Judges judges say that they just interpret what

            Judges are very significant people
in a society. They are the decision makers in the Judicial system and hold the
key for the trust of public towards their state and its system of law. They
play an important role, if not, a variety of roles that keeps together the
integrity of the state and its justice system. Judges are traditionally
considered to be morally superior with great sense of awareness towards the
situation and context of every case they deal with. The decisions they make can
greatly affect the lives of those involved. That is a lot of power in a person’s
hands. Despite what above doubts may suggest, a Judicial system with Judges is
still our safest bet to run a system of justice in a democratic country like
Canada. Because the powers of a Judge are constrained by the constitution and
the law itself. The same law that Judges make and develop when they make
judgements. (citation law
teacher) Most judges say that they just interpret what is written in the
law books and based on the previous judgements. Although they do take in to
account the context of each case but from a broader perspective we can
recognise some patterns on how the Judges make their decisions. And any
decision that may defer too much from the previous decisions of similar cases
may be perceived as Judicial activism. This can make one to think that the
Judges do not actually have choices to make in most of the cases.

BACKGROUND

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The
seeds for development of the current Judicial system was first laid by the
provisions of Constitution Act of 1867. According to the Act the powers of
lawmaking over criminal law and criminal procedure was given to the federal
government. But the establishment of the criminal courts within the provinces
lies in the powers of provincial governments. The appointment of the Judges for
Supreme court of Canada, Federal court, Federal court of appeal and the tax
court are all undertaken by the Federal government. Furthermore, Federal
government also appoints Judges to the higher courts of the province i.e.,
superior courts and courts of appeal (superior courts have different names in
different provinces Court of Queen’s Bench in Alberta or just Supreme
court in Nova Scotia). This right to appoint Judges to higher provincial courts
is provided by Section 96 of the Constitution Act, hence these Judges are also
referred to as “Section 96 Judges”. (citation Canadian
encyclopedia) Therefore
the federally appoint Judges are also paid for salaries by the Federal
government and the usual retirement age is 75, under the sections 99 and 100 of
the Constitution Act. Provincial and municipal governments then take care of
appointment of Judges to the inferior trial courts and also for magistrates and
other staff of these courts. (law connection).

     While the Supreme Court’s judges are
appointed by the federal government, another act known as the Supreme Court Act
1875 governs the process. The Act states that the candidate to be appointed as
the Judge to Supreme court should have been a Judge of a higher provincial
court or at least must have an experience as lawyer with 10 years of practice.
However most of these appointees have prior experience as a Judge, rarely
someone gets appointed directly form the practice as a lawyer. Ian Binnie who
served from 1998 to 2011 as a Supreme Court Judge is one such case, also regarded
as one of the best to have served as Judge. According to the Supreme Court Act,
section 6, there is a regulation on the number of Judges to be appointed from a
province. It also mandates that 3 out 9 Judges must be from Quebec province.
There is no further regulations on the number but traditionally, it is 3 Judges
from Ontario and the rest from other provinces and territories.

Role of the Jury:

      The public has its own roles to play in
the Judiciary. The public can be part of the trial by being part of the jury or
by testifying. A person if considered as a witness to a crime scene, can be
subpoenaed or, in other words, ordered to attend the trial. Ant useful
information given by the witness in his/ her testimony can be used as evidence.
(justice.gov.ca)
The public can also be part of a trial by sitting as a juror. Most court trials
in Canada happen without a jury and any criminal sentences where the accused
gets more than 5 years have the right to get trial by jury. In some civil cases
the sentence can be less than 5 years. The constitution requires that a juror
must be an adult citizen of the province or the territory where the court is
located at. In a criminal case the jury consists of 12 jurors and civil cases
consists of 6 jurors. Criminal cases require all jurors must unanimously agree
upon one decision. Civil cases can be passed with a judgement even when 5 out
of 6 jurors agree upon a decision. The judge listens to the jury and decides
the sentence. If the jury cannot agree upon a single decision, then the judge
may dismiss the jury and another jury with other citizens can be called up.

Judicial Independence

Arthur
Meighen during his speech given in the Canadian senate in 1932 famously stated
that “a judge is in no sense under the
direction of the Government …. The judge is a in a place apart.” (pg 46
martin). Judicial Independence remains the most significant
characteristic of the Canadian justice system. The constitution ensures that
the judges remain independent and separate from the two other branches of the
government viz., the executive and legislative. This is to make sure that the
judges are not subject to any pressure from the politics and other powerful
entities of a state. This, according the constitution is achieved by three
things: Security of the tenure, financial security and independence from the
administration. By security of tenure, judges cannot be removed by any body
until their retirement or end of tenure by age. (cjc) Financial security is also about
Judges needing to be paid high amounts for them not fall prey to bribery.
However what judges typically make is no match to a lot of other big
businessmen or even some specialists in other professions in the country.

      Even in a democracy Judges have a hard
task to remain impartial and protect the rights of every individual and
communities, especially minorities. Judgements made in favour of minorities may
affect the popularity of Judiciaries in the state. Sometimes people do not take
strong convictions to criminals to their hearts easily. One such incident
happened about 15 years ago. A British Columbia court in January 2003 sentenced
a woman to 3 years in jail for a road related accident. The woman was driving
under the influence of alcohol and had an accident which related in the death
of a young woman who was a pedestrian at that time. About a month after this
happened, the same court convicted two young men of negligent driving which
also resulted in the death of a pedestrian. The men were having a street race
when one of them lost control of his car and hit the pedestrian. The Judge
sentenced both men to two years less one day in jail followed by a 3-year
probation. The judgements for both cases were quite different. In the second
case the man in the other car which did not stuck the pedestrian was also given
the same sentence. This disparity between judgements is what caught the
attention of media as well as the public. There was a bit of an outcry against
this disparity.

  A good reason is that people don’t really
have the time to try and understand the whole context of the situation. Their
partial understanding of law and the case means judgements given out of their
range of predictions are likely to surprise them. This could create a gap
between righteousness of the judicial system and what the public wants. Even in
a democracy what most of the public wants is not always the right thing. Which
is one of the reasons it’s better to appoint judges rather than electing them.
But the case is not the same all over the world. USA, perhaps the most powerful
democracy and only one of the few countries in the world, elects its judges
although the rules vary by state and type of the court. (citation
Harvard law)

     Judges need not just have to be left
without a choice all the time. Sometimes the situation requires a judge to be
deviant from the past judgements of similar circumstances. But this also raises
other question such as to what extent can a judge be deviant to not to be seen
as a judicial activist. The answer to this varies a lot depending upon a lot of
factors and it is best that we let judges and other staff of the judiciary draw
the line.