Got questions about judicial independence?

Judicial independence is the principle that judges are fully independent in their decision-making process. They must be able to make their decisions based solely on facts and the law. This means they can’t be influenced by those with power or wealth or by public opinion. Canada’s judges enforce the law equally for every Canadian—they don’t play favourites. This ensures that we all have the same rights and freedoms.

If judges weren’t independent, the door could be open to a dictatorship. The freedom to express our opinions, to practice our religion, to confidentially consult a lawyer, to travel freely and to have privacy—all of these could vanish.

In Canada, judicial independence is protected in three ways.

First, judges are appointed based on their legal expertise and knowledge — not on the expectation that they would favor someone they know or vote for.

Second, they serve for as long as they choose or are able to before the age of mandatory retirement. They can’t be fired for making a decision the government doesn’t like.

Third, Canada’s judges are guaranteed a sufficient salary and pension so they don’t face financial pressures that could make them vulnerable.

Judges are appointed either by the federal government or by a provincial government, depending on the court.

Independent judicial advisory committees are at the heart of the federal judicial appointment process. These committees include representatives from a wide range of organizations and from all walks of life.

For instance, a lawyer who wants to be considered for a federal judicial appointment must submit a detailed personal history to the relevant advisory committee. The committee will then conduct extensive background and reference checks, and may also interview selected candidates. Next, the committee decides which candidates to recommend to the federal Minister of Justice, who then makes his or her final recommendations to Cabinet. Acting on the advice of Cabinet, the Governor General makes the appointment.

In Canada, parties in a legal case who lost in first instance, including in criminal matters, have access to appeal courts, the function of which is to correct errors, and clarify the law.

Typically, a court of appeal will intervene if there is an error of law affecting the outcome, or if there is a palpable and overriding error in the judge appreciation of the facts. For example, in criminal matters, a court of appeal may intervene if the accused can show that the judge made a legal error during the trial, that there was not enough evidence to support the conviction, or that the sentence was far more onerous than is usual in similar cases.

If an appeal is allowed in criminal matters, the appeal court has five options:

1. Dismiss the appeal - The original trial was conducted properly, the evidence supported the conviction, and the sentence was appropriate.
2. Order a new trial - The trial was not fairly or properly conducted, or a significant error of law was made.
3. Find the accused guilty - When the accused was found not guilty, the appeal court can overturn this decision and find the offender guilty of an offence. The Court will then also sentence the offender. If a jury acquitted the accused, the appeal court’s powers are limited to ordering a new trial.
4. Acquit the accused - When an accused was found guilty by a lower court, the Appeal Court may overturn that decision and find the accused not guilty.
5. Modify the sentence. The appeal court can make a sentence more or less severe and remove or add penalties such as fines or probation. The factors that the Court will consider include if the sentence is in keeping with sentences imposed in similar cases, the nature and seriousness of the crime, its impact on the victim, and the character and criminal history of the offender.

The rule of law is the principle that our laws apply equally to everyone—no one is above the law. The rule of law is based on a recognition that we need laws to regulate society and to live together peacefully. The rule of law is a fundamental aspect of Canadian democracy.

No.

However, following consideration of appeals to higher courts, a government which disagrees with decisions of the courts may attempt to change what they don’t like by proposing either a new law or changes to an existing one. It’s then the responsibility of Parliament or a provincial or territorial legislature to accept, modify or reject the government’s proposals. In due course, judges may be called upon to  review a new or changed law to ensure it’s in line with Canada’s Constitution and Charter of Rights.

Most new judges have spent years in courtrooms and have extensive knowledge of court processes and the role of the judge. Once they are appointed, they can expand that knowledge by enrolling in educational programs covering all aspects of judging. For their first three to five years on the bench, they will also take courses relevant to their background and the kinds of cases they are assigned. These can include courses on recent developments in criminal law, family law and civil law, and social context education that addresses challenging issues such as sexual violence, aboriginal law and the safety and security of women.

The independent Canadian Judicial Council and similar provincial judicial councils investigate complaints about the conduct of judges, both inside and outside of the courtroom, and make recommendations for removal if necessary.

The independence of judges is ensured by Canada’s separation of powers, which prevents power from being concentrated in any of the three branches of government. Each branch has separate and independent areas of power and responsibility

Judges are the judicial branch and make decisions based solely on the law and the evidence. The government of the day, the executive branch, proposes new laws or changes to existing ones. Elected representatives in Parliament and provincial legislatures accept, modify or reject these proposals. And judges may be called upon to review a new or changed law to ensure it is in line with Canada’s Constitution and Charter of Rights.

Judges make decisions in legal disputes based solely on the facts of a case and the law that applies to those facts. They have a responsibility to be independent and impartial so that the public can have confidence in the fairness of Canada’s justice system, which underpins our democracy.

Judicial independence for federal judges is entrenched under sections 96 to 100 of Canada’s Constitution. These sections cover security of tenure (federal judges can’t be fired—they serve for as long as they choose or are able to before reaching mandatory retirement age, which is 75 years) and the right to a salary determined by the Parliament of Canada, not the government of the day. The provinces and territories have similar legislation regarding judges. The federal Judges Act of 1985 defines, among other things, who is eligible to be a judge and how much judges must be paid.