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Understanding the role of Canada's judiciary.

Historical Judicial Law-Making through Application of the Law

The Canadian political system comprises three fundamental parts: the executive branch, the legislative branch, and the judiciary. The judiciary is an integral part of the system, paradoxically both interdependent as well as independent.

The judiciary functions primarily to adjudicate disputes and maintain order by upholding rights and enforcing duties pursuant to existing laws. Our legal system is based on the development of common law (judges applying previous case law to adjudicate current disputes). Our political system is federalist, with a written constitution dividing power between the federal and provincial governments. As such, Canadian law (legal rules and principles) comprises the common law, statutes, and the Constitution including the Canadian Charter of Rights and Freedoms.

Process of Adjudication: Judicial Interpretation and Discretion

The process of adjudication of disputes has historically involved applying existing law to new and unforeseen circumstances. Existing laws (legal rules and principles) are general in nature, involving some vagueness, ambiguities, and internal conflicts. Thus, the application of general laws to specific fact situations before the courts requires judicial interpretation to determine the proper meaning, application, or scope of legal rules and principles. In other words, the process of adjudication itself both attempts to apply existing law and has the consequence of shaping law. This apparent paradox gave rise to the historical law-making ability of Canadian judges to develop and shape law through our common law legal system.

Historically, the main role of Canadian judges has included determining the proper meaning of legal rules and principles through judicial interpretation of

* the common law (nature and/or scope of legal principles arising from case law),

* statutes (nature and/or scope of laws passed by the legislatures) and

* the Constitution (clarification of the powers of the provincial versus federal governments).

As a result, the process of adjudication continues to include the judiciary's role in clarifying the rights and duties of individuals in society through the process of determining the application and/or scope of existing laws. This historical judicial power was enhanced with the advent of the Canadian Charter of Rights and Freedoms.

Another historical role of the Canadian judiciary has included sorting conflicts or setting priorities between competing legal rules and principles before the courts. This function is accomplished through judicial interpretation of those rules or principles, by

* reference to underlying legal principles of the legal system as a whole,

* consideration of society's reasons for having laws respecting the issue at hand, and

* consideration of the social and political values at the foundation of our legal institutions.

In this way, the judiciary interprets the law in terms of its broader purposes and hierarchy of underlying principles reflecting societal values.

In applying the law to particular circumstances, the judiciary provides leadership respecting the social purposes underlying the laws, that is, to reflect the fundamental values of Canadian society. The laws and the legal system itself are not neutral, but instead reflect society's values. For example, in western liberal democracies like Canada, we as a society place great value in protecting individual freedoms, such as freedom of speech and freedom of association. Our body of common law developed reflecting these values. Later, these values were constitutionally entrenched by the Charter.

Judicial Independence

In Canada, our political system comprises interdependent institutions. At the same time, as a result of the great value placed on individual liberties and political and social pluralism, we place a correspondingly high value on separating the judiciary from other government institutions. This ensures that an independent and impartial judiciary upholds individual liberties. Judicial independence and impartiality are fundamental cornerstones of the Canadian judiciary, necessary to ensure just and effective adjudication. Consequently, a corresponding need protects the judiciary from direct interference from other political structures.

In order for the judiciary to adjudicate disputes, judicial independence is necessary to enable judges to render decisions without external pressures and influences, or fear of interference. Three types of disputes may come before Canadian courts:

* between individuals that involve a legal issue;

* between an individual and government (which requires judicial independence to ensure the ability of the individual to bring action against a government); and

* between governments (which requires judicial independence to ensure the decisions reflect jurisdictional division of powers pursuant to the Constitution).

In the last two types of dispute, the Canadian Constitution permits special interest groups to challenge policy enacted by government and permits one level of government to challenge another. Judicial independence is thereby supported by the Constitution.

Security of tenure supports judicial independence. That is, once appointed, judges cannot be removed by a government merely because the government does not agree with their judicial decisions. Judges may depart the bench in one of three ways:

* resignation (usually for health or personal reasons);

* retirement (although originally appointed for life, an amendment to the Constitution provided for mandatory retirement upon attaining age 75 for superior court judges while other courts have mandatory retirement ages that vary); and

* removal (but this is rare).

Further, judicial independence is maintained by immunity from suits. If judges act judicially, they are guaranteed immunity from lawsuits regarding their decisions.

In addition, supervision of judicial conduct through the Canadian Judicial Council (made up of judges only) or provincial judicial councils depending on the court on which the judge serves (comprising some judges and some laypersons) provides educational, investigative, and disciplinary functions, ensuring an independent, self-regulated judiciary. The Canadian Judicial Council promotes efficiency and uniformity in the law and improves the quality of judicial service. Parliament has empowered the Canadian Judicial Council to investigate any complaint and/or allegation respecting a judge. As a cornerstone of judicial independence, the Canadian Judicial Council has recommended that judges firmly reject any attempt to influence their decisions and to exhibit and promote high standards of judicial conduct to ensure public confidence.

Judicial independence and decision-making is limited by settling conflicts within the context of applying the law. The application of the law in the adjudication process itself leads to judicial interpretation and discretion. The Canadian legal system, however, also adopted the British principle of parliamentary and legislative supremacy such that the legislatures have the ability to enact legislation altering judge-made law (common law rules). As such, the Canadian political system includes the interdependent, counterbalancing elements of the courts whose power is limited by the legislatures, and Parliament and provincial legislatures that are limited by the Constitution and the Charter, which are subject to judicial interpretation for their scope and/or application.

