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Maintaining a Strong Judiciary: The View From Canada

5th Worldwide Common Law Judiciary Conference
Sydney, Australia
Maintaining a Strong Judiciary: The View from Canada
The Honourable John D. Richard
Chief Justice
Federal Court of Canada

I. Introduction

An independent and impartial judiciary has long been recognized as essential to a free and democratic society. The Supreme Court of Canada has explained the importance of these principles in this way:

Both independence and impartiality are fundamental not only to the capacity to do justice in a particular case but also to individual and public confidence in the administration of justice. Without that confidence the system cannot command the respect and acceptance that are essential to its effective operation. It is, therefore, important that a tribunal should be perceived as independent, as well as impartial...1

Recognizing that independence and impartiality are essential elements of a strong judiciary, the Supreme Court of Canada has identified the characteristics of judicial independence and has crafted standards to determine whether Canadians perceive their judiciary as independent and impartial. Canadians have also created various bodies composed of judges, lawyers, academics and lay people which facilitate the independence of Canada's judiciary. It is these mechanisms that I wish to discuss with you today.

II. The Constitution and the Court

The principle of judicial independence finds its roots in the Canadian constitution. This is because judicial independence arises out of the role of Canadian courts as the protectors of the constitution and the values it embodies. 2 The Canadian constitution is comprised of two parts: the Constitution Act, 1867 3, also known as the British North America Act and the Constitution Act, 1982 4 which includes the Canadian Charter of Rights and Freedoms. 5. While the principle of judicial independence has been recognized more frequently in the latter, the Supreme Court of Canada has affirmed that this principle has roots in the former as well. A brief overview of the constitutional underpinnings of the judiciary is therefore essential to understanding the mechanisms which promote judicial independence in Canada.

The Constitution Act, 1867 established Canada as a federation. In other words, it allocated governmental power between the federal Parliament and the provincial Legislatures. The distinct heritage of each province is reflected in the Constitution. For example, section 133 permits the use of French and English in the debates and Acts of Parliament as well as in the federal Courts. Similarly, section 129 preserves the civil law system in Quebec as established in the Quebec Act, 1774.

In keeping with the establishment of Canada as a federation, the Constitution permits the creation of provincial and federal courts by the provincial legislature and the federal Parliament respectively. Subsection 92(14) allocates to the provinces the power to establish provincial courts of civil and criminal jurisdiction, in other words, courts of general jurisdiction. However, the appointment and remuneration of these judges is controlled by the federal Parliament pursuant to section 96. Parliament also has the power to establish federal courts for the better administration of laws in Canada pursuant to section 101. This section supported the creation of the Supreme Court of Canada in 1875. The Supreme Court became the final court of appeal in Canada after the abolition of appeals to the Judicial Committee of the Privy Council in 1949. This section also supported the establishment of the Exchequer Court of Canada in 1875 which is the predecessor of the Federal Court of Canada established in 1971. The appointment and remuneration of Supreme Court and Federal Court judges is also controlled by the federal Parliament. As of January 1, 2002, the number of federally appointed judges totalled 1029. 6

Permit me to take a tangent at this point so that I may provide you with a brief description of the Federal Court of Canada. The Federal Court is a bilingual court where proceedings may be taken before it in either or both of Canada's official languages. It is also a bijuridical court applying both the common law and the civil law. It is an itinerant court, in the sense that it sits and transacts business at any place in Canada, to suit, as close in proximity as may be, the convenience of the parties. Its judgements have force and effect across the country. Simply put, the Federal Court is a truly national, bilingual institution dispensing justice from coast to coast to coast.

The Court is given a broad jurisdiction in respect of litigation involving the federal Crown, matters relating to intellectual property, admiralty issues and certain specific statutes, such as the Income Tax Act. However, it is the Court's authority to hear statutory appeals from federal administrative boards and tribunals, such as the Immigration and Refugee Board and to undertake judicial review of their decisions which is particularly noteworthy.

With the declaration of the second part of the Canadian Constitution in 1982, most notably the Charter, Canada's long standing tradition of Parliamentary supremacy was replaced with constitutional supremacy and the need for an independent and impartial judiciary was revitalized.

Prior to the declaration of the Charter, judicial independence was considered important to ensure the impartial adjudication of jurisdictional disputes between the federal and provincial governments.

Not only did the declaration of the Charter create a new role for Canadian judges, it also created new reasons for requiring an impartial and independent judiciary. With a few exceptions, the Charter requires that all exercises of state power must comply with the Charter's guarantees of civil rights and liberties. It is the court's responsibility to decide whether legislation is consistent with, or offends the Charter. In other words, the Charter endowed the judiciary with the power to protect the constitutional rights and freedoms of Canadians against the state.

