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Chapter 6

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University of Guelph
Political Science
POLS 3130
Dennis Baker

Chapter 6: Judicial Independence and Accountability: Short Summary of Chapter: • Important to remember the broader political and social context in which judicial independence exists. Judicial independence is important because of society’s need for legitimate, accessible dispute resolution, although the growing popularity of alternative dispute resolution suggests that societal demands are not being met by the traditional adjudicatory “triadic” model. • The major disputes about judicial independence in the last three decades have been driven by two highly political factors: 1. Resource scarcity and the fiscal priorities of elected governments – since the judicial system is a low priority for spending compared to health or education 2. The increased assertiveness of the judiciary itself through its development of case law • A judiciary which enjoys little popular legitimacy is much more easily pressured or overtly interfered with governments • The insurance theory holds that political parties that become the government are more likely to respect judicial independence if they expect to lose power in the future because the courts represent a means to influence public policy which does not depend on electoral success. • Foresighted governments will not undermine judicial authority because they expect to exploit them later. • Canadian citizens would do well to remember their important role in protecting judicial independence. Long Summary: • The independence of the judiciary is an essential part of the fabric of our free and democratic society. It is recognized and protected by the law and the convention of the Constitution as well as by statue and common law. • The essential purpose of judicial independence is to enable judges to renders their deicisions in how they interpret the law without fear of consequences. This assures the public that their cases will be tried freely and applied without fear or favour. Impartiality versus Independence: • Impartiality refers to a subjective frame of mind, whereas independence refers to more objective or (external) institutional relations between courts and other actors which permit such impartiality. What Does Judicial Independence Require? • It has been established that judicial independence has both an individual and collective dimension to it, that it must protect not only individual judges but the judiciary as a whole. • Job security is essential, and this is done by judges to be seen impartial in the rulings they decide. Judges sometimes feel pressured to side with the government in power because they technically have the power to curtail or extend a term, (even if it is an extreme measure). • Judicial salaries are set by the government as well, and are same for the entire group not done individually. • The Canadian Judicial Council, who represents the federally appointed judges wanted to abolish the “executive model” they have now, to give judicial autonomy to the courts for court budgets and administration. Although this raises issues of budgetary accountability. Three additional components of judicial independence that have developed into a tradition in Canada are: 1. Judges are not answerable to the bureaucracy for judicial matters; that is the sole justification for judicial rulings appears in their oral or written decisions 2. Judges been drawn from members of the bar and have legal excellence 3. Judges traditionally adhere to “formalistic” decision making that maximized deference to Parliament and allows for judicial creati
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