Now, the divide between the accused and everyone else didn't mean that justice wasn't done -- in fact I felt it was done -- but from the perspective of a young black man it is easy to see how objectively impartial justice could seem to be an 'us and them' game.
An old legal maxim says justice must not only be done but must be seen to be done. For that to happen the judiciary must, to some degree at least, reflect the people who appear before it. Judges must be a part of the community they judge. A judiciary alien to the people judged by it cannot help but appear insensitive to the reality of life as experienced by ordinary litigants. This fact is long part of Canadian law: the concept of a jury is to ensure that everyone is tried by their peers, that is ordinary people who understand the facts of everyday life.
In Canada Superior Court judges are appointed by the federal government following a somewhat opaque process. Candidates for the judiciary are vetted by an independent committee but once approved the selection of judges is at the discretion of the government. The reasoning why a particular judge was appointed is completely unknown.
In theory, the personal characteristics of judges are irrelevant. The court system is supposed to operate "outside of politics," reaching decisions by weighing the law and the evidence while leaving political issues in the hands of democratically elected officials. In theory confidence in a judge should not depend on race, creed or gender -- a judge is merely an umpire applying fixed rules to specific cases. The reality is something else altogether.
The law is seldom definitive; almost every case has a range of legally justifiable decisions. Judges inevitably make decisions that have political colouring and so the choice of who will be a judge is not trivial. In recent years judges have dealt with gay marriage, the ability of Quebec to separate, drug treatment centres and many other matters affecting Canadians in their daily lives. The life experience of a judge will inevitably impact on the decisions made. Since judges are appointed to sit until age 75 a judge appointed today may well be judging cases in 2046.
Judicial decisions are accepted because of the confidence of the public in the system. The judicial system works precisely because the public continues to grant it legitimacy. In recent years polls have shown 78% of Canadians trust judges to make decisions; yet the nature of judicial appointment does cause some unease. Polls suggest 63% of Canadians support the election of judges.
Electing judges is problematic -- while judges make important societal decisions the confidence the public reposes in judges is largely based on judges being above petty politics
The need to maintain respect for the judiciary is why a recognition of diversity in appointment is critical. While law schools now have (slightly) more women than men, and the bar is more or less gender balanced, recently federal appointments to the bench have been markedly not gender balanced. This year only eight women have appointed to the federal judiciary this year, compared to forty-one men. There is no doubt the men appointed are qualified; but is there any question that more qualified women could be found? Statistics on appointment of ethnic minorities to the federal bench are harder to find, but there is little doubt that the appointment of ethnic minority judges lags far behind their population. Again, the judges appointed are qualified but is it so difficult to find, say, competent Asian jurists? The issue of bilingual judges on the Supreme Court raises the same question -- are those judged being judged by those who truly understand the reality of those before them?
5 comments:
It is telling that you focus on the race and gender of judges rather than the political affiliation of judges. (They are for the most part members of political parties beforehand)
In my opinion the political leanings of judges has more of an impact on the decisions they make on SSM, drug clinics, and Quebec succession etc. then their gender or skin colour.
Thoughtful. There is still much more to do, and focusing on how many women sit as judges doesn't do justice to the rest of what you wrote.
I remember sitting in a Provincial courtroom waiting area and overhearing some of the young people talking to each other, and I'm old and crusty and I know when someone is telling the truth and when they are scamming.
The stories I heard were from their heart. That will forever remain a part of what I know is real.
So very much more to do.
You lament the rarity of Asian judges as an example to make your point. What about native judges? Where are they? You say the jury system offsets potential problems arising when privileged white judge who know squat about the everday life of Canada's indigneous people pretend otherwise. For all your talk about the jury system - natives don't get "tried by their peers". Yet a while back the fact that jury compostion all too often completely exclude natives (in cases when natives are on trial) isn't a problem that concerns you. You said you were confident they would recieve just verdicts even though the whites on the jury know squat about everyday life of natives. I'm confused - how/where do Canada's natives fit into your polemic? But isn't that always the problem with polemics - they quickly fall apart when juxataposed against the messy particulars of everday reality for natives in our courts.
"Judges must be a part of the community they judge. A judiciary alien to the people judged by it cannot help but appear insensitive to the reality of life as experienced by ordinary litigants. This fact is long part of Canadian law: the concept of a jury is to ensure that everyone is tried by their peers, that is ordinary people who understand the facts of everyday life."
One more point. Jurors must have a good grasp of the English language (assuming it is a trial in English,of course). This understanding must go beyond the verbal but also to the written word.
In a multiculturalist society where immigrants are only "encouraged" to learn our language it becomes clear that even after years of living here many cannot sit in a jury because of their language skills.
I agree totally regarding First Nations judges. As for partisan politics -- get an impartial appointment process and the issue disappears.
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