We're a human system. We've created a human system in our judicial system in Canada. In a human system you're going to get strengths and you're going to get weaknesses.
It would be easy to get rid of judicial discretion by having a grid system like the one they have in California and say “three strikes and you're out”—third time with a loaf of bread, 21 years.
Judicial discretion, in my view, goes part and parcel with judicial independence. You can make mistakes at a trial level, and the solace is this: that they can go to the court of appeal and be straightened out. But I find that judges, generally speaking, are very careful when it comes to judicial discretion. If it's exercised, it's exercised for a good purpose. It's exercised because they feel the consideration not only of punishment, but that the person has some redeeming qualities and may be able, over the course of time, to do something about straightening out their ways.
We get this criticism all the time, that we're not hard enough. We could be hard enough; it's easy to be hard enough. Then we're in a new business, and that's building prisons. We have a prison population right now.... In Alberta we have 3.8 million people, I think it is, and Holland has 14 million people, and we have twice as many people in prison. It's easy to be hard; it's hard to use discretion.
Discretion used by individuals who are properly appointed—and usually the people who are appointed are of the best from the profession and are very careful when they use judicial discretion.... The matter of accountability is that we are accountable as judges. We are accountable first of all to our own conscience, and that's most important. The people who are there are there with a conscience. Once again, the solace is that if we are wrong in the decisions we make, the court of appeal is there to straighten us out, and the crown usually then appeals those decisions.
Accountability is something that I feel we have in Canada; we are accountable as judges. The Canadian Judicial Council receives complaints, probably 150 to 175 a year. We've never in Canada had anybody thrown off the court by Parliament. We've been close on a couple of occasions. We have 1,200 judges, more or less, in Canada in the federal system and have about 120 to 170-some complaints. California, which has a population the size of Canada's, has more than 3,800 complaints each year. There are full-time judicial councils and sub-councils sitting to hear the complaints. Where do the complaints come from? Usually they're from elected judges. We've done a pretty good job of appointing judges in Canada; we really have. Your government has; prior governments have.
Every so often something happens. You tell your Chief Justice Smith in New Brunswick that he was a mistake. Just tell him I said that.