On the Making of Judges: the Bastarache Inquiry

The Bastarache Inquiry has prompted a lot of people in this country to seriously question our system of appointing judges.

But if there is a crisis of confidence, is it because the system is flawed? Or is it because of the way politicians operate it?

The Bastarache Inquiry was prompted by the allegations of former provincial justice minister Marc Bellemare, who recently said that back in 2004, Liberal Party fundraisers Franco Fava and Charles Rondeau applied “colossal” pressure on him to appoint loyal party members to the bench.

He said that when he raised his concerns with premier Jean Charest, the premier told him to do as he was asked. Eventually, Bellemare resigned, and Charest told him never to speak about these matters again.

The evidence at the inquiry was more than a little concerning. There was evidence from one of the premier’s staffers that she would flag Liberal party sympathizers on the short list with Post-It notes. She said she did it on her own initiative, to “keep the premier informed”.

There was no evidence at all that cabinet appointed anyone that was unqualified for judicial office.

That the premier might want to be kept informed about which candidates cabinet and the justice minister were shortlisting should not be surprising. The premier is, after all, a member of cabinet, and ultimately responsible for operations of government.

The difficulty seems to be that the premier’s aides, and if the allegations are true, his fundraisers, lost the ability to differentiate between doing what was right for the Province of Quebec, and rewarding loyal party members.

As I indicated, there is no evidence that cabinet appointed party loyalists over more qualified candidates. That argument, however, misses the point.

What has happened as a result of the misguided actions of a few overzealous political hacks, is that public confidence in the process of judicial appointment, when what it ought to question is how that process is applied.

The process was never meant to take party affiliation into account. It was designed so that the best candidates were put forward to elected officials charged with the duty of exercising good judgment for the benefit of their province. Politicians should not need to be told that party loyalty is entirely irrelevant to the selection of judges.

One can hope that if Charest’s aide is to be believed, the premier ignored party affiliation when the justice minister selected the candidate to be appointed.

In that regard, the lawyers at the Commission were right when they said that the Commission has a duty to assure the public that its judges were not mere political appointees. The integrity of the justice system demands it.