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ARCHIVED The Role of The Judiciary in Canada

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by Chief Justice John D. Richard
Federal Court of Canada

I.  Introduction

There are few institutions in our society today which are subject to more intense public scrutiny than the Canadian judiciary. It is certainly true that since the enactment of the Canadian Charter of Rights and Freedoms there has been a dramatic increase in the visibility of the courts and the judges who preside over them. The guarantees of rights and freedoms in the Charter, which are now the constitutional rights of all Canadians, have involved the judiciary in the resolution of disputes embracing social and moral questions of profound importance to society. As a result, the public has attained a new awareness of the crucial need for a judiciary which is free to make independent and impartial decisions, and to apply the law as he or she understands it, without fear or favour, and without regard to whether the decision is popular or not.

Judges recognize that not everyone is familiar with these concepts. The Canadian Judicial Council, a statutory body, composed of all the federally appointed Chief Justices and Associate Chief Justices across Canada, and which is chaired by the Chief Justice of Canada, has the mandate to improve the quality of judicial service throughout the country. It has acknowledged that the judiciary has a responsibility to do what it can to increase public and media understanding of the role of judges and the operation of the court system. To that end, the Council has endorsed a program of public education which encourages judges to take advantage of appropriate opportunities to help the public understand the role of the judiciary and the fundamental importance of judicial independence. Increasingly, judges are addressing, not only lawyers and other members of the judiciary, but equally important groups which are broadly representative of their communities.

Thus, public education has itself become an important part of a judge's office. And although it may be a relatively new aspect of the judicial role, it is, for many reasons, a welcome one.

First, the preservation of a free and democratic society necessitates that the role of the judiciary be the subject of a dynamic and ongoing discussion. This is a reflection of our commitment as a society to the judicial system. It also ensures that the next generation of Canadians will have a deeper understanding of the public role of the courts than any generation since Confederation.

Second, as noted by Ronald Dworkin in his book entitled "Law's Empire", judicial decisions affect a great many people. The Court has the power to overrule even the most deliberate and popular decisions of governments if it believes they are contrary to the Constitution. Society's acceptance of, and support for, these and all court decisions depends upon public confidence in the integrity and independence of the judiciary.

Most importantly, by assisting the public in understanding the role of the judiciary, judges are provided with an opportunity to be a part of the community in which they administer the law. In Le livre du magistrat, the Right Honourable Gerald Fauteux stated:
[there is no intention] to place the judiciary in an ivory tower and to require it to cut off all relationship with organizations which serve society. Judges are not expected to live on the fringe of society of which they are an important part. To do so would be contrary to the effective exercise of judicial power which requires exactly the opposite approach.1

II.  The Judiciary as a Branch of Government

When the Fathers of Confederation created the new "Dominion of Canada" in 1867, they adopted a political system which created three branches of government: the executive branch or Cabinet; the legislative branch or Parliament; and the judiciary, the judges who preside over cases before the courts. Our constitution defines the powers, and the limits of the powers, that can be exercised by each of the three branches. This system of government and of law established by the founders of our country respects the important, but different, roles of the executive, the legislatures and the courts.

The role of the judiciary is to interpret and apply the law and the Constitution, and to provide impartial adjudication of disputes between individuals; between the state and the individual; and, between different levels of government within the state.

Unlike the other two branches, the judiciary is not accountable to any electorate or government for its decisions. Instead, the primary obligation of judges is to the law which is designed to protect all citizens. It is for this reason that judges occupy a uniquely protected place within our system of government, one which is designed to guarantee their independence from political or other influences. Indeed, judicial independence from both government influence and from other sources, including public opinion, is a constitutional right of every individual in Canada. It is the right to know that all legal questions which are brought before the courts will be resolved impartially and according to the law, without extraneous influence and intervention.

III.  Judicial Independence

Chief Justice Dickson of the Supreme Court of Canada gave a useful description of judicial independence in an important case. He wrote:
The role of the courts as resolver of disputes, interpreter of the law and defender of the Constitution requires that they be completely separate in authority and function from all other participants in the justice system . . .

. . . the principle of judicial independence has been the complete liberty of individual judges to hear and decide the cases that come before them; no outsider - be it government, pressure group, individual or even another judge - should interfere in fact, or attempt to interfere, with the way in which a judge conducts his or her case and makes his or her decision.2

The independence of the judiciary has been a cornerstone of the English political and legal system for centuries. It was in order to permit the judges of England to apply the law rationally and evenly that the idea of judicial independence was originally conceived and protected. In the words of John Locke, the purpose of judicial independence was to ensure that the law would not "be varied in particular cases, but [be the same] for rich and poor, for the favourite at court and the countryman at plough."3 This principle has been faithfully upheld in Canada and is viewed as a fundamental constitutional right.