Judicial independence and discretion are further balanced by the doctrine of stare decisis (a Latin term meaning "to stand by things decided") that attempts consistency of the application of existing common law through the hierarchy of our court system.

Judicial Impartiality

One of the fundamental rights of Canadian society is the ability of individuals to submit disputes to an impartial judge. This requires the availability and impartiality of judges to settle such disputes.

Judicial impartiality maintains the integrity of the judicial process, and thus public confidence, which maintains order in society. To ensure no bias or appearance of bias to either party, judges are expected to guarantee that they do not have or even appear to have any association with either party before the court and any association or interest outside of the court proceedings respecting the issues at hand. Thus, judges are expected to avoid conflicts of interest, or appearance thereof, that could question judicial impartiality.

Judges are expected to recuse, that is, disqualify themselves from presiding over the matter when either

* the judge believes he or she is unable to adjudicate impartially or

* a reasonable, fair-minded, and informed person would have a suspicion of a conflict between personal interest (with the judge, his or her immediate family, or close friends or associates) and the judge's judicial duties.

In our adversarial system, the judge ensures the legitimacy of the adjudication process by

* maintaining judicial impartiality by allowing both sides to present their case before rendering a decision;

* permitting the submission of only evidence and legal arguments that are relevant (to the legal points in issue) and fair to both sides;

* ensuring the judicial decision is based on arguments before the court (not extraneous matters); and

* ensuring the rationality of the judicial decision (not arbitrary).

Our system reflects the value of individualism by placing the responsibility on litigants and their counsel to bring forth relevant facts and legal rules and principles for judicial consideration.

Outside of court, judges must conduct their personal and business affairs in a manner that minimizes the occasions for which they would need to disqualify themselves. To maintain judicial impartiality, the Canadian Judicial Council recommends that judges

* avoid participation in areas of public controversy,

* avoid involvement in any cause or organization likely to be engaged in litigation, and

* avoid any activity that may question their independence.

This includes avoiding direct or implied participation in political discussions or activities, and avoiding the perception of political bias. In particular, judges should avoid public statements, including statements to the press explaining their judgments; any criticism (direct or implied) of current legislation; and criticism of delivered judgments or the appearance of disrespect of other courts. Public comments may be made respecting the law as it is, the legal system, and the administration of justice. The aim is to ensure that the judiciary's conduct in and outside of court maintains and enhances public confidence in judicial impartiality.

Development of Common Law: Judges' Decisions

In the main, the judiciary adjudicates disputes that have gone beyond the private realm. The process of adjudication requires judicial interpretation of common law, statutes, and the Constitution including the Charter. Such interpretation involves broad discretion of judicial power. The main purpose of judges' decisions is to resolve the dispute before the court and provide objective rationality for the resolution. That is, the reasons for judgment should include the rational or reasonable application of the law.

Since no general legal duty requires the Canadian judiciary to provide reasons for judgment, the absence of reasons does not necessarily invalidate the judgment or order. Exceptions involve certain statutes that expressly require reasons for judgment or the identification of evidence and other statutes that require setting out the facts. Other statutes require provision of the grounds on which the judicial decision is based, but not the reasons.

Given that our legal system is based on the common law and the principles of stare decisis, however, reasons for judgment should be rendered. These reasons may be rendered orally (immediately after the close of submissions in court) or in written form (as soon as possible). The reasons for judgment ensure clarity of the resolution of the dispute to the litigants and their counsel.

Trial courts are the courts of first instance, which carry out the bulk of the adjudicative function. Their judicial decisions are important in shaping the common law in that they apply or clarify the law, thereby establishing precedents including sentencing (criminal) and range of damages (civil). These judicial decisions generally focus on disputes of fact (whose version of events to accept) and whether these facts meet legal tests for liability.

If no reasons for judgment are given at the trial level, an appellate court generally assumes that the trial court had every fact open to it to find on the evidence. The appellate court may be able to infer the trial judge's reasons by examining the facts before it. Where facts were clearly insufficient to support the trial decision, however, the decision will be overturned.

Reasons for judgment are important for appellate courts, given their great deference to the impressions of the trial judge. As such, the trial judge's reasons for judgment should set out

* the findings of fact;

* the assessment of credibility of witnesses; and

* an indication of the evidence that was particularly persuasive to the court in rendering its decision.

The absence of such reasons may result in the appellate court ordering a new trial.

The courts of appeal (including the Supreme Court of Canada) focus on complex issues surrounding the proper interpretation and development of law. Decisions of provincial courts of appeal are binding on the provincial courts of lower jurisdictions. And, of course, the decisions of the Supreme Court of Canada are binding on all courts beneath it.

The reasons for judgment are integral to the development of Canadian common law. Therefore Canadian judge-made law, by applying legal rules and principles to new circumstances, allows the law to evolve (the living tree) and narrows or broadens statutory interpretation.

Connie L. Mah is a lawyer practising in Edmonton, Alberta.
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Author:Mah, Connie L.
Geographic Code:1CANA
Date:Jun 1, 2006
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