No wonder everyone wants elected judges

The best and brightest seem shocked that nearly two-thirds of Canadians favour electing judges. They would not be if they grasped that ideas matter. If you watched public affairs on a daily basis, it might be hard to convince yourself that ideas even exist. But as Bob Harvey quoted Queen’s University history professor Don Akenson in the Citizen’s Weekly a few years back, while people may have small ideas, “big ideas have people.” For instance if judges determine public policy, self-government requires us to elect judges.

In reporting the poll saying 63 per cent of Canadians now favour exactly that, the Globe and Mail sniffed: “The results may come as a surprise to the legal community, where it has long been assumed that Canadians see the election of judges as a major drawback of the U.S. justice system.” Perhaps they do. And not entirely without reason; a Republican member of the Ohio Supreme Court recently admitted that “I never felt so much like a hooker down by the bus station” as when running for judicial office. It doesn’t matter. If you have a U.S.-style constitution, eventually you will get most of its attributes, good or bad. And that’s what we’ve had for a quarter-century now.

That the people who crafted the 1982 Constitution and Charter of Rights did not intend to give us such a thing, nor realized they had, speaks badly of their intellectual acumen. It says nothing about our system of government.

It is true that Canada has had the theoretically problematic combination of a parliamentary system and a written constitution ever since 1867. But the BNA Act really infringed the sovereignty of our national Parliament only by putting the powers of provincial legislatures more or less beyond its reach. It was a reasonable attempt to give Canada a constitution “similar in principle” to the United Kingdom while furnishing a guarantee of the federal structure without which Confederation could not have proceeded.

With the coming of the Charter, that changed fundamentally. It doesn’t matter whether people formally recognize it or whether the 25th anniversary of the Charter of Rights occasions much learned gum-flapping of a singularly irrelevant nature. Once we had a constitution that allowed judges to second-guess legislatures on policy, it was inevitable that judges should become more powerful. And once they did, it was inevitable that the public should want a say in who sat on the bench. Self-government demands it.

In the old days all judges could do was tell federal or provincial politicians to let the other bunch settle some question. Now they can abolish marriage, free terrorists, bestow strange new fishing rights on aboriginals and then snatch them back, give us extra parents and who knows what all. And since in the words of University of Texas philosopher J. Budziszewski, people are “logical slowly,” they have slowly but surely come to demand control over those who wield such awesome powers.

Many judges oppose it in the same instinctive sort of way. It doesn’t have to be consciously articulated; it’s the deep inner logic of our institutions. A functioning system of self-government places irritating daily restraints on the presumption of the great and the good which, naturally, they make continual small efforts to shake off. Last week the Globe noted delicately that Ontario Chief Justice Roy McMurtry had taken “the highly unusual step of endorsing a candidate to replace him upon his retirement next month.” The instinct of a ruling elite to control its own membership is understandable, indeed natural. Which is precisely why the constitution of liberty does not permit it.

The Globe also reported that “Chief Justice McMurtry said that if Canadian judges felt compelled to impose popular verdicts and sentences to ensure their re-election, ‘it could really destroy the very best traditions of an independent judiciary. I think it would be a tragic initiative for the administration of justice.’“ His disdain for the notion that judges should be induced to make rulings of which the public approved says more than a shelf full of volumes of political economy.

That’s why another poll, reported in Wednesday’s Citizen, found that 68 per cent of respondents favoured keeping the Charter’s notwithstanding clause. Jack Jedwab, executive director of the Association for Canadian Studies that co-sponsored the poll, said, “I was surprised because there’s a sort of stigma attached to the notwithstanding clause, or so we think.” Who’s “we”? The notwithstanding clause guarantees that MPs the people elect can still, in many areas, override judges they don’t elect. It is, again, an instinct to preserve self-government.

If judges rule us, we want to choose them. You get the idea.

[First published in the Ottawa Citizen]