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Judicial Independence in Canada: A Critical Overview


Fabien Gelinas


McGill University

March 24, 2010

JUDICIAL INDEPENDENCE IN TRANSITION - STRENGTHENING THE RULE OF LAW IN THE OSCE REGION, Anja Seibert-Fohr, ed., Max Planck Institute Series, 'Beitraege zum Auslaendischen Oeffentlichen Recht und Voelkerrecht', Heidelberg: Springer, 2011

Abstract:     
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 pre-existing 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.

Number of Pages in PDF File: 30

Keywords: judicial independence, impartiality, constitutional law, convention, principle, act of settlement, superior courts, supreme court, judicial appointments, compensation, remuneration reference, provincial courts reference

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Date posted: March 29, 2010 ; Last revised: June 16, 2010

Suggested Citation

Gelinas, Fabien, Judicial Independence in Canada: A Critical Overview (March 24, 2010). JUDICIAL INDEPENDENCE IN TRANSITION - STRENGTHENING THE RULE OF LAW IN THE OSCE REGION, Anja Seibert-Fohr, ed., Max Planck Institute Series, 'Beitraege zum Auslaendischen Oeffentlichen Recht und Voelkerrecht', Heidelberg: Springer, 2011. Available at SSRN: http://ssrn.com/abstract=1577842

Contact Information

Fabien Gelinas (Contact Author)
McGill University ( email )
3644 Peel Street
Montreal H3A 1W9, Quebec
Canada
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