Evaluating Federally Appointed Judges in Canada: Analyzing the Controversy

This commentary describes our experiences in trying to undertake a judicial performance evaluation of federally appointed judges in Canada. Some respondents were enthusiastic about the project, but others were strongly opposed to it and worried about the effects that our survey would have on judicial independence. After describing the feedback that we received and the fallout from our project, we examine the relationship between judicial performance evaluation and judicial independence. We argue that a well-conceived judicial performance evaluation does not violate judicial independence. We then explore the resistance to judicial performance evaluation in Canada, using a comparative lens. The explanation for this opposition, it seems, lies partly in the broader socio-political context found in common law jurisdictions with parliamentary systems of government and no judicial elections. In our view, opposition to outside academic inquiry from strong elements within the Canadian legal community also forms part of the answer

Does Patronage Matter? Connecting Influences on Judicial Appointments with Judicial Decision Making

The federal government\u27s power to appoint judges has come under increased scrutiny in recent years. While many suggest that partisan affiliation, gender and professional background may be influencing the Canadian appointment process, and some have called into question the fairness of such influences, little attention has been directed at determining whether these characteristics influence the outcome of cases. This paper studies decisions made by the Ontario Court of Appeal between 1990 and 2003 and uses a unique measure of partisan affiliation in an attempt to answer the question: do characteristics which play a role in the appointment process influence judicial decision makin

Exploring the Links Between Party and Appointment: Canadian Federal Judicial Appointments from 1989 to 2003

Studies of federal judicial appointments made before 1988 discovered significant partisan ties between judicial appointees and the governments appointing them. In 1988, in response to criticism of these “patronage appointments,” the Mulroney government introduced screening committees to the process. This article explores the impact of these committees. Using information gained from surveys of legal elites, we trace the minor and major political connections of federal judicial appointees from 1989 to 2003 in order to determine whether patronage has continued despite the reform to the process. We discover that political connections continued to play an important role in who was selected for a judicial appointment. However, these connections were not quite as common as those found before 1988, and the new process does appear to have prevented the politically motivated appointment of completely unqualified candidates. Interestingly, our findings also suggest that the impact of patronage varies by region and interacts with other, newer influences, in particular, concerns for group representation on the bench. The paper concludes by briefly discussing these results in the context of the relationship between judicial selection and politics with a comparative perspective

Unreasonable Disagreement?: Judicial–Executive Exchanges about Charter Reasonableness in the Harper Era

Assessments of “reasonableness” are central to adjudicating claims under several Charter rights and the section 1 “reasonable limits” clause. By comparing Supreme Court of Canada rulings to facta submitted by the Attorney General of Canada to the Court, this article examines the federal government’s success under Prime Minister Harper at persuading the Supreme Court of Canada that its Charter infringements in the area of criminal justice policy are reasonable, and when they fail to do so, on what grounds. The evidence reveals that the Conservative government adopted a consistently defensive posture in court, never conceding that a law was unreasonable, and that this government was almost never able to defend an impugned criminal justice law under section 1. While several of those losses concerned pre-Harper era laws, the Court did reject several Conservative criminal justice policies, most notably some mandatory minimum sentencing laws. The article’s novel systematic analysis also shows that the Court sometimes rejected the federal government’s characterization of the legislative objective

Litigating pan-Canadianism: the constitutional litigation strategy of the Canadian federal government in charter cases, 1982-1993

Bibliography: p. 142-148

Appealing to higher authority : explaining the Federal Government's appeals to the Supreme Court of Canada in charter cases

The adoption of the Charter of Rights and Freedoms has increased the policy importance of litigation, and, accordingly, of those government lawyers who handle such litigation. In particular, policies and laws may stand or fall based on whether the government appeals its losses in the lower courts to the Supreme Court of Canada. This dissertation seeks to determine whether the federal government's appeal decisions are based on a rational weighing of multiple factors related to costs, case importance, and the prospect of securing access to, and victory in, the Supreme Court. This first requires ascertaining the locus of litigating authority and the decision making process within the government. Surveys and personal interviews of government counsel reveal that the Department of Justice Canada, which holds a near-monopoly over Ottawa's litigation, combines decentralisation by region and policy area in the conduct of litigation with a centralised appeal decision making process. Quantitative and qualitative analyses of the government's lower court losses and Supreme Court appeals confirm the dissertation's central assumption that the federal government's appeals are calculated choices, with case importance, avoiding losses on appeal, and protecting governmental authority emerging as the strongest motivations. Further, the dissertation situates these findings in the context of the contemporary "dialogue" debate, providing the first systematic analysis of government dialogue with lower appeal courts, and incorporating the concept of appeals as a form of dialogue. The study finds a significant degree of dialogue between the federal government and the lower courts, especially following highly activist judicial rulings. This is consistent with findings from the preceding sections, that Justice Department lawyers actively defend the government's policy-making authority