Monday, April 9, 2007

In the News: 2/3 of Canadians would prefer an elected judiciary

Hanging around “law people” most of the time often causes mind-altering side-effects, which include, among others, the illusion that everybody thinks like a lawyer. “Law people” often find themselves mistakenly assuming that their peers think like lawyers, and share common values and opinions with the members of the legal profession.

Law people eventually realize their error when reality smacks them in the face.

It can be a lot of fun, though – or a little creepy – depending on whether you’re a “law person” or not. Just try and ask people around you, both lawyers and non-lawyers, whether they think that an elected judiciary is a good thing. You’d be surprised at how many lay people actually think that the Canadian judiciary would be better off if judges were elected by the people, just like regular politicians are, while most law people educated in a Commonwealth jurisdiction firmly oppose this very idea.

As a matter of fact, a recent survey about the public perception of the Canadian Charter of Rights and Freedoms and of its application by the judiciary, published in today’s Globe as part of a special series marking the 25th anniversary of the Charter, revealed that 63% of the Canadians polled “supported the idea of elected judges”.

Speaking for myself, I vigorously oppose any form of politicization of the judiciary, as it would on the one hand deter competent but politically shy candidates to express their interest for a nomination, and on the other hand, encourage judicial activism, rather than deter it.
In particular, the introduction of an election-based form of nomination for Canadian judges could bring about catastrophic consequences for the advancement of the rights of women and other socially disadvantaged groups, at a moment when voters’ inclinations seem to be leaning a lot more to the right than usual.

However, Canadians also find themselves at a time when their Conservative PM casually admits he’s willing to cherry-pick judicial appointments to reflect his political agenda.

As Canadians, we’re thus faced with a dilemma. Should we trust our peers with the nomination of competent and non-partisan judges, rather than entrust special boards and committees of law people with this task, or trust a government that is openly willing to impede on fundamental rights and freedoms – remember how Tories deemed that it was no longer necessary to fund women’s rights groups because equality had been achieved? - to achieve what it believes to be society’s “greater good”?
In any case however, the Globe's survey is an indicator that the legal community in Canada must reach out to the general public, in order to demystify its functioning and to champion the value of judicial independence.
You'll find below two excerpts of speeches by the Right Hon. Chief Justice Beverley McLachlin on the importance of judicial independence in the juridical and constitutional context of Canada.
Remarks of the Right Honourable Beverley McLachlin
Presented at the Law and Parliament Conference
Ottawa, November 2, 2006:
Accountability in the judicial context is driven by the fact that judges must be independent, in fact and in perception. On the occasion of his retirement as the Chief Justice of Saskatchewan, the Honorable Edward Bayda summarized the importance of judicial impartiality and independence in this way. I am paraphrasing a little:

A judge must always think of himself or herself not as a person with power, but as a person in service. A person who serves all of the people is answerable to all of the people. And the best way for her to be answerable to all of the people is to be totally impartial and totally independent. She must not be in the pocket of the minority. He must not be in the pocket of any minority. It is that kind of impartiality and total independence that instills the confidence of the public in the administration of justice.

Judicial independence is not an end in itself, or some self-serving judicial privilege. It is a concept that “is now deeply rooted in the common law world. It is inherent in the concept of adjudication ... that the judge must not be an ally or supporter of one of the contending parties”.

Independence of the judiciary is the foundation of impartiality and the constitutional right of all Canadians. Indeed, John Locke claimed that the adjudication of disputes by neutral judges was the most important benefit of civilization.

The underlying principle of democracy that power should not go uncontrolled is furthered by an accountable, independent judiciary [emphasis added]. Ultimately no one can be accountable without this. The need for public confidence in the independence and impartiality of the courts dictates the form that judicial accountability takes. This is the essential link between judicial independence and judicial accountability. Any system of accountability for judges must take judicial independence as a necessary condition.

What then are the requirements judicial accountability must meet? For the individual judge – looking at the matter in its most simple terms – accountability should encourage good decision making. A good decision is one that is just, according to law. The methods by which decisions are made must be seen to be transparent and fair. The decision maker must be seen to be independent and impartial.

All of these things dictate special mechanism of accountability. For example, the usual form of accountability for legislators. Accountability of judges at the ballot box is rejected by most western democracies. Election of judges would make – or appear to make – judges dependent on and partial to those who underwrite their campaign or vote for them. Judicial accountability must not interfere with the actual or perceived independence of the individual judge making a particular decision. In this important sense, independence and accountability are not opposed but work towards the same goal: To ensure that justice is rendered according to the law [emphasis added].
(footnotes omitted)
Remarks of the Right Honourable Beverley McLachlin Chief Justice of Canada
The University of Western Ontario
Faculty of Law
London, Ontario
November 6, 2002:
We often hear people say that the courts are undemocratic. That, in my view, is a false charge. Far from being undemocratic, the courts are essential to modern democracy [emphasis added]. They do this first, by maintaining the rule of law upon which democracy depends, and second, by maintaining constitutional governance.

