Electing the Judicary

[Gunnar]

I think the penaltiles need to be harsher for grow ops and the judges need to wake up and smell the coffee.  If they had to run for election every 5 yrs they would sure as hell represent the will of the people within the limits of the law a lot more then the tend to now.

Yes, they might represent the will of the majority....but remember, there are more poor, dumb, low-class wage earners who aren't interested in ideas than there are the few, intelligent ones.  This isn't a comment on where people are or where they come from, but more on their ambivalence towards ideas....if you don't think about things critically, then you champion things which sound good in the short term but which cause disaster in the long term.  And you vote for people who can bring this kind of short-term thinking into the political or legal sphere.  In civil law, this means that the rich corporation always loses to the poor dope who should have known better.  There are more dopes than rich corps, and corps don't vote.  In criminal law, it means that the majority can vote someone in who is soft on crime *directly* rather than having to wait until the judges die so that their "soft on crime" government can appoint new ones.

 

[Wizard of OZ]

Yes, they might represent the will of the majority....but remember, there are more poor, dumb, low-class wage earners who aren't interested in ideas than there are the few, intelligent ones.   This isn't a comment on where people are or where they come from, but more on their ambivalence towards ideas....if you don't think about things critically, then you champion things which sound good in the short term but which cause disaster in the long term.   And you vote for people who can bring this kind of short-term thinking into the political or legal sphere.   In civil law, this means that the rich corporation always loses to the poor dope who should have known better.   There are more dopes than rich corps, and corps don't vote.   In criminal law, it means that the majority can vote someone in who is soft on crime *directly* rather than having to wait until the judges die so that their "soft on crime" government can appoint new ones.

I disagree with you.  You have to rember the public out cry would be huge the judge could be recalled and so.  This streches far beyond just the MJ issue.  Think about those that hand out suspensions for Impaired driving causing injury or death.  Or people that get nothing but house arrest for thier part in a murder.  I trully believe that an elected judical body would serve all the people better and more would vote on that then in an election because the effects are felt in the community and in the home.

MOO

 

[Brad Sallows]

I am not uniformly enthusiastic about our judges, but looking at our politicians I am far from convinced that turning judges into politicians - even a little bit - is the answer.

 

[Cloud Cover]

Although it is trite to say, Parliament can deal with a renegade judge. As for turning judges into politicians, I can think of three court of appeal judges right off the bat who were politicians - attorneys general and premiers, no less.

In January, I was at a luncheon where a newly appointed Superior Court Judge* was present at my table. Her appointment, like all others in her position, was entirely politically driven and she made no apologies for that. She was never a great lawyer, and an even worse advocate for her clients. It was always easy to out manoever her in court, and her legal adversaries will surely miss her as she was an easy ticket. But there she is, a judge who patiently asks lawyers who appear before her to explain basic legal concepts so that she can proceed to render a decision that either party can appeal on any number of grounds. I expect her to go far in the judiciary.

I would like to see judges appointed, but subject to an appointment process with legislative oversight and a decent intelligence and competency test. I would also like to curtail the judicial introduction of new public policy interests, restrict the judicial veto over social direction and have social policy removed absolutely from judges.


* [same type of judge as BC Supreme Court judge]

 

[sigpig]

I am not uniformly enthusiastic about our judges, but looking at our politicians I am far from convinced that turning judges into politicians - even a little bit - is the answer.

I agree wholeheartedly. From my experience of living in the US (just an observation Bruce, no bashing intended!!!), you do end up with judge/politicians who are concerned about election/reelection and who take campaign contributions with all those implications.

How can the average citizen know who would make a good judge? There is no way for the lay person to compare the performance of competing lawyers. What you end up with is which candidate has the best and most slick ad campaign to get name recognition. During an election two years ago a local political columnist said of one female candidate for judge (paraphrasing here), "She is certainly qualified for the position and the fact that she is quite attractive will help in her name recognition."

The checks that whiskey 601 proposes sound interesting.

 

[muskrat89]

How can the average citizen know who would make a good judge? There is no way for the lay person to compare the performance of competing lawyers

Hold onto your hats, I actually agree with sigpig on something!

They elect everything here, from Sheriff, to County Attorney, to the head State Mine Inspector, to Judges. Add in all of the Propositions, and it's very confusing to most. Considering that the majority of people (in my opinion) can't even explain the real diifferences between say - 2 candidates for Governor, how are they making reassoned decisions for judges, dog-catchers, and everything else that's being voted on?

