Forthcoming: Judicial Independence in Transition Strengthening the Rule of Law in the OSCE Region, Anja Seibert-Fohr, ed, Max

x Planck Institut Series Beitraege zum auslaendischen oeffentlichen Recht und Voelkerrecht (Heidelberg: Springer, 2010).

Judicial Independence in Canada: A Critical Overview*

by Fabien Glinas
**

In Canada, judicial independence is broadly understood as a fundamental principle underlying the constitution. The specific norms that give life to this general principle form a highly complex patchwork of rules and practices which range from unwritten political understandings to constitutionally entrenched legal provisions. The complexity of this patchwork is partly a function of a federal structure having been superimposed onto preexisting constitutional arrangements, the fundamentals of which are largely unwritten. The source of judicial independence in Canada goes back to the understanding of that principle which took shape in the British constitutional tradition with the Act of Settlement of 1701. Its importance in the Canadian context has been a function of the special role played by the judiciary as an impartial arbiter of the federal system. Since the adoption of the Canadian Charter of Rights and Freedoms in 1982, the importance of judicial independence has been enhanced by a renewed role of the judiciary in the protection of individual rights and freedoms against intrusion by any organ of the state. The aim of this paper is to provide a critical overview of judicial independence in Canada in terms of both institutional structures and informal practices. The paper broadly follows a template suggested by the editor, but emphasizes the features which may appear useful as best practices or which may require attention as problem areas.

Copyright Fabien Glinas, 2010. The preparation of this paper was made possible by a grant from the FQRSC. The author wishes to thank Mr Vincent Locas for his able assistance.
**

Faculty of Law and Institute of Comparative Law, McGill University.

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Electronic copy available at: http://ssrn.com/abstract=1577842

A. I TRODUCTIO In Canada, judicial independence is broadly understood as a fundamental principle underlying the constitution. The specific norms that give life to this general principle form a highly complex patchwork of rules and practices which range from unwritten political understandings to constitutionally entrenched legal provisions. The complexity of this patchwork is partly a function of a federal structure having been superimposed onto preexisting constitutional arrangements, the fundamentals of which are largely unwritten. The source of judicial independence in Canada goes back to the understanding of that principle which took shape in the British constitutional tradition with the Act of Settlement of 1701.1 Its importance in the Canadian context has been a function of the special role played by the judiciary as an impartial arbiter of the federal system.2 Since the adoption of the Canadian Charter of Rights and Freedoms in 1982,3 the importance of judicial independence has been enhanced by a renewed role of the judiciary in the protection of individual rights and freedoms against intrusion by any organ of the state.4 The aim of this paper is to provide a critical overview of judicial independence in Canada in terms of both institutional structures and informal practices. The paper broadly follows a template suggested by the editor, 5 but emphasizes the features which may appear useful as best practices or which may require attention as problem areas.

B. STRUCTURAL SAFEGUARDS Federal-provincial power sharing in respect of superior courts is an important feature of the Canadian judicial system contemplated by the Constitution Act, 1867. While section 96 of that Act places control over appointments of Superior Court judges in the hands of the federal government, the provinces enjoy legislative control over the Administration of Justice in the province under section 92. Those Section 96 courts are the only ones
1 2 3

Act of Settlement, 1701 UK (12 & 13 William III). Beauregard v. Canada, [1986] 2 S.C.R. 56, at para. 27 [hereinafter Beauregard].

Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982, ch. 11 (U.K.) [hereinafter the Charter].
4 5

Beauregard, supra note 2, at para. 28.

The structure of the paper thus departs from the way in which the Supreme Court of Canada presents judicial independence, i.e.: as having an institutional and a personal, or individual, dimension, and three components, namely: security of tenure, financial security and administrative autonomy.

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Electronic copy available at: http://ssrn.com/abstract=1577842

whose independence is expressly addressed in the Constitution. The provinces, however, have created lower courts under section 92 of the Constitution Act, 1867. Even though these lower provincial Section 92 courts are under the supervisory jurisdiction of the federally appointed superior courts, they actually handle the vast majority of the cases. 6 Section 101 of the Constitution Act, 1867 gives the Federal Parliament the power to establish federal courts. Under that power Parliament notably established the Supreme Court and what is now called the Federal Court. Structural safeguards vary according to the four broad categories of courts outlined above: Superior Provincial (Section 96 ) Courts (provincial administration and federal appointments and remuneration); Lower Provincial (Section 92) Courts (provincial administration and provincial appointments and remuneration); Federal (Section 101) Courts (federal administration and federal appointments and remuneration); and the Supreme Court of Canada, a Section 101 court which is in a category of its own.

I.

Administration of the judiciary

One of the features that Canada has retained from its British institutional heritage is an executive model of court administration. Formally, in each province, courts are for the most part administered as a division of the Attorney Generals ministry, not as a separate department or separate branch of government. Executive administration follows the normal lines of accountability over public funds that respond to the principle of ministerial responsibility before the legislature. As under the British system, the allocation of responsibilities for court administration has traditionally been mostly a matter of legislative provision. Nevertheless, courts have long considered that a core area of administrative autonomy is constitutionally protected from interference by the political branches, i.e.: the executive and the legislative branches. 1. Organs in charge of the administration of the judiciary

A historical account of the role of provincial courts can be found in Peter H. Russel, Introduction: How We Got There in: Peter H. Russel, ed., Canadas Trial Courts: Two Tiers or One (Toronto: University of Toronto Press, 2007) 3, at 4-12; for an empirical study of the distribution of criminal cases between superior and provincial courts, see Cheryl Marie Webster & Anthony N. Doob, Superior Courts in the Twenty-first Century: A Historical Anachronism? in: Canadas Trial Courts, id., at 57.

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In terms of constitutional requirements, courts are responsible for and have control over the administrative decisions that bear directly and immediately on the exercise of the judicial function.7 These decisions relate, for example, to the assignment of judges, to the sittings of the courts, to the establishment of court lists, as well as to the allocation of court rooms and direction of the administrative staff engaged in carrying out these functions. 8 The definition of administrative autonomy given by the Supreme Court remains open-ended in the sense that it does not provide an exhaustive list of the matters that must be under the control of judges. 9 Outside of these core functions, it is widely assumed that the executive model prevails, leaving important administrative areas such as the establishment of budgets within the purview of departments of justice or of the Attorney General, even if courts are in fact often consulted for most decisions that concern them and in some cases enjoy the benefits of memoranda of understanding detailing their agreement with the executive on such matters.10 Yet the area of constitutionally protected administrative autonomy has been the object of increasing scrutiny and may be in an evolutionary phase. As early as 1985, the then Chief Justice of Canada publicly took the position that greater administrative autonomy was required as a matter of principle. 11 Effectively, the financial and administrative requirements of the judiciary for the dispensing of justice are in the hands of the very ministers who are responsible for defending the Crowns interests before the courts, he noted, before stating that [p]reparation of judicial budgets and distribution of allocated resources should be under the control of the chief justices of the various courts, not the ministers of justice and that [c]ontrol over finance and administration must be accompanied by control over the adequacy and direction of support staff. 12 Taking the matter further, a report (hereinafter the Alternative Models Report] commissioned by the Canadian Judicial Council has suggested that constitutional requirements might have
7

R. v. Valente, [1985] 2 S.C.R. 673, 712 [hereinafter Valente]; see also: R. v. Gnreux, [1992] 1 S.C.R. 259, 286. Ibid. Mackeigan v. Hickman, [1989] 2 S.C.R. 796, at para. 56.

8 9

Baar, Benyekhlef, Glinas, Haan & Sossin, Alternative Models of Court Administration, (Report commissioned by the Canadian Judicial Council, Ottawa: CJC, September 2006), at 12 [hereinafter Alternative Models Report].
11

10

Address delivered at the Canadian Bar Association Conference in Halifax on August 21, 1985, as quoted in Martin L. Friedland, A Place Apart: Judicial Independence and Accountability in Canada (Ottawa: Canadian Judicial Council, 1995), at 179. Ibid.

