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| Michael Lesage |
The current crisis
Recent statistics paint a stark picture of judicial system dysfunction. Nearly 30 per cent of Canadian homicide victims in 2022 fell prey to offenders who were already under some form of release. Meanwhile, research reveals that released criminals commit approximately one non-drug related crime per month, highlighting a systemic failure in protecting public safety. The situation in civil and family justice is little better.
The appointment process under scrutiny
Canada's judicial appointment system, while designed to ensure merit-based selection, has evolved into a complex process where traditional legal qualifications now share space with broader considerations. The Federal Judicial Questionnaire requires candidates to submit extensive documentation, including biographical information, legal experience and references. Notably, the selection process emphasizes photocopying ability along with diversity considerations.
Performance metrics tell a troubling story
Statistics Canada data reveals alarming trends in judicial efficiency:
- A 25 per cent decline in criminal decisions since 2013
- More than 40 per cent decrease in guilty dispositions
- Nearly 60 per cent of charges in Ontario being stayed or withdrawn
- Ontario's population grew 10 per cent during this period, making these declines particularly striking
The bail reform evolution
Canada's approach to bail has undergone significant transformation, moving from discretionary consideration to what critics describe as "near automatic release." Key developments include:
1. The 1970-71-72 Bail Reform Act establishing modern bail criteria
2. Section 11(e) of the Charter guaranteeing reasonable bail rights
3. The Supreme Court's landmark decision in R. v. St-Cloud, [2015] S.C.J. No. 27, declaring release as the cardinal rule
4. Bill C-75 codifying principles favouring earliest possible release
Lessons from comparative analysis
Research from jurisdictions employing both appointment and election systems offers valuable insights.
Elected judiciary benefits:
- Greater certainty in outcomes, reducing litigation
- Higher alignment with public values
- Increased case throughput
- Direct accountability mechanisms
- Stricter sentencing practices
Appointment system advantages:
- Enhanced judicial independence
- Stabilizing effect on government branches
- Focus on legal expertise
- Protection of minority rights
The way forward
Rather than adopting an absolute stance, Canada might benefit from a hybrid approach that balances competing interests. The American experience demonstrates that a "one-size-fits-all" solution isn't necessary — some jurisdictions successfully employ both methods depending on court levels and circumstances.
The current crisis presents an opportunity for meaningful reform. As the chief justice embarks on a mission to combat "misinformation," perhaps the more pressing challenge lies not in perception management but in addressing systemic issues that have led to widespread disillusionment with the judicial system. The question isn't necessarily whether to abandon appointments entirely, but rather how to adapt the system to better serve contemporary Canada's needs while maintaining the integrity of justice.
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Michael Lesage is a trial lawyer and the founder of Michael’s Law Firm, a litigation boutique that specializes in complex cases involving professional negligence, business litigation, insurance coverage disputes and cases of serious injury. When not representing clients, he can often be found playing competitive sports. He is also a former bencher at the Law Society of Ontario. You can email him at michael@michaelsfirm.ca.
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