Judicial Independence (Oct. 4, 2012)
- What is judicial independence? And what does it require? How is protected?
o Are all judges independent?
- Are judges in any way accountable for their decisions?
o How should judges be held accountable in a democratic society?
Judicial Independence and the Constitution:
- Constitution Act, 1867.
o S. 100: “The Salaries, Allowances, and Pensions of the Judges… in Cases where
the Judges thereof are for the Time being by Salary, shall be fixed and provide by
the Parliament of Canada.”
- Charter of Rights and Freedoms, 1982:
o S.11: “Any person charged with an offence has the right…” (d) “to be presumed
innocent until proven guilty according to law in a fair and public hearing by an
independent and impartial tribunal…”
- Canadian Bill of Rights, 1960.
o “…no law of Canada shall be construed or applied so as to (f) “deprive a person
charged with a criminal offence of the right to be presumed innocent until proved
guilty according to law in a fair and public hearing by an independent and
- The primary concern for the contemporary questions of Judicial Independence is:
o Independence from government?
- Because courts are an institution of the state, judges and courts are dependent on the
government for their existence:
o Legal aid.
- We can generally divide the question into two areas:
o Relational concept:
Formal institutional protections for judges (individually and
collectively) from others (government and non-government).
Behavioural concept: actual judicial behaviour and whether it displays
o Judicial misconduct and bias:
Canadian judicial council has referred only nine complaints to an
inquiry to actually remove a judge in 40 years.
o Broad issues related to independence:
Judicial exposure to civil or criminal proceedings (judicial immunity).
Politicians contacting judges about cases (rare and strict prohibitions
Judicial education (bias in teaching?)
Structural threats (packing the court?)
Criticism by other judges (rare)
Public criticism of judges (traditionally rare, more common today).
- Legal and constitutional issues relating to Independence:
o R. v. Valente (1985):
Valente was the first case to test S. 11 (d) of the Charter.
Valente questioned the “degree” of independence of provincial court
The case emerged when Valente challenged the independence of the
Provincial Court (Criminal Division) against a sentence for careless Provincial Court (Criminal Division) against a sentence for careless
Valente argued that the Provincial Court (Criminal Division) was not
independent because of the tenure of provincial court judges
(particularly those holding under a post-retirement appointment).
Valente’s argument enumerated several ways in which provincial
judges remained subject to the executive.
Judges were appointed by the Attorney General of any given
The Attorney General had discretions to designate a (higher-paid)
“senior judge,” authorize leaves of absence, and to authorize paid
Judicial salaries were fixed by a regulation, not statute.
Pensions were provided out of a general provincial civil service
plan (not a special judges’ plan).
Impartiality must be understood as both an individual attempt to
remain neutral and it must also be seen as to be done.
In other words, to be valid, an apprehension of bias must be reasonable
(reasonable person test).
A reasonable person that is fully informed of the issue and
reviewing the situation practically concludes that the judge can’t
make an independent and impartial decision.
The Supreme Court of Canada made an important distinction about
independence vs. impartiality.
Impartiality: “the absence of bias, actual or perceived.”