Here’s a novel idea: appoint judges on merit

Premier Charest is suing his former Justice Minister Marc Bellemare for libel over allegations that financial contributions to the Quebec Liberal Party played a role in the appointment of three judges, an allegation that is hotly disputed by the Premier. Retired Supreme Court Justice Michel Basterache will head a public inquiry into the matter and file his report by October 15.

While this is going on, private member Bill C-232 passed the House and is now before the Senate. Sponsor Yvon Godin, an NDP member from New Brunswick wants to ensure that only fluently bilingual candidates will be appointed to the Supreme Court of Canada. There are already geographic disqualifications for appointment, resulting from the tradition of ensuring there are three representatives from Quebec and three from Ontario, with single seat allotments to the Maritimes, British Columbia, and the Prairies. The proposed language bar will eliminate from consideration perhaps the best man or woman for the job.

Sooner or later some well-meaning person will suggest the American style election of state judges, without regard to conflicts of interests that may arise when judges have the power to choose who gets work or not by the court appointed counsel system. Judges are human, and will remember which lawyer donated generously to his or her campaign to get elected, and which lawyer defended a client with such zeal (read too much time and trouble) so that the judge will think twice about giving that attorney any more assignments.

Here's a novel Canadian idea: appoint judges based on merit: ability, integrity, affability, training, advanced graduate legal education and litigation experience.

An automatic disqualification is given to any candidate who joins any political party or gives contributions to political parties.

Bilingualism and geographical origin is completely irrelevant and disallowed as a ground for elimination.

Here is a model to follow: to be a judicial candidate at the trial court level, a lawyer must practice as a litigator for at least 10 years and be lead counsel in a minimum of 50 cases, 15 of which must be jury trials.

Then the lawyer must apply and be accepted into a new accredited graduate law school designed exclusively for future Canadian judges. To pass, the lawyer must graduate with a minimum grade of B in every subject.

Mandatory courses would include the rule of law, independence of the judiciary, comparative constitutional law, natural law, positive law, history of law, conflicts of law, clear legal writing, jury psychology, jury instructions, judicial ethics, statutory interpretation, and advanced constitutional law theory. The faculty would be retired judges and law professors with doctorate degrees. Scholarships would be awarded to any student based upon need. Upon successful completion of this Masters level degree, the graduate will be placed on an eligibility list for appointment as a trial judge.

Those who wish to be considered for appointment to the court of appeal or the Supreme Court of Canada must serve as a trial judge for at least 10 years, and then be admitted to the doctorate program at the law school for judges. While continuing to serve as a trial court judge, a doctoral student will have three years to complete and defend a dissertation. To graduate with a PhD in Judicial Science, an A average must be achieved.

A candidate who gets this far will then be eligible for appointment to any provincial court of appeal and to the Supreme Court of Canada.

However prior to confirmation of any new appointment, each candidate must pass a character assessment administered by an independent body of examiners that does background checks as to integrity, character, finances, personal relationships, conflicts of interests, and any possible embarrassing history that may disqualify the potential judge. Each potential judge must pass psychology tests ensuring the candidate is not a sociopath, arrogant, conceited, pompous, obnoxious, or a bully. Finally, each potential judge must pass a basic physical examination to ensure the judge will not fall asleep in court or be unable to see or hear a witness.

Whoever survives all these rigorous challenges will certainly have ability, integrity, affability, training, education and experience to merit appointment.