 

[Michael OLeary]

......... the judges need to wake up and smell the coffee.  If they had to run for election every 5 yrs they would sure as heck represent the will of the people within the limits of the law a lot more then the tend to now.

The original quote by Wizard of Oz at the beginning of this thread suggests that an elected judiciary would help sort out some of the problems oin the legal system.

But a review of the his past comments on the Liberals indicates dissatisfaction with the elected government. I would be interested in knowing how he perceives that the democratic electoral process would work for the judiciary when the same public is repeatedly unable to elect a government that meets his satisfaction. What different approach might be instituted to avoid similar dissenting views?

 

[Edward Campbell]

There is something wonderfully democratic about electing sheriffs and judges and the like.   It is important to remember that these were customs in 18th century, newly independent America â “ and they made good sense, too; especially to a people who had just overthrown a remote colonial administration and had turfed its many 'servants,' civil and uniformed.

The idea was, and remains simple: the people are the best judges of their own communities and their standards and needs,    The police (such as they were â “ this is before professional police forces, etc) and judiciary have too much power, said the 18th century Americans, they must be accountable and how better to hold these powerful men to account than through elections?

There are, probably, worse ways to select both judges and police chiefs; elections probably produce good results if, big IF, there are some solid minimum standards of qualifications for candidates â “ maybe something like ten years at the bar and a clean record (no censures, etc) from the bar association for candidates for judge, maybe something like formal accreditation in law enforcement for candidates for sheriff.   Some will argue that executive search firms do a better job at finding a police chief and that is, possibly, true for, say, Calgary and Ottawa but does Glace Bay need a 'head hunter' to find a police chief, is that a good way to spend tax dollars, isn't an election cheaper and, possibly, just as effective?   Isn't an election as least as good as a string of recommendations from Liberal Party of Canada hacks, flacks and bagmen?

I'm not advocating electing either local, small town police chiefs (but we do, usually, elect the members of the police commission who 'manage' our police services and I don't think I want to change that) or judges â “ our traditions are too different, I think.   But it is wrong to look down our collective Canadian noses at elected judges and sheriffs in the USA; many, perhaps even most, are good people doing good jobs â “ in their communities and for their communities and they answer, directly, to their communities every few years.

 

[Cloud Cover]

Imagine the potential decision that would have been rendered in the Reference Re: Succession of Quebec if three of the "elected" judges were elected from Quebec. 

Oversight, review, restrict, and reign in. But no election. 

 

[Wizard of OZ]

The original quote by Wizard of Oz at the beginning of this thread suggests that an elected judiciary would help sort out some of the problems in the legal system.

But a review of the his past comments on the Liberals indicates dissatisfaction with the elected government. I would be interested in knowing how he perceives that the democratic electoral process would work for the judiciary when the same public is repeatedly unable to elect a government that meets his satisfaction. What different approach might be instituted to avoid similar dissenting views?

I am some what dissatisfied with the Liberals.  But to some it was the lesser of two evils.  You know elect the devil you know and no the one you don't.  Some time is agree with some Liberal Platforms but not all.  I think a straight election for judges my fix some not all of the problems but you are right you never really fix something you just uncover new problems.  Is election the answer maybe maybe not.  Maybe election by Parliament not by the public after a qualification round.  I think the appointment should be done with though.  You can end up with a judge who does not even know what the CC of C is.  That is sad. 

I honestly don't think i will ever be satisfied with an elected government as no one really will (all the time), the budget did kind of impress me though.  So i will just have to appoint myself king and annex parts of Ont and such to make my country. (reminiscing of Family Guy).  But with the state of the Canadian Forces i would prop last a little over a year before they got permission to invade.  :dontpanic:

 

[sigpig]

Hold onto your hats, I actually agree with sigpig on something!

What a shocking way to start my Sunday morning!!  I see you live in Phoenix so you experience what I'm talking about. The 'Sheriff' of Broward County is a politician who has never been in law enforcement in his life. The county property tax appraiser is elected - talk about fair and balanced and neutral for a position like that.

Yes, the ballots down here are massive, overwhelming, and often confusing and I think that contributes to the lower voter turnout when compared to Canada. To do it properly could take 20 minutes or more.

Democracy is obviously a good thing but you can have too much of a good thing. Very few people have the time or ability to make an informed decision on all the matters that are put on ballots here. I read the paper and watch the news everyday but I would be overwhelmed by all the matters that are on the ballot here.

