CKNW Editorial
for October 18, 1999

Last week a faithful long time listener, and fellow baseball fan, Ray called and berated me for defending judges. I think, being a fair man, Ray would agree that he had assumed that because I defended the Bench I also defended the shutting out of the public from the appointment process. And in fairness on my part, he probably had some reason for jumping to that conclusion because I have, with the exception to appointments to the Supreme Court of Canada, been pretty fuzzy about appointments to the Supreme Court and the Court of Appeal.

I’ve been doing a lot of thinking about this because it is not an easy matter. I’m not in favour of electing judges, unless it be for a term of at least ten years or more because it’s wrong to have judges running for office based upon how many people they convicted as happens in some American jurisdictions. And I don’t buy this bit that Provincial Bar Associations or Law Societies should be the only vetting process. Not only is there a reasonable apprehension of cronyism involved in such a process, cronyism in fact exists. Lawyers are like any other profession or trade – they drink their own bath water and pretend that they are being scrupulously fair and honest when in fact they are very humanly playing favourites.

I believe that such groups should be consulted – that only makes sense. But if their recommendations were final, it would be the legal establishment only (which is no longer just right-wingers, incidentally) who would make the bench.

I propose the democratization of the Judicial Council. It should be a paid position of, say, five in number. They should seek election at every provincial election just like MLAs. I don’t think these elections would become party political – indeed I should think that voters would be put off by an official party affiliation. It would thereafter be the duty of this council to assess every proposed judicial appointment, from the Provincial Court on up and make its recommendations to the Attorney-general or Minister of Justice as the case may be. It would still be the prerogative of the Attorney-General or the Minister of Justice to propose judges and their ultimate decision to appoint. They could appoint against the wishes of the Judicial Council but that fact would be required to be public and the reasons given.

I can hear howls of protest from small "c" conservative members of the Legal Profession. Why. They would say, this would be degrading and good men and women would hesitate to put their names forth.

Why? There is no reason to suppose that any more than a handful of applicants, if any, would ever be rejected. In fact, the presence of such a process would likely keep unsatisfactory people from applying. Besides that, how can anyone complain when one of the branches of government – and one increasing in importance – is subject to a whiff of the democratic grapeshot? The complaints will come from those who prefer secrecy to openness.

I’m not suggesting that we have televised extravaganzas but I am suggesting that the Judicial Council be able to interview claimants and use reasonable means of gathering evidence to determine their suitability.

I believe that the vast majority of judges appointed under the present secret system are good people and that their applications would be quickly approved by a Judicial Council. But that’s not the point. Because you may be ruled by a benevolent and all wise dictator doesn’t mean that dictatorships are good things.

What we require – and require badly in this country – is public faith and confidence in the judicial system. This requires public involvement.

In an election for judicial council I have no doubt whatever that voters would take their responsibilities seriously and I have the same confidence that the very process itself would ensure that good people would seek the responsibility.

How well I remember how the Legal Profession and the Stock-broking profession resisted having outside Benchers and Governors. The late Jack Webster was, if memory serves, one of the first lay Benchers and public confidence in that process increased enormously with his appointment and service. In the case of the Stock Exchange one can only imagine how much worse it would have been had not people like Peter Stanley helped oversee its operations.

We’re a stuffy, anally retentive lot in this country and its time we started looking and acting more like a democracy. We could begin by getting the public involved in the selection of one arm of government, the judiciary, then start working on bringing some semblance of democracy to the Senate and indeed the House of Commons as well.