Reducing the Democratic Deficit: Representation, Diversity and the Canadian Judiciary or Towards a 'Triple P' Judiciary

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Working Paper

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The authors review the current structures for judicial appointments in Canada and provide statistical information about the results of these mechanisms in respect to diversity of representation on the courts They are also critical of the fairness and openness of judicial appointments processes After examining several variants of the dominant liberal view of law and of judges the authors proffer and articulate a neorealist theory of law and what they term a bungee cord theory of judging According to the former law is inevitably a form of politics according to the latter judges are unavoidably political actors In consequence the judiciary is properly subject to democratic norms including especially the norms of representation and of diversity The authors then argue thatjudged against those democratic norms the present systems of judicial appointment and the judiciary which it has put in place suffers from what they term a democratic deficitAfter a detailed examination of past attempts to reform this system of arguments for and against a more democratic and representational approach to judicial selection and possible models of judicial selection the authors propose their own reform the establishment by statute of Judicial Appointments Commissions Such an approach might help cure the democratic deficit and produce what they dub a TripleP judiciary that is one that is politically accountable professionally qualified and proportionally representative

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