The comments made by the Premier of Quebec in an interview with journalist Paul Larocque last week are cause for concern. They show that this government does not take the measure of the principle of the rule of law, that of the separation of powers and the negative effects that such statements can have on public confidence in the administration of justice. However, the rule of sub justicewhich the Prime Minister and his Minister of Justice should be aware of, requires parliamentarians not to undermine the authority of the courts by commenting on cases before them.
This rule, which has been respected by parliamentarians for centuries, has been flouted several times in recent weeks by the government of the Coalition avenir Québec (CAQ) in sweeping public statements.
The Government of Quebec, represented by the Attorney General of Quebec (AGQ), has brought two challenges to the decision of the administration of the Court of Quebec to change the ratio of days during which the judges of the Criminal Division and criminal will have to sit. This ratio, which was previously two hearing days for one day of deliberation, is now one day of hearing for one day of deliberation.
The Government of Quebec was careful not to publicize the judgment rendered by the Superior Court on November 3, in which Judge Nollet refuted, at the stage of the request for a stay, all the arguments put forward by the AGQ. First, the Court stated that “very few of the Chief Justice’s decisions could be analyzed without regard to judicial independence”. Moreover, Justice Nollet insists on the fact that the Chief Justice is “presumed to act in the public interest” and that the “institutional dimension of judicial independence is part of the notion of public interest”.
Given this principle, “several applications for judicial review” of challenges to decisions made by the Chief Justice “would be without chance of success on the merits and would probably be found to be frivolous or vexatious at the stay stage”.
On the issue of the Court’s administrative independence, Justice Nollet recalls the principles established by the Supreme Court of Canada according to which the institutional dimension of judicial independence is “historically conceived as a bulwark against the abuse of executive power” . Judge Nollet went on to say that the results of the analysis of a simple witness according to which the decision of the Chief Judge “has the inevitable consequence of an increase in delays” were “eloquently contradicted by an expert retained by the Chief Judge “.
Justice Nollet noted that even before the Chief Justice’s decision, “much longer systemic delays on which the [d]decision has no influence exist[aient] “. According to the evidence filed by the government, no prejudice exists with respect to the violation of fundamental rights resulting from an increase in delays. Justice Nollet also points out that, since the announcement of the new ratio in December 2021, the government has done nothing “to advance the request for additional resources” requested by the Chief Justice.
Finally, the Superior Court writes that the Chief Justice’s decision falls within the power delegated to her in the Courts of Justice Act and “under the principle of judicial independence” since these two legal instruments confer on her the power to establish the sitting days of his court. This principle has been well established since the Valente decision of the Supreme Court of Canada in 1985. Later, when the Manitoba government wanted to close courthouses on Fridays in the 1990s, it was reminded order by the Supreme Court of Canada in the name of the principle of the institutional independence of the courts, which alone can decide on the sitting days of the courts.
As Judge Nollet reminds us, this type of decision “is at the heart of institutional administrative independence”. He also adds this: [l]he operation of the judiciary without interference from the executive constitutes precisely a protection established for the benefit of litigants, to preserve public confidence in the administration of justice”.
In the past, the Supreme Court has repeatedly reiterated the principle that judges should be protected from pressure from the legislative and executive powers. This is one of the conditions of the principle of judicial independence which goes hand in hand with that of the separation of powers. This separation of powers requires that the relationship between the executive and the legislature on the one hand, and the judiciary on the other hand, be depoliticized. Otherwise, judicial independence, and therefore the rule of law, cannot be ensured.
Judicial independence, separation of powers and the rule of law are the pillars on which rests the foundation of democratic governance. A nation that attacks its judges is no better than the England of the Stuart kings, which has been denounced throughout history as belonging to a dark age when independent justice was not guaranteed. Chief Justice Coke was dismissed as Chief Justice of the Court of King’s Bench in November 1616 because his rulings on the extent of the prerogatives of the Crown displeased King James Ier. Ego requiem meam cause.