Why judges' politics matter

By James Morton
Citizen Special
Sep 20, 2010

The ongoing judicial appointments scandal in Quebec has raised the issue of politics in the appointment of judges. Influence peddling in the way judges are nominated in the Canada is wholly unacceptable and no credible observer suggests that party affiliation ought to be a basis for the appointment of judges. That said, should the policy preferences of judicial candidates be considered before their appointment?

Perhaps surprisingly, the answer is yes.

In some cases, the law, properly approached, is clear and all competent judges will come to the same conclusion. However, in many cases there is room for discretion and a judge's background and worldview will make a significant difference in the result.

Consider a very recent Court of Appeal for Ontario decision. BRC, a non citizen who lived in Canada since childhood, sexually exploited his girlfriend's son. He was in position of trust and authority over the child, the offence was prolonged and included several acts of anal intercourse. The trial judge imposed a lengthy term of incarceration to reflect, among other things, society's revulsion at such an act of betrayal.

Nevertheless, because a sentence of more than two years would lead to automatic deportation, the Court of Appeal reduced his sentence referencing BRC's efforts to rehabilitate and the need to put a human face on sentencing criminals. The Court of Appeal pointed out the trial judge did not know of the automatic deportation when he sentenced BRC and based its new sentence on that lack on knowledge.

Another panel of the Court of Appeal might well have ruled differently.

Another panel might have decided that the immigration consequences of sending a child molester to penitentiary did not justify reducing his sentence to a reformatory term. But the fact another panel might have made a different decision doesn't mean the decision was legally wrong. In fact, the decision is unimpeachable legally.

The court had the discretion to make the decision it did and in so doing applied the life experiences and world view of the judges who sat on that panel. This is why the political and policy views of judges are important factors to consider before they are appointed.

Judges must exercise judgment and so what a judge sees as right and fair and proper is as important, perhaps more important, than a judge's technical legal acumen.

Most legal issues that come to court can reasonably be decided in a number of different ways. There are some propositions that are legally absurd, and people appointed as judges do have to be skilled lawyers, but often a judge's decision between two legally possible options is based on what the judge sees as fair and just.

As a result, it is appropriate for governments, whether federal or provincial, to look at the whole person when appointing someone to the bench. Party affiliation is not an appropriate consideration but a more general consideration the candidate's "small 'p' politics" is proper.

It is appropriate to consider whether a potential judge, regardless of their formal qualifications, leans towards a strict view of the law or are more inclined to an equitable view of what is right and proper. Do they believe judges should be activist and lead or should societal changes be reserved for legislation?

Once appointed, judges have to be insulated from political pressure -- judges must be totally secure in their positions so they can decide fearlessly in accordance with their genuine views -- but prior to appointment the views judicial candidates should be considered closely. As Robert Ingersoll pointed out, over a hundred years ago, "we have to make judges out of men, and that by being made judges their prejudices are not diminished." While today both men and women are made judges, the fact remains that becoming a judge does not change the person or their personal beliefs.

Federal and provincial judges are appointed on the advice of cabinet. There is a reason why the process involves elected officials. Judges have a significant impact on the daily lives of Canadians. In a constitutional democracy such as Canada all government officials are ultimately responsible to the people and judges are no different.

It is quite proper, indeed it is essential, that the policy preferences of judicial candidates be considered before their appointment.

James Morton is a Toronto lawyer and past president of the Ontario Bar Association. He teaches evidence at Osgoode Hall Law School of York University. The opinions expressed here are his own.

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