Rocked by explosive allegations made by a former Quebec justice minister that triggered a public inquiry and a $700,000 libel lawsuit by Premier Jean Charest, Quebec’s legal community is debating accusations that provincial Liberal party fundraisers tainted the judicial appointment process six years ago.

Left reeling after former Liberal justice minister Marc Bellemare lodge a formal complaint with Quebec’s provincial police force, Charest launched a lawsuit against Bellemare for “false, malicious and defamatory remarks,” and appointed retired Supreme Court of Canada judge Michel Bastarache to preside over a commission of inquiry into Bellemare’s allegations.

The head of Quebec’s law society, Pierre Chagnon, expressed reservations over the allegations, given that the final decision on Quebec judicial appointments is done in consultation with the entire cabinet, and not by Quebec’s justice minister alone.

“Can one have influence over 15 to 20 ministers? Come on, it makes no sense,” said Chagnon. “Our process is not perfect. It can be improved but up to now the judicial appointment process is the envy of a lot of jurisdictions. Our process is rigorous and principled. And the proof that it has done well is that this is the first time in 25, 30 years, that it is under the microscope.”

Under the regulation on procedure for the selection of persons suitable for appointment as judges (Regulation), the Minister of Justice must publish a notice in a newspaper, inviting interested persons to submit their candidacy. A selection committee, composed of a judge, a lawyer and a person who is neither a judge nor a lawyer, assess the experience as well as personal and intellectual qualities of the candidates. After the committee submits its report on candidates it considers “apt for appointment as judges,” the minister submits a short list of candidates to members of the cabinet.

Bellemare, who was named justice minister in April 2003 and resigned a year later, alleges that influential Liberal party donors asked him to appoint certain individuals as judges during his tenure. Bellemare, who appointed four judges to the court of Quebec and promoted three, also alleges that Charest was aware of the irregularities, allegations flatly denied by Charest.

In a television interview with Radio-Canada, Bellemare alleges that he appointed three judges under pressure from a Liberal fundraiser. The Court of Québec, whose judges are appointed by the government for life, is a court of first instance that has jurisdiction in civil, criminal and penal matters as well as in matters relating to youth. It also has jurisdiction over administrative matters or appeals, where this is provided for by law.

“These are troubling and potentially dangerous allegations that can cast doubt over the credibility of the justice system,” said Pierre Trudel, a law professor at the Université de Montréal. “Where there may be certain questions raised is when members of the cabinet are reviewing the recommendations. There is no guarantee that the nomination was made only based on the competence of the candidate — and therein lies the difficulty. That is, the executive branch has discretionary powers that it can exercise, and sometimes doubts may be raised over the criteria that was truly applied.”

The discretionary powers conferred on the members of the cabinet has grown since Charest assumed power. Karim Benyekhlef, the director of the Centre de recherche en droit public, Université de Montréal, points out that Charest instituted a discreet but significant change in the process. Before, the justice minister submitted only one candidate to members of cabinet, who either approved or rejected the recommendation. At present, the justice minister submits a shortlist of candidates, which can place the Minister of Justice in an uncomfortable position before his colleagues, said Benyekhlef.

“The involvement of the cabinet was minimal before, but that is no longer the case,” said Benyekhlef. “With a shortlist, the justice minister is no longer master on board but rather he must share his reflections over the nomination of a person, which could make him susceptible to pressure from his colleagues.”

While submitting a shortlist to the cabinet does not go against the spirit of the regulation, if only because the legislation is silent on the matter, Benyekhlef believes that the nomination process risks becoming a partisan enterprise as the cabinet will “obviously” take into consideration factors other than the competence of the candidate, namely political expediency.

Montreal criminal lawyer Jean-Claude Hébert takes it a step further. He believes that this is a golden opportunity to review the judicial appointment process now that former Justice Bastarache will be presiding over an inquiry into Bellemare’s allegations. Bastarache, who is expected to complete and make recommendations by this October, will be restricted to judicial appointments. He will be able to call witnesses, offer them immunity and will hold “far-reaching powers,” said Charest.

In a bid to minimize the possibility of political influence, Hébert suggests that this may be the time to remove the judicial appointment process from the hands of the executive. He proposes that the selection committee should be given the power to recommend candidates to the cabinet, who would have no choice but to accept the recommendations.

“The government can relinquish its discretionary powers,” said Hébert.

Roderick Macdonald, F.R. Scott Professor of Constitutional and Public Law at McGill University, disagrees. He sees nothing wrong with a process that takes into account ideological or political considerations.

“Making a decision because you have been subject to influence peddling or bribed is not appropriate,” said Macdonald, who suggests that it might be apropos for the cabinet to explicitly state the reasons for the appointment of a judge. “Bellemare’s allegations put onto the table a very tough question — are there considerations in the opaqueness of the decision-making which do not belong there? In every judicial selection process that involves a nomination — be it in England, Australia, Canada — the political decision is opaque.”

In the meantime though, Chagnon acknowledges that the legal community faces an uphill battle at convincing the public that the justice system is principled.

“We’ve got a lot of work to do to dissipate doubts about our justice system,” said Chagnon.