12

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evolved in such a way as to put current practices at odds with constitutional imperatives. 13 In the context of a constitutional reference concerning the remuneration of provincial (Section 92) court judges, the Supreme Court had established that by virtue of a constitutional imperative of depoliticization, the legislature and executive cannot, and cannot appear to, exert political pressure on the judiciary. 14 Depoliticization required the formalization of the relations between the political branches and the judiciary and thus, in the context of financial independence, the establishment of independent remuneration commissions. The Alternative Models Report found that this has a necessary implication for administrative autonomy. 15 From an institutional perspective, independence is generally taken to depend on the perception of a reasonable and informed person. 16 The appropriate question is whether a tribunal, from the objective standpoint of a reasonable and informed person, will be perceived as enjoying the essential conditions of independence. 17 From that perspective, it is clear that court administration currently gives rise to politicized relationships. It seems unquestionable, in the words of the Alternative Models Report, that negotiations over administrative and budgetary matters have the same potential to affect the public perception of judicial independence as did negotiations over matters pertaining to remuneration. 18 It is quite likely, therefore, that the relevant constitutional norms call for a greater degree of administrative autonomy than what is currently afforded. 19 It remains a matter for conjecture whether and to what extent the political branches will voluntarily divest themselves of their power over court administration. Concluding on the issue of administration, it should be noted that federal (Section 101) courts enjoy a somewhat higher degree of administrative autonomy. Executive responsibilities in respect of federally appointed judges are partly exercised through the Office of the Commissioner for Federal Judicial Affairs, which oversees the administration

13 14

Alternative Models Report, supra note 10, at 69.

Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3, at para. 140 [hereinafter Remuneration Reference]..
15 16 17 18 19

Alternative Models Report, supra note 10, at 51. Valente, supra note 7, 689; Gnreux, supra note 7, 287. Gnreux, id. Alternative Models Report, supra note 10, at 52.

Id. at 69. It should be noted that the Alternative Models Report also reasons from the perspective of administrative efficiency, management best practices and accountability.

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of salaries, pensions, and other benefits for federal judges.20 The assistance by a Court Administrator who negotiates directly without interference by the Ministry of Justice with treasury authorities the size of the budget allocation of the Federal Court of Canada and the Supreme Court of Canada also ensures more financial autonomy. Both safeguards formalize a certain measure of distance between the executive and the judiciary whereas provincial courts are usually administered more directly by the Attorney Generals department or department of justice.21

2. Judicial Council The Canadian Judicial Council (hereinafter the CJC), was established in 1971 by the federal Judges Act, with the objectives of promoting efficiency, uniformity, and accountability, and of improving the quality of judicial services in all federally staffed courts. 22 The CJC is an independent body chaired by the Chief Justice of Canada, who is the Chief Justice of the Supreme Court of Canada. The CJC is composed exclusively of members of the judiciary. Its membership consists of the chief justices and associate chief justices of the federally staffed courts, as well as senior judges from the federal territories. 23 The CJC is notably responsible for handling complaints about judicial conduct. The Judges Act has equivalents in provincial statute books. These provincial statutes establish judicial councils with responsibilities in respect of provincially appointed judges. 24 These provincial councils are entrusted with the promotion of high professional standards of conduct, in addition to the investigation of complaints pertaining to the alleged improper conduct of judges. The provincial councils are generally more diverse than the CJC and include lawyers and members of the general public in addition to

20 21 22 23 24

Judges Act, R.S.C. 1985, c. J-1, 74(1)(a) [hereinafter Judges Act]. See Office of the Commissioner for Federal Judicial Affairs, at http://www.fja-cmf.gc.ca. Judges Act, supra note 20, Part II, 59-71. Ibid. The senior judges are identified in 59(1)(c).

See e.g., in Quebec, the Courts of Justice Act, R.S.Q. c.T-16, 279, Part VII, establishing the Conseil de la magistrature. Note that Prince Edward Island, the smallest Canadian province, has not established a judicial council.

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judges. 25 The members who are not members ex officio are appointed by the government but represent a minority of the membership. 26

II.

Selection, appointment and reappointment of judges

Canadian judicial appointments generally remain firmly within the purview of the executive branch. Appointments are based largely on merit understood broadly, 27 which includes the potential contribution of the candidate to diversity on the bench. 28 Overt and systematic political nominations are no longer considered acceptable. 29 Partisanship and political patronage in the appointment of judges have certainly decreased over the years, particularly since the establishment of judicial advisory committees in the 1980s. The fact remains, however, that the system relies on the judicious exercise of an executive discretion which is still widely considered absolute. The executives discretion exists not only in respect of recommendations to the Governor in Council regarding specific appointments, but also in respect of the composition and procedures of the judicial advisory committees that review the files of candidates. 1. Eligibility All members of the Canadian judiciary come from the legal profession. Under the Judges Act 30 and the Supreme Court Act, 31 a federally appointed judge must have spent at least ten years at a provincial bar before appointment. Interviews by a selection committee are in
25 26 27

E.g.: id., 248. E.g.: id., 249.

Professional competence and overall merit are the organizing criteria for the work of the federal judicial appointments advisory committees detailed in Section II 2. The Office of the Commissioner for Federal Judicial Affairs has compiled guidelines for the use of committees based on committee experience. The guidelines include a list of factors to be considered in the assessment of potential candidates, See http://www.fja.gc.ca/ appointments-nominations/assessment-evaluation-eng.html. The importance of diversity has been recognized in judicial decisions. See , e.g.: R. v. S (R.D.), [1997] 3 S.C.R. 484, at para. 38 & 119. The Canadian Bar Association recommended that contribution to diversity be included in merit criteria in 2005. Examples include bilingualism and awareness of racial and gender issues.See Federal Judicial Appointment Process (Ottawa: Canadian Bar Association, October 2005), available at http://www.cba.org/CBA/Submissions/pdf/05-43-eng.pdf. Statistics on gender parity in the federal judiciary are published by the Office of the Commissioner for Federal Judicial Affairs. See http://www.fjacmf.gc.ca/appointments-nominations/judges-juges-eng.html. The need for improvement was notably highlighted by the Canadian Bar Association in its Report on the Appointment of Judges in Canada (The McKelvey Report) (Ottawa: The Canadian Bar Association, 1985), available at http://www.cba.org/CBA/Submissions/pdf/05-43-eng.pdf.
30 31 29 28

R.S.C. 1985, c. J-1. R.S.C. 1985, c. S-26.

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some cases part of the process, which is detailed below. 32 In the recent past, candidates for appointment to the Supreme Court of Canada have been interviewed by parliamentary committees, a practice which remains controversial and has yet to be firmly established.33

2. The Process of Judicial Selection Since 1988, committees managed by the Office of the Commissioner for Federal Judicial Affairs are responsible for recommendations to the executive leading to federal judicial appointments. 34 Once a committee has made its report, an appointment is made by the Governor General. 35 The latter follows the advice originating in the recommendation of the Minister of Justice, who has weighed the advice of the committee. 36

The committees are composed of representatives of the relevant provincial bar and the provincial section of the Canadian Bar Association, a federally appointed justice designated by the relevant chief justice, a representative from the law enforcement community and other members designated by the provincial and federal ministers of justice.37 Candidates have to express their interest in a judicial appointment and must provide the necessary supporting documentation. Following their assessment of applications, the committee provides the federal Minister of Justice with lists of candidates with one of two assessments: recommended or unable to recommend. 38

32

See e.g., in Quebec, Regulation Respecting the Procedure for the Selection of Persons Apt for Appointment as Judges, R.Q. c. T-16 r. 5, 15.

