Battle continues between justice ministry and Quebec court over bilingual judges

A new episode in the tug-of-war between Justice Minister Simon Jolin-Barrette and Quebec Court Chief Justice Lucie Rondeau took place on Monday, as Quebec announced its decision to amend Bill 96 to frame and restrict the bilingualism criterion when selecting new judges.

At issue is the extent of the executive and legislative powers on the one hand, and the independence of the judiciary on the other.

On the face of it, Justice Rondeau is the winner, as Jolin-Barrette announced on Monday morning that he will not appeal the Superior Court's February decision, which concluded that the minister had no authority to interfere in the judicial selection process.

Judge Christian Immer agreed with Rondeau, who considered that for reasons of court efficiency, she could require English proficiency to fill one of the positions on the Court of Quebec, without consulting the minister.

The Superior Court concluded last month that the Minister of Justice had "no authority to draft selection notices for candidates for the position of judge of the Court of Quebec".

It was, therefore, up to the chief justice to set the selection criteria.

Jolin-Barrette, however, has not had his last word.

In addition to his efforts to promote the French language, as set out in Bill 96, which is currently being studied, the minister maintains that the appointment of judges is a matter for the executive branch and that he is still opposed to the idea of having knowledge of English be part of the appointment criteria for six judges of the Court of Québec.

After studying the judgment, the minister of justice concluded that there was no need to challenge it, as he had all the levers necessary to assert his rights over the composition of the judiciary and to prevent bilingualism from becoming a systematic requirement for becoming a judge in Quebec.

He will therefore use the legislative route to win his case and impose his way of doing things, by amending Bill 96 to modify the regulation respecting the procedure for selecting candidates for the office of judge of the Court of Québec, judge of a municipal court or justice of the peace. It will also amend the Courts of Justice Act.

The Legault government will clarify the regulation "in order to make the necessary changes to ensure that mastery of a language other than the official language is not a systematic obstacle to accessing the position of judge in Quebec," Jolin-Barrette's office said.

The minister argues in his amendments that the Charter of the French Language has provided since 1977 that this language must be the language of the administration of justice in Quebec.

It will now not be possible to require that a candidate to the judiciary master a language other than French, except in very specific circumstances: in particular, by demonstrating that it is "necessary," "reasonable," and in consultation with the minister.

The minister wants to ensure that a candidate for the judiciary is not excluded out of hand simply because he or she does not speak English.

In recent years, the trend has been to require knowledge of English of future judges.

This report by The Canadian Press was first published in French on March 21, 2022.