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
• 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
• 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
• 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
• 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
• 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