There is however a notwithstanding mechanism in section 33 of the Charter. This section of the Charter allows Parliament or a legislature to enact legislation that overrides section 2 or sections 7-15 of the Charter for a five year period. Canadian constitutional professor, Professor Peter Hogg, has questioned "whether it is meaningful to speak about rights when the principal provisions of the Charter can be overcome by the enactment of an ordinary statute containing a notwithstanding declaration." 7 Thus, the use of the notwithstanding mechanism has been infrequent.

Therefore, while judicial independence had long been recognized as a cornerstone of the political and legal system, the Court's new role prompted the Supreme Court of Canada to take a closer look at the nature of judicial independence and the guarantees essential to its maintenance.

III. Impartiality

Any discussion of judicial independence must include a discussion of judicial impartiality.

As humans, we judges cannot help but have opinions. We all bring our unique life experiences to the bench. Too often, it is mistakenly assumed that judges should not possess any knowledge of the facts of life.

The Supreme Court of Canada has acknowledged that "[t]rue impartiality does not require that the judge have no sympathies or opinions, it requires that the judge nevertheless be free to entertain and act upon different points of view with an open mind."8

Public acceptance of, and support for, court decisions depends upon public confidence in the integrity and independence of the bench. Judicial independence, which is the very essence of judicial function, is a means toward the far more important goal of maintaining public trust in the legal system and in the judiciary. It is society's confidence in the impartiality of individual decisions that forms the core strength of the judiciary as an institution. To decide impartially therefore, without bias and pre-judgment, is the highest obligation of every judge. And it is judicial independence, the freedom to hear and decide cases without the fear of the consequences, which is the very foundation of judicial impartiality.

IV. Judicial Independence

In a number of cases, the Supreme Court of Canada has established that judicial independence has two dimensions and three core characteristics.

Judicial independence has both an individual dimension and an institutional dimension. This implies that while an individual judge may enjoy the essential conditions of judicial independence, if the court or tribunal over which he or she presides is not independent, the tribunal cannot be said to be independent.

In the context of the institutional dimension of judicial independence, the Supreme Court of Canada characterized the proper relationship between the judicial branch and the executive and legislative branches of the government as follows:

What is at issue here is the character of the relationships between the legislature and the executive on the one hand, and the judiciary on the other. These relationships should be depoliticized. When I say that those relationships are depoliticized, I do not mean to deny that they are political in the sense that court decisions (both constitutional and non-constitutional) often have political implications, and that the statutes which courts adjudicate upon emerge from the political process. What I mean instead is the legislature and executive cannot, and cannot appear to, exert political pressure on the judiciary, and conversely, that members of the judiciary should exercise reserve in speaking out publicly on issues of general public policy that are or have the potential to come before the courts, that are the subject of political debate, and which do not relate to the proper administration of justice.9

The Supreme Court of Canada recognizes three characteristics as fundamental to judicial independence.

First, security of tenure. The essence of security for tenure is a tenure, whether until the age of retirement, for a fixed term, or for a specific adjudicative task, that is secure against interference by the executive in an arbitrary manner. This means that a judge may only be removed for cause. That cause must be subject to an independent review where the judge is afforded a full opportunity to be heard.

Second, financial security. The essence of financial security is the right to salary and pension established by law and free from arbitrary interference by the executive. This includes security of salary, and other remuneration. It also includes security of pension where appropriate.

Third, administrative independence. The essence of administrative independence is that the judiciary has control over the assignment of judges, sittings of the court and court lists. It also has control over the related matters of allocation of court rooms and the direction over administrative staff engaged in carrying out these functions.

Canadian courts cannot achieve a high level of judicial independence alone. As a result, there are a number of institutions that foster judicial independence in Canada by maintaining a distance between the government and the judiciary in areas such as appointments, remuneration, education, discipline and administration. Rather than reviewing each organization and the functions it carries out, I will provide you with an overview of how these organizations contribute to the maintenance of each characteristic.

V. Mechanisms which Maintain Judicial Independence

Appointments

As mentioned, the Governor General acting on the advice of the federal Cabinet appoints many provincial and all federal court judges (section 96). Since 1988, an independent advisory committee created by the Office of the Commissioner for Federal Judicial Affairs oversees the appointment process for judges.10 The committee consists of seven members of the bench, the bar and the general public. More specifically, the committee consists of a nominee of the provincial or territorial law society, a nominee of the provincial or territorial branch of the Canadian Bar Association, a judge nominated by the Chief Justice of the province or territory, a nominee of the provincial Attorney General or territorial Minister of Justice, and three nominees of the federal Minister of Justice.

The Committee makes its recommendations based on a number of established criteria in the areas of professional competence and experience, personal characteristics and social awareness.

