A recent CBC article reported on recent appointments to Nova Scotia’s Supreme Court by federal Justice Minister Peter MacKay. The article reported that six of the last nine appointments were individuals who were close friends or political supporters of Mr. MacKay or members and supporters of the Conservative party.
It should be clear at the outset that all of our judges are appointed by our politicians. They apply for the job and then it is within the power of the government of the day to make the appointment. That is what the constitution allows.
Our judges are appointed for life. Supreme court judges can retire at age 65 on a full pension after 10 years of service or may continue to work part time up to age 75. We pay them very well and accord them high status in our communities. Judges enjoy unprecedented job security. For all intents and purposes they can‘t be dismissed for laziness or incompetence or negligence or dereliction of duties. The Canadian Judicial Council, a body of senior judges, can hear complaints of misconduct, but they have no real power to discipline a judge and the inquiry process is not public.
Federally appointed judges can only be dismissed by parliament and only for extreme misconduct. This has never happened.
This is for a good reason. We don’t want judges easily removed at the whim of politicians or in the aftermath of a brave but unpopular decision on, for example, a constitutional issue. We want our judges to be free of undue influence and independent to conscientiously go about their duties. On the other hand, it means that it is virtually impossible to remove judges who are just unsuited to fulfill their responsibilities by reason of incompetence, character or shoddy work habits.
Judges are a very important part of our justice system. Collectively, they form one of our three branches of government. At the highest level, the Supreme Court of Canada has the final say on constitutional questions and interpretation. The recent striking down of the law on euthanasia is a good example.
Judges are appointed by the government of the day. To become a judge you must apply to the government as you would for any other job. The selection process however is a little different.
We don’t elect judges as is common at the state level in the United States. We don’t appoint and promote judges based on their training, experience and credentials or their track records as junior judges as occurs in Europe. Here in Canada, judges at all levels – provincial, superior (supreme court) and federal judges are all appointed by the government of the day. Nova Scotia supreme court judges are appointed by the federal Minister of Justice. They are appointed at his discretion from the ranks of lawyers practicing in the province who apply for the job and after being vetted by a committee who advise whether the applicant is recommended or not recommended. The process is entirely private and confidential.
Confidence in our justice system is essential to the happiness of our democracy. Confidence in our judges is central to that notion. Lack of confidence in individual judges is not new and will continue. However, as a group, the public must believe that our judges embody those qualities essential to the fulfillment of their public duties.
An ideal judge, it has been said, would be independent, honest, fair, patient and intelligent. Experience of and understanding of the law and our legal system is indispensable. The ability to listen and to be polite and respectful of citizens who appear in court is essential. Judges should understand that they are servants of the public and of the law.
In reality, our judges are all human and make mistakes. Appeal courts exist to review and remedy at least the most egregious of such mistakes. Unfortunately, justice is dispensed on a daily basis in many courts and most mistakes cannot be practically corrected.
So, what we need in our judges is the character and the will to strive every day for that unattainable perfection.
In reality, we have experienced some poor appointments – judges who are not suited to the position by reason of character or experience. Some may display arrogance, impatience, deep seated biases that intrude (consciously or unconsciously) into the deliberative process or just lack proper knowledge and experience. At the other end of the extreme, we are blessed with judges who are remarkable models of the ideal to be strived for.
As for the public, we need the best possible judges. The citizen who appears in any of our courtrooms should feel they are before an impartial and independent tribunal who will listen and render a fair, respectful and timely decision. The public must have confidence in a process that will result in the appointment of the best possible judges.
As for Mr. MacKay, he needs to appreciate that he exercises a public trust. His power of appointment is not a private piggy bank from which he can dispense gifts to his friends and supporters. Appearances are important. The public and our democracy expects that in the appointment of our judicial officers every effort will be made to ensure the very best applicant will succeed so that the judges will be handmaidens of justice in the noblest sense of that term. If the citizens lose confidence in the quality of appointment then they will demand a new process of appointment. We may have to look to the experience of other jurisdictions where judges are elected and are accountable to the people they serve, or where judging is it’s own unique profession and much like a civil service job, applicants are hired at entry level judicial positions and then promoted based on their experience and conduct in lower courts. An obvious option is to make the current process an open and public process.
As for our new judges, we should wish them well as they embark on their final lifetime careers. We want them to do well. We need them to do well. And it should be said, that merely because the optics or process of appointment may be criticized, who is to say that each and every one of them may not embody the very ideal of judgeship that we all seek. We certainly want them to strive for that ideal.