Morissette, Sansfaçon, Lavallée

Appeal from a Superior Court judgment granting an application for a stay of execution of a notice of selection of candidates for the office of judge. Dismissed.

This case was triggered by a dispute between the appellant, the Attorney General of Quebec, and the respondents, including the Conseil de la magistrature du Québec, concerning in particular the requirement to master or know English for certain offices of judge. In February 2022, the Superior Court held that section 7 of the Regulation respecting the selection procedure of candidates for the office of judge of the Court of Québec, municipal court judge and presiding justice of the peace (CQLR, c. T-16, r. 4.1) did not allow the Minister of Justice to interfere with the determination of the selection criteria for candidates to the judiciary established in accordance with section 25 of the Regulation. In May 2022, Bill 96 was adopted and as a result neutralized the effect of the February 2022 judgment. The Act respecting French, the official and common language of Québec (S.Q. 2022, c. 14) came into force in June 2022. A few months later, the respondents filed an application for judicial review, claiming that the Minister of Justice’s interference with the administrative management of the Court of Québec violated judicial independence.  At the same time, the Minister of Justice published Notice CQ-2022-175 (Notice 175) seeking to fill a position of judge of the Youth Division, in Longueuil, which notice did not mention that potential candidates had to know English. The respondents therefore asked that Notice 175 be cancelled and the related selection procedure be stayed until the judgment on the merits.

Whether the secretary to the selection of candidates for the office of judge can disregard a request by the chief judge of the Court of Québec on the need to master or know English, given that the reform came into force two days later, is a serious question. This question involves the interplay between an administrative measure of mere execution and a legitimate request by an authorized representative of the judiciary addressed to the Administration to fulfill certain specific needs of a judicial court. If the Act respecting French, the official and common language of Québec applies to Notice 175, the validity of the reform regarding the selection procedure of candidates for the office of judge must be considered in light of the relevant constitutional principles. Judicial independence, the language guarantees, and the presumption that laws are constitutional must be addressed when the case is heard on the merits. There is no compelling or serious reason to question the judge’s stay.

The reform introduced by the Act respecting French, the official and common language of Québec has serious consequences if it also applies to Notice 175. Several issues remain to be resolved on the merits. They are more important and complex than the need to fill a position of Youth Division judge in the district of Longueuil. The trial record contains an affidavit by the coordinating judge responsible for the Youth Division that describes the adverse effects of Notice 175 on the administration of justice if it is implemented. This evidence from one of the people best placed to assess the situation is probative such that it is conclusive. This suffices to support the judgment under appeal.

Text of the decision: http://citoyens.soquij.qc.ca