 

[Glorified Ape]

I'm going to agree with muskrat, whiskey, and sigpig on this one - electing judges and police chiefs is a bad idea. Having judges pandering to the electorate and contributors doesn't sound like a good way to maintain a reputable justice system. All judges are biased one way or another but creating an environment in which the judge personally stands to benefit or suffer from his own ruling makes for a legal nightmare, imo. 

 

[Bruce Monkhouse]

Quote from: muskrat89,
Hold onto your hats, I actually agree with sigpig on something!
Quote from Sigpig
What a shocking way to start my Sunday morning!!

Well than Sigpig, I wouldn't stand in water today cause I agree with you also, the system of electing police officials down there is ludicrous.

 

[Infanteer]

I'm throwing my hat in with the "no vote" side as well.

Like our military, our Judiciary and our Police Forces should be "professional" and should achieve their positions based on merit and professional competence (with suitable oversight) rather then demagoguery and a neat platform.

Can you imagine what would happen if we elected Military commanders (and they didn't necessarily need to be proven Officers?) - I could see Esprit de Corps Magazine including free "Vote for CDS Drapeau" buttons.

 

[jmacleod]

Judges in Canada at all levels are appointed by political patronage, period. That will not change in
the forseeable future. The major political parties in Canada (both of them) are fully committed to
partronage in the Judical process. My question is, (wait for it) why?   MacLeod

 

[Gunnar]

Neat.  I had a thread split off.  I'm so proud.  ;D

Patronage appointments mean that the power elite can nominate those they like to fill appointments with people who vote their way, but have to do so within the bounds of tradition...it also means that the power elite, who may not necessarily be from the legal profession, has to battle with the inherent beliefs of the legal profession when making these appointments, i.e., they appoint someone who already has a thorough grounding in the law.

Room for abuse?  Oh yeah.  Just like having royalty instead of a democratic government--really hard to get rid of the bad ones.  However, note that "aristocracy" actually means "government by the best".

However, by making the nomination process subject to political appointments, from the legal profession, when there is opportunity to change the governments from time to time (and you know that each side will try to stack the appointments with "their" people), is probably more balanced and less subject to influence than the direct "vote for who you want approach".  Especially given that the average voter hasn't got a clue why he's voting for a particular person or party.

 

[Meridian]

Electing judges is a bad idea.

Why?

Because the judiciary is a) a check/balance on the other two powers (exec & legis) and b) the judiciary is the custodian of the constitution and justice which is supposed to be blind to majority will and feelings.

The Law is not supposed to recognize that you are poor/rich/black/white/red/gay/straight etc.

The law applies to all citizens equally (at least in theory) and thus we need a system that supports this endeavour as much as possible.

This goes to the same reason why even the conservatives agree a national referendum on gay marriage (or any other Charter Right) is a bad idea...  You are allowing the majority to rule on a minority issue... 

The point of political appointments is that they are not supposed to be about patronage... and to be honest, the states does a fairly good job of appointing their Supreme Court Justices... its just that things are easier to push through up here politically...



Id rather have political appointees given that patronage is pretty hard to prove when we are talking about judges and that given the nature of different governments and lifetime appointments we get a varied Supreme Court and Superior Courts.

(I study this stuff in university, law & political science are my majors).

 

[Cloud Cover]

Meridian, the thing only I agree with in your post is that judges ought not to be elected.

The checks and balances spoken of do not exist in Canada and in any event, if they existed they were snuffed out by the Charter if you believe the Supreme Court of Canada's views on the matter.

Except for s. 96 judges, all other judicial appointments   are created by statute, not the Constitution. Any statute can be repealed by the legislative body which enabled it - this includes the Supreme Court of Canada and the Federal Court.    This means that the judiciary is not the custodian of the constitution, Parliament and the Legislatures are. It is the judiciary which self appointed itself as so-called custodian of the Charter, particularly that knob the R. H. Brian Dickson when he was Chief Justice. He was probably the worst Supreme Court judge in the history of this country.   Real judges like Duff, Rand and Cartwright would chew him up and spit him and his ilk out in a flash.  

The law in Canada expressly recognizes the differences between Canadians... look at the black letter law of the equality provisions in the Charter and compare them with the obscene twist given in the Meiorin decision of the Supreme Court of Canada. In addition look at the principles of sentencing in the criminal code and then compare those principles to the imposition of sentences. If one comes out of that little exercise thinking the law applies equally to all [in theory] - then the theory has been missapplied.

