Canada vs. United States: Judicial System Essay Example

Some say judges do gods work, in deciding the fates of not only criminals but of the rest of society from their decisions. We hold a lot of faith in our judges and expect that those in the office will do their job properly. Two deciding factors revolve around the appointment of judges, which are judicial independence and accountability. Both elements are vital to allow for a fairer justice system when occurring in balance. Now, Canada and The United States are two of the most widely recognized countries in North America. Both are powerful, influential, and have strong systems, especially in a judicial sense. That being said, their judicial systems differ quite greatly, especially regarding their selection of judges. This paper will argue that Canada strikes the right balance between concern for accountability and independence in the appointment of judges, by comparing their appointment process with the US. 

The process by which judges transpire differs between Canada and the United States. Judges in Canada are appointed, which means that someone with higher power chooses who will become a judge. As a result, Provincial judges are appointed by the provincial government, Supreme Court judges would be appointed by the federal government etc. (Hausegger et al., 2015). In the US judges are elected and depending on the state, either partisan elections or retention elections occur. Partisan elections are when the judicial candidates' political party is displayed on the ballot. Retention elections are held after a judge has sat in their position for a certain period and voters decide whether they will retain that judge in the office. (Hausegger et al., 2015). This difference in procedures highlights how Canada relies more on itself and its government as an entity than on the public. Whereas the US uses its people to make decisions for them without the specialized knowledge and experience needed for the task (Bandes, S., 2006). The concern for accountability and independence cannot be integrated into the system as much as in the appointment system that Canada has set up.  

 This difference in appointment compared to election is critical in understanding how Canada strikes the right balance between accountability and independence in the appointment of its judges. Now, what is judicial independence? In the context of judicial appointments, independence means that the procedures must be done in a way that participants in the selection process do not operate as representatives of a particular section, whether that be the executive, the legislature, or the judiciary. Rather, they are figures’ whose responsibility is to select judges that will generate public confidence in the administration of justice (Hausegger et al., 2015). The concern of having the public's confidence is because they have trust in the judiciary for making the decisions and deciding the consequences that continue our peaceful societies. Having independence is to ensure unprejudiced and impartial decisions that are made which affect not only specific cases but the entire country.  

Judicial accountability in relation to the appointment process is being held liable/responsible for their actions to the rest of parliament and society (Hausegger et al., 2015). There are two elements to accountability: de jure and de facto. At the de jure level, there must be a straightforward delivery of the constitutional, statutory, and regulatory status of the various participants and procedures that dictate judicial appointments (Canada, 2008). The public’s faith is dependent upon their being a clear identification of who is responsible and who holds authority. De facto accountability requires that there be actual accountability in practice for judicial appointments. This means that the appointing authority takes responsibility for every appointment and can comprehend the reasons for each individual appointment. This is important for whichever level of court, be it superior or inferior (Devlin & Dodek, 2017). Both notions are crucial to have in equal measure to guarantee a well-rounded judicial system.  

Without having them in equal parts, then it could drastically change who we have as our judges (Peri, A.,2013). For instance, if there was more emphasis on accountability and less on independence then it would allow external influences to weigh in on the decisions factoring who gets selected. It would make it more susceptible to bias, which would be problematic because then the judges we would have on our bench would not be as impartial in their decision making. If it were the other way around and there was less emphasis on accountability, then the government whether provincial or federal, may assume they could choose whomever they wanted to be on the bench no matter the consequences. Whichever the case, both would affect not only the appointment process of judges but also the entire judicial system, making it less fair than it would be had those two components been equal.  

We already see this in the US. Depending on which state, each jurisdiction is different. Some have more concern for accountability and independence while others do not. (O'Brien, D., 2015). Because of the lack of consistency, that allows for a lot more influence from outside sources. This is especially evident in the electoral component to their process, with rigged elections (Bandes, S., 2006). With the inadequacy of allowing the inconsistency of independence and accountability, reasonable people can fail to articulate the importance of holding the judiciary to specific standards and values. As well as losing sight of what they are in place for, their role and their duties (Burbank, S., 2007). People can elect who they think will do the best for their own motives and purposes instead of thinking about who will do the best for them overall. In a way, this defeats the purpose of having a judicial system in place. Having an independent judiciary is vital for fairness in justice and the rule of law (Canada, 2008). Hence, needing the balance between both accountability and independence. 

Taking into consideration arguments from the other side of the spectrum, one could demonstrate that Canada’s judicial appointment process is as subject to political influence as America is, even without the electoral component. An example to back up this claim would be from 2020. According to an article by Daniel Leblanc, a legal advocacy group was criticizing Prime Minister Trudeau’s government's judicial appointment process, claiming that the "political vetting of candidates" could undermine Canadians' trust in the judiciary (Leblanc, D., 2020). Essentially declaring that the judiciary and process of appointment can be influenced in a political nature and be open to manipulation, with the knowledge they gain when “vetting” candidates. This claim was then rebutted by Justice Minister David Lametti. He affirmed that judicial appointments are based on merit and that “reforms introduced by the Liberal government in 2016 were aimed at depoliticizing the process” which was based off assessments made by Judicial Advisory Committees (Leblanc, D., 2020). This response can expunge doubts, not just because it was defended immediately, but because it came from in house by a Justice appointed via the same process. The Justices’ response concedes with my argument as well as expressed that Canada is still as impartial and equal with accountability and independence as it always has been in the appointment processes.

Although Canada and the US bear resemblance in a broader sense, when it comes to their appointment process of judges, the contrast is blatant. The public in either country entrusts their judges with the power they hold to make fair-minded decisions. This means that the judges in the office must be people worthy of that level of trust and dependence. Independence and accountability are both crucial in the appointment process when determining who will be entrusted with that judicial power. As I have mentioned, without having both elements in equal parts it can affect the judiciary in a negative way. well-balanced selection process. Canada’s appointment process does differ from America’s election process, and this disparity shows how accountability and independence are needed in equal measure. This issue raises interesting questions about judicial accountability and judicial independence and is an interesting contrast to the different balance that is struck between these important values in both Canadian and American legal systems.