Judicial independence is a cornerstone of the Canadian judicial system. That is why, under the Constitution, the judiciary is separate from and independent of the other two branches of government, the executive and legislature. Judicial independence guarantees that judges will be able to make decisions free of influence and based solely on fact and law.
Nothing is more important in our justice system than having independent judges.
The principle of judicial independence has three components:
- Security of tenure
- Once appointed, a judge is eligible to serve on the bench until retirement (age 75 for federally appointed judges, age 70 in some provincial/territorial jurisdictions). Judges can be removed by a joint address of Parliament or a provincial legislature, only after an independent and impartial investigation shows that there is good reason (see Judicial Conduct, below).
- Financial security
- Judges must be guaranteed sufficient compensation (including salary and pension) so they are not subject to pressure for financial considerations. In Canada, governments cannot change judges’ salaries or benefits without first receiving the recommendations of an independent compensation commission.
- Administrative independence
- No one can interfere with how courts manage the legal process and exercise their judicial functions. For example, only the chief justice can choose how cases are assigned to the judges of his or her court.
Several institutions have been established to support judicial independence: these include the Canadian Judicial Council, the Commissioner for Federal Judicial Affairs, the National Judicial Institute and the Courts Administration Service. They help keep the government and the judiciary separate in areas like discipline, pay and benefits, and continuing education for judges.
How are judges appointed?
The federal government appoints judges to the federal courts, the superior courts of the provinces/territories, and the Supreme Court of Canada. The Commissioner for Federal Judicial Affairs administers the advisory committees, representing each province and territory, which assess the qualifications of the lawyers who apply for federal judicial appointments. For example, a candidate for a federal appointment must have been a lawyer for at least ten years to be appointed and must be qualified to practise law in the jurisdiction in question.
The provincial and territorial governments appoint judges to provincial and territorial courts. There are similar eligibility requirements for provincial and territorial appointments.
All federally appointed judges are appointed by the Governor in Council. This consists of the Governor General acting on the advice of the Prime Minister for judges of the Supreme Court of Canada and chief and associate chief justices in the provinces; and on the advice of the Minister of Justice for all other superior court judges.
What training do judges receive?
In general, most judges have spent years in courtrooms or in the practice of law, and have extensive knowledge of court processes and the role of the judge. Once they are appointed, they can refine that knowledge by enrolling in educational programs at both the provincial/territorial and federal levels on all aspects of judging, as well as specific substantive areas of the law. The National Judicial Institute delivers programs for all federal, provincial, and territorial judges. The Institute is funded by each level of government, and regularly offers courses for new judges.
Each jurisdiction in Canada has a judicial council that is responsible for promoting and administering professional standards and conduct. For provincially and territorially appointed judges, each province or territory has a judicial council. Its members include judges, lawyers, and members of the general public. Judicial councils develop policies and codes of conduct to provide guidance for judges.
The Canadian Judicial Council (CJC) is responsible for federally appointed judges. It consists of the chief justices and associate chief justices of all of the federal courts and provincial/territorial superior courts. It promotes efficiency, consistency, and quality judicial service in these courts. One of the Council’s tasks is to investigate complaints and allegations of misconduct of federally appointed judges. The CJC has also developed a set of Ethical Principles for Judges. Their purpose is to help judges ensure that they maintain their independence, integrity, and impartiality.
If it finds evidence of serious misconduct, the CJC may recommend to the Minister of Justice that the judge be removed from office. The Minister of Justice may then seek the necessary approval of both the House of Commons and the Senate to have the judge removed from office. The removal processes for provincial/territorial judges vary from jurisdiction to jurisdiction, but are similarly developed to protect judicial independence and ensure that the process operates independently.
Relevant laws relating to the judiciary
The manner in which judges are appointed and administered is governed by Part VII of the Constitution Acts of 1867 and 1982 and the Judges Act. The Justice Laws website provides the texts of these acts. Provincial and territorial statutes and regulations can be found on the websites of the respective jurisdictions.
The following organizations also support judges in Canada:
- Courts Administration Service
- Office of the Commissioner for Federal Judicial Affairs Canada
- National Judicial Institute
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