The 180

Judges have more power. Now they need to earn the trust of Canadians, says criminal lawyer

After a recent Supreme Court decision striking down mandatory minimum sentencing, Canadian judges wield more power. And while he has no issue with judges having more power, Toronto lawyer David Butt says they also need to build more trust.
Supreme Court of Canada in Ottawa. (Albert Couillard/CBC)

Trust is an important part of society.

When you put your money in the bank, you trust it will be there when you go to take it out. When you leave your children at daycare, you trust they will be fine when you pick them up. And when you buy those tight pants, you trust the salesperson when they say you look good in them. 

Criminal lawyer David Butt says when it comes to this country's judiciary, judges must also earn the trust of Canadians. 

Butt says after a recent ruling from the Supreme Court of Canada striking down mandatory minimum sentences, judges now have more power than they did a few months ago — and he argues they need to demonstrate their decision-making is not only sound and fair, but also in the public interest. 

And he says that can happen best with the actual written judgments. 

They should be writing judgments that ordinary Canadians can find accessible — so they can understand what the judges are saying, why they're reaching the decisions they're reaching — and ordinary thoughtful Canadians can evaluate the reasoning process.- David Butt

As if reading judgments is how you want to spend your down time?

However, Butt says he's noticed an increased scrutiny on recent high profile cases. 

And he says that interest, especially after the decision comes out, is one worth engaging with. 

Butt won't go so far as to call for judges to be elected. 

Though he says he would like to see a more open appointment process. 

Right now, according to Butt, when a person applies to be a judge, the public doesn't know who applies, what qualifications are required, how they are vetted, or why they are successful or not. 

That process is frankly, a remnant of a Victorian gentleman's club in the 19th century. It doesn't meet the needs of 21st century democracy in terms of openness.-David Butt

Butt says he hopes the entire legal profession, both lawyers and judges, embrace the idea of less secrecy in the judiciary — since,  he argues, they stand to benefit the most from having their reputations enhanced. 

Click the play button above to hear the full interview