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Judicial Independence (Oct. 4, 2012).pdf

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Political Studies
POLS 303
Joe Garcea

Judicial Independence (Oct. 4, 2012) October-04-12 8:24 PM Judicial Independence - 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 impartial tribunal…” - 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 Appointment. o Salaries. o Administration. 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 autonomous decision-making. 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 emerged).  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 judges.  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 driving.  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 province.  The Attorney General had discretions to designate a (higher-paid) “senior judge,” authorize leaves of absence, and to authorize paid extra-judicial work.  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.”  Independent: “con
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