Remuneration

The federal Parliament is also responsible for the remuneration of federally appointed judges. Since the legislative branch is responsible for remuneration, the judiciary is protected from the executive's ability to impair judicial independence by reductions or raises in salary. However, the Judicial Compensation and Benefits Commission, also known as the Quadrennial Commission, which inquires into the adequacy of the salaries and judges benefits protects the judiciary from the legislative branch as well.

The Commission is composed of three members. One member is nominated by the judiciary. The second member is nominated by the Minister of Justice of Canada. These two members nominate a third member who acts as the chairperson.

The Commission holds an inquiry every four years.

In conducting its inquiry, the Commission analyses four factors:

First, the prevailing economic conditions in Canada, including the cost of living, and the overall economic and current financial position of the federal government. Second, the role of the financial security of the judiciary in ensuring judicial independence. Third, the need to attract outstanding candidates to the judiciary. Fourth, any other objective criteria that the Commission considers relevant.11

The report and recommendations generated by the Commission are then submitted to Parliament. The Minister responds to the report and makes decisions about the remuneration of judges pursuant to it.

Education

The education of Canada's judges begins on appointment and continues throughout the judge's time on the bench.

Each judge is encouraged to spend up to 10 sitting days per year on their continuing education.

A number of organizations offer educational seminars to judges.

The Office of the Commissioner for Federal Judicial Affairs provides second language training in both official languages. This includes courses in French legal terminology to French-speaking judges from common law provinces.

The National Judicial Institute was established in 1988. 12 It is a non-profit body whose objective is to coordinate and deliver education to federal, provincial, and territorial judges. The educational programs focus on three components of judicial education: substantive law, skills training and social context issues.

In 2001, the Institute provided federal and provincial judges with 130 days of judicial education, spread over 42 face to face seminars and 5 computer taught or on-line courses.

The Canadian Judicial Council (CJC) also provides educational opportunities for judges. The CJC was created by the federal Parliament in 1971 and consists of 39 members. It is chaired by the Chief Justice of Canada and includes the chief justices and associate chief justices, chief judge and associate chief judge, and in the case of the three northern territories, the senior judges, of all courts whose members are appointed by the federal government.

The CJC encourages a year-long study leave of absence for judges who have been sitting on the bench for seven years.

The CJC's primary role is to provide educational opportunities for judges by recommending which seminars and conferences should be designated for the reimbursement of judges' expenses.13

Judicial Ethics

While there is no code of conduct for judges, the CJC does publish documents that discuss the ethical standards to which judges aspire. The most recent is Ethical Principles for Judges, published in 1998.14 In addition, the Advisory Committee on Judicial Ethics issues advisory opinions to specific ethical questions submitted by judges. This Advisory Committee consists of serving judges who do not belong to the CJC.

Judicial Discipline

Judges may only be removed by Parliament. 15 To date, there has not been a Parliamentary removal of a judge in Canada.

Prior to 1971, the federal Minister of Justice received and investigated complaints about federally appointed judges. The Minister carried out his or her investigation by making inquiries with the judge's chief justice and with other parties having knowledge of the incident.

The CJC became involved in the judicial complaint process following amendments to the Judges Act. In fact, the CJC's primary role in maintaining judicial independence is to protect the security of tenure of judges through the investigation of complaints against federally appointed judges.

Complaints are considered by the CJC in one of two ways.16

First, the CJC can investigate a complaint made by a member of the public when that complaint is made about the inappropriate conduct of a judge. The complaint is first screened by the Chairperson or a Vice-Chairperson of the Judicial Conduct Committee of the CJC Comments are sought from the judge and his or her Chief Justice. If the matter is serious enough, the matter is referred to a Panel of up to five chief justices and puisne judges following a fact-finding investigation by independent counsel.

If the CJC undertakes a formal investigation, an Inquiry Committee is appointed. The Committee consist of two Council members and a lawyer appointed by the Minister of Justice of Canada. This Committee is empowered to summon witnesses, take evidence and may require the production of documents. The judge under investigation is entitled to be represented by counsel. He or she is also entitled to be heard.

When the formal investigation is completed, the Inquiry Committee makes a report to the CJC This report may recommend that the judge be removed from judicial office. Based on the report, the CJC then makes a recommendation to the Minister of Justice.

The second method is for the Minister of Justice of Canada or the Attorney General of a province to request that the Council inquire into the conduct of a judge. If the CJC receives such a request, the Council is required to establish an Inquiry Committee. In other words, the complaint bypasses the informal investigation process.

The Administration of Justice

The Office of the Commissioner for Federal Judicial Affairs manages the administration of judges. Not only does the Administrative Services branch of the Commissioner complete a number of administrative tasks upon the appointment of the judge, the branch continues to be involved in the administrative life of the judge through the payment of travel claims, incidental expenses, salary, health and life insurance programs, payroll deductions, etc.

