Recent Revisions - Published Notices - Our Human Rights
Mackin v. New Brunswick (Minister of Finance); Rice v. New Brunswick,  1 SCR 405, 2002 SCC 13 (CanLII)
Judicial independence is essential to the achievement and proper functioning of a free, just and democratic society based on the principles of constitutionalism and the rule of law. Within the Canadian Constitution, this fundamental value has its source in s. 11(d) of the Charter and in the Preamble to the Constitution Act, 1867, which states that the Constitution of Canada shall be “similar in Principle to that of the United Kingdom”. It was in Provincial Court Judges Reference, supra, at paras. 82 et seq., that this Court explained in detail the constitutional foundations and scope of judicial independence.
35 Generally speaking, the expanded role of the judge as an adjudicator of disputes, interpreter of the law and guardian of the Constitution requires that he or she be completely independent of any other entity in the performance of his or her judicial functions. Such a view of the concept of independence may be found in art. 2.02 of the Universal Declaration on the Independence of Justice (reproduced in S. Shetreet and J. Deschênes, eds., Judicial Independence: The Contemporary Debate (1985), 447, at p. 450), which states:
Judges individually shall be free, and it shall be their duty, to decide matters before them impartially, in accordance with their assessment of the facts and their understanding of the law without any restrictions, influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason. [Emphasis added.]
The adoption of a broad definition of judicial independence by this Court was confirmed, moreover, in Provincial Court Judges Reference, supra, at para. 130, where Lamer C.J., for the majority, stated the following:
Finally, although I have chosen to emphasize that judicial independence flows as a consequence of the separation of powers, because these appeals concern the proper constitutional relationship among the three branches of government in the context of judicial remuneration, I do not wish to overlook the fact that judicial independence also operates to insulate the courts from interference by parties to litigation and the public generally: Lippé, supra, at pp. 152 et seq., per Gonthier J. [Emphasis added.]
Per L’Heureux‑Dubé, Gonthier, Iacobucci, Major and Arbour JJ.: Judicial independence is essential to the achievement and proper functioning of a free, just and democratic society based on the principles of constitutionalism and the rule of law.
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- Human rights must themselves be protected by the rule of law;