Judicial independence is entrenched within the Canadian judiciaries, guaranteeing independence in all courts. This includes security of tenure, financial security and administrative independence. The structure of this critical analysis will begin with the summary of the broader context of judicial independence, and then delve into one particular aspect of judicial independence – judicial financial security. The 1997 Judges Remuneration Reference has a critical influence on Canadian judges salaries and how they are determined. As per any important issues, there are both critics and advocates of the reference. The advocates recognize the surface success in which the reference has aimed to attain, whereas the critics dig deeper into the reference to discover loopholes and concerns of the more specific reference concepts. The preamble of the Constitution Act of 1867 states that Canada shall be “a Constitution similar in principles to that of the United Kingdom”; with this comes the unwritten norm and foundational principles of judicial independence as the United Kingdom’s tradition (Ref re Remuneration of Judges of the Prov. Court of P.E.I.; Ref re Independence and Impartiality of Judges of the Prov. Court of P.E.I., 1997). In the following of United Kingdom’s constitution, Canada also expresses judicial independence. The Canadian judiciary shall be impartial on the basis of facts without any restrictions, pressures, influences, threats or interferences to ensure that judicial proceedings are piloted fairly (Basic Principles on the Independence of the Judiciary, 2012). In order to ensure impartiality and ¬¬independence, the judiciary is provided with security of tenure, financial security and administrative independence (Riddell, 2013... ... middle of paper ... ...flict of rejecting a recommendation results in more litigation added to the Canadian courts, which are already filled with much more pressing and serious issues. The Remuneration Reference was partly developed to eliminate negotiation between judges and the government, but in the event of rejecting recommendations, there is still a dispute between the judges and the government regarding salaries. The bias and self-interest that can still be applied through the Remuneration Reference compensation committees has tainted the judiciary’s integrity. The greater the issues of judicial remuneration, the more opportunities judges have to use the bargain of judicial independence and financial security, solely being motivated by greed. The loophole of rejecting the compensation commission’s recommendations is the greatest pitfall of the 1997 Judges Remuneration Reference.
Maidment, M. (2009). When justice is a game: Unravelling wrongful convictions in Canada. Canada: Fernwood Publishing.
...wo constitutional documents may be similar in respect to their provisions respecting rights, it would not necessarily follow that claims of violation of rights would receive the same response from the courts of both nations. A proper analysis of why this is so would require a book-length account of the constitutional and political history of Canada and the United States. It would include but would not be limited to the selection and role of judges, the role of legislatures and political leadership, the attitudes and practices of the police and administrative agencies, and, not least, popular attitudes towards rights, minorities, and government. In short, the whole of a people’s way of life.
Blair, Annice. Law in Action: Understanding Canadian Law. Toronto, Ontario: Pearson Education Canada, 2003. Print.
The next important principle of the Canadian Constitution is the judicial review. The judicial review is the power of the executive branch of government (Dyck 12). Essentially, the judicial review states that any law that the government makes, can be struck down by the Supreme Court if it violates the Canadian Constitution (Dyck 401). This is a prime example how the judicial review protects the rights of
For the purpose of this paper, the most intriguing point about this is what Boudreau further argues in his book, which is that these formal judicial incentives contradict the rule of law by propagating already existing socio-economic inequalities as well as inequalities within class, gender and ethnic relations (p.8). In the following essay I will discuss Michael Boudreau’s argument and his ability to accurately and sufficiently demonstrate the existence of this contradiction in the rule of law within the city of Halifax from the years of 1915 to 1935. I will do this by analysing the effectiveness of demonstrating what I took to be the premises behind his argument which is as follows. That in interwar Halifax, to respond to increased criminality brought about by a prompt shift in modernity, the city required the justice system and the rule of law to function without due
The Constitution Act, 1876 and the Constitution Act, 1982 are the two official documents that comprise the Constitution of Canada and are the supreme source of law in the nation. According to Craik & Forcese these documents together rep...
The Constitution of Canada is very appropriate as it plays its role as a blueprint for the structure of Canada. According to section 91 of the Constitution Act, 1867, it says, “It shall be lawful for the queen, by and with the advice and consent of the Senate and House of Commons, to make laws for the peace, order, and good government of Canada…” [laws-lois.justice.gc.ca]. The structure of Canada and the powers of the Parliament can be easily identified through this law. As it is said, the Parliament can only make laws with the advice and consent of the Senate and House of Commons regarding peace, order and the government of Canada, which is fair and appropriate. Furthermore, as said in section 92 of the Constitution of Canada, it says, “In each province the legislature may exclusively make laws in relation to matters coming within the classes of subjects next hereinafter enumerated; that is to say, - direct taxation within the province in order to the raising of a revenue for provincial purposes, etc.” [laws-lois.justice.gc.ca]. It is a law regarding exclusive powers of Provincial Legislatures on the following topics. Having this law in place ensures that each part of the Legislature gets equal rights and powers making the Constitution very appropriate as a blueprint for the structure of Canada. In addition, in section 93, it states that, “In and for each province the legislature may exclusively make laws in relation to education, subject and according to the following provisions…” [laws-lois.justice.gc.ca]. It states that each Province’s Legislature can make laws in relation to education, subject according to the following necessities. This law balances the education in each province and further develops the overall structure of Canada.