For contrasting positions, see Sbastien Grammond, Transparence et imputabilit dans le processus de nomination des juges de la Cour suprme du Canada, 36 Revue Gnrale de Droit 739 (2006) at 753-54; and Jacob Ziegel, A ew Era in the Selection of Supreme Court Judges?, 44 Osgoode Hall L.J. 547 (2006) at 549.
34

33

Although Supreme Court judges are also appointed by the Governor General, the process leading to these appointments is separate and currently in flux. See Section E.

Constitution Act, 1867, 30 & 31 Vict. Ch. 3 (U.K.), as reprinted in R.S.C., No. 5 (Appendix 1985), 96 [hereinafter Constitution Act, 1867].. Note that appointments to the offices of Chief Justice and Associate Chief Justice, which may be made from outside the ranks of the judiciary, normally proceed on the direct recommendation of the Prime Minister. See Office of the Commissioner for Federal Judicial Affairs, Guidelines for Advisory Committee Members, December 2006: http://www.fja-cmf.gc.ca/appointments-nominations/committees-comites/guidelines-ligneseng.html#ReportToMinisterOfJustice. Except for the representative of the judiciary, the Minister of Justice appoints all committee members from lists provided by the designated stakeholders. See Office of the Commissioner for Federal Judicial Affairs, Guidelines for Advisory Committee Members, December 2006: http://www.fja-cmf.gc.ca/appointments-nominations/committees-comites/guidelines-ligneseng.html#ReportToMinisterOfJustice.
38 37 36

35

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Provincial appointments, similarly, are generally entrusted to the Minister of Justice, Attorney General or Lieutenant-Governor of the province, usually following provincial cabinet consultation and approval. Generally, an appointment is made only after a candidates application has been considered by a selection committee (with a representation, typically, of members of the legal profession, the judiciary and the public). The composition and nature of such committees varies from one province to another. The executive is not necessarily required to press forward with a candidate recommended by the committee but normally cannot appoint a candidate who has not been recommended. 39 Once appointed, judges may choose from a wide range of training courses designed for them and delivered notably, at the federal level, by the National Judicial Institute, the Canadian Institute for the Administration of Justice, the Canadian Judicial Council and the Office of the Commissioner for Federal Judicial Affairs. All of these organizations offer educational activities tailored specifically for judges. These cover all relevant subject matters, which range, apart from law, from cultural sensitivity, to trial-management and from ethics to language skills. 40 Language skills are of particular concern in the bilingual environment of federal judicial services. Since 1978 the Office of the Commissioner for Federal Judicial Affairs has been running a language training programme tailored to the specific needs of judges. 41 Judges benefit from such training programmes throughout their career.

3. Length of Office and Reappointment The issue of reappointment arises in Canada mostly in respect of administrative tribunals and agencies, which are beyond the scope of this paper.42 Generally it does not arise in respect of the courts of law contemplated here. Members of the judiciary, as detailed below, generally enjoy security of tenure to the age of retirement.

39

See, e.g., in Ontario, the Courts of Justice Act, R.S.O. c.43, 43; in Quebec, Regulation Respecting the Procedure for the Selection of Persons Apt for Appointment as Judges, supra note 32, 9.

For glimpse of such programmes, see the web site of the National Judicial Institute at http://www.nji.ca/nji/ index.cfm.
41 42

40

See http://www.fja-cmf.gc.ca/training-formation/index-eng.html.

Tribunal members are generally appointed for a fixed term, which raises the question of reappointment in the light of judicial independence.

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III. Tenure and promotion 1. Tenure Security of tenure is viewed as a critical aspect of judicial independence in Canada. Full security in this respect means that a judge may sit until the age of retirement and can be removed only for cause, following an independent investigation and parliamentary intervention. In the British tradition, security of tenure is contrasted to political appointment where one serves at the governments pleasure (durante bene placito). Security of tenure ensures that judicial decisions are guided by relevant considerations alone, that fear of removal on the part of a judge will not affect their decision-making.

In respect of Superior Court judges, section 99 of the Constitution Act, 1867 provides that they shall hold office during good behaviour, but shall be removable by the Governor General on Address of the Senate and the House of Commons,43 and that they shall cease to hold office upon attaining the age of 75 years. This is complemented by legislation guaranteeing judicial tenure in similar terms for other judges. 44

2. Promotion Promotion to the rank of Associate Chief Justice, Chief Justice, or to the ranks of a higher court is a judicial appointment and therefore goes back into the hands of the relevant executive following the applicable procedure. In practice the majority of judges exercising appellate jurisdiction have had experience as trial judges Provincially appointed judges considered for a federal appointment are put on a different track whereby the relevant

43 44

This section reproduces the relevant portion of the Act of Settlement, 12 & 13 Wm 3, c.2, 1 (U.K.).

Federal Courts Act, R.S.C. 1985, c. F-7, 8; Supreme Court Act, R.S.C. 1985, c. S-26, 9; Judges Act, supra note20, 8 (a special provision on retirement age applicable to some federally appointed provincial court judges) & 41.1 (applicable to retiring judges of the Supreme Court of Canada). The governing constitutional provision is section 99(2) of the Constitution Act, 1867,supra note 35. This provision, which on its face concerns Superior Court judges, was applied to Federal Court judges in a Federal Court decision from which the government did not appeal: Addy v. The Queen, [1985] 2 F.C. 452. The standard of security of tenure that is constitutionally protected in respect of provincial (Section 92) courts remains unclear after Remuneration Reference supra note 14, at para. 106. Legislation regarding provincially appointed judges use the expression good behaviour or require cause for removal, and generally provide for retirement at age 70: see e.g., New Brunswick Provincial Court Act, R.S.N.B. 1973, c. P-21, 6; Newfoundland and Labrador Provincial Court Act, 1991, S.N.L. 1991, c. 15, 10; Nova Scotia Provincial Court Act, R.S.N.S. 1989, c. 238, 6; Courts of Justice Act, R.S.O. 1990, c.43, 51.8(1) (Ontario); Courts of Justice Act, R.S.Q. c. T-16, 86 (Quebec).

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appointment committee does not provide an assessment but is invited to comment on the candidates. 45

IV. Remuneration 1. Level of Remuneration Members of the judiciary enjoy a satisfactory level of remuneration which is commensurate with deputy-ministerial level salaries,46 though it is some distance from the levels found at the higher echelons of private legal practice.47 The Supreme Court has made it clear that a basic minimum level of remuneration is constitutionally guaranteed. 48 Public confidence in the independence of the judiciary, as the Court put it, would be undermined if judges were paid at such a low rate that they could be perceived as susceptible to political pressure through economic manipulation. 49

Financial security has always been considered a fundamental component of judicial independence in Canada. In Valente, the Supreme Court defined financial security as follows: The essence of such security is that the right to salary and pension should be established by law and not be subject to arbitrary interference by the Executive in a manner that could affect judicial independence. In the case of pension, the essential distinction is that between a right to a pension and a pension that depends on the grace or favour of the Executive.50 The Supreme Court came back to financial security in Beauregard, where a statute requiring Superior Court judges to contribute to their pension plan from their salaries was challenged. This placed judges on the same footing as other Canadians in this respect. The Court gave an interpretation of section 100 of the Constitution Act, 1867, which simply states that the relevant salaries, allowances and pensions shall be fixed and provided by the Parliament of Canada. The Court recognized that Parliament had the
45 46

See http://www.fja-cmf.gc.ca/appointments-nominations/process-regime-eng.html#Expression

Deputy-ministerial levels of remuneration are published by the Treasury Board of Canada. See http://www. tbs-sct.gc.ca/rp/adcm11-eng.asp .
47 48 49 50

The remuneration of federally-appointed judges is provided in the Judges Act, supra note 20, 9-24. Remuneration Reference,supra note 14, at para. 137. Ibid. Valente, supra note7, 704.

