Let Litigants Pick the Judge
The Conservative government garnered cautious approval when it changed the procedure for selecting Supreme Court of Canada judges. However, its recent proposal to change the method of selecting judges for the lower courts has created a firestorm of criticism.
Justice Minister Vic Toews has proposed that there be police representatives on the committees charged with vetting judicial applicants. Some fear this would give a greater advantage to candidates who are “tough on crime”. Others fear it would stack the judiciary with conservatives.
These fears are not entirely unfounded. The obvious reply from conservatives, however, is that by not previously having law enforcement personnel on the committees, the judiciary has hitherto been stacked with individuals who are more likely to be “soft on crime” or opposed to conservative policies.
No matter whom the committees include or exclude, someone can always allege bias.
There is a solution to this problem—one that I advocated for many years—to no avail—in my column in Canadian Lawyer magazine. It’s radical, but it would resolve the current issue and many other concerns about bias in the judiciary.
The problem doesn’t lie in the character or opinions of the persons chosen to be judges. Judges will always have biases—they’re human beings. The problem lies in the fact that judges are assigned to cases without any input or veto power on the part of the litigants or defendants who appear before them.
The solution is to allow the litigants on both sides of the case, with the help of their lawyers, to select a judge that both sides agree is unbiased. This would mean transforming the occupation of judge into a series of contract positions, rather than a guaranteed full-time job. Lawyers who wanted to become judges would have to take a training course and pass an exam. Once certified, however, each judge would merely be one of a panel available to sit on trials or other pre-trial procedures. The lawyers on both sides of any particular case would have to agree to select a specific judge before he or she would be assigned to deal with that file.
This would mean that a judge who had a reputation for bias (for instance, favouring the Crown in criminal trials, or wives in matrimonial trials) would get very little business. Any litigant who feared that a judge was biased would never agree to select that person from the panel. Judges would be paid according to the amount of work they actually did, so anyone who wanted to make judging a full-time occupation would have to avoid scrupulously any hint of bias.
The criteria for getting one’s name on the panel of judges would be completely objective. It would require that the applicant demonstrate a high degree of legal knowledge and good judgment by passing a set exam. Nobody could keep an applicant off the panel because he or she belonged to the wrong political party, or held unconventional philosophical views about any aspect of the legal system.
This system could even be extended to appellate courts—possibly to the level of the Supreme Court of Canada itself. The training and examinations to get one’s name on the panel for appeals might be more extensive than that required to be a lower court judge. Or one of the criteria to qualify for an appellate panel might be a fixed number of years’ service as a lower court judge. However, when an appeal was required, the litigants would again get to select their judge or judges from a qualified panel, ensuring that neither side would be able to complain of bias.
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