When the substance of the law changes to the effect that the change comes right into ones house and forever alters the legal nature of the most basic unit of Canadian society, it is simply offensive to have such a change imposed by such arbitrary and nefarious means as unelected judges who willingly construct an artificial legal basis to prop up the policy position of a desperate minority government.   It is a prevarication of the worst order by the Liberals and others to cast oppostion to such a fundamental change as the majority imposing its will on the minority. I submit what is happening in this country is exactly the opposite.

Obviously, I do not share the opinion that the "state" does a good job of selecting Supreme Court Judges. In fact, it is the PM himself who selects judges, ostensibly on the advise of a committee whose recommendations are not binding. Despite the process of the previous SCC appointment, Parliament could and in fact does have the authority to review such appointments. As citizens, we should insist that Parliament impose it's legal rights upon the justice system in this matter.

There is nothing hard to prove about the appointment of a judge, justice of the peace or any other member of a tribunal. The facts show they are nothing patronage appointments at the end of the day. It's not the power to nominate that people who understand this system have a problem with. The issues are the lack of transparency in the process and the self imposed emasculation of Parliaments sovereign right impose accountability by assuming the power of approval, appointment and removal (where necessary).  

Apologies for the rant.
Cheers.

 

[Meridian]

whiskey = Im curious, because I have not research heavily, who is actually responsible for appointing SCC judges? Maybe I should go look, but it would be an impossibility for the Prime Minister to be responsible, since legally as per the constitution (and the constitution being the highest law in the land) the PM does not exist. Im assuming its Governor in Council who appoints (aka Gov Gen through Cabinet?)

My point regarding superior court justices is that they are paid for and appointed by the federal executive. Only the administration of the courts and the relative jurisdictional laws are influenced by provinicial statute.

Everything in law can of course change. Parliamentary sovereignty ensures that no one act will ever be binding on future generations, including the constitution.


I guess my biggest point is that the selection of the judiciary should focus solely on the candidate's ability to be judicious with a lack of bias.  The inherit problems with "elections" is that moral character and political beliefs are directly what Canadian's associate with an electoral choice (if we exclude the most predominate characteristic of party affiliation).  If  you were to ask Canadians to continue on then and elect a justice, you would be asking them to do exactly what the Americans do - elect someoen who represents your views and thus in the end the majority will and held values will be applied.


The Charter in and of itself is interesting because the majority actually passed (well ok, this is up for argument) a law that binds itself to lookout for the minority. The Charter is the singlemost subjugation of majority rule in the history of Canada, in my opinion. Of course, the Charter can be repealed if the proper political will expressed itself, however again, interestingly enough, this gets stopped by various interested parties who will never allow constitutional change without x, y, or z (see Quebec on practically EVERY consitutional amendment presented in the last 25 years).

Anyway, in our system it is made even further difficult because we do not have the large contrasts between two powerful parties, nor do we have the arduos confirmation process that the US has.

Whereas in the US a judge is often selected for partisan and political reasons, the confirmation process requires that the Senate accepts the appointment... not always an easy thing for a President to push through. Also, given the tic-toc in Presidential party affiliations in the past, you tend to get a different type of judge with each president - and since the terms are indefinite you tend to hope that it all sort of balances out in the end.

The issue here is effectively how  to hold justices accountable to rendering sound judicial decisions. You cant hold them accountable to the populace, because the only way to do that is to subject them to majority will. ALso, opening up terms and termination means that they are open to play by politicians in power.

 

[Cloud Cover]

whiskey = Im curious, because I have not research heavily, who is actually responsible for appointing SCC judges? Maybe I should go look, but it would be an impossibility for the Prime Minister to be responsible, since legally as per the constitution (and the constitution being the highest law in the land) the PM does not exist. Im assuming its Governor in Council who appoints (aka Gov Gen through Cabinet?)

Bang on. It happens through the operation twin evolutionary doctrines of "responsible government" and 'convention.' The 'council' appoints, the Governor 'perfects' the appointment by affixing the great seal.  The Supreme Court of Canada was considered a minor appointment until such time as the JCPC was told to hit the road.  Prior to the abolishment of the JCPC, SCC appointments were not worth the time of the GG for consideration. Prior to abolishment, the GG by convention had abandoned involvement in appeal court appointments other than by approving in right of the Queen [or King as the case may be].

I am informed this guy is reputed to have had problems with the exercise of powers of the GG to refer Canadian legal issues to the JCPC of his day:  http://www.scc-csc.gc.ca/aboutcourt/judges/nesbitt/index_e.asp

Cheers.