Sunday, June 17, 2012

How to convince the judges not to disrobe!

Spare no expense. Give them the best.

http://fullcomment.nationalpost.com/2012/03/06/jacob-ziegel-how-to-choose-the-best-judges/

The article is worth reading too, especially the last paragraph.

..... Dispatch from Vancouver

Good Day Readers:

A special thank you to vastly overpaid and under worked Vancouver Co-Legal Affairs Critic/Analyst Chris Budgell for the insightful heads up. And yes, we've emphasized (bold) the last paragraph.

Sincerely,
Clare L. Pieuk

Jacob Ziegel: How to choose the best judges
Tuesday, March 6, 2012
By Jacob Ziegel
In England, candidates must serve as deputy judges before being appointed to the High Court. (Adrian Dennis/AFP Getty Images)

Toronto-based Ontario Criminal Court of Justice Judge John Ritchie has frequently been the subject of complaints because of alleged prosecutorial bias and nonexplanatory convictions that have often led to reversals on appeal. The complaints involving Judge Ritchie raise two basic questions about the administration of justice in Canada: How do we ensure that only the best qualified candidates are appointed to the bench? And the how do we remedy a mistake if a judicial appointee does not live up to expectations?

In Canada, the federal government is responsible for the appointment of all judges to the provincial superior courts and courts of appeal as well as the members of the Federal Court and the Supreme Court of Canada.

The provincial governments have exclusive responsibility for appointments to the lower provincial courts.

The key to appointing the best qualified judges is the use of fully independent appointments committees that make their selections or recommendations free of political interference. From this perspective, Ontario’s provincial judicial appointments system scores much better than the federal system, which is still heavily tainted by political partisanship and conspicuously lacking in transparency.

Nevertheless, as Judge Ritchie’s appointment shows, Ontario’s system is not infallible and a candidate may turn out to be a keen disappointment. So how do we correct such mistakes? Outside the judicial sphere, the answer is fairly straightforward. The unsatisfactory appointee may be discharged if he has committed a serious breach of his duties or has failed to live up to expectations. Alternatively, the appointee may be transferred to another position calling for different qualities or a lower level of performance.

None of these options are open in the judicial sphere. At the federal level, Section 99 of the Canadian Constitution provides that a superior court judge can only be removed by the Governor-General on address of the Senate and House of Commons. Section 99 is supplemented by the legislation establishing the Canadian Judicial Council and empowering the Council to receive complaints about federally appointed judges and, where serious misconduct is proven, to recommend removal of the judge by Parliament. The investigation of complaints involves long and tortuous proceedings so very few superior court judges have been stripped of their office by these means.

The provincial procedures for addressing complaints about misconduct and incompetence by provincially appointed judges are also complex and time consuming and therefore lead to equally few removals of offending or underperforming judges.

There is a better solution. In England, the long established tradition is that no member of the bar will be appointed to the High Court of Justice unless the candidate has first served as a deputy judge on the civil side of the High Court over a number of years or has served as a deputy recorder on the criminal side in one of England’s many counties or large cities. A similar de facto probationary system has now been in force in England for a substantial number of years at the lower court levels for district court judges by first requiring them to serve for two years or more as deputy district judges.

These multipurpose systems are carefully monitored by the newly formed Judicial Appointments Commission for England and Wales and greatly influence the Commission’s recommendations in the appointment of tenured judges at the High Court of Justice and lower court levels.

Over the years suggestions have been made to adopt a similar probationary system for judicial appointments in Canada, but they have usually been summarily dismissed on one of two grounds. The first is that a probationary judge, anxious to curry favour with the establishment and to ensure a permanent appointment, will decide cases in favour of the Crown or other appointing agency. The second ground is that well qualified candidates will be unwilling to surrender a successful practice on the off chance that a probationary appointment may lead to a tenured appointment.

Both objections are ill founded and misunderstand the British system. The British system is not inherently or exclusively a probationary system but serves multiple purposes. It is a system of part-time appointments for limited periods; the appointee is not required to serve beyond the agreed period and a candidate who wishes to be considered for a permanent appointment is required to file an application just like all other applicants.

Limited term and probationary appointments have long been the rule at Canadian universities, including Canadian law schools. The system has worked very well there and there is no reason why it could not be made to work equally well at the judicial level.

The existing system of judicial appointments in Canada is riddled with anomalies, fails to adopt the safeguards that any competent private employer would embrace, and almost ensures that there will be tragic failures — all at the public’s expense, and without any compensating benefits for judicial independence.

Jacob Ziegel is professor of law emeritus, University of Toronto.

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