The passing of Bill C-30, The Courts Administration Service Act, is legislative recognition of the importance of the independence of Canada's federal courts, in other words the Federal Court of Canada, the Court Martial Appeal Court and the Tax Court of Canada. 17

One of the purposes of this Act is to "enhance judicial independence by placing administrative services at arm's length from the Government of Canada and by affirming the roles of chief justices and judges in the management of the courts."18

The Act empowers the Governor in Council, in other words, the Federal Cabinet, to appoint a Chief Administrator for a term of up to five years. The Chief Administrator is furnished with all the powers necessary for the overall management and administration of all court services, including court facilities and libraries, corporate services and staffing. The powers of the Chief Administrator are limited however. The Administrator's power does not extend to any matter assigned by law to the judiciary.

The Act affirms that the Chief Justices of each of the courts is responsible for the judicial functions of their courts including the direction and supervision over court sittings and assignment of judicial duties.19 They are empowered to determine the sittings of the court, assign judges to sittings, assign cases and other judicial duties to judges, determine the sitting schedules and places of sittings for judges, determine the total annual and monthly work load of judges, as well as assign courtrooms and prepare hearing lists.

Importantly, the Chief Justice may issue binding directions in writing to the Chief Administrator with respect to any matter within the Chief Administrator's authority.20

Technology

No discussion about the administration of the judiciary would be complete without a word on technology.

The Office of the Commissioner for Federal Judicial Affairs has developed a communications tool for Canadian judges. It is called JUDICOM. JUDICOM is a secure, user-friendly network which allows judges to communicate with other members of the judiciary across the country, with the Commissioner and with the National Judicial Institute through JAIN, the Judicial Affairs Information Network. The tool also allows judges to consult a multitude of legal resources.

VI. Future Challenges to an independent judiciary

As you can see, there are a number of organizations and tools which strive to enhance judicial independence in Canada today. However, there are continuing challenges.

One of these is funding. A primary concern is insufficient funding for court facilities. Inadequate facilities have the effect of reducing accessibility to justice.

Insufficient funding which results in too few judges can also erode the public's confidence in the judicial system when hearings are delayed and decisions must be reserved for long periods of time.

VII. Conclusion

As a democratic society, Canada has witnessed momentous changes in the relationship between individuals and the state. I believe that the judiciary in Canada possess the knowledge and experience to make tremendous contributions to the maintenance and continuing evolution of our free and democratic society. The role of the courts as resolver of disputes, interpreter of the law and defender of the Constitution and the Charter, requires that they be completely separate in authority and function from all other participants in the justice system. Canada's tradition of judicial independence guarantees that the courtrooms over which judges preside will continue to be accessible to all individuals and that proceedings will remain open, transparent and free from government interference. It is these guarantees which maintain the strength of the judiciary in Canada today.


1  R. v. Valente, [1985] 2 S.C.R. 673 at 689.

2  Reference re: Remuneration of Judges of the Provincial Court of Prince Edward Island; Reference re: Independence and Impartiality of Judges of the Provincial Court of Prince Edward Island; R. v. Campbell; R. v. Ekmecic; R. v. Wickman; Manitoba Provincial Judges Assn. v. Manitoba (Minister of Justice), [1997] 3 S.C.R. 3 at para. 123.

3  Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, reprinted in R.S.C. 1985, App. II, No.5.

4  Constitution Act, 1982 being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.

5  Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.

6  Information regarding the Canadian Judicial Council can be found online at http://www.cjc-ccm.gc.ca/article.asp?id=2268.

7  Peter W. Hogg, Constitutional Law of Canada, 4th ed. (Scarborough: Carswell, 1997)at 36.8.

8  R.D.S. v. The Queen, [1997] 3 S.C.R. 484 at 504.

9  Reference re: Remuneration of Judges, supra note 2 at para. 140.

10  Information regarding the Office of the Commissioner for Federal Judicial Affairs can be found online at www.fja.gc.ca.

11  Judges Act, R.S.C. 1985, c. J-1 at s. 26(1.1).

12  Information regarding the National Judicial Institute can be found online at www.nji.ca.

13  Judges Act, supra note 11 at s. 41(1).

14  Ethical Principles for Judges, online: Canadian Judicial Council, http://www.cjc-ccm.gc.ca/article.asp?id=2274.

15  Constitution Act, 1867, supra note 3 at s. 96.

16  An overview of these processes is available online at www.cjc-ccm.gc.ca.

17  Bill C-30, The Courts Administration Service Act, 37th Parliament, 1st sess.

18  Ibid. at cl. 2(b).

19  Ibid. at cl. 8(1).

20  Ibid. at cl. 9(1).

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Date Modified: 2015-09-09