A strong majority of Canadians supports the idea of elected judges, according to a Globe and Mail/CTV poll.
Sixty-three per cent of 1,000 respondents questioned in the Strategic Counsel survey supported the idea of elected judges, compared to 30 per cent who opposed the notion. The results may come as a surprise to the legal community, where it has long been assumed that Canadians see the election of judges as a major drawback of the U.S. justice system.
In many U.S. jurisdictions, judges embark on the campaign trail regularly, advertising their courtroom track record of convictions to drum up votes.
The poll also found that 53 per cent said the Charter has had a positive, or very positive, impact on Canada over the past 25 years. Twelve per cent said it has had a negative impact, while 25 per cent said its impact has been neutral.
On the support for an elected judiciary, Ontario Chief Justice Roy McMurtry said in an interview that he couldn't see how impartiality could be maintained in a system of elected judges.
"The potential for abuse is horrific. Money would inevitably become a factor. I can foresee terrible abuses," he said.
Chief Justice McMurtry said that if Canadian judges felt compelled to impose popular verdicts and sentences to ensure their re-election, "it could really destroy the very best traditions of an independent judiciary. I think it would be a tragic initiative for the administration of justice."
Of those polled, just 11 per cent strongly opposed an elected judiciary, compared with 24 per cent who strongly endorsed the idea.
Support for elected judges was strongest in Quebec, at 67 per cent.
The poll has a margin of error of 3.1 per cent, slightly higher for provincial and regional figures.
Even the Conservative Party, with its pronounced concerns about the power of judges, has stopped short of calling for elected judges. "That's just not our tradition," former federal justice minister Vic Toews said last year on the topic. "I actually think our system is pretty good. It just needs to be fixed."
Chief Justice McMurtry said the election of judges in the United States has been an ongoing debacle.
"There are pretty shocking examples of fundraising abuses," he said. "When you see campaigns saying, 'Judge so-and-so has registered convictions in 90 per cent of his cases,' I just can't see any merit in this idea whatsoever.
"I've read enough articles to be quite horrified and appalled by what has happened, and about the role that interest groups can play," Chief Justice McMurtry said. "To me, it's Jeffersonian democracy run amok."
The poll also uncovered a significant level of concern in Quebec about potential court rulings under the Charter's guarantee of religious freedom. Fifty-six per cent of Quebec respondents said they are apprehensive that these cases could result in abuses, compared to 29 per cent in the rest of Canada.
The question they were asked stated: "The Charter does guarantee freedom of religion. Looking ahead, some are concerned that this might lead to abuses where some groups use this guarantee to pursue religious practices that are against Canadian values. Others disagree and say that the guarantee of religious freedom is a fundamental right that must be protected in all instances. Which best represents your view?"
The results mirror some of the recent debate when a controversy broke out in Quebec involving a Muslim girl who was prevented from participating in a soccer game because she wore a hijab.
In another subject area, 73 per cent of the respondents support the notion of having the right to own and protect property enshrined in the Charter of Rights and Freedoms. Only 15 per cent opposed putting property rights into the Charter.
The strongest support was in Western Canada, where 31 per cent agreed with the proposition. The weakest support was in Quebec, where just 14 per cent were in favour.
The inclusion of property rights, an idea that has been mentioned favourably by several prominent figures in the Conservative Party in recent years, was debated before the enactment of the Charter on April 17, 1982.
Chief Justice McMurtry was Ontario's attorney-general at the time, and played a central role in negotiating the Charter; he recalled that the more those framing the Charter studied the issue, the more a strong consensus developed against including property rights.
"We were opposed to putting property rights in, because we were afraid it would cause major attacks on environmental and zoning regulations," he said.
"Powerful institutions would be attacking these regulations, saying that their right to enjoy their property was being destroyed. It was not difficult to achieve a high level of unanimity against including property rights."
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