The constitution of Canada is based on the ‘Living tree’ doctrine, Wikipedia defines this doctrine of constitutional interpretation as “that the constitution is organic and must be read in broad and progressive manner to adapt it to changing times.” (Wikipedia, 2017) 1It is because of this theory the role of judiciary in Canada has evolved over time and sometimes the limits of it are not clearly distinguishable.
To understand the role of judiciary it is important to know how ‘Law’ works. The law regulates relationships between people. The Law gives order as well as structure to a society. It protects us. An important feature which is often ignored while defining law is that ‘It is a living organism’. The law of the society keeps changing constantly, this change is not random it is based on factual and social reality. “Sometimes the change is drastic and easily identifiable. Sometimes the change is minor and gradual, and cannot be noticed without the proper distance and perspective” (Barak, 2006)2. It reflects the values of society. The role of the judge is to understand the purpose of law in society and to help the law achieve its purpose.
Firstly, the judges’ task is to decide on issues fairly and impartially in an unbiased manner, to accomplish this it is indeed important that the judiciary is independent of any social or political influences. The three core characteristics of judicial independence, security of tenure, financial security and administrative independence, ensure that the courts have unfettered ability to decide cases according to law and without being pressured by anyone3 (Barak, 2006). But the judicial independence is often challenged with the argument of judges working in isolation. As per my opinion this argument is weak, independence does not mean isolation the judges are indeed aware of the social and political aspects their decisions might influence, and these sentiments do affect their decisions. Independence of judiciary is rather a necessity for a democratic government to function as it is probably the only way to ensure that the legislative and executive branches are working within the bounds of powers entitled to them by the constitution.
Does Judicial independence make the courts the most powerful organization in the government? Are the judges in the courts not answerable or accountable for the decisions they make? These questions can be answered on the complexity of cases the judges are dealing with. When the judges are involved in resolving disputes between citizens or applying the criminal law the answer to these questions are straight forward, ‘They do what the law says’, These cases are subject to written laws and making decisions on these cases hardly attracts notice. When judges decide cases that question the state’s legislative power, the cases where the rights and freedom of democratic are at stake, attention is sure to follow. It is then when the power and bounds of the judiciary are questioned. 4
In 1982 the charter of rights and freedom was adopted, an important event in defining Canada’s democracy. An important attribute of the rights that are entitled to the citizen is that they are not ‘Absolute’, which means the state can limit the freedom and rights as long as it is reasonable and justifiable. This characteristic of the charter has resulted in many disputes between the states and the citizens. These issues are often highly social and political in nature for example, legalizing same-sex marriage, the scope of aboriginal rights, the legality of assisted suicide, laws around possession of pornography etc. “The judges’ task is to decide these cases fairly and impartially, In discharging these tasks judges are not all-powerful. “In a constitutional democracy, all power is by definition limited” (McLachlin, 2003).This leads to another question, what limits the power of the judiciary? If they are fair and impartial they can function independently, can’t they? In reality, this is not as simple as it sounds. Beverley McLachlin explains in his article – there are rules written and unwritten that the judiciary needs to comply with: Rules like courts must be open to public; the rule that judges must explain and justify their decisions; the value that all decisions must be appealable, at least to one other court and the need of respecting and consulting parliament and legislatures on matters of social choice. 5 (McLachlin, 2003).
The charter has a profound influence on creation and interpretation of laws and policies in Canada. It has been 35 years since the charter was introduced and there have been several charter cases that have surfaced. (Abella, 2000)6 The key role judiciary played in these cases was not confined to just interpreting the law, in fact their decision on these cases resulted in shaping social and political norms. For example; in R. v. Morgentaler, 1988 1 SCR 30 case (Women’s rights to liberty and security),The Supreme Court came to a conclusion to strike down the abortion provisions in the Criminal code. These provision mandated women to carry foetus till the time they met certain criteria. The court decided that the abortion provisions did not promote the states purpose of protecting the life and well being of mothers, and concluded that the nature of these provisions were not justified in a democratic society. Since Parliament did not pass any law in response to this decision, abortion is no longer a criminal offence in Canada7 (Department of Justice, 2017). Does this imply that the supreme court has the ultimate power? The legislative branch is responsible to pass the law and not the courts, the courts have the responsibility to safe guard these laws, how then can the supreme court pass a new law that ‘legalizes’ abortion in Canada? The answer to these questions take us to another key role that the judiciary plays; The role of a negotiator or ‘neutral arbiter’. If observed closely most of the charter-related cases result when the state tries to infringe the rights and freedom of people in a non-justifiable manner, And the reason behind the states infringement can be varied, the state comprises of political parties and political parties can have different ideologies. There is always a chance of having a gap between the ideologies of the state and the expectations of the people. This is where the judiciary plays its role of an arbiter. It makes sure that the laws drafted by the legislative branch do not infringe the rights and freedom of people of the democracy. In other words, they try to bridge the gap between the legislations passed and their potential impact to the democracy of the society. In many countries, there is a fundamental disagreement about the legitimacy of courts invalidating legislative or executive action. In Canada, it is the state itself that gave powers to the court to review. As Honorable Sheilah Martin explains “In 1982, Canada’s elected and accountable governments made a deliberate choice to constitutionally entrench rights and freedoms. Parliament and provincial legislatures expressly gave courts the power to review state action for compliance with the Charter, and granted them wide remedial powers, including the power to declare unconstitutional legislation invalid. This express grant of judicial authority came about through a democratic process.” (Martin, 2017)8 It is important to notice that while deciding on such cases the judges are not completely independent. As stated earlier there are various unwritten laws and procedures that the courts need to work within.
While the legitimacy of courts getting involved in executing legislative actions, judges being appointed federally and not elected democratically and appropriate limit of judicial authority are still debates that persist, it should be kept in mind that we have progressed from a system of parliamentary democracy to constitutional democracy and this transition has expanded the judiciary’s traditional role as the custodian of individual rights and freedom (McLachlin, 2003). For the democratic system to work, a synergy between all bodies of government is essential and the judicial branch makes a huge contribution in preserving the rights and freedom of the public.
1 See Wikipedia. (2017, 08 27). Living tree doctrine. Retrieved from: Wikipedia:https://en.wikipedia.org/wiki/Living_tree_doctrine
2 See Barak, A. (2006). The Judge in a Democracy. Princeton: Princeton University Press.
3 See Mr. Justice Rowe’s answer to ‘Role of Judge in constitutional democracy’
4 See McLachlin, B. (2003, September 1). Policy Options. The judiciary’s distinctive role in our constitutional democracy.
5 See McLachlin, B. (2003, September 1). Policy Options. The judiciary’s distinctive role in our constitutional democracy.
6 See Abella,R. S. (2000, April 7). The Judicial Role in a Democratic State. Court of Appeal for Ontario. Toronto, Ontario.
7 See Department of Justice. (2017). Examples of Charter-related cases. Canada’s System of Justice.
8See Martin, S. (2017). The Honourable Sheilah Martin’s questionnaire. Government of Canada, Part 10.