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Canada (509,690)
POLS 3130 (158)
Lecture 4

Lecture 4 - judicial independence

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Department
Political Science
Course
POLS 3130
Professor
Dennis Baker
Semester
Winter

Description
Rationale for Judicial Independence • “No man shall be a judge in his own cause” • Fundamental fairness = impartial arbiter • Judge should not be partial to one side or the other -judicial independence is for the judged not the judges • Impartiality and independence Ensuring Judicial Independence • British inheritance: act of settlement 1701 made judicial tenure guaranteed “during good behaviour” -judges may only be removed by address of both houses of parliament -judicial salaries set by law with o deviations for particular judges Provisions in the constitution act 1867 • preamble: “a constitution similar in principle to that of the UK” • s.99: “judges of the superior courts shall hold office during good behaviour, but shall be removable by the GG on address of the Senate and house of commons” -amended in 1960 to provide for mandatory retirement at 75 • s.100: “salaries, allowances and pensions of the judges of the superior, district and county courts…be fixed and provided by the parliament of Canada” -applies only explicitly to s.96 courts. Application to s.92 (provincial) courts, the federal courts and the supreme court of Canada is controversial • s.11(d): “any person charged with an offence has a right ..to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal” -composition of supreme court can only be altered by unanimous consent of the provinces and the federal government Aspects of Judicial Independence • protections -non interference convention -admin independence -financial security • trade offs -good behaviour -non interference in politics Non-Interference Convention • 1976 “judges affair” – Trudeau cabinet ministers personally phoning judges about cases currently before the bench • Negative public reaction gave rise to new communication rules that have been strictly adhered to (only communication is to be through the Minister of Justice0 -Jean Charest, then minister of fitness and amateur sport, resigned in 1989 after revelations that he had phoned a judge about a pending case • Judges can’t be compelled to explain their rulings to the political branches -1692 Knowles’ trial -1989 Marshall decision of the SCC Administrative Independence • Issue in Marshall inquiry case – can’t compel testimony about panel selection • Historically, department of justice responsible for maintaining and administering courts. Potential conflict of interest • 1977 commissioner for federal judicial affairs (some provinces adopt similar schemes) • In the US they do not allow their judges to friend a lawyer on facebook, here it is up to the judges although it is not encouraged Financial Security • Provisions in the constitution act 1867 -s.100: “salaries, allowances and pensions of the judges of the superior, district and county courts…be fixed and provided by the parliament of Canada” -to change the salaries a statute must be passed -applies only explicitly to s.96 courts. Application to s.92 (provincial) courts, the federal courts and the supreme court of Canada is controversial • Current controversy: executive prerogative to set salaries for judges who are not protected by s. 100 • Valente 1985 – financial security a component of judicial independence but not infringed by executive determination -first one to address this issue, cannot single out a single judge although those who have been a judge longer can get paid more • Beauregard 1986 – same for federal court judges Judge’s Salaries Reference • Lamer (majority): “unwritten principle” of judicial independence found in preamble and combined with 11(d) of the Charter means that judicial salaries must be insulated from political pressures. Solution is compensation commissions -the compensation committee would be made up of other judges • LaForest (minority): this is a novel extension of judicial independence not supported by the constitutional text -Alberta and Manitoba wanted a 17% raise however the government did not allow it although they granted a smaller raise -the government is allowed to refuse what the committee introduces as long as they have a valid reason for it “Good Behaviour” • No judge has ever been removed in Canada • Prior to 1971, 5 petitions for removal but never gone to a parliamentary vote -largely from drinking problems, they resigned before there wa
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