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power to alter the retirement plans of judges, but pointed out that this power to set not only pensions but also salaries was not unlimited in view of the principle of judicial independence: The power of Parliament to fix the salaries and pensions of superior court judges is not unlimited. If there were any hint that a federal law dealing with these matters was enacted for an improper or colourable purpose, or if there was discriminatory treatment of judges vis--vis other citizens, then serious issues relating to judicial independence would arise and the law might well be held to be ultra vires s. 100 of the Constitution Act 1867.51 But it is in the context of provincial legislation and provincial courts that the Supreme Court found occasion to expand more fully on financial independence.

The Remuneration Reference came from a challenge to salary-reduction legislation affecting provincial court judges enacted in three provinces: Prince Edward Island, Alberta, and Manitoba. Given that provincial courts routinely hear criminal law cases, those facing trial were in a position to raise the question whether and how the guarantee of judicial independence in s. 11(d) of the [Charter] restricts the manner by and the extent to which provincial governments and legislatures can reduce the salaries of provincial court judges.52 The three cases were joined for the purposes of the reference. The Court established that the express provisions of the Constitution Act, 1867 and the Charter are not an exhaustive written code for the protection of judicial independence in Canada, that judicial independence is at root an unwritten constitutional principle, in the sense that it is exterior to the particular sections of the Constitution Acts.53

Where Valente had focussed on the individual dimension of financial independence, the Remuneration Reference laid out three aspects of the institutional dimension of financial independence. When applied to provincial courts, these aspects are as follows: The salaries of provincial court judges can be reduced, but there is a constitutional obligation to establish independent, effective and objective panels to make recommendations in this regard, which can then only be disregarded on rational grounds;

51 52 53

Beauregard, supra note 277. Remuneration Reference, supra note 14, at para 1. Id. at para. 83.

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The judiciary cannot engage in negotiations in these matter, collectively or individually, with the executive or the legislature; No reduction can have the effect of taking salaries below the minimum level required by the judges responsibilities.54

The outcome of the case was the establishment of independent provincial remuneration commissions throughout Canada. In view of the constitutional mandate of these commissions, the status of the recommendations they would issue was novel. A legislature or government may decide to depart from a salary recommendation, but it is required to provide rational grounds for doing so; these grounds are then subject to judicial review on a criterion of rationality.55 An independent remuneration commission also exists for federally appointed judges.56 On the basis of representations and expert evidence, these commissions determine the appropriate level of remuneration for judges over time and make recommendations for the relevant exercise, which is typically three years.

2. Benefits and privileges Apart from the pension benefits mentioned below, judges enjoy the advantages of group life insurance, health and dental insurance57 and receive an allowance to cover various professional expenses. Training and continuing education is also generously provided for. In terms of honours and privileges, the title honourable is conferred upon federallyappointed as well as provincially appointed members of the judiciary. Judges rank above

54

Michel Robert, Lindpendance judiciaire de Valente aujourdhui: Les zones claires et les zones grises (Montreal: Thmis, 2003), at 26. Translation by author..
55

Provincial Court Judges Assn. of New Brunswick v. New Brunswick (Minister of Justice); Ontario Judges Assn. v. Ontario (Management Board); Bodner v. Alberta; Confrence des juges du Qubec v. Quebec (Attorney General); Minc v. Quebec (Attorney General), [2005] 2 S.C.R. 286.

The federal system does not contemplate discrepancies between provinces and regions, except for a northern allowance. See Office of the Commissioner for Federal Judicial Affairs at http://www.fja-cmf.gc.ca/ appointments-nominations/considerations-eng.html#Remuneration. A base increase is provided in the Judges Act, supra note 20, 25. Provincial commissions work independently, although their conclusions are normally part of the filings in other provinces. The commissions system would, in theory, allow for a reduction in salaries in case of a crisis affecting government expenditures across the board.
57

56

Judges Act, supra note 20, 41.2- 41.5.

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members of the legislature in the ceremonial table of precedence for Canada as well as those of several provinces. 58

3. Retirement All judges enjoy the benefit of a generous pension upon retirement. To take the example of federally-appointed judges, the pension package is worth two-thirds of their salary following as little as fifteen years of service. 59 This is a very generous pension plan in the Canadian context.

V.

Case assignment and recusal

It is the Chief Justice of a court or one of the Associate Chief Justices who is generally in charge of the assignment or, exceptionally, the re-assignment of cases.60 This has long been considered to be at the core of the administrative autonomy that courts institutionally require under constitutional principle. It has been an area, therefore, in which the executive has had no role to play. Assignments are often but not always made at random, because account may be taken of the particular expertise and experience of judges as well as their respective workloads. In the Canadian context, language abilities can also play a role in decisions pertaining to assignments.61 Also, certain courts have lists or divisions corresponding to subject matter expertise. For example, the Superior Court of Justice of Ontario in Toronto has a commercial list and an estates list.62

In common law provinces, recusal (also called disqualification) of a judge is governed by a scant body of caselaw. 63 The only codification of the procedure and grounds for disqualification is found in the Quebec Code of Civil Procedure, which reflects in broad

58 59

For the federal table, see http://www.pch.gc.ca/pgm/ceem-cced/prtcl/precedence-eng.cfm.

Government submission to the federal Remuneration Commission, reported in the Ottawa Citizen, April 8, 2008.

60

See, e.g.,: the Ontario Courts of Justice Act, R.S.O. 1990, c.43, 75(1)3. Re-assignments only occur where it is impossible for a judge to proceed to the final determination of a case. Id., 126(2)1. See Ontario Superior Court of Justice at http://www.ontariocourts.on.ca/scj/en/about/civil.htm.

61 62 63

See generally Philip Bryden, Legal Principles Governing the Disqualification of Judges, 82 Canadian Bar Review 555 (2003); Geoffrey S. Lester, Disqualifying Judges for Bias and Reasonable Apprehension of Bias: Some Problems of Practice and Procedure, 24 Advocates 326 (2001).

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outlines what may be called a Canada-wide practice. 64 Judges are expected to make a disclosure and, as the case may be, to recuse themselves of their own motion as soon as they become aware of a situation that would give rise to a reasonable apprehension of bias. Examples of such situations would include a judge having a pecuniary interest in the outcome of the case or close family, personal or professional relationship with a litigant, counsel or witness, or having expressed views showing a bias toward a litigant.65 At the request of a party, the impugned judge generally gets to decide whether the alleged grounds for recusal are established and sufficient. 66 This determination is subject to an appeal, as would a decision on an interlocutory matter. 67 In the case of the Supreme Court, a request for recusal also goes to the judge against whom the allegations are brought, who then gets to rule on the matter. 68 The Rules of the Supreme Court require that the issue be set out in the Notice of Appeal, before the constitution of the Bench. 69 Apart from situations arising from the recusal procedure initiated by a party and cases of suspension or removal for disciplinary or health reasons, no one can remove an assigned case from a judge without the consent of that judge. VI. Judicial conduct complaint process The Canadian Judicial Council is responsible under the Judges Act for the review of complaints against members of the federally appointed judiciary.70 Complaints are treated according to the procedures adopted from time to time for this purpose by the CJC. 71 A complaint about the conduct of a judge may be filed by anyone. The CJC endeavours to process all complaints, including anonymous complaints. A complaint is first examined by
64 65 66 67

Quebec Code of Civil Procedure, R.S.Q., chapter C-25, 234-42. A Book for Judges, CPC Quebec, at 234-235. Philip Bryden, supra note 63,at 594.