An independent judiciary has long been recognized as the foundation upon which a true democracy rests. It ensures the establishment of and adherence to the rule of law which decrees that the law must stand supreme and is to be evenly and fairly applied to every member of our society, including public officials, who must carry out their duties in accordance with the law. The rule of law allows us to live together in freedom and in harmony and provides the common ground for social progress and prosperity.

The independence of the judiciary is as essential to social peace as is the rule of law. More specifically, it is guaranteed to the litigant.

It is clear therefore, that the primary beneficiary of judicial independence, is not the judiciary itself, but rather society as a whole. The reality is that the rule of law cannot endure over time, if it can exist at all, unless the judges who are responsible for interpreting and applying the law and the Constitution are guaranteed their independence from government. How much confidence could the public really have in their legal system if the judges, who are entrusted with the task of defining the legal rights and freedoms of Canadians, were subject to the influence of governments who are themselves bound by the common law and the Constitution? In order for a constitution to hold real meaning in the lives of its citizens, an independent judiciary, capable of interpreting and enforcing the Constitution free of political interference from those in power, is crucial.

Public acceptance of, and support for, court decisions depends upon public confidence in the integrity and independence of the bench. Judicial independence, which is the very essence of judicial function, is a means toward the far more important goal of maintaining public trust in the legal system and in the judiciary. It is society's confidence in the impartiality of individual decisions that forms the core strength of the judiciary as an institution. To decide impartially therefore, without bias and pre-judgment, is the highest obligation of every judge. And it is judicial independence, the freedom to hear and decide cases, without interference and without fear of the consequences, which is the very foundation of judicial impartiality.

The Supreme Court of Canada has said that "True impartiality does not require that the judge have no sympathies or opinions; it requires that the judge nevertheless be free to entertain and act upon different points of view with an open mind."4

IV.  Judicial Accountability

As humans, judges cannot help but have opinions, sometimes prejudices. All members of the judiciary bring their unique life experiences to the bench. Too often, it is mistakenly assumed that judges should not possess any knowledge of the facts of life. As Lord Chief Justice Parker put it:
A judge is not supposed to know anything about the facts of life until they have been presented in evidence and explained to him at least three times.5

A rather contrary view was held by Tom Hurley, a colourful legal personality who graced our courts with Irish-Canadian humanity, skill, oratory and humour from the 1920s to the '50s. He once remarked that no one should be a judge who hasn't been thrown out of a beer parlour.6 Whether there are many judges who actually meet that criteria, or who would be willing to admit such qualification, there can be little doubt that all practical life experience is useful for a judge. It is an invaluable tool which allows judges to understand the disputes before them, to fashion appropriate remedies and to empathize with the litigants.

However, it is the duty of all judges to set aside their personal prejudices and views when they make judicial decisions and to found those decisions on an impartial assessment of the evidence and legal authority. A judge's ability to set aside his or her own views and to look at the question in dispute objectively, is ultimately far more important than any personal views the judge may hold on the subject. What is required of our judges is that they set aside any preconceived notions and prejudices and look at the question anew in the light of the evidence before them and the submissions of counsel.

This, of course, is the essence of judicial accountability. Judicial independence does not give judges the right to do whatever they wish. In fact there are many restraints upon the exercise of judicial power. Probably the greatest limitation is the absolute requirement that cases be decided according to the law and the evidence. Judges are not free agents who can decide cases arbitrarily without regard to the evidence and the law. While they may not be accountable to public opinion, they are nonetheless accountable to the public interest for independent decision-making based upon established and discernable principles of law.

Performing the task properly depends upon a variety of intangible requirements. Intellectual honesty allows a judge to avoid the temptation of finding an easy answer to a difficult problem. Judicial curiosity, kindled by the creativity of counsel, allows the law to grow and develop. And of critical importance is judicial courage. It is a myth to think that judges are not aware of public expectations. Nevertheless, the judiciary's role is to protect the rule of law, the Constitution and the Charter. Judges must be fearless in their resolve to make even the most unpopular decisions according to the law, the evidence and good conscience, regardless of media or public disapproval.

V.  The Charter

There can be no doubt that since its enactment in 1982, the Canadian Charter of Rights and Freedoms has dramatically tested the courage of the judiciary in this country. The Charter now forms part of our Constitution, which has been declared to be the "Supreme Law of Canada".

The Charter is a very significant document. The preamble states that "Canada is founded upon principles that recognize the supremacy of God and the rule of law." It then sets out those rights and freedoms which are guaranteed to everyone in our society: the right to practise any religion or no religion at all; the freedom to speak our minds, to gather peacefully into groups and to associate with whomever we wish; the freedom of the media to print and broadcast news and other information. It protects our right to vote in elections for members of Parliament and provincial legislatures and recognizes English and French as Canada's official languages.

