Changes to the Process for Appointing Quebec Judges

Quebec’s Premier Jean Charest created the Bastarache Commission on April 14, 2010, to look into allegations by lawyer Marc Bellemare respecting the process for appointing judges to the Court of Quebec and municipal courts, and members to the province’s Administrative Tribunals, in particular the influence exercised by third parties in this process. The commission was also mandated to provide, if appropriate, recommendations to the government on potential changes to the process for appointing such judges and members.

The commission’s report, tabled January 19, 2011, concluded that the process of appointing judges in Quebec is under undue intervention and influence of all kinds, whether by Members of the National Assembly, cabinet ministers, other members of political parties, lawyers or candidates themselves. As stated in the report, Mr. Bastarache “felt that it was up to the National Assembly to improve the system.”

The National Assembly took heed, and close to a month after the filing of the Bastarache report, Quebec’s Justice Minister, Jean-Marc Fournier, announced during a sitting on February 15, 2011, a series of interim changes to the process for appointing Quebec judges. The assembly is currently studying a number of permanent and other measures recommended by the commission, which will follow at a later date.

The interim changes consist of creating an independent three-member selection committee that will identify prospective bench candidates and forward nominee suggestions to the justice minister’s office. This three-member committee would consist of a lawyer representative of the Quebec Bar, a judge and a member of the public. The Office of professions, recommended by the Quebec Bar Association, will suggest the name of the representative of the public. Also, training will be offered to members of the selection committee.

The interim process excludes the political staff of the premier and minister of justice from the nominations. This step is to prevent these individuals from interfering in any way whatsoever in the selection process for appointing judges. Furthermore, those in charge of the nomination process will no longer be able to disclose the candidate’s allegiance to a political party during the nomination process.

The selection committee’s recommendations will be sent to the minister of justice, who will then make a single justified selection and submit it not just to the premier but also to the council of ministers for approval. This will ensure transparency of the process.

“We’re going to explain why it’s this person, what are the special qualities that qualify this person to be named judge to that court,” Jean-Marc Fournier said after the new rules were announced in the National Assembly.

As suggested by the report, no sitting members or ministers should exert pressure in favour of a candidate or refuse or accept a candidate because of their political values.

Further, for the sake of transparency, judicial appointments will be more publicized. Thus, a biographical outline of the new judge along with the criteria that led to his or her appointment will be included in a press release and on the website of the ministry of justice.

The opposition Parti Québécois reacted by slamming the Liberals’ interim rules, saying they don’t encourage transparency because the justice minister doesn’t have to report on his candidate nominee consultations.

Although the staff of the premier and the ministry of justice are not involved in the selection process, the justice minister is allowed to carry out consultations he or she considers appropriate to make its recommendation to the premier and the council of ministers. Furthermore, the premier could intervene in the process, being aware of the candidate favoured by the Minister of Justice and so could, in principle, block an application. As a result, many feel that the transparency offered and needed is merely pretence.

In addition, it did not help matters when Jean Charest said it was his responsibility to exercise its right of veto in this area, if necessary.

For these and other changes to become permanent and in force, legislative or regulatory amendments will need to be implemented some time in the future.