Judges remain human. They can, in certain situations, lack judgment.
Respectfully, I believe that is the case in the matter of judicial appointments.
three names
This resurfaced when the Minister of Justice, Simon Jolin-Barrette, proposed, on June 3, amendments to the regulations on these appointments.
The main change? That henceforth it be mandatory for the selection committee to propose three names to the Minister. Until now, three was a maximum.
The appointment procedure was tightened in 2012, after the Bastarache Commission (triggered by the Charest government in reaction to claims by Marc Bellemare about the undue influence of liberal fundraisers on the appointment of magistrates).
Since then, to avoid any partisan and even political pressure, the minister has had almost no discretion. Choosing from the three names is about all that’s left. Let us quote the Bastarache report: that the nomination returns to the government is not “illegitimate”, it even makes it possible “to breathe in the judicial power a certain democratic accountability”.
Empire
Starting in 2012, the chief judge of the Court of Québec was able to place key people on the selection committees. And take care of the training of others (representatives of the Bar, the public, etc.).
As a result, the appointment process would gradually become the “empire of chief justices” (formula of a retired magistrate).
A habit is growing: selection committees tend to propose fewer than three names to the minister.
In a report by the Secretariat for the Selection of Candidates for the Office of Judge, we can read that between April 2021 and March 2022, out of 11 competitions, the majority of the committees proposed “less than three candidates”.
The phenomenon had begun under the Liberals: Minister Stéphanie Vallée had canceled at least one competition since she had received only one name.
Let’s agree that not offering ministerial discretion a single name is not exactly a sign of respect for the principle of “democratic accountability”. In these cases, ultimately, the judges appoint the judges; it is a cooptation.
But for the Judicial Council (CdlM), the new regulations are absolute heresy. In particular the obligation of the three names. In his dissertation on the subject, he writes that “unsuitable” judges could be appointed and that this “risks creating a chaotic situation”!
It is frankly excessive. In the quarrel between Chief Justice Rondeau and Minister Jolin-Barrette, the latter is often pointed out as the one and only responsible.
In the case however, even sources at the Bar (professional order which also rejects the new regulation) find the word “chaotic”, used by the CdlM, strong coffee.
We understand why: the judges of the superior, appeal and supreme courts are appointed by the federal government where a “pre-Bastarachian” procedure (and even worse) remains, open to all influences, partisan discretion (checks on the “liberalist of the PLC for example).
We would like to hear M.me Rondeau assert that the judges of these courts are “unfit.” Or how the situation of these superior courts is “chaotic”…