The Conseil de la magistrature du Québec has “not [jugé] useful” to modify the codes of ethics applicable to judges of the Court of Québec, presiding justices of the peace and municipal judges in the wake of the coming into force of the Act respecting the secularism of the State (Bill 21) it four and a half years ago.
” [L]he objectives underlying the requirements of secularism, i.e. neutrality and impartiality, already constitute ethical duties included in these codes of conduct”, concluded the Conseil de la magistrature, after consulting law professors Christelle Landheer- Cieslak and Philosophy Jocelyn Maclure.
The organization Droits Collectifs Québec and the Mouvement laïque québécois are asking the Minister responsible for Secularism, Jean-François Roberge, to remind the Conseil de la magistrature du Québec of its obligation to follow up on the ban on the wearing of religious symbols by persons in positions of authority within the state provided for in Law 21.
“The intention of the legislator is that the judges of Quebec do not wear religious symbols, and the Conseil de la magistrature should have taken into account the intention of the legislator, which it ignored. So we, we think it’s simply unacceptable, ”says the president of Rights Collectives Quebec, Étienne-Alexis Boucher. “At the moment, we are studying the various possibilities to try to convince the Council of the Judiciary to respect the provisions of the Law on the secularism of the State”, he adds, even mentioning the possibility of go to court to achieve this.
According to the Mouvement laïque québécois, “the Conseil de la magistrature confuses the character of impartiality, independence and integrity of judges already provided for in the codes of ethics with the legal obligation of section 5 of the Act to establish rules reflecting the requirements of the secularism of the State and to ensure that judges implement them “in fact and in appearance” in the exercise of their functions”.
It’s like asking Justin Trudeau if he’s in favor of Quebec separating. You are sure of the answer.
Article 5 of Law 21 states that ” [i]t belongs to the Conseil de la magistrature, with respect to the judges of the Court of Québec, the Human Rights Tribunal, the Professions Tribunal and the municipal courts as well as with respect to the presiding justices of the peace, d ‘to establish rules reflecting the requirements of the secularism of the State and to ensure their implementation’.
After analysis, the Judicial Council has come to the conclusion that “the current ethical standards sufficiently regulate the conduct expected of judges, including with regard to the requirements relating to secularism”, can we read in a guide capped of the title The requirements of secularism in Quebec. Reflections on their impact on the judge’s duty of real and apparent neutralityposted on the Council’s website in 2022. [I]It is up to the judge himself to assess whether he is “fit” to hear a case. If he doubts his ability to conduct an impartial trial, he has an ethical obligation to recuse himself. The parties can also file a request to this effect themselves according to the known process, ”he underlines in broad strokes.
Rights collectives Quebec obtained the guide as well as the discussion papers from professors Christelle Landheer-Cieslak and Jocelyn Maclure last December, not without difficulty. To achieve this, the organization turned in particular to the Commission d’accès à l’information, which for a time refused to hold a hearing aimed at determining whether or not the Conseil de la magistrature was subject to the law of access to information, then to the Court of Quebec.
Moreover, Droits Collectifs Québec and the Mouvement laïque québécois have difficulty explaining why the Conseil de la magistrature has relied on professors “who are not […] not empowered to provide legal opinions on the application of the Law”, that is to say Christelle Landheer-Cieslak and Jocelyn Maclure, who provided a “legal opinion” and a “report” respectively. They describe Mr. Maclure as a “notorious critic” and “avowed opponent” of the State Secularism Act. “It’s like asking Justin Trudeau if he agrees that Quebec should separate. You are sure of the answer”, illustrates Mr. Boucher.
For its part, the Canadian Judicial Council clarified, in the spring of 2021, that “judges should avoid making comments or wearing visible insignia indicating their support [à des] causes or points of view […]in particular within the framework of the judicial process”.