Of course politicians are elected and judges are appointed. But that does not mean that governments should be free from the scrutiny of the courts. Nor that judges must be elected for that scrutiny to be legitimate.
Judges of the Superior Court of Justice — like the judge who struck down the Ontario government’s plan to reduce the size of Toronto city council as unconstitutional — are appointed by the federal government.
So are judges of the Federal Court of Appeal — like the panel of three judges that quashed the federal government’s approval of the Trans Mountain pipeline expansion project.
Canadians have expressed a range of reasonable opinions about these cases. Criticizing our courts as anti-democratic is not one of them.
The government of the day enjoys the privilege of selecting judges for the Superior Courts in the provinces, the provincial Courts of Appeal, the Federal Court, the Federal Court of Appeal, and the Supreme Court of Canada.
Although there is no legal requirement for direct public involvement in the appointment process, local advisory committees have been created to review applications and create pools of qualified candidates from which the government chooses.
The result is a judiciary made up of judges appointed by different governments, reflecting the voting preferences of Canadians over time. For example, of the nine justices who sit on the Supreme Court of Canada, one was appointed under Prime Minister Paul Martin, six under Stephen Harper, and two under Justin Trudeau.
Judicial appointments reflect the differences in priorities across governments. Sometimes those differences can be seen in the processes adopted to narrow the pool of potential nominees or in the demographic composition of appointments.
But Canadian courts have largely avoided the deep ideological and partisan divisions we see south of the border.
In many cases decided by the U.S. Supreme Court, the votes of the judges fall squarely along the fault line of Democratic and Republican nominees, making the outcome a foregone conclusion.
In the 90 per cent of U.S. state courts for which judges must run for election, donors spend millions of dollars supporting candidates for judicial office, mainly through vicious attack ads targeting opponents.
Once elected, state judges often preside over cases involving litigants or lawyers that donated to their campaign.
By one estimate, advertising spending on Judge Brett Kavanaugh’s nomination for the U.S. Supreme Court has already surpassed $7.2 million.
Ironically, many of the attacks on Kavanaugh’s candidacy are based on the truthfulness of his testimony about stolen Democratic emails he may have received when he was a White House lawyer in 2003 engaged in partisan battles over Republican nominations for federal judgeships.
That is not a system worth replicating.
Canadian judges rarely express their views outside their judgments. Although they sometimes disagree with one another, that disagreement is almost always expressed in judicial decisions and scholarly publications, not in attack ads funded by murky lobby groups.
Canadian judges prefer to be read and not seen, not because they are secretive by nature but because they value judicial independence and do not want to risk the possibility of creating a reasonable apprehension of bias by speaking out.
This leaves our judges largely defenseless against meritless attacks — a sacrifice made in the service of our confidence in the integrity of the administration of justice.
We sometimes take the depth of talent in our courts for granted. A colleague recently told me that a foreign client working with retired Canadian judges found them to be more thorough and diligent than former U.S. Supreme Court justices with whom the client had consulted.
This does not mean Canadian courts or judges are perfect. Access to courts should be improved. Judges make mistakes. Sometimes they cross the line and must be called to account.
But having served and worked in courts in different jurisdictions in Canada and abroad, I have come to realize we enjoy something truly unique: a court system that is undeniably objective, open-minded and fair.
That is worth protecting — even when we disagree with the outcomes of particular cases.
Fahad Siddiqui is a lawyer at Norton Rose Fulbright Canada LLP, and a former law clerk at the Supreme Court of Canada, the Court of Appeal for Ontario, and the High Court of Delhi. Follow him on Twitter @fahadtoronto.
https://www.thestar.com/opinion/contributors/2018/09/14/we-should-judge-decisions-not-judges.html
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