R. v. Martineau, [1990] 2 SCR 633 (n.d.). In Judgements of the Supreme Court of Canada.
Different states have various ways of ruling and governing their political community. The way states rule reflects upon the political community and the extent of positive and negative liberty available to their citizens. Canada has come a long way to establishing successful rights and freedoms and is able to do so due to the consideration of the people. These rights and freedoms are illustrated through negative and positive liberties; negative liberty is “freedom from” and positive liberty is “freedom to”. A democracy, which is the style of governing utilized by Canada is one that is governed more so by the citizens and a state is a political community that is self-governing which establishes rules that are binding. The ‘Canadian Charter of Rights and Freedoms’ allow Canada’s population to live a free and secure life. This is demonstrated through the fundamental freedoms, which permit the people to freely express themselves and believe in what they choose. Canadians also have democratic rights authorizing society to have the right to democracy and vote for the members of the House of Commons, considering the fact that the House of Commons establishes the laws which ultimately influence their lifestyle. The tools that are used to function a democratic society such as this are, mobility, legal and equality rights, which are what give Canadians the luxury of living life secured with freedom and unity. Furthermore it is safe to argue that ‘The Canadian Charter of Rights and Freedoms’, proves the exceeding level of efficiency that is provided for Canadians in comparison to other countries where major freedoms are stripped from their political community.
Cole, D. P. (2008). A Day in the Life of a Judge. In Criminal Justice in Canada: a Reader (3rd ed., pp. 59-75). Toronto: Thomson Nelson.
The Canadian Charter of Rights and Freedoms was enacted under the Pierre Trudeau government on April 17, 1982. According to Phillip Bryden, “With the entrenchment of the Charter into the Canadian Constitution, Canadians were not only given an explicit definition of their rights, but the courts were empowered to rule on the constitutionality of government legislation” (101). Prior to 1982, Canada’s central constitutional document was the British North America Act of 1867. According to Kallen, “The BNA Act (the Constitution Act, 1867) makes no explicit reference to human rights” (240). The adoption of the Charter of Rights and Freedoms significantly transformed the operation of Canada’s political system. Presently, Canadians define their needs and complaints in human rights terms. Bryden states, “More and more, interest groups and minorities are turning to the courts, rather than the usual political processes, to make their grievances heard” (101). Since it’s inception in 1982 the Charter has become a very debatable issue. A strong support for the Charter remains, but there also has been much criticism toward the Charter. Academic critics of the Charter such as Robert Martin believe that the Charter is doing more harm than good, and is essentially antidemocratic and UN-Canadian. I believe that Parliament’s involvement in implementing the Charter is antidemocratic, although, the Charter itself represents a democratic document. Parliament’s involvement in implementing the Charter is antidemocratic because the power of the executive is enhanced at the expense of Parliament, and the power of the judiciary is enhanced at the expense of elected officials, although, the notwithstanding clause continues to provide Parliament with a check on...
The court system of any country is a fundamental aspect of the society. In this respect, there are no public institutions in Canada which are subject to public scrutiny like the court system. People expectations of how they are treated by others are guided by laws made by various levels of institutions of justice. The Canadian judicial system, particularly, has undergone major developments and challenges as well. This paper explores three published articles that report on the problem of patronage appointments what lies behind the confidence in the justice system and the relevance of gender and gender equality in the legal profession.
The Canadian Justice system is run like a well-oiled machine. It is based on the fair and humane treatment of suspects who remain innocent until proven guilty. There is one big question that has been debated since July 14th, 1976 - should the death penalty have been abolished in Canada? The new younger generation of Canadians seems to agree with me that the death penalty should be resurrected in Canada.
From conception in the Magna Carta 1215, juries have become a sacred constitutional right in the UK’s justice system, with the independence of the jury from the judge established in the R v. Bushel’s case 1670. Although viewed by some as a bothersome and an unwelcomed duty, by others it is perceived to be a prized and inalienable right, and as Lord Devlin comments ‘ trial by jury is more than an instrument of justice and more than one wheel of the constitution : it is the lamp that shows freedom lives.’ It is arguable that juries bring a ‘unique legitimacy’ to the judicial process, but recently it seems that their abolition may be the next step forward for the UK in modernising and making the judicial system more effective. Many argue that jurors lack the expertise and knowledge to make informed verdicts, along with views that external forces are now influencing juries more heavily, especially after the emergence of the internet and the heavy presence it now has on our lives. Yet, corruption within the jury system is also internal, in that professionals and academics may ‘steamroll’ others during deliberations about the case. These factors, coupled with the exorbitant costs that come along with jury trials creates a solid case for the abolition of juries. On the other hand though, the jury system carries many loyal supporters who fear its abolition may be detrimental to society. Academics and professionals such as John Morris QC state that; 'it may well not be the perfect machine, but it is a system that has stood the test of time.’ Juries ensure fair-practice within the courtroom, and although controversial, they have the power to rule on moral and social grounds, rather than just legal pre...
If the court rules in favour of British Columbia's Attorney General, the court will also rule against an ...