Canadian Judges – Who are they?

In general, Canadian judges are partisan appointees (political supporters) who are usually lawyers before being appointed to the bench. Judge appointees normally have at least ten years experience as a lawyer, although the type of law they practiced is not a general concern. All federal court judges as well as provincial superior court judges are appointed by the federal government. Lower provincial court judges are appointed by the provincial governments.

Once appointed to the bench judges serve until retirement. Justices may not be recalled from the bench or disciplined on account of any judgment they have made. The only grounds for dismissal would be a serious question about the character or conduct of the judge. In such instances the judge would go before a panel for review. In practice this rarely happens. In the few cases that have warranted such a hearing the judge in question often resigns before the hearing can take place.

Like Senate appointments, judicial appointments have traditionally been partisan. Although this is the traditional approach, many Canadians in the 1980’s began to grow unhappy with the idea that judge appointments were so closely tied to political party affiliation. Many Canadians asserted that a position as important as a judgeship should be filled primarily due to merit, not political connections. This sentiment led to small reforms in the 1980s regarding the way federal judges were appointed. The government of the day appointed a private committee made up of five people to review the merits of those the government wished to appoint as judges. They could then recommend for or against the appointment. That this change in procedure had any real effect on removing partisan politics from appointments is doubtful, but it did seem to quell the public’s appetite for reform.

Not all countries mirror the Canadian approach to judicial appointments. In France for example, where Civil, rather than Common law is practiced, judges are trained specifically for the bench. Judging is a chosen profession involving specific training and an apprenticeship. Judges advance through the ranks based on their colleague’s assessment of their competency.

To draw a fair comparison it should be noted that Civil law is very different than Common law. Civil law judges must make judgments according to the written code, so it follows that a proficiency in that code would be essential. Common law judges follow much more loosely worded and sparsely written legal codes while judging how the law applies to each individual case based on precedents and established principles. Judges rarely research precedents themselves but rely on those presented by the opposing legal counsel in each case. However, there is still a case to be made for some type of specific training for our judges. We expect that new judges will understand their role based on their experience and close observation of other judges. What we fail to remember is that not all lawyers practice all types of law. For example, a family lawyer could be appointed as a judge in a criminal court. Also, many lawyers spend very little time actually arguing cases in court, limiting their observation time.

A better judge appointment system to compare the Canadians system to is that used in the United States. Federal court appointments are a presidential responsibility but are subject to a review by the citizens by way of ballot. Citizens have the opportunity to either confirm or reject a particular judge after one year on the bench, and every set number of years thereafter.

On one hand, it is important that judges are free to make their judgments without fear of backlash or influence. On the other hand, our judges make some of the most important decisions in our country. In many ways, they are more powerful than our elected representatives are. For this reason, it is important that judges are not given unlimited power without any checks or balances. Some type of balance between judicial independence and judicial responsibility is possible. Judge confirmations, judge training and another look at the patronage appointment system may be a few places to look for that balance.