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Rethinking the judicial appointment process

Judges are always right - unless they’re successfully appealed.

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A presumption of competence is necessary to maintain confidence in the judicial system. But when that confidence is undermined, it may prompt a closer look into who we select as judges, and why.

Those concerns were brought to the fore late last year when an Alberta judge made several controversial remarks to a complainant in a sexual assault case. The Canadian Judicial Council announced a review of his conduct after a complaint from four law professors.

The Alberta Court of Appeal ordered a new trial in the sexual assault case. The judge in question had already been appointed to the Federal Court, so he was not likely to sit on any sexual assault cases in the near future. But the fact that a judge appeared to be unaware of the rape shield provisions in the Criminal Code, and perpetuated myths and stereotypes about sexual assault, attracted national attention.

Errol Mendes, professor of constitutional law at the University of Ottawa, says this case, “clearly shows there is something fundamentally dysfunctional in our judicial appointment process.”

Part of the ICJ investigation includes examining best practices outside of Canada. One attractive alternative would be to elect our judges; a 2007 poll found that 63 per cent of Canadians were in favour.

Although popular consensus in the legal community is that appointed judges perform better than elected ones, a 2007 American study by Stephen Choi et al. suggests that any qualitative differences are likely exaggerated.

Instead, elected judges tend to act more like politicians, since they provide services to voters. The judges who are appointed tend to focus on their legacy within the legal system, and understand their role is to generate precedent. Neither is really better; they just serve different functions.

Which raises the question, what do we want our judiciary to be? Its role in safeguarding individual rights, and counterbalancing the legislative and executive functions, is essential. Why shouldn’t the public choose who can best perform this function?

Unfortunately, politicizing the judiciary creates other problems. One of the greatest deficiencies of our current bench is the lack of diversity, and this has an effect on how decisions are made. It’s difficult to imagine, for example, a female judge admonishing a complainant in a rape case to keep her legs shut.

Perhaps the most important function of the judiciary in the era of the Charter is to safeguard society’s most vulnerable members. These individuals rarely have the ability to influence any political process. Electing judges would likely result in even less diversity on the bench.

Mendes believes one solution is to depoliticize the process entirely. Creating an independent commission to appoint judges could go much further to ensure a diverse bench that also reflects the life experiences of marginalized groups.

There’s hope for this type of future in Canada soon. The federal government’s commitment to a diverse cabinet which includes equal numbers of men and women and the first aboriginal justice minister, among others, may influence other aspects of our society.

As officers of the court we have to uphold the integrity of the legal system. Although individual judges may not
always be right, our justice system has to be. We can make the system even better by reforming the judicial appointment process.