Are we prepared to engage in a vigorous debate about the fundamentals of our justice system, about eschewing the appointment of judges and considering an elected judiciary, in rethinking the way we do justice? A 2007 Canadian poll revealed that 63 per cent of Canadians were in favour of elected judges.
Our appointed judges are forced to wade into highly politicized issues like abortion, euthanasia, polygamy, and the decriminalization of marijuana as litigants challenge the constitutionality of such laws under the Charter of Rights and Freedoms.
Today’s judges are making decisions that should be the domain of our elected representatives. Do we want a judge in British Columbia rewriting our 121-year-old law banning polygamy? Should an Ontario judge be responsible for the decriminalization of cannabis?
An elected bench would be democratically accountable to the public. Presently the only censure against a trial judge is the Court of Appeal or the Canadian Judicial Council, both institutions that shut out the public. If judges were elected they would undoubtedly be more sensitive to the pulse of the general public and less likely to cling to the ideology of their elite educations.
Elected judges would introduce a transparency to the now-cloistered ritual of judicial appointments, a practice that has been enshrined in Canadian legal history for too long.
The election of judges would also raise the public’s awareness of the importance of the judiciary and its role in society. Citizens who elect their judges may have more confidence in their judges, based on elevated levels of scrutiny from the public and the media. Certainly there would be a greater perception of public legitimacy.
On the other hand, critics of an elected judiciary refer to the “tyranny of the majority” and the possibility of corruption, including the merchandising of votes. A counter to this fear is the glare of the media spotlight that is clearly absent in the appointment of judges.
Japan has achieved a compromise worthy of investigation. In sweeping reforms to its criminal justice system, Japan has adopted a program of elected professional judges and lay judges.
This new model of adjudication consists of three professional full-time judges sitting with six citizen judges who participate as equals in the fact-finding and sentencing of criminals. Three back-up lay judges are also seated in case one or more of the lay judges is unable to continue. Citizen judges are chosen in a manner similar to the selection of Canadian jurors.
Japan has no jury system, so the introduction of the people’s views is an important step to lend credibility to its criminal justice system. While Canada has a tradition of jury trials, the reality is that civil jury trials have priced themselves into extinction and judges without juries hear 90 per cent of Canada’s criminal cases.
Citizen judges are only used in the most serious cases like murder, robbery and other offences that involve death or severe injury. The trials are streamlined so evidence may be heard in a much shorter time.
With extensive cooperation prior to trial between the prosecution and the defence, only the contentious issues are heard. One of the biggest complaints about criminal trials in Canada is the long delay to get them started and the enormous court time required to complete them. A political corruption trial in British Columbia that began with a raid on the legislature ended with a guilty plea after almost eight years in court. The final chapter of this saga saw the taxpayers of British Columbia saddled with the accuseds’ $6 million legal bill.
In a recent Japanese case a panel of nine judges, including six lay judges, convicted and sentenced the driver of a vehicle whose dangerous driving resulted in the death of two innocent victims.
More surprisingly, the panel also convicted the driver’s two passengers for aiding and abetting, by permitting him to drive while in a state of intoxication. The driver received 16 years in prison while the passengers received two years each, although the public prosecutor was asking for eight years.
A preliminary assessment of the effect of lay judges reveals they pronounce more severe sentences on sex offenders, grant probation periods for suspended sentences more often than professional judges alone did, and have garnered fewer appeals of their decisions.
We can create a made-in-Canada justice system to restore pride and trust in our courts.
Lawdiva aka Georgialee Lang