Canadian Judicial System Essay
Judicial appointments at all levels of Canadian court have long come under fire for being politically biased, and lacking transparency. Political watchdog ‘Global’ suggests that Canada’s judicial appointments are, “among the most corrupt in the entire world” with a good governance score of 32/100, and a judicial appointment score of 17/100. Opinions echoing this sentiment have led many, including Canada’s Chief Justice Richard Wagner, to call for a more transparent appointment process. Many believe that the public hearing process used sparingly by the Supreme Court of Canada since 2006 could improve transparency and subsequently reduce political bias. Public hearings may increase transparency, but will not serve to reduce political bias or the appearance thereof in the appointment process. Public hearings are in direct conflict with the principle of judicial independence, further politicize the appointment process, and other methods exist whereby judicial appointments can be transparent without promoting partisan politics.
Judicial independence is a cornerstone of the Canadian Constitution that states: “judiciary is separate from and independent of the other two branches of government, the executive and legislature. Judicial independence guarantees that judges will be able to make decisions free of influence and based solely on fact and law.” The use of public hearings in the judicial appointment process would jeopardize the very concept of judicial independence. Chief Justice Beverly McLachlin, and the Canadian Bar Association (CBA) support this stance, with the CBA having publicly stated that: “hearings that could become heavily politicized, could pose an unacceptable threat to the independence of our judiciary.” The basis of the CBA’s argument is that if a candidate were subjected to a public hearing they are under the scrutiny and influence of the legislative branch, thus jeopardizing judicial independence. An example is the 1987 public hearing of American Judge Robert Bork. This hearing, as many do, became a public inquisition into judicial ideology, which reveals a direct link between judicial beliefs and government’s political ideals/principles. This example also notes the issue that public hearings can serve to further politicize the judicial appointment process.
It could be argued that public hearings improve the lack of transparency in the appointment process. However, the appearance of increased transparency is nullified if it comes at the expense of further politicizing the appointment process. The CBA argues that it: “sees no value … if the appointment process exposes judges to parliamentary criticism of their past judgments, or cross-examination on their beliefs or preferences or judicial opinions. [They] oppose any measure which would give … the mistaken impression that the judicial branch answers to the legislative branch or that appointment to Canada’s highest court is dependent on membership in the governing party”. This politicizing is evident in the American appointment process. The American process of using public hearings as an inquisition causes the nominees to debate policy and political issue with the partisan crowd in attendance instead of focusing on the merit of the individual. The result is a partisan politicized process in which the candidate’s political views are put on trial. This political bias is evident in a quote by Canadian Constitutional Scholar Sydney Lederman, who wrote about the American system, “loyalty to the political party in power is given priority over merit… [and] over 90 percent of judicial appointments were members of the president’s party.”
The implementation of public hearings for the supreme court by Stephen Harper in 2006 it could be argued did not reduce the perception of political bias. While Harper appeased the public outcry for transparency, his ‘public hearings’ were very limited, amounting to little more than an informal Q&A session. He also appointed Justice Rothstein; whose conservative views would mirror Harper’s party ideals. This shows that public hearings will not quash all perceived political bias in judicial appointments. While the process should become more transparent, decision makers ought to take note of procedures other than public hearings that are working elsewhere. The Trudeau Government has improved transparency by allowing parliament to inquire with the Minister of Justice regarding a candidate’s qualifications and emphasizing that candidates are suggested by an independent advisory committee. The South African appointment process increases transparency by publishing interview transcripts. These changes render the process more transparent without the aforementioned consequences.
More transparency is needed in the judicial appointment process at all levels of Canadian court, but public hearings are not the solution and serve to further politicize an already mis-trusted process. Public hearings infringe upon the principle of judicial independence, can increase partisan bias, and are an inferior solution to existing efforts for transparency. As the infamous Donald Trump said; “What matters is not a judge’s political views, but whether they can set aside those views to do what the law and the Constitution require.” This should guide reform of the judicial appointment process to improve transparency, judicial quality, and reduce perceived political bias.