Bastarache Commission Releases Recommendations

On January 19, 2011, former Supreme Court Justice Michel Bastarache made public his report for the Inquiry Commission on the Process for Appointing Judges of the Court of Québec and Municipal Court and Members of the Tribunal Administratif du Québec.

This Commission was created by the Government of Québec on April 14, 2010, following public allegations made by former Minister of Justice, Marc Bellemare that individuals involved in fundraising for the Quebec Liberal Party had influenced the government's appointment of three judges to the Court of Québec during the period he served as Minister. Bellemare also alleged the Premier of Québec, Jean Charest, was aware of this influence and condoned it. (Defamation suits launched by both Charest and Bellemare and Bellemare's legal challenge against the Commission were subsequently dropped.)

The Commission was given the mandate to inquire into the allegations made by Bellemare and if to make recommendations to the Government of Québec with respect to changes to the process for appointing judges and members of the Tribunal Administratif du Québec.

Following 10 weeks of public and televised hearings, during which 58 witnesses, 19 of them experts, were heard, Bastarache concluded that the facts did not demonstrate that Bellemare had acted under pressure of third parties when recommending the appointment of Judges Marc Bisson and Line Gosselin-Després and the promotion of Judge Michel Simard to the position of Associate Chief Judge. Rather, Bastarache, applying the standard of clear and convincing evidence, concluded that the facts supported by objective evidence demonstrated that Bellemare acted voluntarily and independently.

According to Bastarache, the evidence also showed several inefficiencies in the judicial appointment process, including a lack of transparency and a permeability to interventions and influence by third parties in the last stages of the appointment process. In his view, these inefficiencies stemmed in part from the legislative vacuum surrounding the role of the Minister of Justice and of the Cabinet in the appointment process and in part from the lack of fixed and precise guidelines to be followed for the creation of the selection committees and to be followed by the selection committees during the selection process.

Consequently, Bastarache elaborated 46 recommendations to improve and modernize the judicial appointment process in Québec, including the creation of a permanent selection committee, the creation of a Secretariat (Bureau) for judicial selection appointment and a more structured, standardized and transparent selection process.

Giuseppe Battista, Ad. E., of Shadley Battista, s.e.n.c. acted as Chief Commission Counsel.

Simon Ruel of the Department of Justice (now with Heenan Blaikie LLP) and Éric Downs of Downs Lepage acted as Deputy Chief Commission Counsel to the Commission.

Stéphanie Charette of Garneau Verdon Michaud Samson, Paul-Matthieu Grondin of Grondin Savarese Legal Inc., Walid Hijazi of Desrosiers Joncas Massicotte, Myriam Beauparlant, Myriam Corbeil, Elizabeth Ferland and Charles Malone comprised the team of counsels responsible for the inquiry.

Robert Leckey of the Faculty of Law, McGill University, acted as Director of Research.

Luc Huppé of De Grandpré Joli-Coeur S.E.N.C.R.L. acted as Associate Director of Research.

Martine Valois of the Department of Justice acted as Counsel for the drafting of the report.

Stikeman Elliott LLP was counsel for the intervenor the Government of Québec with a legal team comprising Suzanne Côté (now with Osler, Hoskin & Harcourt LLP), Patrick Girard and Maude Brouillette.

Jean-François Bertrand and Catherine Irwin-Gibson of Jean-François Bertrand Avocats Inc. and Rénald Beaudry were counsels for the intervenor Marc Bellemare.

BCF LLP was counsel for the intervenor the Premier of Québec, Jean Charest, with a legal team comprising André Ryan and Marie-Christine Levasseur.

Langlois Kronström Desjardins, LLP was counsel for the intervenor the Conférence des juges du Québec with a legal team comprising Michel Jolin, Ad. E., and Chantal Chatelain.

Jean-Claude Hébert was counsel for the intervenor Tribunal Administratif du Québec.

André Dugas of Miller Thomson LLP was counsel for the intervenor the Quebec Liberal Party.

Pierre Bourque, QC, Ad.E., of Lavery, de Billy L.L.P. was counsel for the intervenor the Barreau du Québec.