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Judges play
an important role in the Canadian constitutional democracy.
A state that acknowledges the executive and
legislative powers, requires establishments to take control
when those powers are
exceeded. These organizations are
the courts. Mirroring this essential objective, the
Constitution of Canada, like those of most modern nations,
ensures the basic autonomy of the courts and
the judges.  “While the court must also be sensitive to the limits of
its role as judicial arbiter and not interfere unduly with the roles of the
other branches of governance, the judicial crafting of remedies will vary
according to the right at issue and the context of each case: the advancement
of democratic ends should not be accomplished by undemocratic means.” (Hutchinson,
2004)

To
influence a parliamentary framework under the lead of law
to work, a democracy requires unbiased, autonomous mediators, who can settle
issues in a genuine and unbiased manner. Judges decipher the law, survey the
proof exhibited, and control how hearings and trials unfold in their courts.
Most important of all, judges are fair chiefs in the quest for equity. The
judge, nonetheless, stays over the shred, giving a free and fair-minded
appraisal of the facts and how the law applies to those realities. The
judiciary needs to translate and apply the law alongside the constitution and
to give fair-minded mediations of debate between the state and people, amongst
people, and between various levels of government inside the state.

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Canada’s
Court System

The Canadian judiciary
consists of four levels of court. Each type of court has its own

jurisdiction, which means that
it has the authority to decide specific types of cases:

1.   
Provincial and territorial (lower) courts.

2.   
Provincial and territorial courts of appeal.

3.   
The federal court system

4.   
The Supreme Court of Canada

 In a democracy, the
exercise of political power must respect the law, the constitution, and the
will of the people, through the decisions of their elected legislative
representatives.  This requires that power be separated so that the
head of government and his ministers do not have the power to make the law or
to interfere in court cases.  In a democracy, the executive branch
implements policies and programs, administers the national budget, and conducts
national affairs.  It may also propose laws, but only the parliament
may enact legislation, including the budget.  Only the courts can
decide the guilt or innocence of individuals charged with a crime, and only the
higher courts can determine whether a law or a government action or policy is
constitutional.

In a democracy, the judiciary
has four main responsibilities. These includes formulating the rule of law
through the interpretation and application of law, settling disputes, checking
legality and being a player in state politics. To accomplish these four duties,
the basic principles of a liberal democratic state has to be upheld along with
the principles of a legal democracy and state.  The judiciary protects the citizens should
their duly elected representatives in the legislature choose to undertake such
actions that violate constitutional rights of anyone in the society. Judiciary defends
the citizens when such violations occurs.

According to Canadian Judicial
Council; Judges must be free, but obliged, to decide on their own. Judges must
be set apart from someone else’s influence or supervision. Judges must be
insulated against and independent from any and all sources of improper influence.
This includes all forms of coercion, threat or harassment, direct or indirect; whether
from government, politicians, persons in authority, relatives, neighbors,
interested parties, fellow judges, chief justices, judicial bodies or
organizations. (Canadian Judicial Council)

Unlike the legislative and
executive branches, the judiciary is not answerable to any elected
representatives or the government. They can make independent decisions and the
other branches has no powers to question them. The prime responsibility of the judges
is to guard the constitution and to make sure that any amendments made to it
are not against the rights of citizen. This is the basic reason judges and
judiciary as a whole should be an independent institution. The involvement of
other branches of government in workings of the court should be as limited as
is possible. In instances where any rule is deemed unsuitable, constitution
also outlines the process of amending the constitution. “Because our courts
must protect the poor, the minority and the unpopular, as well as the rich and
powerful, we must defend the courts from improper political interference and
pressure from special interests.” (National Association of Women
Judges)

As a democratic society, we
have seen earth-shattering changes in the relationship amongst people and the
state. The judiciary has the information and experience to make enormous
commitments to the support and proceeding with development of the democratic
society. The part of the courts as resolver of debate, translator of the law
and protector of the Constitution, requires that they be separate in authority
and function from every single participant in a democratic framework. “The
judiciary has a different relationship with the public. It is accountable less
to the public’s opinions and more to the public interest. It discharges that
accountability by being principled, independent, and impartial. Of all the
public institutions responsible for delivering justice, the judiciary is the
only one for whom justice is the exclusive mandate.” (Abella, 2000)

The sanctioning of the
Canadian Charter of Rights and Freedoms in 1982 widely extended the power of
the courts in Canada. With the Charter in place, the courts could arbitrate not
just upon the division of powers between various levels of government, but
additionally upon the constitutionality and legality of laws established by
Parliament and the provincial lawmaking bodies. “The adoption of the Charter
of Rights and Freedoms in 1982 has greatly increased the number of
such cases. The recognition of same-sex marriage, the existence and scope of
Aboriginal rights, the legality of assisted suicide, the constitutionality of
the offence of possession of pornography and the appropriate sentence for ‘mercy
killing’. These are but a few of the charged issues that our judges have been
obliged to tackle in the two decades since the Charter was
adopted.” (McLachlin, 2003)

In a democracy, the activity
of political power must regard the law, the constitution, and the will of the
citizen, through the choices of their elected representatives. This requires
power be isolated, so the head of government and his ministers don’t have the
ability to make the law or to interfere in court cases. In a democratic country
like canada, the executive branch implements laws and policies. It might
likewise propose laws, however, just the parliament may order enactment. Just
the courts can decide the guilty or innocence of people accused of a crime, and
just the higher courts can decide if a law or an administration activity or
arrangement is in accordance to the constitution. “Each judge is a distinct
world unto himself or herself, and we would not wish it otherwise. Ideological
pluralism, not ideological uniformity, is the hallmark of judges in democratic
legal systems. Diverse judges reflect – but do not represent – the different
opinions that exist in their societies.” (Barak, 2002)

 

 

 

 

References

Abella, R. S. (2000). The Judicial Role in a
Democratic State. 1999 Constitutional Cases Conference.
Barak, A. (2002, 1 1). A Judge on Judging: The Role
of a Supreme Court. Faculty Scholarship Series.
Canadian Judicial Council. (n.d.). Why is judicial
independence important for you? Retrieved from
http://www.courts.gov.bc.ca/documents/Why_is_Judicial_Independence_Important_to_You.pdf
Hutchinson, A. C. (2004). Judges and Politics: An
Essay From Canada. Review: Osgoode’s Annual Constitutional Cases
Conference, 25(9), 271.
McLachlin, B. (2003, 9 1). Retrieved from
policyoptions:

The judiciary’s distinctive role in our constitutional democracy


National Association of Women Judges. (n.d.).
Defending Justice. Protecting Citizens. Informed voters. Fair Judges.
Retrieved from
https://www.nawj.org/uploads/files/programs/ivp/defending_justice_protecting_citizens_primer.pdf
 

 

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