Public demands are growing
for more judicial accountability

They say time heals all wounds, but it’s not the case for the parent of a murdered child. Nevertheless, until this past April, Doug De Patie had somehow grown accustomed to the heartache, the anger and the sense of horror that entered his life in March 2005, when his son was killed. Coming to grips with the loss had been especially difficult because of the gruesome way in which Grant De Patie had died: after attempting to stop a joyriding 16-year-old boy from stealing $12.30 worth of gasoline from the Maple Ridge, B.C., service station where he worked, Grant, 24, was run over and dragged under the teen’s car for more than seven kilometres. Police were able to determine the exact path the car took by following a trail of blood along a series of roads criss-crossing B.C.’s Fraser Valley.

Perhaps it was the sense of mission embraced by Doug, a 45-year-old plumber from Surrey, B.C., that helped him keep the grief at bay. In the months following his son’s death, De Patie became a one-man lobby group, pressing successfully for regulations and policies to protect service station attendants and keeping a close eye on the adult-court proceedings of the teen, Darnell Pratt, charged in his son’s death. De Patie says he’s grudgingly accepted that Pratt was allowed to plead guilty to manslaughter and was sentenced last year to nine years in jail.

What he has not been able to abide, however – and what has brought to the surface all the old feelings of sorrow and loss – is the more recent decision of three B.C. Court of Appeal judges to reduce Pratt’s sentence. Citing the killer’s aboriginal background and youth, the judges trimmed two years from Pratt’s sentence. “I’m appalled, disgusted and embarrassed for Canadians,” De Patie said following the April 3 decision.

Three weeks later, as he sits nursing a coffee in a neighbourhood restaurant, De Patie explains his outrage is now fuelling a new mission: to reform the justice system to make it more accountable. And he has judges squarely in his sights. “I think that if the judges don’t want to change and start addressing the issues of holding people accountable and deterring crime in our communities, then we need to start electing judges,” he declares. “We need them either to make a change or we’ll bring someone in who’s willing to make a change.”

De Patie is far from alone in his desire to see the judiciary shaken up. In fact, a Strategic Counsel poll made public on April 9 found 63 per cent of 1,000 respondents in a national survey support the idea of electing judges. It’s an astonishing figure, given that the issue has never figured prominently on the public policy radar and, as one of the poll’s sponsors, the Globe and Mail , put it, “The legal community … has long … assumed that Canadians see the election of judges as a major drawback of the U.S. justice system.” (About 20 U.S. states hold elections for judges.) That nearly two-thirds of Canadians support the election of judges certainly suggests that, at some level, Canadians are far from confident in the job the judges are doing. Call it a vote of no confidence or call it a cry for reform; something’s clearly afoot.

The poll didn’t probe the reasons behind the respondents’ preference for elections, but there are several likely reasons, including the public’s negative reaction to the soft sentences judges hand down in cases such as De Patie’s, and the fact that, under the now-25-year-old Charter of Rights and Freedoms, judges have the power to overturn laws passed by legislatures and Parliament. It’s a power they’ve used in making controversial decisions involving abortion and the definition of marriage.

Judges such as Supreme Court of Canada Chief Justice Beverley McLachlin and now-retired Ontario chief justice Roy McMurtry have been increasingly outspoken and political in their public utterances about the law. Factor in this perceived arrogance and one can understand how the citizens of a country that supposedly prides itself on “peace, order and good government” can suddenly embrace the wild-and-wooly American idea of electing judges.

“The judicial system is out of control,” says reformer Vernon Beck of the Ontario-based Canada Court Watch organization, which focuses primarily on judicial accountability. “We have a judiciary that is still operating in the 1900s. Fortunately, the electronic age is overtaking this judiciary, to the point where they can no longer hide their dirty laundry. And the people are going to revolt.” Beck’s organization launched a campaign this spring to press, not for the election of judges, but for easier ways for the public to influence whether a judge should remain on the bench. Currently, only judges guilty of gross misconduct can be forced to step down.

Still, there’s little evidence of a widespread, organized drive for radical changes in the way the country manages its judiciary. There are, however, signs the public is demanding more accountability. A Calgary-based organization called the Canadian Constitution Foundation released a report in April, in which it closely analyzed Supreme Court of Canada judges’ attitudes towards individual and economic freedom. The group’s executive director, John Carpay, suggests nobody would have bothered with this sort of scrutiny before the charter was enacted in 1982. “But they are (bothering) now because more and more Canadians are aware of the fact that judges exercise considerable power over public policy, which they did not do prior to 1982,” Carpay says. “That’s simply a fact.”

The Edmonton-based Citizens Centre for Freedom and Democracy concurs. “People quite rightly expect to vote for their lawmakers, which is what the judges have made themselves,” chairman Link Byfield observes. He notes last fall’s Calgary Congress, organized by the centre, passed a resolution calling for “effective counterbalances” to be established “to prevent the courts from centralizing powers and expanding the meaning of Charter rights.”

The federal Conservative government has taken some baby steps in the area of judicial reform. It allowed a special parliamentary committee to publicly question Supreme Court of Canada nominee Marshall Rothstein in February 2006 and also added a police representative to the judicial advisory committees that recommend candidates for all other senior court vacancies, including federal courts and provincial superior and appeal courts.

