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The process of choosing a judge in Canada does not involve campaigning and election tactics like in other countries such as the United States. However, candidates are appointed after being subjected to rigorous and lengthy vetting procedures. This position requires all candidates to be or to have been lawyers, regardless of the court level, and have an experience of at least five years. Contrary to the election of judges, lawyers who have more than ten years of experience preside over the appointment process. Moreover, the selection of judges is conducted either provincially or federally by representatives at the court level following a universal process. Based on the two approaches to judge selection in Canada, this paper will discuss whether they should be appointed or elected.
Judicial Electoral System
According to a legislative research carried out in Canada a few years ago, the election of judges provides a platform where citizens have a voice in the selection process (Savchak 379). The procedure follows two approaches which include selection via contest election and community retention of the appointed judges. In either way, if the judge is a problem in the community, the citizens have powers to remove him/her from the position (Driscoll and Nelson 116). The eviction of a judge depends on specific wrongdoings or an action from other branches of the government within the state.
Secondly, the electoral process promotes a more dynamic and responsive judiciary. Based on statistical analysis, the reappointment or life tenure of judges is determined by other branches of the government. Such systems, regularly, result in a stagnant or a long-serving judiciary (Redish and Aronoff 206). Therefore, electing judges that the community trusts will most likely bring about change in the judiciary. As a result, a more responsive tribunal whereby the elected judge is held accountable, and the problematic judge is retained is encouraged.
Contrarily to the advantages, elective or retaining judges system creates a judiciary that concretely beholds the whim of the political and citizens’ interests rather than the law (Driscoll and Nelson 116). Judges are supposed to make difficult decisions concerning the application of the Canadian without the communities’ criticism and fear of the political reprisal if the specified decision is unpopular. If a judge is subjected to a retention or re-election, then there is a high possibility for him/her to make a non-law based decisions that favor his next election (Redish and Aronoff 202). Judicial election critics suggest that such situation disrupts the roles of the court and makes it impartial and unfair. This one negative is cited concerning the systems where judges stand to contest for an election, both non-partisan and partisan.
A contested election requires a judge to spend some time to raise and campaign. Seemingly, the two activities are at odds with the impartiality of the courts. To combat this situation, the communities or states that are holding judicial contests should have strict rules and regulations in their conduct codes (Way 45). Nevertheless, even the adherence to these rules does not eliminate the pressing political issues of campaigning and raising money.
The problem is worse in the jurisdictions that hold partisan judicial election rather than non-partisan. In the partisan politics, it is scarce for a judge, if they have to run as the party members, to remain insulted by their party policies (Way 45; Redish and Aronoff 203). Nonetheless, local partisan politics often feature on the national trends. The judge’s partisan election critics argue that good adjudicators that are not among the popular party members at the moment may find it difficult to win the re-election, while popular candidates may win seats that they are not or less qualified (Way 43). This foundation means that partisan determination of judges leads to the re-election or election of judges based on the affiliation of the party rather than the candidates’ qualification.
States that determine adjudicators by the retention method make an attempt at mitigating the liabilities of both the appointment and election systems by reinforcing their perceived strengths while reducing some of the problems (Way 65). The retention system includes a qualification-based appointment system for a judicial selection; thereby eliminating the uncertainty and politics of judicial selection through the contest. The judges then have at least one retention election to stand as the community gets the opportunity to remove the problematic judges simultaneously while preventing undesirable judges from re-election (Redish and Aronoff 220). Lately, coordinated and well-funded campaigns against judge retention have lessened the advantages of the selection criteria.
Judicial Appointment System
The primary role of judicial appointment is to ensure that the power and integrity granted to the court judge is protected against an executive branch or unwanted legislative interference (Redish and Aronoff 201). Therefore, the implicit functions of the Supreme Court and express separation are upheld from other governmental branches. In extremely politicized environments, presidents select the court justice who favors their concerns. Sometimes, the selected adjudicators prove different than they appeared during their appointment (Redish and Aronoff 203). Therefore, the judicial appointment ensures that the court justice against such retributions made to ensure a smooth and effective ruling has been made according to the law.
Critics on appointing judges also suggest that the court culture moves towards a politicized and legislative function that is less problematic. Moreover, the selection of juries is not limited to the pressing political concerns (Savchak 379). In this regard, judges are eligible for making concrete and difficult decisions that has either a good or lousy impact on the political stakeholders without any fear of the electoral processes. The judges also have enough time to think and work on law enforcement rather than carrying out campaigns and fundraising sessions.
As aforementioned, the appointing process involves the satisfaction of certain merits such as having practiced law for over ten years among other factors (Savchak 378). This criterion ensures that the judges selected in the jurisdiction meet all the qualifications and experience required to run the office.
Despite the advantages, the appointment of the judges has its setbacks too. The most well-known drawback is that the appointment process is not democratic. For instance, it does not allow the community members to choose the judge of their choice (Savchak 378). Furthermore, the selection procedure can be very corrupt since most top officials often have influence on the appointment of judges who favor their interests.
Based on the above discussion, it is clear that both selection approaches have their advantages and disadvantages. In my opinion, since a judge decides and determines the sentence that a victim deserves, it is better to appoint than elect them. The appointment method gives them a definitive power to make proper court rulings.
Driscoll, Amanda, and Michael Nelson. “Judicial Selection and the Democratization of Justice.” Journal of Law and Courts, vol. 3, no. 1, 2015, pp. 115-148
Redish, Martin, and Jennifer Aronoff. “The Real Constitutional Problem with State Judicial Selection: Due Process Judicial Retention and the Dangers of Popular Constitutionalism.” SSRN Electronic Journal, vol. 30, no. 16, 2014, pp. 201-225.
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Savchak, Elisha Carol. “From Bench to Bench: is Prior Judicial Experience Favored by Certain Judicial Selection Methods?” Justice System Journal, vol. 36, no. 4, 2015, pp. 378-394.
Way, Rosemary Cairns. “Deliberate Disregard: Judicial Appointments under the Harper Government.” The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference, vol. 67, no 2, 2014, pp. 43-71.