BarTalk April 2003
Volume 15, Number 2

Why it assures us all the right to a fair trial

by David A Paul

Judicial independence is a cornerstone of Canadian democracy. It means that when Canadians turn to the courts, they are guaranteed access to a judge who will deal with their case in an independent and impartial manner.

We expect our judges to apply the law to the facts in the cases before them, not merely to dictate rulings based on the views or beliefs of any one powerful individual, and certainly not what the public might like the decision to be. Our guarantee of a fair trial is that the judge’s decision must be based on what the law says and on the evidence presented in open court.

Individual decisions may at times seem inconsistent with some people’s sense of justice but, together, judges’ decisions make the Constitution and Canada’s laws work to the benefit of everyone. Judges’ decisions promote the rule of law.

Judicial independence ensures that judges are free from government or public interference so that they can make decisions without fear of reprisals. Judges are appointed for life or until retirement age. This ensures that they can make their decisions independently, without concerns of losing their job or otherwise being penalized. If a judge makes an incorrect decision, appeal courts may review their decision.

Canadians must be ever-vigilant to ensure that judicial independence is respected. Judges bring down decisions in open court, as part of the transparency of our legal system. This makes the decisions – and the judges – an easy mark for criticism. The media often report stories of a politician who, opposed to a certain ruling, suggest judges’ decisions should be reviewed by Attorneys General, or monitored, or that judges should be treated as employees, hired/fired at whim.

These concepts are an anathema to an independent bench and insensitive to the role of the judiciary as set out in the Charter. Our Constitution documents the separation of powers (legislative, executive and judicial) and requires that each branch of government adhere to its proper function. Public confidence in the administration of justice rests on three aspects of judicial independence: security of tenure, financial security, and institutional security. The recent establishment of judicial commissions to review judges salaries and benefits provides an essential buffer between the judiciary and the state, while ensuring that the judiciary are treated fairly.

Judicial independence does not mean that judicial decisions are beyond public comment. The public has a right to know what is happening in the courts and to comment on it. Canadians need to be well-informed about decisions and should not to be misled by incomplete or misleading reports. We count on the fifth estate to provide balanced coverage of our courts. Supreme Court of Canada decisions often require amendments to the law. Changes are required when our laws are not working the way they should.

As lawyers, we must be diligent not to criticize judges in public. This is a challenge for the legal profession given our adversarial system. In each case there are winning and losing sides. We have a duty to improve the public’s understanding of the necessity of an independent judiciary. It is in everyone’s interest to support and defend the integrity of our legal system and the role of judges in it.

I believe it is up to lawyers to respond to attacks against judges and our judiciary. We need to remind people that if they do not like the impact of a law, they should speak to those who enact the laws – politicians.

In summary, the courts are the guardians of the rule of law and their independence is a cornerstone of Canada’s constitutional framework. Judicial independence is part and parcel of the indispensable elements of civilized life. It is not a fuzzy ideal. It is essential.

This article was published in the April 2003 issue of BarTalk and is subject to the copyright by the British Columbia Branch of the Canadian Bar Association, 2005, all rights reserved.