Is it Time to Rethink Judicial Appointments?

Though Canada lacks a legal tradition of transparency or of timely resolving matters on the merits (unlike in the US or many European nations), has an ill-functioning judicial system that its leading jurists acknowledge to be broken, and (with bail being the rule rather than the exception) is now suffering from a higher rate of crime (excluding homicide) than in the US, the conventional ‘wisdom’ that appointing jurists is superior to electing them has gone largely unchallenged. However, given the current performance of the judicial branch, recently chided even by the Advocates Society, it is worthwhile to consider whether the conventional wisdom holds. To do that, it is necessary to explore both how the appointment process works and how those appointees are performing, in the aggregate.

Historically, Judicial appointments in Canada were patronage based, with most appointees being actively involved in politics and affiliated with the party then in power. Then in the 1980’s, Advisory Committees, initially comprised of five members were created and judicial candidates were required to submit formal applications. Advisory Committees would rate candidates as either “qualified” or “not qualified,” and the government would select jurists from among the “qualified candidates.” Judicial Appointments Advisory Committee membership has since been expanded to 7 members, with one member selected by each of the Chief Justice of the Superior Court, Provincial Law Society, Canadian Bar Association and Provincial Attorney General, with the remaining 3 members selected by the Federal Government. Judicial Advisory Committee Members are selected with “a view to achieving a gender-balanced Committee that also reflects the diversity of members of each jurisdiction, including Indigenous peoples, persons with disabilities and members of linguistic, ethnic and other minority communities, including those whose members’ gender identity or sexual orientation differs from that of the majority.”

Current judicial applicants must submit the Federal Judicial Questionnaire which consists of a number of sections, chiefly including biographical information, legal experience, references (16) and photocopying ability (as physical copies remain required, along with 9 copies of 3 separate (27) decisions). The biographical section extends well beyond contact information, and includes options to create new genders, self-select pronouns (“Judge”) and to indicate (pigmentation) diversity. Further in, there is a creative writing section which asks “How has your experience provided you with insight into the diversity of Canadians, and their unique perspectives and lived realities?” Recognizing the perceived significant correlation between outward appearance and judicial ability, the questionnaire concludes with “Given the goal of ensuring that Canadians are able to look at the justices appointed to the bench and see their faces and life experiences reflected there, you may, if you choose, provide information about yourself that you feel would assist in this objective.”

In considering current judicial performance, it is worthwhile to note that of the roughly 1200 Superior Court Judges, the Liberal government has appointed more than 730 of them, “with an increased representation of racialized persons, Indigenous, 2SLGBTQI+, and those who self-identify as having a disability”.

Despite the government’s professed (if discriminatory) commitment to appointing Judges on the basis of skin color, sex, use of pronouns and self-declared sexuality, the public appears to ‘just not get it’ in the face of rising crime and the near automatic release of suspects and criminals. Partly, this stems from sensational, if nonsensical headlines, like the one where the Toronto Police told the public they would be best protected from the significant rise in auto thefts by leaving their car keys by the front door. Lacking the supposed benefits of formal legal education, many citizens were doubtless puzzled to understand why facilitating car theft was better than deterring it, namely by arresting and jailing the perpetrators? However, even where police do apprehend car thieves and bring them before the courts, such thieves are generally immediately released, sometimes stealing further vehicles from the courthouse parking lot on their way home. So ingrained is this thinking that the Ontario Court of Appeal recently ordered a man convicted of 50 firearms offences released on bail pending appeal.

Silly reactions by authorities to criminality are by no means limited to Ontario. Quebec police (or at least those in Montreal), who are apparently completely unaware of significant sections of the criminal code (including at least sections 32, 63, 72, 83.18, 264.1(1), 318, 319 and 430) or the difference between criminal code offences and defamation, recently asked residents not to post photos of porch pirates stealing packages, as it could infringe upon the privacy of the alleged criminals. Meanwhile in Manitoba, a truck driver was initially granted bail after being caught smuggling 406 kilograms of methamphetamine, having a street value of $50 M before such order was overturned via a rare bail review.

Before addressing the bench’s current position on bail (near automatic) and jail (seldom) or how same developed, a number of other examples and statistics need be considered. Most somberly, recently released statistics show that 29% of all homicide victims in Canada in 2022 were killed by offenders under some form of release, demonstrating the real costs of failing to separate offenders from society. This aligns with other research that shows, to the surprise of few, that criminals released from prison commit one or more non-drug related crimes per month.

The correlation between releasing suspects and/or criminals on bail and increased criminality has been vividly illustrated in our news media. One example involved a 24 year old Hungarian national, under house arrest since 2023, who was recently charged with 15 additional break ins, which was on top of nearly 400 further pending charges. Another individual released from custody with 75 criminal convictions proceeded to ram police cruisers with a stolen vehicle. Such tolerance of criminality has not gone unnoticed by foreign criminals, a number of whom now winter in Canada as crime tourists, secure in the knowledge that we are soft on crime.

