Judicial independence is a cornerstone of the Canadian judicial system. Under the Constitution, the judiciary is separate from and independent of the other two branches of government, the executive and legislative. Judicial independence is a guarantee that judges will make decisions free of influence and based solely on fact and law. It has three components: security of tenure, financial security, and administrative independence. Security of tenure means that, once appointed, a judge is eligible to serve on the bench until the age of retirement (required at age 75 for federally appointed judges, age 70 in some provincial/territorial jurisdictions) and can be removed only if an independent investigation shows that there is good reason (see Ethics and Discipline, below). Financial security means that judges should be paid sufficiently and in a manner that does not leave them in a position of dependence or subject to pressure. In Canada, governments cannot change judges salaries or benefits without first consulting an independent commission. Administrative independence means that no one can interfere with how courts manage the litigation process and exercise their judicial functions. For example, it is the chief justice who chooses how cases are assigned to the judges of the court. A number of institutions foster judicial independence, notably the Canadian Judicial Council, the Commissioner for Federal Judicial Affairs and the National Judicial Institute. These institutions help maintain a distance between the government and the judiciary in areas like discipline, pay and benefits, and continuing education for judges Appointment and Education Judges are appointed by the federal or provincial/territorial governments, depending on the level of court. To be appointed by the federal government to a superior court, the Federal Court, or the Supreme Court, a candidate must have been a lawyer for at least ten years. Judges appointed to provincial/territorial superior courts must also be qualified to practise law in the jurisdiction in question. There are similar requirements for provincial/territorial appointments. In Canada, judges are not required to have any formal training on how to be a judge before they are appointed. However, once appointed, they have access to a range of programs at both the provincial/territorial and federal levels on all aspects of judging, as well as areas of the law. The National Judicial Institute, in particular, coordinates and delivers educational programs for all federal, provincial, and territorial judges. The Institute is funded by both levels of government, and regularly offers courses for new judges. Ethics and Discipline Each jurisdiction in Canada has a judicial council which has general responsibility for promoting professional standards and conduct. The council for federally appointed judges is made up of members of the judiciary. For provincially and territorially appointed judges, each province or territory has a judicial council whose members include judges, lawyers, and individuals from the general public. Judicial councils develop policies and codes of conduct to provide guidance for judges. They may even recommend that a judge be removed from the bench if it becomes necessary, though few judges have in fact been removed in the history of Canada. The Canadian Judicial Council, which is responsible for federally appointed judges, consists of the chief justices of all of the federal courts and provincial/territorial superior courts. It was created by the federal government to promote efficiency, consistency, and good service in these courts. One of the Councils tasks is to investigate complaints and allegations of misconduct on the part of federally appointed judges. If it finds evidence of serious misconduct, the Council may recommend to the Minister of Justice that the judge be removed. The Minister must in turn get the approval of both the House of Commons and the Senate before a judge can be removed from office. (The rules for provincial/territorial judges are similar, but they can be removed by a provincial or territorial cabinet.) The Council has developed a set of Ethical Principles for Judges, designed to assist judges in maintaining their independence, integrity and impartiality.
Posted on: Wed, 12 Mar 2014 17:03:44 +0000
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