Small coup (on the sly)
The chronicle of Frédéric Bérard.
CHRONICLE – Everyone knows the shocking story of Omar Khadr, which has been making headlines for almost 20 years, but probably very few remember the following event: on the first day of hearings in the Supreme Court of Canada, a few Conservative ministers fun to sow doubt as to whether, if necessary, their government would respect a court decision ordering the repatriation of the child soldier. The reason given? That it is a decision not of the judiciary, but of the political.
An intimidation maneuver which, at the time, was a first in recent constitutional history. Because usually, the separation of powers is to the rule of law what populism is to fascists: intrinsic, symbiotic and visceral. Because a decision of the Court does not fall under the Chinese buffet. Because without a referee, the smooth running of the match is ruined. Because also, and perhaps above all, failure to respect judicial decisions is ultimately equivalent to concentrating all powers in a single pair of hands.
As Montesquieu said: “That power cannot be abused, power must by the arrangement of things check power.”
And Lord Acton, more cynically: “Power corrupts, and absolute power corrupts absolutely.”
Undoubtedly fearful of the repercussions of the conservative assumption, i. e.the refusal by the Harper government of a repatriation order, the Supreme Court goes there with a timorous decision, in halftone. Results? Pulverized, and without Washington having any serious evidence against him, Khadr pleads “guilty” backwards, the only way to get out of his hell on earth, where he has been tortured for 10 years.
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Just a few weeks ago, I told you about a decision by Judge Christian Immer, of the Superior Court, who criticized the attitudes and actions of Simon Jolin-Barrette, Minister of Justice.
In short, the Honorable Immer had to declare illegal the Minister's attempt to impose his linguistic preferences with regard to the criteria for appointing future magistrates: “The Minister of Justice has no power with regard to the drafting of selection notices candidates for the office of judge at the Court of Québec. […] His role is limited to asking the secretary to launch the competition.”
The reason invoked? The institutional independence of the courts, a fundamental component of the…separation of powers.
However, in a case such as the present one, two options are usually available to the minister at fault: to say “ sorry my uncle”, or appeal the decision.
Anyone who knows the proud Jolin-Barrette knows, of course, the first impossible option. Ditto for the second, the Court of Appeal probably waiting for it with brick and lantern. His solution? A first in the recent history of Quebec, as staggering as it is worrying: a legislative amendment aimed at reversing, in fact, the decision of the Superior Court.
Said his cabinet:  ;”At all times, the power to appoint judges has rested exclusively with the executive branch.”
Uh… what if the Court HAS JUST determined the opposite?
The same song, therefore, as the one hummed by the Harper government. The one that poses the Minister of Justice as the supreme boss, without ramparts. The one that opposes the annoyance or the role, or even the existence, of the referee. One that rejects control and surveillance of its actions, which are central to a healthy rule of law and democratic order.
And why through a law, you say? Easy: because a few months before the elections, any opposition party refusing to embark on the train of the (small) coup will be cataloged as an avowed enemy of the French fact in Quebec. Small, shabby and dangerous.
