In defence of the independence of the judiciary

by Doug F Robinson QC

The Right Honourable Antonio Lamer, PC, Chief Justice of the Supreme Court of Canada addressing the CBA Annual Meeting in St. John’s this August, invited debate about the role of judges and lawyers in addressing public criticism of the administration of justice. “Our judicial tradition has been that judges generally do not comment on judgments or, for that matter, on any issue in the public domain touching them . . . I have always thought this was proper—that the judiciary should keep silent lest it sacrifice its independence or, at least, the perception of impartiality.” Chief Justice Lamer then went on to comment that since the introduction of the Charter, it may have become more difficult for public figures and lawyers to speak-up because in many instances political issues are involved. In that context, he wondered whether it was time to re-examine the traditional silence of the judiciary. He invited all those present to begin a dialogue about how best to ensure public understanding of, and confidence in, Canada’s system of justice administration.

The Canadian Bar Association has a duty to take part in this dialogue, and we must be vigilant and vocal in our defence of the independence of the judiciary. One of the most important underlying principles of a democratic society is judicial independence. Impartiality, which I suggest is at the heart of the judicial process, means bringing an objective state of mind fostered by a reliance on the rule of law, another foundation stone of our democratic system, to the just resolution of disputes. Independence, on the other hand, refers to the ability to decide in opposition to others with political power.

The Supreme Court of Canada has made it clear that the constitutional principle of judicial independence has both an individual and an institutional element. Though the Supreme Court has identified a number of essential elements, not all have been identified and it has been recognized that the elements themselves may evolve with time and circumstances.

It is the Canadian Bar’s commitment to always take it upon ourselves to speak out in order to preserve and jealously guard the independence of the judiciary which is a fundamental pillar of our society. To that end we will strive on many fronts. We will speak out, when appropriate, in public forums, in the media, in our relations with the government and in our communities. We will also conscientiously attempt to have law makers draft the law as explicitly and carefully as possible. This aids impartiality, because well-drafted laws reduce the effect of judicial discretion and lessen the possibility of the perception of bias. Impartiality, I suggest, buttresses judicial independence.

As I addressed to Madame Justice Lynn Smith at her swearing-in ceremony and I repeat to all in the judiciary in BC: be bold and seize your part in advancing the law. Be not afraid to err along the way if in your judgment your decision has been just.

To the lawyers of BC, I say: continue to provide your keen counsel as laws are developed and reviewed, and be vigilant in identifying opportunities for the Bar to provide real and meaningful support to the honourable duty of defending the independence of the judiciary. As local issues emerge—through public debate, individual “letters to the editor” or specific media coverage of court events—take it upon yourselves to inform me or Executive Director Barry Cavanaugh, so that we may most effectively use the resources of the Branch. Together, we will ensure that the CBA continues to provide a strong and thoughtful voice for the legal profession, on every issue that concerns the independence of the judiciary, administration of justice and the honorable profession of the practice of law.

This article was published in the October 1998 issue of BarTalk. © 1998 The Canadian Bar Association. All rights reserved.