Thursday, February 15, 2007

Stacking the courts un-Canadian

Stephen Harper admitted yesterday he wants to "stack the courts" so as to ensure judges implement his law and order agenda.

That's all well and good, but there are ways to do this other than by tilting a process that has served this country well for decades, a system that ensures only the most well qualified lawyers are called to the bench. One may argue that judges are "too soft," but the reality is that for some crimes the sentences are too lenient and the bandwidth between minimum and maximum sentences too wide.

For example, one can introduce sentencing guidelines that would comply with the Charter's prohibition against cruel and unusual punishment while at the same time ensuring the general consensus there should be both a deterrent against and retribution for crimes committed against society. There's no need to try to "stack the courts." If one did this, as the Cons are proposing, then there would be inconsistency as to sentencing. It would be the luck of the draw whether a suspect was assigned to a court with a "liberal" or a "conservative" judge. Appeals courts, quite rightly, would have to call Harper's bluff and say similar circumstances should call for similar sentences.

Another thing the feds can do is to make sure law enforcement officials have the proper funds to actually do their job. While there is a uniform criminal law in Canada, enforcement is done by the provinces and territories and it's local taxpayers that bear the brunt whenever police ask for salary increases. We can certainly talk about fixing the "fiscal imbalance" at all levels, including ensuring local authorities can raise funds other than by property taxes and user fees. (Consider many US cities which lower their property tax burden, by putting an emphasis on traffic tickets for out-of-townees as well as a hotel tax -- neither of which are available for Canadian municipalities.)

But we can start by having targeted transfers from the federal level to hire more cops so they can look after all crime and not just attempt to make "priorities" as to what is a serious crime and what isn't; as well as ensuring the funds will be there to deal with what would be an increased prison population. We need to be careful here, too: Our incarceration rate is about a third of the American one and many US states are teetering on financial ruin because of overcrowded joints.

Finally, it would be nice to see the government try to address what underlies the perceived problem, rather than just throw a brick at it. That applies to all parties, by the way. Saying one will either be "tough on crime" or "tough on the causes of crime" is insufficient -- we must do both.

Courts are supposed to be independent arbitrators, not political footballs. Things were fine with the old selection process and no matter who is in power judges should be free to peruse and pursue the independence for which they were selected. To interfere with that is an American value, not a Canadian one. It's time for Harper to decide whether he is a Canadian or if he wants Canada to be the 51st through 60th states.

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canuckistanian said...

actually the system did not ensure that "only the most well qualified lawyers are called to the bench". that was a flaw in the old system that allowed lawyers deemed "qualified" and "very qualified" to get appointed. the bar association has been calling for only "very qualified" candidates to be appointed. too bad the New gov't TM has decided to dilute it even further to a simple pass/fail.

Canadian Tar Heel said...

Hi BF,

I was with you until the last paragraph.

What do you mean by the following statement?:

Things were fine with the old selection process and no matter who is in power judges should be free to peruse and pursue the independence for which they were selected. To interfere with that is an American value, not a Canadian one.

(1) Which "old" system and what about it worked? Because I might have a bit to say.

(2) To interfere with what is an American value not shared in Canada? I might have a bit more to say about this part than the first.

BlastFurnace said...

These haven't been a good last few days for me folks, and I've been really cranky and slightly less rational than usual.

That being said, my points were simply these:

One, the system of review that has been used for at least the last couple of decades has worked. It's not perfect, but at least the vast majority of judges who are selected are competent.

Two, the selection boards have until now been set up so as to remove political interference. Add in people who have a vested interest to get a predetermined result (e.g. someone who has connections to law enforcemnt) and you move towards a US style system. The next logical step would be to have elected judges and then impartiality goes out the window all together.

Canadian Tar Heel said...

Hi BF,

Thanks for clarifying.

Point 2 - I think your remarks about the "American system" reflect a superficial view. Please do not get me wrong; I'm not trying to be provocative or argumentative.

There are numerous judicial selection processes in the US, both at the federal and state level. And Canada has actually taken quite a bit from some American models. For example, the judicial selection committees actually are a variant of the Missouri system. Moreover, the Georgian merit system has served as a point of reference.

I find that when fellow Canadians speak of the problems in American judicial selection they usually are referring to Illinois, Texas and the SCOTUS processes. The SCOTUS process actually employs the US Senate as a safeguard against the US President appointing ideological or partisan judges. However, the process is so open that Senators often pander to the cameras instead of doing their job. Illinois and Texas have elections that one normally thinks of. But please note that other states have elections of a very different nature. For example, the Governor may appoint a judge based on a merit system and then after six years there would be a general election of confidence - vote yes or no. At least this is the way I understand it.