The independence of judges.

• Author: Davison, Charles B.
• Position: Criminal Law

These days, Canadians are more and more frequently debating how we select our judges and what we expect of them. Central to this debate is a most fundamental principle: the independence of our courts and those appointed to preside over them.

What do we mean when we speak of an "independent judiciary" and why is this considered to be so important in Canada?

One of the most basic aspects of our concept of justice is also one of the most easily understood: true justice is not likely to be done (or to even be seen to be done) unless the person or entity making the decision in question is impartial and unbiased. If the decision-maker--the judge or jury, depending on the situation (for ease of reference and to save space, I will refer to all decision-makers as if they were judges in the comments which follow)--either has, or appears to have, a connection to one of the parties in the matter coming before the court, or a direct and personal interest in the outcome of the case, the integrity of the conclusion will be open to serious doubt and challenge. If a person judging a dispute is related to or friends with one of the parties, there will always be a concern that he or she has made the decision based upon that personal relationship and not purely upon the merits of the case. Similarly, if the judge may personally gain or suffer depending upon the decision to be made, there will always be at least a suspicion that the conclusion reached was the result of the personal interests of the judge and not because that outcome was the correct one for the circumstances.

In Canada, we have gone to great lengths in an effort to ensure that these principles are observed and respected in all circumstances. Judges avoid participation in matters involving people they know in almost any capacity, and will not sit on cases which have an impact upon their personal financial, property or similar interests. Once appointed to the bench, judges must be--and are--exceedingly careful about the organizations to which they continue to belong and associations which can be maintained from before their appointment. Many lead fairly cloistered lives in an effort to best preserve their actual and apparent neutrality in disputes which they might be called upon to judge. Although judges can now vote (until the Charter of Rights and Freedoms was enacted, most could not) some do not even exercise that right in an effort to ensure that they maintain their impartiality and unbiased...