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Judicial Independence


Why is Judicial Independence Important to You?

What does "judicial independence" mean?

Judges must be free, but obliged, to decide on their own.

Judges must be set apart from someone else’s influence or supervision.

Judges must be insulated against and independent from any and all sources of improper influence. This includes:

  • All forms of coercion, threat or harassment, direct or indirect;
  • Whether from government, politicians, persons in authority, relatives, neighbours, interested parties, fellow judges, chief justices, judicial bodies or organizations.

Why do we expect our judges to be independent in Canada?

  • Judges are individuals tasked with deciding matters in dispute. In cases that go to court there is often a “winner” and a “loser” such that in most cases half of the people and sometimes all may not be “pleased” with the outcome.
  • The Canadian system of law guarantees a “fair” trial, not a “favourable” outcome.

The fundamental concept of judicial independence exists for the benefit of all citizens, not judges.

Why does judicial independence protect the judges, the decision makers, from improper influence?

  • To ensure that their decisions will be based upon the law as it applies to the evidence presented and properly admitted, in order to do justice between the parties.

This protection is enforced so that:

  • Citizens will know they were dealt with fairly, that they received a fair trial, and a fair hearing; and
  • Judges are insulated from any improper outside influence and who were bound only by their conscience and the law. Typically, the oath of office of Canadian judges includes “to do right according to law.”

In simple terms “judicial independence” is a matter of trust:

  • Canadians need to know that legal disputes will be decided fairly, impartially, according to law, and in open court for the entire world to see.

Judicial independence is the shield that secures and protects those fundamental, constitutionally enshrined values:

  • That is why judicial independence is a hallmark of Canada’s constitutional democracy; and
  • That is why Canada’s citizens must remain vigilant and loudly protest against any attempt, from any quarter, to impede, frustrate or diminish judicial independence.

Judicial independence is important to you because it guarantees that judges are free to decide honestly and impartially, in accordance with the law and evidence, without concern or fear of interference, control, or improper influence from anyone.

...

What is the “Rule of Law?”

Canadian democracy is founded upon the “Rule of Law.” The expression “law” means a set of rules that governs relationships of citizens with each other; regulates commerce and our lives within the community, and protects people from the unlawful acts of individuals or the state.

In Canada, two different legal regimes co-exist. They originate from the English common law and the French civil law traditions.  All over Canada, law can be the product of legislation passed by parliament or provincial legislatures, which is referred to as “statutory law”.  In public law and in Canada’s common law jurisdictions, law is also the product of decisions rendered by judges in the sense that the interpretation and application of legislation and legal concepts evolve over time as cases are decided, appealed, affirmed, overturned, modified, distinguished and refined.   This source is referred to as “common law”.  In Québec, where a civil law system operates in private law, the Code civil du Québec will be applied to many matters before the courts, as it is considered the “droit commun” of the province.

The expression “Rule of Law” describes more generally a single, overarching rule that expresses an agreement – both as individuals and as a collective, a community – to be bound by and subject to the law.

That commitment carries an explicit understanding that such adherence applies to everyone, no matter what their lineage, heritage or station in life. It means no one is above the law:

•    It means that kings and queens, prime ministers, army generals, presidents, business titans,
and judges the will all face the same laws as the poorest and least advantaged person in society;
and
•    It means that the law will be applied fairly and evenly to all persons, taking no account of
hierarchies, privilege, power or wealth.

Representations of Justicia show the goddess as blindfolded, a metaphor conveying that in order for justice to be fair, it should be dispassionate and blind to matters of authority, power or prestige.

The belief in and an adherence to the Rule of Law is a cornerstone of Canada’s constitutional
democracy. It is the tool by which a truly impartial and independent judiciary carries out its work. It is the fundamental idea that each judge has sworn upon oath, to uphold.  The Rule of Law distinguishes us from other countries where no such protections exist: where tyrants and their armies and their secret police hold citizens in terror; where wrongdoers are unaccountable; where complicity goes unpunished; where democracy is illusory; and where the rights of the few can be trampled by the power of the mob, or majority.

More information is available on the Canadian Judicial Council website.
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