Nunatsiaq Online
COMMENTARY: Nunavut January 19, 2017 - 4:00 pm

Legal Ease, Jan. 19

How Are Judges Chosen?

JAMES MORTON

When you appear in Court in Nunavut, you are likely to be appearing before a judge of the Nunavut Court of Justice. That is true whether your case is civil, criminal, family or any other kind of case.

Judges have enormous power and decide on what happens in family cases, who is right when there is a dispute over property and whether someone accused of a crime is guilty and if so what punishment they will receive.

It is a tremendously important job requiring not only legal knowledge and skill but also compassion, real life experience and intellectual courage—and judges are appointed until they decide to retire, or until they reach age seventy-five, so once a judge is on the bench they are likely there for a very long time.

Now, the idea that judges serve until they are seventy-five or decide to retire makes sense. It is important that judges decide cases free from any concern that their decision may be unpopular and so hesitate to do what is right.

Judges must be completely independent and impartial. Fortunately judges in Nunavut, and the rest of Canada, are very careful to decide cases on the basis of law and justice and they are never swayed by something as fleeting as popular opinion.

Judges may occasionally make mistakes—they are human—but those mistakes are made honestly and in good faith (which is why appeals exist).

All that said, it is obvious that not everyone is well suited to be a judge. Sometimes a really smart lawyer has little concept of the “real world.” Sometimes a lawyer who knows the “real world” and is compassionate and fair doesn’t really understand the law very well. Whatever it may be, selecting judges requires great care and deliberation.

The process for choosing judges is, accordingly, painstaking. And while it has changed somewhat in the last year or so, the basic principles have been the same for many years.

First, anyone wanting to be a judge must apply for the position. Someone may be very well suited to be a judge but just not want to take on the burden of judging—it is very difficult to sit in judgment and not everyone wants the responsibility.

Next, anyone applying to be a judge must pass a rigorous review by a panel of local people, some of legal background, a sitting judge, and some other members of the community.

That panel reviews the legal background of the candidate, asks questions of any references and others who may know the candidate, and makes sure there are no skeletons in the closet—say unpaid taxes, child support arrears or even criminal convictions.

They look to see if the candidate is a fit person for the role of being a judge. Additionally, and this is fairly recent, the panel looks to see if the candidate will help reflect the diversity of the community as a member of the bench; it is important that judges are able to understand the community that they serve.

The panel then passes the candidate who applied on to the federal government; all Nunavut judges are appointed federally. In other parts of Canada some judges are appointed by the provinces. The federal government then reviews the candidates, and the findings of the panel, and decides who will be made a judge.

The judicial appointments process has worked well for many years. Nunavut’s judges are uniformly respected as impartial, competent and good judges.

James Morton is a lawyer practicing in Nunavut with offices in Iqaluit. The comments here are intended as general legal information and not as specific legal advice.

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