The recent discussions regarding the nature and process of judicial appointments in Canada is both timely and vitally important. In a democracy such as ours, the appointment qualifications of the third branch of government is of critical importance.
In our tripartite system of government – the executive , the legislative and the judicial – it is only the latter branch that does not face the scrutiny of the people through the electoral process.
Judges are not elected under our constitution. They are appointed by the government of the day. This is a constitutional mandate.It can not be properly delegated to anyone else. Nor should it. We should all know who to blame (or praise) for such important appointments – our elected politicians. That is where the political accountability lies.
But judges are appointed for life (age 75), there is no effective recall, they are largely unaccountable and their decisions can have a significant impact on society – even at the trial level.
In a country governed by the rule of law, it is not for judges to make law or even interpret law. It is for judges to apply the law that is given to them objectively and independently on a case by case basis. In that fashion all like cases will be treated the same.
But clearly there is something wrong. No one seems to know what the law is. A judge hears a case. It is appealed to a panel of judges (a court of appeal) who disagree with first judge (and may do so in a split decision). It is further appealed to the Supreme Court of Canada. They disagree with the appeal court (and also disagree among themselves in another split decision) but in doing so find there are different reasons for deciding from any of the judges below.
So what is the average citizen to do when the lawyers and judges – wise and experienced in the law – cannot agree.
When a judge errs, that injustice is usually isolated to the parties before the court, an accepted (if not acceptable) margin of error. However, when the case gets decided on social facts – facts not peculiar to the particular parties – then the injustice of that particular judicial error becomes the law of the land. It is no longer democracy at work. It is fiat by judge.
The unfortunate history of judicial appointments across the country has been that the quality of the appointee was completely dependent on the level of attention and motivation afforded the process by the politicians charged with that responsibility. Party politics and a form of crony nepotism has always been an aspect of political appointments and this includes appointments to the bench. A close examination of the 600 federal appointments would no doubt demonstrate this fact of life. But since the constitution mandates it, there is nothing to prevent this practice.
Personal and political relationships, which have always largely been the basis for appointment, is not as bad as it sounds. Some of our political appointees have turned out to be outstanding judges. Ultimately, conscientious politicians want to appoint respected and qualified individuals.
But it is not this aspect of the process which seems to have garnered the recent attention. Rather it is the ‘ideological ‘ aspect of recent appointments that is of concern to some. This aspect of the process needs to be understood and appreciated.
If one is to appoint a judge, you can decide to pay no attention to ideology and appoint judges based purely on experience and personal qualities. But every judge brings to the bench preconceived attitudes regarding the role of the judge. Is that person a ‘liberal’ or a ‘conservative’, an originalist or a subscriber to the living tree theory? Will this new judge want to change the law to suit these preconceived beliefs or objectively apply the law that is given? Can they?
Mr. Harper and many others not of Conservative persuasion have a right to be concerned that some judges on some courts are not deferring to the democratically elected legislative bodies and are assuming powers that they were never meant to have. Good laws and bad laws alike are to be applied – not reinterpreted to accommodate the subjective views of an appointed judge. Incomprehensible legislation does need to be rationalized in rare circumstances. Occasionally the supreme law of the land needs to be applied to sort out competing rights.
But Mr. Harper and all parliamentarians should ensure that judicial appointees have the ideological qualities necessary to fulfill their responsibilities. This should include deference to parliament and the legislatures. The living tree philosophy is not a basis for establishing a judicial super government who rule by decree. Judges everywhere need to be reminded that the highest court in the land is Parliament.