Quebec Code of Civil Procedure, supra note 64, 238; with respect to common law provinces, this practice is outlined in British cases: Re Pinochet Ugarte, [1998] H.L.J. N 52 (House of Lords); Locabail (UK) Ltd. v. Bayfield Properties Ltd., [1999] E.W.J. N 5918 (S.C.J., C.A., civil div.).

Arsenault-Cameron v. Prince Edward Island, [1999] 3 S.C.R. 851; Brian A. Crane & Henry S. Brown, Supreme Court of Canada Practice (Scarborough, Ont.: Thomson Professional Publishing Canada, 2007), at 48. Rules of the Supreme Court of Canada, 33(f), available at http://www.scc-csc.gc.ca/ar-lr/rulesregles/2006/doc-eng.asp#n26.
70 71 69

68

Judges Act, supra note 20, 59-71.

Canadian Judicial Council, Procedures for Dealing with Complaints made to the Canadian Judicial Council about Federally Appointed Judges, September 27, 2002; available at http://www.cjcccm.gc.ca/english/conduct_ en.asp?selMenu=conduct_main_en.asp.

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a member of the CJC who decides whether the complaint calls for further investigation. If so, a copy of the complaint and request for comments is notified to the judge in question and the appropriate chief justice. Additional comments may also be requested from the complainant. In cases of serious allegations of inappropriate conduct, further investigation is undertaken, with the assistance of a lawyer where needed. The latter may conduct interviews and prepare a report. The Council may then appoint an independent counsel to make further inquiries. The matter may then be entrusted to a panel of up to five Council members and senior judges for further review. Where the panel finds that the complaint has merit but is not sufficiently serious to require a formal Inquiry, the panel may recommend remedial action, such as counselling, or issue an expression of concern, and close the file. Where the matter is considered to be very serious or if the complaint was filed by a provincial Attorney General or the Minister of Justice of Canada, an Inquiry Committee will be appointed to hold a public hearing. The Inquiry Committee reports to the full Council, which meets for consideration of the matter and to make a determination, which may involve a recommendation that the impugned judge be remove from office. The person who filed the complaint is informed of the result by the CJC. As noted above, the CJC has equivalents in the provinces, with jurisdiction over provincially-appointed judges. 72 These provincial councils are responsible for the promotion of high professional standards of conduct, in addition to the investigation of complaints pertaining to the alleged improper conduct of judges. Provincial councils each have their own procedure for the handling of complaints.

VII. Judicial Accountability: Discipline and removal procedures 1. Formal requirements The complaints procedure outlined above is not strictly separate from discipline and removal procedures. 73 This means that anyone can initiate a procedure that can lead to discipline or removal.
See e.g., in Quebec, the Courts of Justice Act, R.S.Q. c.T-16, 279, Part VII, establishing the Conseil de la magistrature.
73 72

Judges Act, supra note 20, 59-71.

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2. Disciplinary proceedings Although anyone can initiate a procedure by filing a complaint with the CJC, only a procedure filed by a provincial Attorney General or the Minister of Justice of Canada requires the establishment of an Inquiry Committee by the CJC.74 As with the private complaints that raise very serious issues, the Inquiry Committee is normally composed of three members of the CJC and two members of the Bar. The Committee holds a public hearing where evidence is adduced and counsel are heard. The Inquiry Committee reports to the full Council, which meets for consideration of the matter and to make a decision. The Council may then recommend to the Minister of Justice (a recommendation relayed to the Houses of Parliament) that the judge be removed from office. The CJC follows a two-stage process described in the Matlow case. 75 First, it decides whether the judge is incapacitated or disabled from the due execution of the office of judge within the meaning of subsection 65(2) of the Judges Act. If so, it then proceeds to the second stage and determines if a recommendation for removal is warranted. The terms incapacitated and disabled have been given a broad interpretation. 76 The criterion for a recommendation of removal is in practice the following: Is the conduct alleged so manifestly and profoundly destructive of the concept of the impartiality, integrity, and independence of the judicial role, that public confidence would be sufficiently undermined to render the judge incapable of executing the judicial office? 77 The Councils
74

The CJA considers less that 200 new cases per year. See CJC, Annual Report 2008-09 available at http://www.cjc-ccm.gc.ca/cmslib/general/CJC-annual-report-2008-2009-finalE.pdf Majority Reasons of the Canadian Judicial Council In the Matter of an Inquiry into the Conduct of the Honourable P. Theodore Matlow, 3 December 2008, at para. 166 available at http://www.cjcccm.gc.ca/cmslib/general/Matlow_Docs/Final%20Report%20En.pdf.
76 77 75

See Gratton v. Canadian Judicial Council, [1994] 2 F.C. 769 (F.C.T.D.), at para. 35-46.

Report to the Canadian Judicial Council of the Inquiry Committee Established Pursuant to Subsection 63(1) of the Judges Act at the Request of the Attorney General of Nova Scotia (August 1990) available at: http://www.cjc-ccm.gc.ca/cmslib/general/conduct_inq_HartJonesMacdonald_ReportIC_199008_en.pdf. To date, the Canadian Judicial Council has recommended the removal of a judge on only two occasions. Both resigned before they could be removed by Parliament. In the Bienvenue case, the impugned judge made disparaging remarks against women and Jews (see Report to the Canadian Judicial Council by the Inquiry Committee Appointed under Subsection 63(1) of the Judges Act to Conduct a Public Inquiry into the Conduct of Mr. Justice Jean Bienvenue of the Superior Court of Quebec in R. v. Thberge, Ottawa, June 1996 available at: http://www.cjc-ccm.gc.ca/cmslib/general/conduct_inq_bienvenue_ReportIC_199606_en.pdf). In the Cosgrove case, the judge exhibited a bias against the Crowns position (see Report of the Canadian Judicial Council to the Minister of Justice In the matter of section 65 of the Judges Act, R.S., 1985, c. J-1, and of the Inquiry Committee convened by the Canadian Judicial Council to review the conduct of the Honourable Paul Cosgrove of the Ontario Superior Court of Justice, March 30, 2009 available at http://www.cjc-ccm.gc.ca/cmslib/general/ Report_to_Minister_Justice_Cosgrove.pdf).

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determination is a recommendation which cannot be appealed.78 Removal of a judge ultimately lies with the houses of Parliament, although a judge who is the object of a recommendation to remove will generally resign, thereby pre-empting Parliaments exercise of its power. 79 This procedure is broadly considered to have established an appropriate balance judicial independence and judicial accountability in the interest of the Rule of Law. The provincial councils have similar procedures and apply similar, though more detailed and explicit, criteria. Removal normally follows a procedure similar to that outlined above for federally-appointed judges. 80 In Quebec, a recommendation to remove is made by the judicial council to the Minister of Justice, who may seize the Court of Appeal, which issues a recommendation to the executive, whose decision is ultimately required. 81

3. Judicial Safeguards A judge who is the object of disciplinary proceedings is systematically given a full opportunity to be heard. In a recent case, a judge requested and was granted the opportunity to make representations to the full Council after having fully argued his case before the Inquiry Committee. 82 4. Sanctions The CJCs only formal power is ultimately to recommend that a judge be removed from office. But where the matter is not of such a nature as to warrant this recommendation, the Council may express concerns about the conduct of a judge and recommend remedial

In Moreau-Brub v. ew Brunswick (Judicial Council), [2002] 1 S.C.R. 249, the Supreme Court explored the question of judicial review of decisions made by provincial judicial councils, stating that they deserved a high degree of deference. 79 See Gratton, supra note 76, at para. 35-46.
80 81

78

See e.g., in Ontario, Courts of Justice Act, R.S.O. 1990, c.43, 51.8.

