For the last eighteen months Quebecers have had their confidence in their democratic institutions put to the test. Month after month, new revelations concerning rampant influence peddling have come to light. All the while, a large majority of Quebecers have called for a public inquiry into the link between the construction industry and the financing of Quebec's political parties. Yet, Jean Charest's Liberal government has steadfastly refused. Needless to say, Quebecers have lost faith in their political system.
Earlier this spring, things came to a head when the former Quebec Minister of Justice, Marc Bellemare, accused Premier Charest of giving his consent to allow his party's principal fundraisers to have their say in the nomination of candidates to the judiciary.
Having lost all credibility to the vast majority of Quebecers, Charest had no choice but to convene a public inquiry into the nomination of judges (the Bastarache Commission)since at the most fundamental level the independence of the judiciary must be assured in order to restore faith in the system.
During the Commission's hearings, it came to light that a sitting judge petitioned one of the Quebec Liberal Party fundraisers to help him advance his chances to be promoted to the position of Chief Justice at the Quebec Superior Court in Quebec City. As well, we learned that another fundraiser sat on the selection committee and that when the candidates C.V.s were sent to the Premier before a decision was made, a post-it note would be attached if the candidate was a Quebec Liberal supporter.
Despite a thoroughly imbalanced process -- there were lawyers representing the Quebec government, the Quebec Liberal Party, and for the Premier while the opposition parties were not allowed to have representation thereby leaving Bellemare's lawyers alone to do the heavy lifting -- about 70% of the population believes Bellemare's version of the events while less than 20% find Charest's version credible.
To top things off, MacLeans magazine ran an issue that claimed on its cover that Quebec was the most corrupt province in Canada. This set off a round of soul-searching throughout Quebec in which it was extremely difficult to deny that we were experiencing the most serious democratic crisis since the days of former Quebec Premier Maurice Duplesis.
The reason I bring this up is that over and above the other developments that aid our cause since our case was tried, this development is the most important.
Judges, like all of us, are subject to their prejudices. If at an unconscious level they are aligned with supporting the party that forms the government, they are less likely to decide in favor of a motion like ours since such a decision could fundamentally change the way politics are done in Quebec. If, however, they are in a process of changing the nature of their affective ties with the present government, the opportunity arises that they would be more likely to render a decision in our favor.
In making this assertion, I am not implying that a judge would willfully make a decision contrary to the facts of the case and the principles of law. That being said, it should be noted that after all judges are human and like anyone else the affective processing that goes on in their brains influences the cognitive processes associated with analytical analysis.
It's for this reason, landmark decisions often follow a state of affairs that through fundamental cultural assumptions into question. For example, the striking down of Canada's laws surrounding prostitution at the Ontario Superior Court came on the heels of the Pickton case in which it was learned that the defendant had murdered at least 30 street prostitutes and fed their remains to the pigs on his farm. Affect can have an effect upon reason.
Regardless of the findings of the Bastarache Commission report, its release will once again bring to mind the fundamental systemic problems that Quebec's democratic institutions are experiencing and that release will occur less than a month before our appeal will be heard.
In summary, at the first instance we put forward a very strong case, which included expert testimony from two of the leading experts on electoral systems in Canada, expert testimony that demonstrated from a mathematical point of view that systemic distortion that first-past-the-post engenders, and empirical evidence that demonstrates how these distortions impinge upon the democratic rights of the plaintiffs.
Since then a number of developments in Quebec and the UK seriously undermine the case put forward by Quebec's Attorney General (of which I'll address in my next blog) but the one thing that we could never influence is the manner in which the judges who will hear our appeal will place our demand relative to their affective associations to the political system in place.
To the extent that such a variable comes into play during the deliberations leading to the decision, we could not have dreamed of a better set of circumstances in which to have our appeal heard.