The Court, the premier blog about the Supreme Court of Canada, is spitting mad. Contributor David Cheifetz complains about a Globe & Mail poll that finds Canadians trust judges more than Members of Parliament, but nevertheless want to elect judges. His frustration with the implicit contradiction is cross-posted to Slaw, where he rails against the stupidity of
the Canadian public the poll’s results:
Did it strike any of the thousand in both majorities that perhaps, just perhaps, the reason they trust judges more than politicians is precisely because that judges ARE NOT elected?
Probably not. I suspect there is a simple explanation. Canadians have more reason to mistrust politicians than they do judges. In this, I second my former professor of criminal law, Sanjeev Anand, whose view is cited by the Globe & Mail.
[T]he fact that the public trusts Supreme Court judges more than MPs may be more a reflection of how poorly politicians are generally viewed in society, rather than being a particularly well-informed opinion about the work done by the judiciary.
As for Canadians’ blissful ignorance of what we’ll call Cheifetz’s dichotomy, I suspect there is a simple assumption at work. We associate elections with democratic principles of justice, and think them to be the best process by which to select people for public service. Political appointments, on the other hand, are associated with patronage and corruption. (For historical reasons why judges are elected in the United States, pop over to PBS Frontline’s Justice for Sale.)
It would be an interesting social experiment to see if public trust in judges would diminish were the judiciary to become elected. Doing so might offer some insight into how a voter’s sense of control over outcomes facilitates trust, and the cognitive processes associated with perceptions of justice. It would, however, be grossly unwise to turn the justice system into a popularity contest for the sake of an experiment… wouldn’t it?
The Globe and Mail’s series of articles is being written by Kirk Makin. Kudos to him for doing this. It is an approachable survey of the law and its place in Canadian society, using ‘factoids’.
- Supreme Court cautious about dictating government spending – Describes a strange trend whereby the government can violate rights as long as compensating for infractions would be very expensive.
- It ‘fundamentally’ changed the justice system… – The influence of the Charter on jurisprudence, especially in criminal law.
- The most important Charter cases – Familiar to any law student, there is a striking consensus among the three legal experts about the cases which have most influenced Charter law.
- Judges garner greater trust than politicians, survey finds – Reports on the unsurprising results of the poll.
On that latter, I find it interesting that so many Canadians believe citizens should have rights to property.
73 per cent of the respondents support the notion of having the right to own and protect property enshrined in the Charter of Rights and Freedoms.
For those outside of Canada, the Charter is a constitutional document which protects a list of rights and freedoms from government intervention. Unlike the largely ineffective Canadian Bill of Rights, the Charter does not recognize property rights. If it did, anti-poverty advocates would have a field day.
One last point. Since the adoption of the Charter in 1982, its interpretation has resulted in controversial decisions by judges. Their jurisprudence can be found at CANLII’s superb Canadian Charter of Rights Decisions Digest, but citizens rarely consult the judges reasons for their decisions. Instead, there are usually uninformed calls to invoke the Charter’s notwithstanding clause, which allows governments to override some Charter protections.
In law school, students are taught politicians avoid doing this because they fear political backlash. According to the poll, however, only 45% would be upset if the clause was used to trump citizens’ rights. 41% wouldn’t mind. Will the poll encourage legislators to use the notwithstanding clause? If so, the tyranny of the majority will sneak in through the back door.
Edit: For my response to David Cheifetz, see my more recent post.