Courts of Justice Act, R.S.Q. c.T-16, 95, 279-80. The Supreme Court found this procedure consistent with the constitutional requirement or judicial independence even though it does not involve the legislature: Therrien (Re), [2001] 2 S.C.R. 3. Report of the Canadian Judicial Council to the Minister of Justice In the matter of section 65 of the Judges Act, R.S., 1985, c. J-1, and of the Inquiry Committee convened by the Canadian Judicial Council to review the conduct of the Honourable Paul Cosgrove of the Ontario Superior Court of Justice, March 30, 2009. The text is available at http://www.cjc-ccm.gc.ca/cmslib/general/Report_to_Minister_Justice_Cosgrove.pdf.
82

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action. Provincial councils may generally impose a broader range of sanctions, including formal reprimand or warning, and may in some cases suspend a judge. 83 5. Practice Overall, disciplinary and related procedures run smoothly and there are no reports of unreasonable delays. There are bound to be a certain number of complaints prompted by dissatisfaction with the substantive result embodied in judgments rather than by judicial misconduct, this in spite of the considerable efforts made by judicial councils to explain in simple terms the distinction between an appeal and a complaint about the conduct of a judge.

The statistics published by the Quebec Judicial Council give a general sense of these procedures. Over the past 20 years, 1614 complaints were filed, 96 were the object of an inquiry, 44 resulted in a reprimand and 4 in a recommendation of removal. 84 Although every complaint is taken into account for the purposes of statistics, the relative publicity of a particular procedure and supporting documentation may depend on a decision of the relevant council.

VIII. Immunity for judges Canada follows the common law tradition in granting members of the judiciary broadranging immunity from civil liability for acts or omissions in the performance of their judicial functions. 85 This is recognized at common law at least in relation to superior court judges,86 whose status in this respect is often used as the relevant benchmark in legislation granting immunity to other judges. 87

83

See e.g., in Ontario, Courts of Justice Act, R.S.O. 1990, c.43, 56.6(11); in Qubec, the Courts of Justice Act, R.S.Q. c.T-16, 279; in Saskatchewan, Saskatchewan Provincial Court Act, 1998, S.S. 1998, c. P30.11, 62.

The statistics are available on the website of the Judicial Council (the Conseil de la magistrature du Qubec): http://www.cm.gouv.qc.ca/index.asp?menuId=2&Action=ShowMenuItem&Lang=EN.
85 86 87

84

See Shaw v. Trudel (1988), D.L.R. 481 (C.A. Man.). See Morier v. Rivard, [1985] 2 S.C.R. 716.

See e.g., New Brunswick Provincial Court Act, R.S.N.B. 1973, c. P-21, 3.1, Newfoundland and Labrador Provincial Court Act, S.N.L. 1991, c. 15, 32; Nova Scotia Provincial Court Act, R.S.N.S. 1989, c. 238, 4 A; Courts of Justice Act, R.S.O. 1990, c.43, 82; Quebec Magistrates Privileges Act, R.S.Q. c. P-24, 1.

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Although the term absolute has often been used to mark the scope of this immunity, there is no doubt that the standard is sufficiently flexible to allow for liability in exceptional cases. As the House of Lords clarified in the British context, a judge acting in bad faith who would deliberately and knowingly do something he or she is not empowered to do may be liable for damages. 88

In provincial legislation granting immunity without reference to the benchmark of superior courts, immunity is sometimes expressed in relative terms which withhold protection where the act or omission was done maliciously or without reasonable cause. 89 Apart from the inherent or statutory limitations to judicial immunity, it is widely considered that disciplinary procedures constitute an effective mechanism to prevent abuse on the part of individual members of the judiciary.

IX. Associations for judges Members of the Canadian judiciary enjoy the benefits of thriving associations representing their interests at both the federal and provincial levels. These are non profit organizations regulated in the same way as any other non profit organization. They work in concert with the judicial councils in such areas as judicial training and the promotion of judicial independence.

The Canadian Superior Courts Judges Association (CSCJA) has a membership of approximately 1,000 federally-appointed judges. These judges serve on the superior courts and courts of appeal of each province and territory, as well as on the Federal Court of Canada, the Federal Court of Appeal and the Tax Court of Canada. The CSCJA has replaced the Canadian Judges Conference, which had been established in 1979 with a mandate to protect and promote judicial independence, to provide continuing education, to improve the administration of justice, and to promote public understanding of the role of judges. Although membership is voluntary, nearly all federally-appointed judges are

88 89

McC. v. Mullan, [1984] 3 All E.R. 908 (HL).

Prince Edward Island Provincial Court Act, R.S.P.E.I. 1988, c. P-25, 11(2); Saskatchewan Provincial Court Act, S.S. 1998, c. P-30.11, 63 (1). In the latter case, both elements must be proved.

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members. 90 The Association is funded exclusively through member contributions and has a staff of two. It describes its objectives as follows: 91 the advancement and maintenance of the judiciary as a separate and independent branch of government; to liaise with the Canadian Judicial Council to improve the administration of justice and to complement its functions through conferences, seminars, educational and other programs; to provide a collegial forum to meet and discuss matters of common interest for the purpose of improving the administration of justice; to take such actions and make such representations as may be appropriate in order to assure that the salaries and other benefits guaranteed by s. 100 of the Constitution Act, 1867, and provided by the Judges Act, R.S.C. 1985, Cap. J-1, are maintained at levels and in a manner which is fair and reasonable and which reflects the importance of a competent and dedicated judiciary; to concern itself with the provisions of the Judges Act and the procedures it establishes pertaining to complaints, investigations and inquiries concerning the conduct of judges, and to provide appropriate guidelines and assistance to its members in relation to those matters; to play a role in determining policy for the continuing education of judges and in the work of the National Judicial Institute; to seek to achieve a better public understanding of the role of the judiciary in the administration of justice, and in so doing to initiate or support programs of public education and public relations; to monitor, and where appropriate, seek enhancement of the level of support services available to the judiciary, in cooperation with the Canadian Judicial Council; to address the needs and concerns of supernumerary and retired judges.

There are also a number of active associations at the provincial level concerned with provincially appointed judges.

Provincial associations are united under the umbrella of the powerful Canadian Association of Provincial Court Judges (CAPCJ). To give a sense of the importance of such associations, it may be pointed out that the CAPCJ participated as intervener in the Canada-wide litigation that led to the ground-breaking advisory opinion rendered by the Supreme Court in the provincial judges remuneration reference. 92

According to the executive director of CSCJA, more than 97% of federally appointed judges were members in 2009 (telephone interview conducted on August 13, 2009).
91 92

90

The objects are quoted from the associations website: http://www.cscja-acjcs.ca/constitution-en.asp?l=2. Remuneration Reference, supra note 14.

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Although it has individual members, the CAPCJ is essentially a federation of provincial and territorial judges associations. In most provinces and territories, CAPCJ membership of individual judges comes automatically with membership in the relevant provincial association. The CAPCJ was established in 1973. Its membership now includes most of the provincial and territorial judges in Canada, of which there are in excess of 1000. The objectives of the association are described as follows: 93 to monitor the status of provincially-appointed judges; to act as an advisory and consultative body to governments and other agencies involved in reforming the system of justice; to support and to advocate for judicial independence, bilingualism, and respect for equality and diversity; to educate judges across the country and to disseminate information.

