The principle of the separation of powers between the legislative, executive and judicial branches of the state is an essential element of our constitution. It requires that “the courts and Parliament strive to respect their respective roles in the conduct of public affairs” and that Parliament can “exercise its legislative activities free from interference by outside bodies or institutions, including the courts”, as recalled by the Supreme Court in the Vaid case (2005).
In addition to certain rules governing its action, the legislative power is subject to periodic controls: dissatisfied with its political leaders, the population can dismiss them to replace them during universal elections. Appointed by the legislative power, the executive power is indirectly subject to such democratic control. This last notch of security held by citizens does not exist vis-à-vis the judiciary: once appointed, judges are irremovable, even untouchable. Their actions are of course framed by standards, but the interpretation of the respect of these by the magistrates is up to the judges themselves.
However, several decisions on constitutional, linguistic or socio-cultural issues rendered by Quebec and Canadian courts raise important questions, giving the impression that judges invest themselves with the powers of the legislator in the face of such issues.
Of course, we understand the need for judicial independence. But are judges infallible sovereigns that nothing, even democracy, can constrain? No. The power to create and develop this law in the name of which the courts exercise their powers, in the light of the democratic aspirations of the nation, rests ultimately with the legislator.
Feeling of impunity within the judiciary
While the courts properly fulfill their mandate in civil and criminal matters, it is otherwise when they “play politics”, often in the best interests of the Canadian system. Let us recall the unconstitutional complicity between the Supreme Court and the Canadian government during the patriation of the Constitution of Canada, then the discriminatory remarks of the former chief justice of the Court of Appeal Michel Robert vis-a-vis the separatist lawyers.
More recently, the behavior of former Chief Justice of the Court of Appeal Nicole Duval Hesler or that of the Conseil de la magistrature du Québec, which refuses to recognize government responsibilities in the process of appointing judges, are as many examples that convince us of the existence of a certain feeling of impunity among the judiciary.
Of the (non-)respect of article 5 of the Law on the secularism of the State
Article 5 of the Law on State Secularism (LLE) stipulates that “ [i] t belongs to the Conseil de la magistrature, with respect to the judges of the Court of Québec, […] to establish rules translating the requirements of the secularism of the State and to ensure their implementation”. It took months of representations by Rights Collectivites Québec (DCQ) to the Conseil de la magistrature du Québec (CMQ), the Commission d’accès à l’information and the Court of Québec to identify the rules established by the CMQ. in accordance with the LLE.
The latter concludes that the current ethical rules are sufficient to meet the new requirements, and that the wearing of religious symbols by Quebec magistrates has no impact on their impartiality in fact and appearance (Conseil de la magistrature du Québec, The requirements of secularism in Quebec. Reflections on their impact on the judge’s duty of real and apparent neutrality, 2022, p. 16).
These rules were established by the CMQ without consultation with its members, based not on formal legal opinions, but in particular on a report by philosophy professor Jocelyn Maclure, an avowed opponent of the LLE.
The conclusion that the wearing of religious symbols by Quebec judges has no impact on their impartiality in fact and in appearance is contrary to that arrived at by Quebec elected officials following the process of adopting the LLE. The rules established by the Judicial Council are simply not in conformity with the ELA.
Moreover, they disregard the will of the legislator expressed during the study of the latter: “The intention of the legislator is […] that the judges of the Court of Quebec […] do not wear religious symbols in the exercise of their functions” (National Assembly of Quebec, Journal of debatesJune 11, 2019).
Some might say that the Conseil de la magistrature du Québec is abusing the principle of judicial independence to act with impunity. This situation is unacceptable. Rights collectives Québec intends to take steps to ensure compliance with the LLE and the obligations incumbent on the Conseil de la magistrature under this fundamental law adopted by the National Assembly of Québec. Public confidence in the courts is at stake.