Thankfully, Judges are appointed

In Canada, our judges are appointed, not elected. For that reason, we are very, very lucky.

Some people, however, think that judges should be elected. To those people: you are wrong.

Here is why…

Consider your typical political election; often, there are misrepresentation of facts, evasive answers, and frequent photo-ops. The message is often lost and elections often degrade into advertising campaigns.

I would like to think that those who are elected are the best people for the job; but, I am not always so sure.

For judges, this is system that exists in the United States of America. Hopeful judges have to campaign and their previous decisions are then scrutinized by the public, who, by large, have done little or no research to actually question those decisions.

So, it isn’t surprising that judges, like politicians, make decisions that they think will affect their chances of re-election.

This happens in politics all the time.

Consider the Federal Conservative’s decisions to create harsher sentences for crimes, despite argument and evidence that harsher sentences do NOT lower or deter crime. So, why are they doing it then? Answer: votes.

In America, when judges are elected, they, too, make decisions that will help them get re-elected into office. For instance, American judges often levy very strict (and often unjustified) sentences on offenders, so that they don’t appear lenient to the voting public.

I do not envy Americans for having that system.

For an illustration of what it is like to have elected judges, consider the following New York Times article from 2006, describing a system in which nearly three quarters of judges (who were elected) are not lawyers (and have little or no legal training/knowledge): In Tiny Courts of N.Y., Abuses of Law and Power.

Of course, the article’s material isn’t representative of all of America; but, it does provide a glimpse into the problem of using elections to find judges (i.e. that the best people for the job aren’t always elected).

In Canada, the process is very different. I will summarize it briefly.

First, lawyers who apply to become a judge must have been a lawyer for at least 10 years.

Screening committees then review the applicants based on several factors and make recommendations to the government (for appointment to the bench).

The factors that are considered include a keen intellect, proficiency in the law and in ethics, the ability to listen, the capacity to exercise sound judgment, a sense of consideration for others, patience, and a willingness to learn. An applicant’s courtesy, honesty, and humility are also considered, as well as their dedication to the public good, often demonstrated by pro bono work.

Selection committees will also interview lawyers and judges who have worked with or against the applicant. The committees are interested in the applicant’s interpersonal skills and whether or not an applicant engaged in ‘sharp’ conduct in his/her legal career.

If the applicant passes all the hurdles, then the government chooses among those applicants who have been recommended by the committees.

Also know that there are more applicants than openings (so the competition is fierce).

In P.E.I., there are openings approximately every 10 years. For federal court appointments across Canada, there may be 500 applicants a year, but only 50 to 60 appointments are made.

Once appointed, judges cannot easily be removed and are free to make decisions without influence from any powerful outside sources. Their decisions are reviewable by appellate courts, rather than the voting public.

I understand that some people think that judges’ decisions should be reviewable by the voting public, which would occur if judges were elected.

However, to do so would mean that judges’ decisions would pander to public opinion.

If judges pandered to public opinion, their decisions would be based on popularity, rather than legal principles. Judges would be hesitant to make correct (and unpopular) decisions, such as those that impact minority groups/interests.

It isn’t surprising that people sometimes get frustrated with a judge’s decision. When a judge makes a decision, one party will always be disappointed.

But, it is surprising, however, that the media sometimes does a poor job in accurately reporting the facts of a judge’s decision. This is a ‘special’ pet peeve of mine (to say it lightly).

My advice: get all the facts of a case before you criticize a judge’s decision. And be thankful that judges are appointed, not elected.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought. 

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About the Author

Jeff Zilkowsky is a lawyer practicing at MacLean Law in the Lower Mainland and in Kelowna, and focuses his practice on family law and litigation.  

In his column, Jeff provides information about current legal events or points of interest or concern relating to the law. 

The information contained in Jeff’s column should not be used or relied upon as legal advice.

Comments are always appreciated and encouraged, so don’t hesitate to email Jeff at [email protected]

Visit Jeff’s website at www.jeffzilkowsky.com or visit the website of MacLean Law.

The views expressed are strictly those of the author and not necessarily those of Castanet. Castanet does not warrant the contents.

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