The Canadian Regime: An Introduction to Parliamentary Government in Canada, Fifth Edition by Patrick Malcolmson & Richard Myers

Author:Patrick Malcolmson & Richard Myers [Malcolmson, Patrick]
Language: eng
Format: epub
Tags: POL000000, POL016000, POL056000
Publisher: University of Toronto Press, Higher Education Division
Published: 2012-07-15T00:00:00+00:00

8.2 The Fundamental Principles of the Canadian Judiciary

There are three fundamental principles that govern the Canadian judiciary in its efforts to carry out the tasks described above: impartiality, independence, and equality before the law. Each of these principles has been inherited from the British judiciary. Indeed, it is plausible to argue that the authoritative status of these three principles is implied by the statement in the preamble to CA 1867 that Canada is to have “a Constitution similar in principle to that of the United Kingdom.” As we shall see, however, the Constitution entrenches these principles in other places as well.

1. Impartiality. Section 11(d) of the Charter of Rights and Freedoms guarantees that any person charged in Canada with some offence has a right to a “fair” trial before an “impartial tribunal.” There is nothing surprising in this, for the requirement that judges be impartial is more or less implicit in the very concept of adjudication.

The general meaning of the principle of impartiality is relatively straightforward: judges must be free from prejudice for or against any party appearing before them. It may, of course, be impossible for human beings to refrain from showing at least some prejudice in their judgement about things, but our regime assumes that its judges will be reasonably impartial and for the most part leaves it up to individual judges to police themselves in this regard. It does, however, attempt to promote impartiality by means of three specific provisions.

The first is the right of parties to appeal a judge’s decision to a higher court. The right of appeal promotes impartiality in two ways: knowing that their judgements may be subjected to the scrutiny of a higher court gives individual judges great incentive to be fair and objective, and parties who have been victims of judicial bias get a second hearing. It is important to note, however, that the right to appeal is not unlimited. In the first place, it is not automatic. One generally has to ask the court to which one seeks to appeal a decision for permission (or “leave”) to appeal. Appeal courts will grant such leave only if they have serious doubts about the ruling of the lower court. Moreover, not every aspect of a case is subject to appeal. When judges adjudicate disputes, they engage in two distinct processes: they must first decide the facts of the situation in dispute—what exactly happened—and they must then determine what the law says about these situations. Appeal courts will grant leave to appeal if there appear to be problems in what a judge has said about the law or perhaps if the judge has made procedural errors, but, as a rule, they do not hear appeals of a judge’s decision about the facts of a case.

Another feature of Canada’s judicial regime that serves to promote impartiality is its “adversarial” character. In many countries, judges will play a very active role in the judicial process, taking responsibility for fact-finding and then settling the disputes in accordance with their understanding of the law.

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