Every once in a while, a big legal case takes over the press. Murder, corruption, shareholder disputes, and Canadians stuck abroad eventually come before our courts. And when judges hand down their decisions, some people take issue with the outcome of the case. A common protest, especially among non-lawyers, is that the judges are unelected. How can the judge find that bus killer not criminally responsible? He is unelected! Or something like that.
If we take critics of the current judicial appointment system at face value, electing judges will ensure justice better. Presumably, it will work because judges will reflect values held by the majority. In the exercise of their discretion, judges will be more likely to apply those values and standards instead of principles alien to the majority of people. Access to justice, therefore, will increase because more cases will be decided justly.
According to Merriam-Webster, justice is the “maintenance or administration of what is just especially by the impartial adjustment of conflicting claims or the assignment of merited rewards or punishments.†The law determines what is just, but sometimes a judge must use his or her discretion. In many cases, the law is ambiguous. A judge then has to choose one interpretation of the law. With so much discretion, the impartiality mentioned in the dictionary definition is crucial to justice.
If justice requires impartiality, no justice is possible without judicial independence. If somebody can influence a judge, a bias is possible, and the judge is not impartial any more. A simple example is bribing the court, and a more complex one is paying the court’s salary. The courts should be independent from any party including the government or its agents. A more interesting question is whether the courts should be independent from the Parliament, provincial legislatures, and even the opinion of the majority of Canadians.
(to be continued)