CAPCJ is funded by its membership and by government grants. Even though it has no permanent staff, the association has significant policy influence, particularly in criminal and young offenders matters and judicial independence. Of note among the many services it provides is the National Judicial Counselling Programme, a confidential prevention, assistance and treatment program available to members and their families. X. Resources

Canada enjoys a good international reputation when it comes to assessing the financial provisions made for the administration of justice. Canada does in fact have a relatively well endowed judicial system when compared to those of a large number of countries, such that office and courtroom facilities may be described as adequate. Yet investment in the judicial system has not always kept pace with past increases in government expenditures and justification for Canadas reputation in this area may have become less compelling than it used to be. Recently, the Alternative Models Report commissioned by the Canadian Judicial Council drew worrying conclusions from an extensive consultation process involving members of the judiciary and government officials, both federal and provincial. In addition to reports of cuts in subscriptions to court reporters or the number of law clerks, and of unmet demands for additional security, information technology or the renovation of ageing facilities, to
The objects of the association are paraphrased from the associations website: http://www.judgesjuges.ca/en/aboutus/index.htm.
93

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give but a few examples, there is a sense that across the country, court staff vacancies are taking longer to be filled; and when they are filled, full-time experienced staff are often being replaced with part-time inexperienced staff with little training and high rates of turnover. [T]he sense of being required to do more with less appears to be a widely shared impression across the country. 94 It is often said that cabinet members in general and the Attorney General in particular no longer understand their traditional role of ensuring financial support for the administration of justice, a role made essential by the inability of the judiciary to lobby in such matters, an activity which would be deemed improper and would jeopardize their independence in the eyes of the public. 95 The financial aspect of the administration of justice is the subject of an ongoing debate in Canada. The crux of the problem is not necessarily viewed exclusively as one of envelope size but rather as one of efficiency in the delivery of judicial services within a given envelope. It would appear that greater efficiency would be hard to achieve without increasing judicial control over key aspects of the administration of justice. In this respect, a measure of devolution from the political branches to the judicial branch seems, in the mid- to long-term, inevitable.

C. I TER AL A D EXTER AL I FLUE CE I. Separation of powers

The separation of powers is now recognized as a fundamental constitutional principle in Canada. 96 The separation of powers is more generally referred to with a view to underscoring that no branch of government should overstep its bounds and that each should show appropriate deference to the role of the other. 97 In fact it is in the context of the relations between the judiciary and the political branches that the separation of powers has most often been relied upon. The institutional aspects of judicial independence have

94 95 96 97

Alternative Models Report, supra note 10, at 19. Id. at 19-20. Remuneration Reference, supra note 14, at para. 139.

See notably New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319, 389 (per McLachlin J.); Doucet-Boudreau v. Nova Scvotia (Minister of Education), [2003] 3 S.C.R. 3, at para. 32ff.

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been said to be bound up with and to inhere in the separation of powers. 98 The separation of powers therefore interfaces with and strengthens the now independently recognized constitutional principle of the independence of the judiciary. The fact that discipline is entrusted to the Canadian Judicial Council, which is composed exclusively of members of the judiciary and is not subject to interference by the executive, provides a good example of the implementation of the constitutional principle. With respect more generally to possible pressure from the political branches, it is understood that influence may operate at a level more subtle that the blunt threat of removal. 99 Given the discretion which remains with the executive in respect of promotions (which are, as indicated above, treated as new appointments), it is not unthinkable that a judge may be tempted to think about appointment to a higher court when deciding the outcome of particularly sensitive cases. The Supreme Court has spoken generally of a constitutional imperative of depoliticization, stating in particular that 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 publicly100 This has served, as outlined above, as a rationale for a requirement to establish independent remuneration commissions. The impact of this on appointment processes and on financial and administrative independence remains to be seen. Meanwhile, the integrity of the system relies quite heavily upon the integrity of the key people in the relevant courts and the departments of justice which administer them.

II. Judgements 1. Basis Canadian jurisdictions universally recognize that judgments must be based on the facts and the law. Insofar as law and fact are indeed ascertainable in the epistemological sense, it can fairly be said that Canadian courts conform to this requirement. In any case there are no allegations of direct outside interference by the executive or the legislative branch. Neither
Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854, at para. 24. See also Mackin v. New Brunswick, [2002] 1 S.C.R. 405, at para 39 (citing the relationship between the institutional dimension of judicial independence and the principle of the separation of powers). Peter Russell, The Judiciary in Canada: The Third Branch of Government (Toronto: McGraw-Hill Ryerson, 1987), at 82-83.
100 99 98

Remuneration Reference, supra note 14, at para. 140.

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are there allegations of undue interference by senior judges. Each decision is the sole prerogative of the sitting judge, and even in higher courts, where cases are adjudicated by panels, it is open to each individual judge to render his or her opinion after deliberating with the other judges on the panel.

2. Practice It is doubtful whether reliable conclusions can be drawn about any particular judiciary based on the statistics of which way decisions go. Attempts to do this have been made in the context of criminal justice. But there are many variables which make comparisons perilous, including the structure of the prosecutorial services and practices such as plea bargaining. In the Canadian criminal justice system, conviction will in some cases depend on the verdict of a jury, not a judge. Statistics on acquittals, therefore, may speak to the overall system rather than to the decisions of members of the judiciary. Statistics Canada keeps track of acquittals in some detail. The latest available numbers are for the year 200607. In that year, there were 372 084 cases in adult criminal courts, resulting in 242 988 guilty verdicts, 13 480 acquittals, 109 863 stays of proceedings and 5 753 other outcomes. 101

3. Structure Judgments rendered by Canadian courts are generally viewed as coherent and clearly reasoned. Canadian jurisdictions universally recognize that a judgment must state the reasons upon which it is based. Beyond this legal requirement, however, judges often consider that the structure and form of a judgment are at the core of the act of judging and should therefore not be interfered with without their consent. This is why efforts at Canada-wide standardization, which have been considerable over the past 15 years, have been spearheaded by the judiciary, not the political branches.

Current best practices in Canada originate in the work of the Judges Advisory Committee of the Canadian Judicial Council, which began in 1996. The efforts of the Committee made possible the beginnings of standardization with a view to releasing the potential of electronic publication. These efforts were later joined by the Canadian Citation Committee
101

Statistics Canada, CANSIM, table 252-0045 and Catalogue no. 85-002-X, available at http://www40.statcan.gc.ca/l01/cst01/legal19a-eng.htm.

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and gave rise to three standards: the Neutral Citation Standard for Case Law (1999), the Canadian Guide to the Uniform Preparation of Judgments (2002), and the Uniform Case Naming Guidelines (2006). These were eventually consolidated into and superseded by a single set of guidelines which has now been endorsed by the Canadian Judicial Council. The guidelines, entitled The Preparation, Citation and Distribution of Canadian Decisions,102 are meant to standardize practices concerning the structure of judgments and deal with the organization of all information provided before and after the body of the reasons for judgment. Concerning the reasons for judgment, the guidelines deal with paragraph numbering (which facilitate neutral citation) as well as with citation to authority and referencing. Courts of law throughout the country are committed in principle to the implementation of these guidelines and standardization is fast becoming a reality.

4. Public Access By virtue of the open court principle, courtroom proceedings are normally open to the public and court files can be consulted at the relevant courthouses. This principle is deeply embedded and there have been no reports of practical impediments to public and media access.

The publication of judicial decisions has traditionally followed the British model where an editor would be tasked with the selection, preparation and publication of those decisions deemed to be of interest to the legal community and the development of case law. Practices have varied considerably over time and place, but changes have been precipitated across the board by the fast-evolving realities of electronic publication. The most significant development in this respect was brought about by the Federation of Law Societies of Canada, which in 2001 established the Canadian Legal Information Institute (CanLII), a not-for-profit organization providing access to primary legal sources from all Canadian jurisdictions for both professionals and the general public. CanLIIs website is now recognized as the largest openly accessible web-based resource for Canadian legal information. 103 In respect of court decisions, CanLII receives every judgment released for publication by every court of law in Canada and immediately makes it freely accessible
102

Canadian Citation Committee, The Preparation, Citation and Distribution of Canadian Decisions, by Frdric Pelletier, Ruth Rintoul & Daniel Poulain (May 7, 2009). Available at http://lexum.org/cccccr. A brief historical account of CanLII is available at http://www.canlii.org/en/info/about.html.

