Having lost a round in the continuing legal battle over language of education in Quebec, some francophone activists are trying to deny the legitimacy of the judge who wrote the latest decision, and even to smear the whole whole court system.
This idea's most unpleasantly virulent form, so far, came from the former CSN union leader Gérald Larose, now chairman of something called the Conseil de la souveraineté, who denounced this "undermining" of Bill 101 by an "English judge." Larose, remember, was the Parti-Québécois-appointed president of a commission on the future of the French language, and has long demanded that Quebec be given sole control of language law.
His "English judge" comment ignores the fact that the court of appeal decision was 2-1, with francophone justice Pierre Dalphond and anglophone Allan Hilton forming the majority, and francophone Lorne Giroux dissenting. (There's a lot of reality-ignoring going on here. Many of those unhappy with Wednesday's decision carefully ignore the fact that Bill 104, the law struck down this week by the Quebec Court of Appeal, was not even part of the original Charter of the French Language, as Bill 101 is formally known, but rather a 2002 amendment that further tightened access to English schooling.)
Some, a little more sophisticated than Larose, avoid simple racial denunciation but complain that before he was named a judge, Justice Hilton had served as a lawyer for Alliance Quebec, an anglophone lobby group. Le Devoir reported yesterday that Quebec's justice department had been aware of that - it was no secret, after all - but saw no reason to ask Hilton to recuse himself.
Nor do we. Every judge was previously a lawyer, with various interesting clients. Every judge is a citizen. Every judge, concerned with how laws affect society, has a natural interest in how laws are made, and thus in politics. None of that is any reason to throw mud at the legitimacy and good faith of judges, individually or collectively.
Meanwhile Jean Dorion, president of the Société St. Jean Baptiste de Montréal, moans that all Appeals Court judges are federally appointed, and goes on to claim that they should therefore have no voice in the application of Quebec language law. This isn't logic, it's rabble-rousing.
Legal questions cannot be decided by assaying the former clients of those on the bench, nor by studying the ancestral quarterings of the judges. Ask Justice Dalphond.
If we assume a bias in one judge, as do Larose and some others who should know better, surely we must assume it about them all - or will this test apply only to anglophones? What clients, exactly, should bar lawyers from ever being promoted to judge what kinds of cases? Where would this madness stop?
Justice Giroux's dissent, we notice, was studded with concern about the "context" - for which one could read "politics" - of Quebec language law. Indeed the Supreme Court, as he notes, has taken note of "context." But we will give him, too, credit for handling the case with honest impartiality. He, and all our judges unless they prove otherwise, deserve that. Judges, too, are innocent until proven guilty.
All such challenges to the good faith and intellectual honesty of judges, unless supported by smoking-gun proof, are damaging to the whole of our society. Without the courts, the rule of law gives way quickly to the law of the jungle.
As we have remarked before, the process for selection of judges in this country is imperfect. But by any empirical test, the men and women on our courts have consistently acted with integrity and intelligence.
If Quebec does appeal over Bill 104, as promised, the Supreme Court of Canada, with its rest-of-Canada majority, will make the final decision. Does that mean the decision will be somehow "anti-Quebec?" Not at all, to judge by the high court's record in language cases. The Supreme Court has repeatedly validated various aspects of Bill 101, while sometimes softening some of the rougher edges in the interest of, dare we say it, reasonable accommodation.
Attacking the impartiality of judges, rather than their legal reasoning, should require a high standard of proof, one which nobody has met in this matter. Cheap accusations of bad faith might be simple petulance, or a calculated effort to poison the atmosphere. Either way, they should be rejected and disdained.