The Charter guarantees that everyone has the right to life, liberty and security of the person, and that these rights cannot be denied except in accordance with the principles of fundamental justice. It proclaims that every individual, regardless of race, religion, national or ethnic origin, colour, sex or age, as well as one who is physically or mentally disabled, is equal before and under the law and enjoys equal protection and benefit of the law.

Our declaration that the Constitution is the supreme law of Canada has altered one of the fundamental principles of our Parliamentary democracy. It has conferred upon the courts the responsibility to decide whether legislation is consistent with, or offends against the Constitution. The supervisory jurisdiction of the courts is now grounded in the rule of law and in the Constitution and the Charter.

Accordingly, the judiciary has a crucial role to play in defining the freedoms and rights guaranteed by our Constitution. Judges are now expected to render decisions on matters which involve basic individual liberties and human rights. This has resulted in a wide range of issues which previously would never have been the subject of dispute before the courts; Sunday shopping, abortion, mandatory retirement, hate propaganda, the legal status of same sex couples. Increasingly, judges find themselves facing questions which are new and unfamiliar and which are characterized by complex social and moral issues of considerable import to society.

VI.  The Federal Court

The Federal Court of Canada is eminently suited to meeting the challenges facing the judiciary today. In 1971, the Parliament of Canada established the Federal Court as a court of law, equity and admiralty, succeeding the Exchequer Court of Canada "as an additional court for the better administration of the laws of Canada." At present, the Court consists of two divisions; the Appeal Division and the Trial Division and has a complement of thirty-one (31) judges.

The Federal Court is a bilingual court where proceedings may be taken before it in either or both of Canada's official languages. It is also a bijuridical court applying both the common law and the civil law. It is a court of easy access, sitting regularly across Canada, and its judgements have force and effect across the country. Simply put, the Federal Court is a truly national, bilingual institution dispensing justice from coast to coast.

The important contribution of the Federal Court to the civil law was noted in a 1991 Conference by Professor Denis Lemieux of Laval University. He stated that the most significant contribution of the Court to the civil law has been to continuously confront it to the common law; contact that has been stimulating for both legal systems and for federal law in general.

The Court is given a broad jurisdiction in respect of litigation involving the Crown, matters relating to intellectual property, admiralty issues and certain specific statutes, such as the Income Tax Act. However, it is the Court's authority to hear statutory appeals from federal administrative boards and tribunals and to undertake judicial review of their decisions which is particularly noteworthy.

The complexity of our modern society has resulted in a surge of legislation which regulates many aspects of the social and economic affairs of all Canadians. It would be almost inconceivable to expect Parliament by itself to deal with every aspect of the many laws that it makes without the assistance of other governmental agencies. It is not surprising therefore, that legislation regularly delegates powers to other bodies, such as federal tribunals and boards. The Federal Court's supervisory powers over the decisions of these agencies ensures that we have a fair and just system of public administration.

The Charter aside, there have been tremendous judicial developments in the area of public law which have placed a strong reliance on the historical and constitutional role of the judiciary in protecting citizens from governmental encroachments and ensuring that public authorities exercise their powers in adherence to the rule of law. The Federal Court of Canada plays a vital role in Canadian law and justice and its decisions affect a great many individuals. It faces some of the most important legal issues facing the country today such as immigration and refugee law and human rights legislation. These and other issues before the Court are of critical importance to the future of this country and the respect of Canadians for the administration of justice.

VII.  Conclusion

As a democratic society, we have witnessed momentous changes in the relationship between individuals and the state. The judiciary in Canada possesses the knowledge and experience to make tremendous contributions to the maintenance and continuing evolution of our democratic society. The role of the courts as resolver of disputes, interpreter of the law and defender of the Constitution and the Charter, requires that they be completely separate in authority and function from all other participants in the justice system. Our tradition of judicial independence guarantees that the courtrooms over which judges preside will continue to be accessible to all individuals and that their proceedings will remain open, transparent and free from government interference.

1Ethical Principles for Judges, Canadian Judicial Council, November 1998, p. 33, footnote 31

2Beauregard v. Canada, [1986] 2 S.C.R. 56

3Canadian Judicial Council, The Judicial Role in Public Information, Annex A, p. 18, excerpt from speech given by Rt. Hon. Antonio Lamer, Chief Justice of Canada, University of Victoria, March 12, 1998

4R.D.S. v. The Queen, [1997] 3 S.C.R. 484 at p. 504

5A Compendium of Law and Judges, chapter 4, p. 8. Available on the Internet at http://www.courts.gov.bc.ca/LegalCompendium

6A Compendium of Law and Judges, chapter 4, p. 8. Available on the Internet at http://www.courts.gov.bc.ca/LegalCompendium