Evaluating Federally Appointed Judges in Canada: Analyzing the Controversy

This commentary describes our experiences in trying to undertake a judicial performance evaluation of federally appointed judges in Canada. Some respondents were enthusiastic about the project, but others were strongly opposed to it and worried about the effects that our survey would have on judicial independence. After describing the feedback that we received and the fallout from our project, we examine the relationship between judicial performance evaluation and judicial independence. We argue that a well-conceived judicial performance evaluation does not violate judicial independence. We then explore the resistance to judicial performance evaluation in Canada, using a comparative lens. The explanation for this opposition, it seems, lies partly in the broader socio-political context found in common law jurisdictions with parliamentary systems of government and no judicial elections. In our view, opposition to outside academic inquiry from strong elements within the Canadian legal community also forms part of the answer.