The move drew a controversial rebuke from Chief Justice McLachlin, who wrote a letter to then-justice minister Vic Toews, calling on him to consult with the judiciary before forging ahead. Her intervention left one wondering how she could reconcile her view that judges should be above political interference with the blatant bit of political interference her own letter represented. McLachlin, who has famously defended her court’s right to write new laws, again blurred the lines between an independent judiciary and political activism in April, when she publicly dismissed allegations that the courts treat criminals with kid gloves. “I don’t think a convincing case can be made that we’re soft on crime,” she argued.

The top judge didn’t acknowledge it, but she was clearly aiming her comments at Prime Minister Stephen Harper, who told the House of Commons in February that he wanted to ensure new judges toe his government’s law-and-order line. “We are bringing forward laws to make sure that we crack down on crime, that we make our streets and communities safer,” Harper said. “We want to make sure our selection of judges is in correspondence with those objectives.”

The airing of differing opinions by two leading Canadians is not in itself unusual, of course. That it was the chief justice, however, taking it upon herself to spar, albeit at the remove of several weeks, with the prime minister, is unusual. As such, it quite naturally leads to the question: if judges are acting like politicians in both their Charter-driven decisions and their public utterances, then why shouldn’t they expect to be treated like politicians – and subject to more public accountability?

Given the Strategic Counsel poll, it’s apparently a popular idea with the masses, but the election of judges holds little water with experts. Peter Russell, professor emeritus of political science at the University of Toronto, says elections are neither practical nor feasible. He notes the experience in the U.S. is doubly troubling: too many poor judges end up on the bench and even those who are qualified are tainted by campaign contributions. Russell would prefer to see the federal government institute balanced advisory committees, much like most provinces have in place for the appointment of provincial court-level judges. As it stands now, though, the federal committees are too narrow and the prime minister has too much power in selecting judges. “It’s a dreadful situation,” he says.

Osgoode Hall law professor Allan Hutchinson agrees that radical changes are needed to make judges more accountable, but stops short of endorsing elections. “There’s not a lot you can do if you don’t like what they do when they are up there (on the bench),” he says, “and it’s not as if they are corrupt or anything like that. It’s just that we put them on a pedestal and that’s unhealthy in a democracy.” He argues that, because of the “enormous power” society has given judges, governments should, at the minimum, adopt a “more rigorous, vigorous” system to scrutinize potential appointees. “If they are not prepared to be asked questions in public (about where they stand on issues), we shouldn’t give them the enormous power that we have,” Hutchinson says.

Speaking on condition of anonymity, a highly placed official in the Prime Minister’s Office says there are no plans in the works to further broaden the judicial advisory committees or make them more accountable to the public. The official says the next opportunity to tweak the overall system won’t likely come until a new appointment to the Supreme Court of Canada is needed and “the next one isn’t for years, unless there’s an early (unexpected) vacancy.”

On the issue of retirement, it was a comment made by former Ontario chief justice McMurtry involving his looming retirement that provided critics of the judiciary with yet another piece of evidence to add to their dossier on judges’ improper political activism. McMurtry raised the eyebrows of some Ontarians, not to mention the ire of justice reformers, when he said publicly that Associate Chief Justice Dennis O’Connor should replace him atop Ontario’s highest court. Speaking to the Western Standard , McMurtry defended his pronouncement on the grounds that O’Connor was eminently qualified. “And I’ve heard from dozens of judges who have said that they’re glad, given all of these silly rumours (about other possible replacements),” he said. “So I have no regrets.”

But McMurtry’s statement can clearly be seen as political, because it has the potential to influence a political decision – the appointment of his successor. Nevertheless, the judge, a former provincial attorney-general himself, did not feel that judges are generally becoming more political. And he said he was “quite astonished” by the findings of the Strategic Counsel poll, describing the call for elections as “very, very unfortunate.” As far as he is concerned, judges have been acting responsibly.

That said, if Canadians want to see the courts made more accountable, they should simply call on provincial legislatures and Parliament to invoke the Charter’s “notwithstanding clause” with more regularity, McMurtry suggested. He argued that the clause (Section 33 of the Charter) gives a government the power to ignore Charter-based court rulings if it wants. This power, he believes, was quite rightly put into the Charter because of legitimate concerns that, without it, the document would allow the courts to trump the wishes of elected bodies. “I think that (is) an important mechanism which does not exist in the U.S.,” he said.

McMurtry made a good point, but given that politicians are reluctant to invoke the clause (indeed, during the 2005-06 federal election campaign, then-Liberal leader Paul Martin even suggested passing a law prohibiting its use), justice reformers say systemic changes must be made to make judges more accountable. Former Bloc Québécois MP Richard Marceau, who chaired a parliamentary sub-committee on appointments to the federal judiciary, points out that the committee’s November 2005 report contains a series of easily adoptable and widely supported recommendations to improve the judicial advisory committee system, including limiting the size of the list of candidates from which the government can choose judges. “No witness heard, or brief received, argued that Canada should continue with the status quo,” the report stated. “While prescriptions for reforming the system are varied, the feeling that some type of change was needed was universal.”

Indeed, the Strategic Counsel poll shows just how powerful and far-reaching these feelings are, just as Doug De Patie’s campaign shows how emotionally charged they can be. The people are speaking and the government would be wise to take notice.

This article was originally published in the May 21 Western Standard.