103

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and fully searchable on its website. 104 It has been observed that the sheer quantity of legal information now available may in time become a serious problem for the administration of justice. III. Improper influence on judicial decisions In the administration of justice, the exercise of improper influence in all its forms was noticeable in Canada until the 1960s. It is generally thought that the Canadian judiciary is now virtually immune from such practices.105 Much of this development can be attributed to an evolution in the unwritten understandings and rules that govern the behaviour of political actors and judges. Debate can be said to have shifted to the terrain of institutional arrangements and the appearance of independence. The arrangements that pertain to the administration of justice do place the judiciary at the mercy of the executive branch of government in some key areas of operation and this is problematic where the appearance and not just the reality of independence serves as the constitutional benchmark.

IV. Security Court security has not been the subject of much contention in Canada, although there have been disagreements over issues of security staff status and budgeting. Legislative provision is made in most jurisdictions to facilitate weapons control and screening of visitors at courthouses. 106 In one famous case, a special, high-security courthouse was built in the vicinity of a detention facility to accommodate the special needs of a planned series of gangster trials which would have posed unmanageable security threats had they taken place in the normal courthouse. 107

104

Not every decision available in the court file is released for publication. Each court of law makes its own selection of the judgments that will be pro-actively released for publication. Concerning interference by the executive, Peter Russell narrates the cases making up the Judges Affair which led in 1976 to a formal statement in the House of Commons by then Prime Minister Trudeau to the effect that cabinet ministers were not allowed to speak to members of the judiciary about pending cases. See Peter Russell, The Judiciary in Canada: The Third Branch of Government (Toronto: McGraw-Hill Ryerson, 1987), at 78-81. The statement can be seen as crystallizing a binding constitutional convention. See e.g. Court Security Act, S.N.S. 1990 (Nova Scotia), c. 7; Court Security Act, S.S. 2007, c. C-43.11 (Saskatchewan); Court Security Act, C.C.S.M. c. C295 (Manitoba). See Paul Cherry, The Biker Trials: Bringing Down the Hells Angels (Montreal: ECW Press, 2005) at 132-33.

105

106

107

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D. ETHICAL STA DARDS I. Codes of Ethics for Judges

The Canadian Judicial Council first adopted a set of Ethical Principles for Judges in 1998. 108 These are meant to provide ethical guidance for federally appointed judges throughout Canada. 109 The Principles are cast at a high level of abstraction and express the standards towards which all judges strive. 110 The document does offer some relatively detailed guidance in a commentary published with the Principles; but the Principles remain advisory in nature and do not preclude reasonable disagreements about their application or imply that departures from them warrant disapproval. 111 This means that the Principles should not be used as standards for judicial misconduct.112

Codes have also been adopted in some provinces, though they are also cast at a high level of abstraction. Examples are the Code of Judicial Ethics of the British Columbia Provincial Court,113 and the Quebec Judicial Code of Ethics. 114 The general principles that make up the latter are such that they can easily be reproduced in full here in a footnote. 115 Like the federal Principles, these codes provide guidance but are not used strictly as rules to measure judicial misconduct.

108

Canadian Judicial Council, Ethical Principles for Judges (Ottawa: CJC: 1998). The principles are available on the CJCs website: http://www.cjc-ccm.gc.ca/cmslib/general/news_pub_judicialconduct_Principles_1998_en.pdf Id., Statement 1. Id. , Principle 1. Id., Principles 1 & 2. Id., Principle 2.

109 110 111 112 113

Adopted by the Provincial Judges Association of British Columbia at its Annual General Meeting of September 18, 1976, and by the Judicial Council pursuant to section 13(e) the Provincial Court Act on December 3, 1976. C. T-16, r. 4.1, 1982, adopted by the Conseil de la magistrature pursuant to section 261 of the Courts of Justice Act (R.S.Q., c. T-16).

114

A judge (1) should render justice within the framework of the law; (2) should perform the duties of his office with integrity, dignity and honour; (3) has a duty to foster his professional competence; (4) should avoid any conflict of interest and refrain from placing himself in a position where he cannot faithfully carry out his functions; (5) should be, and be seen to be, impartial and objective; (6) should perform the duties of his office diligently and devote himself entirely to the exercise of his judicial functions; (7) should refrain from any activity which is not compatible with his judicial office; (8) when in public, [ ] should act in a reserved, serene and courteous manner; (9) should submit to the administrative directives of his chief judge, within the performance of his duties; (10) should uphold the integrity and defend the independence of the judiciary, in the best interest of justice and society.

115

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II.

Training

Judges may choose from a range of training courses on such issues as cultural and social sensitivity and ethics. These are not compulsory but are available to them as soon as they are appointed and throughout their judicial career. Training is carried out by a host of nonprofit organizations that are largely project-financed, including the National Judicial Institute and the Canadian Institute for the Administration of Justice. These organizations work closely with the various judicial councils, the Office of the Commissioner for Federal Judicial Affairs and the judges associations to offer programs that meet the needs and requirements of judges. Content and instructors come from a host of sources including the universities, the bar and the judiciary.

E. SUPREME COURT Brief mention should be made of developments in the mode of appointment of candidates to the Supreme Court of Canada. Peter Russell, a noted political scientist, once described Canada to a parliamentary committee as the only constitutional democracy in the world in which the leader of government has an unfettered discretion to decide who will sit on the countrys highest court and interpret its binding constitution. 116 Executive discretion in the appointment of Supreme Court judges has been the object of increased attention due to recent attempts by successive governments to establish a form of pre-appointment scrutiny of candidates.

There had been no sense that appointments to the Supreme Court had been in any way inappropriate. But there was a public perception that the Supreme Court was a much more important institution in the age of the Canadian Charter of Rights and Freedoms, a bill of rights adopted in 1982, than had previously been the case.117 Most likely, there was also a
116

Peter Russel, A Parliamentary Approach to Reforming the Process of Filling Vacancies on the Supreme Court of Canada, Brief to the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness, March 23, 2004, at 1, noting that New Zealand had a similar process, but that a committee of judges advised ministers in respect of judicial appointments. For a recent comparative overview of judicial appointments, see Kate Malleson & Peter H. Russell, eds, Appointing Judges in an Age of Judicial Power: Critical Perspectives from around the World (Toronto: University of Toronto Press, 2006).
117

See generally Michael Mandel, The Charter of Rights and the Legalization of Politics in Canada (Toronto: Thompson Educational Publishing, 1989).

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sense that political capital could be gained by creating a public stage for, and involving Parliament in, the appointment process. The various formulae tried by the liberal and conservative governments have been described in detail in the literature and shall not be repeated here. 118 They all involve a parliamentary committee meeting with a candidate, in one case before a live television camera, and acting in a purely advisory capacity. Since the first attempt at reform, the practice has been altered for each and every new appointment. Executive discretion remains intact in law, and attempts at establishing a practice that might effectively constrain that discretion have thus failed for lack of consistency. This will remain a debated topic in Canada for some time to come.

F. CO CLUSIO Canada enjoys an elaborate and sophisticated understanding of judicial independence built upon a rich constitutional heritage which can serve as a model in many respects. But this understanding is still evolving, with old practices and rules being challenged by contemporary perspectives, changing requirements and constitutional developments. Foremost among these developments is the constitutional imperative of depoliticizing the relations between the political branches and the judiciary as stated by the Supreme Court. The central role of the executive in court administration and the appointment of judges is bound to come under increased scrutiny in the years to come. In both cases, judicial independence is at issue because, from the perspective of a reasonable observer, the appearance, if not the reality, of an independent judiciary is not fully safeguarded by formal institutions.

See e.g. Karen Eltis & Fabien Glinas, Judicial Independence and the Politics of Depoliticization, ssrn abstract=1366242, section 6.

118

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