The Globe and Mail recently released an article reviewing the structure of judicial appointments and the role the conservative party plays in those appointments. Unsurprisingly, the gist of the article is that judicial appointments in the current political climate tend to be skewed to favour right-wing-minded candidates.
For the conservative government, those who take the bench should ideally rank Parliament’s authority higher than that of the judiciary. This attitude hasn’t been reflected in the recent trend of striking down conservative legislation that takes a tough-on-crime approach. Most recently, the Supreme Court Justices have struck down the conservative’s legislation that assigned 3-5 year minimums on firearm possession charges. As the article points out, in light of that trend to strike down tough-on-crime legislations, those responsible for choosing appropriate candidates for the bench have come under more pressure to pick judges who defer to Parliament. Regardless of this added pressure, Judges are maintaining their opposition to new conservative legislations.
Most recently, sentencing Judges are acting in the face of Parliament’s decision to impose a mandatory surcharge to all criminal convictions. The mandatory surcharge used to be at the discretion of the deciding Judge and in cases where the convicted individual faced financial hardship, the surcharge would be waived. Today however, no such discretion is allowed. Instead as the article points out, some Judges are giving convicted individuals 99 years to pay, or imposing a surcharge of $1.50. These ruling are hopefully an indication that despite a right-winged bias in appointment, some Judges will continue to act unbiasedly. This is an example of what the article refers to as Constitutional Romance —a viewpoint that thinks the worst of legislators but the best of judges.
What diminishes such optimism is mention that members of the bench who’s decisions stay aligned with new tough-on-crime legislations seem to make their way up to higher levels of court quicker. The election is right around the corner so one might think that the problem of a bench seemingly comprised of mostly right-winged individuals is almost at pass. However given almost life-long appointments, and the rarity with which members of the bench are removed, a markedly conservative judiciary is far more difficult to change than a markedly conservative government.