The Quebec Judicial Council appeared this week before the Superior Court of Quebec to contest the request from Droits collectives Québec (DCQ) and the Mouvement laïque québécois (MLQ) which calls on it to establish rules reflecting the requirements of the Law on State Secularism (Law 21).
Indeed, according to law 21 (article 5), “ [i]It belongs to the Judicial Council, with regard to the judges of the Court of Quebec, the Human Rights Tribunal, the Professional Tribunal and the municipal courts as well as with respect to the magistrate justices of the peace, “establish rules reflecting the requirements of the secularism of the State and ensure their implementation”.
The Council did not follow up on these new requirements, because for it, “the current ethical standards sufficiently regulate the conduct expected of judges, including with regard to the requirements relating to secularism”.
It is this decision that DCQ and the MLQ are contesting, arguing among other things that in 2021, the Canadian Judicial Council, for its part, deemed it relevant to add an ethical principle by which judges are asked to avoid wearing visible badges expressing support for certain causes. This is an example of action that the Quebec Judicial Council could take.
Superior Court
Before the Superior Court could assess the merits of the request from DCQ and the MLQ, the Conseil de la magistrature du Québec decided to challenge the legal procedure used by the applicants, their legitimacy to act in this matter as well as the deadline. intervention. According to him, this procedure would call into question their judicial independence and the associations involved would not have the standing to act in the public interest on this issue. Surprising when we know that the MLQ is one of the recognized parties who defended the legitimacy of Bill 21 in the Superior Court and now in the Court of Appeal.
Finally, with regard to the delay, the Council turns a blind eye to its own reluctance to inform the public about its actions undertaken since the adoption of law 21, information obtained by DCQ and the MLQ under the access law to the information, after long and difficult procedures.
Why expend so much energy to refuse to hear the opinion of the Court with regard to the requirements of Law 21?
In addition to being a question of respect for the secularism of the State, now enshrined in the Charter of Human Rights and Freedoms of Quebec, this cause is important, because it would allow us to know the real room for maneuver of the Council of the Quebec judiciary with regard to a formal request from the legislator for the establishment of explicit rules.
It should be noted that the Council’s decision not to establish precise rules, following the adoption of Bill 21, does not appear to be supported by any formal legal opinion. For the moment, the impression this gives is that the Council refuses to exercise the function that section 5 of Law 21 imposes on it.
It is important to remember that the Quebec Judicial Council is a public body that emanates from the legislative authority of the National Assembly of Quebec. It is out of respect for the independence of the judiciary that Law 21 did not directly prohibit judges from wearing religious symbols in the context of their functions. However, the message from the legislator is clear: it “belongs” to the Judicial Council to act in this matter.
Challenging the procedure, the legitimacy of the applicants as well as the intervention deadlines raise questions of openness and transparency on the part of the Judicial Council. The questions raised by these two recognized Quebec organizations are justified and deserve answers.