As he promised, Simon Jolin-Barrette — Minister of Justice and Minister responsible for the French language — had Bill 96 amended concerning the selection of candidates for the judiciary. On the one hand, amendments recently adopted during the work of the Committee on Culture and Education would reduce the ability of the Chief Justice of the Court of Québec to determine the language needs within his court. On the other hand, they would increase the power of the Minister of Justice in the matter. The government thus risks violating constitutional norms and is unduly politicizing the appointment of judges.
The legal framework in Quebec makes it necessary to have many judges who are fluently bilingual, according to the languages of the population of the district. Section 133 of the Constitution Act, 1867 provides for the use of French and English before Quebec courts. In addition, section 530 of the Criminal Code guarantees that any accused whose language is English or French may be tried before a judge who speaks his language. If in Quebec this guarantee benefits Anglophones, elsewhere in Canada, it does so for Francophones.
Currently, the Chief Justice of the Court of Quebec assesses the language needs of each district in order to respect this framework, deciding where bilingualism is required. Previous governments, both PQ and Liberal, have accepted this.
However, if Bill 96 is adopted, the recent amendments would upset the process. According to the amendments, knowledge of “a language other than the official language” of Quebec, namely French, could not be relevant in the context of the selection of a candidate for the bench unless the Minister of Justice deems necessary, after consultation with the Minister of the French Language, and unless all reasonable means have been taken to avoid imposing such a requirement. The judgment of the chief judge would be excluded.
Misunderstood needs?
It is foreseeable that this change diminishes the ability of the courts to respect the constitutional rights of litigants. After all, in order to provide accused persons with judges capable of conducting proceedings in English, it is not enough to have one or two bilingual judges here and there. The litigants do not make an appointment before being arrested and they do not coordinate with each other. The chief judge—who manages his staff and distributes cases—knows the needs on the ground better than anyone.
Moreover, would reducing the powers of the Chief Justice in this matter violate the constitutional principle of judicial independence? The question arises because this principle includes a dimension of institutional independence, which protects the court as an institution.
Beyond the potential negative effects for the administration of justice, the context in which these amendments arise gives them the unfortunate impression of being a settling of scores (as one opposition member rightly put it ).
The reason for this is that the amendments follow the crushing defeat of Minister Jolin-Barrette in a dispute brought before the courts by the Chief Justice of the Court of Quebec, the Honorable Lucie Rondeau. Last February, the Superior Court qualified as illegal the interference of the Minister of Justice in the process of establishing criteria for judicial candidates. However, instead of complying with the rules thus clarified, Minister Jolin-Barrette resolved to modify them. Obviously, a duty of reserve prevents Chief Justice Rondeau from defending herself freely in the public square.
It is to his credit that the minister responsible for the French language is seeking legitimate and effective means of promoting it. However, jeopardizing the ability of Quebec courts to meet their constitutional bilingualism requirements is not one of them. In addition, politicizing the linguistic capacity of candidates for the judiciary only undermines public confidence in a fundamental institution of Quebec society, to the detriment of Quebeckers of all languages.