She decreed that from the start of the school year in September, the judges of the Criminal Chamber will sit only one day out of two rather than two days out of three. As requests become more complex, these judges must render their decisions in writing more often than simply delivering them orally, she argues. However, if we do not want the delays to lengthen, a “detail” remains to be settled: it needs 41 more magistrates, most of them obviously bilingual, i.e. the largest increase in judicial positions in recent history. of the Court of Quebec. This number represents a quarter of the posts of judges in the Criminal Division. This is in addition to the 16 positions she claimed in November 2020 and for which the government has given its approval, but which are still awaited.
Without taking into account the salary increase of 22% which brings the salary of the judges to $310,000, it is a disbursement of 20 million per year. However, to accede to the Chief Justice’s request, an analysis by the Treasury Board, a must for anyone concerned about the sound management of public funds, is necessary, followed by the adoption of a bill , steps that are impossible to complete by next September.
From the top of her ivory tower, the chief justice will be able to observe this fall the delays which are getting worse in the Criminal Division and the embarrassment into which her reform will plunge the government. It is doubtful that this new political showdown is in the interests of litigants.