To be fair, such outcomes are partially mandated by the Criminal Code, with section 515 (described by our Supreme Court as “liberal and enlightened”) providing that where an accused is charged with most offences (excluding treason, intimidating Parliament, inciting to mutiny, sedition, piracy, murder), unless they plead guilty, they are to be released without conditions, unless the prosecutor can show cause why detention is justified or conditions necessary. Section 493.2 further mandates that special consideration be given to accused from groups overrepresented in the criminal justice system. Though section 718 of the Criminal Code provides that the fundamental purpose of sentencing is to maintain a just, peaceful and safe society, it must be remembered that with the collapse of court operations, most pronounced in Ontario, close to 60% of all charges brought are now either stayed or withdrawn, which is up from around 40% just over a decade ago.

Moreover, as shown by the following chart from Statistics Canada, since 2013, the number of criminal decisions declined by a quarter with the number of guilty dispositions declining by more than 40%. As such, not only are fewer charges being brought, but a smaller percentage of those charges are being resolved on the merits, all while the crime rate is increasing. Conversely, the Ontario population increased by a bit more than 10% during that period.

Traditionally, bail was discretionary for all offences in Canada. Then the Bail Reform Act, S.C. 1970-71-72, c. 37 essentially codified the modern test, namely that bail could be refused where necessary to ensure attendance at trial, to protect the public from criminal offences pending trial and where necessary to protect the public interest. Subsequently, the Charter was passed, with section 11(e) providing that any person charged with an offence has the right not to be denied reasonable bail without just cause. This provision was interpreted by the Supreme Court in R. v. Morales, 1992 CanLII 53 (SCC) and R. v. Pearson, 1992 CanLII 52 (SCC) as creating a basic entitlement to bail.

A generation later, in R. v. St-Cloud, 2015 SCC 27 (CanLII) the court held that the release of accused persons is the cardinal rule and detention the exception. Shortly thereafter, in R. v. Antic, 2017 SCC 27 (CanLII), while again pontificating over our “enlightened criminal justice system,” the Supreme Court held that an unconditional release on an undertaking is the default position and that release is favored on the least onerous grounds at the earliest opportunity. After further self congratulations for “our enlightened criminal justice system” the Supreme Court in R. v. Zora, 2020 SCC 14 (CanLII) noted that where conditions on bail are required, they are to be only as onerous as necessary. This was codified by Bill C-75, which legislated a principle of restraint for police and courts to ensure that release at the earliest possible opportunity is favored over detention.

Chart c/o phind.com

Though the above cited examples relate to the state of the Canadian criminal justice system, which is now mocked even by young Youtubers, the situation in family or civil law is little better, at least in Ontario. That raises the question, are we better with an appointed versus elected judiciary?

Given the conventional wisdom, little study on this topic appears to have been done in Canada. Conversely, there is a relatively robust body of research on this from the United States, which has a mix of appointed versus elected jurists, sometimes even within the same State. The American research recognizes that there are tradeoffs between independence and impartiality on the one hand and democratic accountability on the other. As such, there is no reason to believe a “one-size-fits-all” approach is appropriate for all cases.

There are a number of benefits from an elected judiciary. Initially, there tends to be less litigation, given greater certainty of outcome. There is likewise a greater likelihood that such jurists share the values (and implement the will) of the public, which underlies the premise of democracy. Further, the overall number of decisions rendered is higher (possibly because elected jurists can’t justify spending the time to write 297 paragraph opinions on relevance), and where that is not the case, the public has the potential to remove such jurists. Criminals are also handed harsher sentences. There are likewise downsides, including more employment discrimination claims, the risk of jurists pandering to the electorate and a corresponding detrimental impact upon minority rights.

The strongest argument in favor of an appointed judiciary is judicial independence, though the Canadian bench has perhaps taken this to the extreme. Additionally, where government power is divided between branches, an appointed bench can have stabilizing tendances (i.e. enforce legislation passed by prior governments). Conversely, there is the risk that appointed jurists may be ideologically out of step with the electorate (noncongruent), which is likely increased where members of the Judicial Appointments Advisory Committee are themselves likewise out of step.

As the public tires of lawlessness and judicial dysfunction, it must be asked both what laws need be changed and what changes are necessary from our courts, including in the selection of jurists. For instance, while Ontario is rewriting court rules, in the absence of any performance data to measure results, it will be difficult to tell whether such changes have any more effect than painting the courthouse doors purple. Against this backdrop, Canada’s Chief Justice has engaged in a speaking tour to combat “misinformation and disinformation.” While recognizing that “it’s very difficult for people to have trust if they don’t understand something,” he has apparently failed to see the irony that the public fails to view lawlessness and dysfunction to be as “liberal and enlightened” as the High Court apparently does. Perhaps the Americans are onto something with judicial elections after all?