Before we get to these two functions, we need to back up for a moment and look at what political scientists and our constitutional traditions say about the courts in democracy. Essentially, this is the picture. The government is comprised of three branches - the legislative branch, the executive branch and the judiciary. Far from being outside democracy or antithetical to democracy, courts are an essential part of the democratic structure. This is true in all modern democracies. Moreover, the courts are not an adjunct of the executive or legislative powers; they are an independent branch of government. Although the legislative and executive branches of government support the judiciary by naming judges, paying judges and providing court facilities, judges must be independent of these branches of government in the sense that the other branches of government cannot influence or be seen to influence them, directly or indirectly. This independence is essential to the two roles the courts play in democracy - maintaining the rule of law and maintaining constitutional governance.

Let me turn first to the function of the courts in maintaining the rule of law. What do we mean by the rule of law? Once again, the concept is one we are all familiar with. Nevertheless, it may be instructive to unpack the concept and isolate the values for which it stands.

In the Reference Re Succession of Quebec, [1998] 2 S.C.R. 217, para. 70, the Supreme Court of Canada said this about the rule of law: "[a]t its most basic level, the rule of law vouchsafes to the citizens and residents of the country a stable, predictable and ordered society in which to conduct their affairs. It provides a shield for individuals against arbitrary state action".

This statement contains two related but distinct ideas, both essential to the rule of law as we understand it. The first idea is that the rule of law describes a state where society is ordered by rules. People can consult the rules and arrange their affairs and conduct accordingly. This gives, as the statement suggests, stability and predictability. It provides the foundation for security, civil society and economic and social growth. Absent a clear set of rules relating to our rights and obligations -- be they in the area of crime, contract, tort, labour law or some other field of human interaction - people will not feel secure and will not invest the human and economic capital necessary for human flourishing and growth.

The second idea implicit in the rule of law is that governmental power is exercised in accordance with the rule of law and not arbitrarily. In this way the rule of law protects people against arbitrary state action. All branches of government - legislative, executive and judicial - are bound by the rule of law as expressed in the primary law we call the constitution and the secondary laws made pursuant to it. If the state exercises power in a way that is inconsistent with the rule of law, the citizen may seek legal redress in the courts.

While in Canada both aspects of the rule of law are present, this is not the case everywhere. Dictatorships or totalitarian regimes may espouse the first idea without the second. They may seek to provide a clear set of rules to discourage crime and encourage enterprise and human development, but at the same time reserve to themselves the right to transgress the law, refuse to enforce the law, or arbitrarily and retroactively change the law.

There is a difference between the rule of law and rule by law. Rule by law incorporates the first of the two ideas I have set out - the idea of a society ordered by rules or laws. The rule of law incorporates this idea together with the second idea - the idea that the rulers and all those who exercise power on their behalf - from deputy ministers to the beat cop -- are themselves bound by the law.

While the twin ideas of a rule-ordered society and governance limited by the law can be separated, an argument can be made that the best guarantee of a stable, rule-ordered society is governance by and under the law. Absent the latter, there is always the lurking danger that those who hold power - the rulers and their minions - will change the rules arbitrarily or refuse to enforce them in a fair and consistent manner. That is why constitutional democracies where power is limited by the foundational law of the state seem to offer the best model for stability and growth in the long run [emphasis added].

Having discussed the rule of law, let us return to the role of the courts in maintaining it. Quite simply, there can be no rule of law without a judiciary that is independent of the legislative and executive branches of the state. A rule-based society must have an institution that interprets the rules and determines the consequences of their breach. And that institution must be empowered and seen to be empowered to make its decisions independent of influence from the legislative or executive branches of government. Without an independent judiciary, people cannot be sure that the laws will be interpreted and applied in a stable, predictable and just manner. This in turn undercuts the aim of a society regulated by rules and discourages people from investing human and economic resources in their society. Thus many developing countries have come to realize that they must put in place an independent judiciary and fight corruption if they are to progress. The World Bank and other world agencies are increasingly insisting that nations seeking assistance take steps on a priority basis to develop an independent judiciary. Quite simply, without a strong, independent and honest judiciary, the rule of law cannot be maintained. This then is the first role the judiciary play in democracy - to maintain the rule of law.


(footnotes omitted)


To learn more about McLachlin C.J.C., click here or here.

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