Judges playan important role in the Canadian constitutional democracy.A state that acknowledges the executive andlegislative powers, requires establishments to take controlwhen those powers areexceeded. These organizations arethe courts. Mirroring this essential objective, theConstitution of Canada, like those of most modern nations,ensures the basic autonomy of the courts andthe judges. “While the court must also be sensitive to the limits ofits role as judicial arbiter and not interfere unduly with the roles of theother branches of governance, the judicial crafting of remedies will varyaccording to the right at issue and the context of each case: the advancementof democratic ends should not be accomplished by undemocratic means.
” (Hutchinson, 2004)Toinfluence a parliamentary framework under the lead of lawto work, a democracy requires unbiased, autonomous mediators, who can settleissues in a genuine and unbiased manner. Judges decipher the law, survey theproof exhibited, and control how hearings and trials unfold in their courts.Most important of all, judges are fair chiefs in the quest for equity. Thejudge, nonetheless, stays over the shred, giving a free and fair-mindedappraisal of the facts and how the law applies to those realities. Thejudiciary needs to translate and apply the law alongside the constitution andto give fair-minded mediations of debate between the state and people, amongstpeople, and between various levels of government inside the state.Canada’sCourt SystemThe Canadian judiciaryconsists of four levels of court.
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Each type of court has its ownjurisdiction, which means thatit 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 system4. The Supreme Court of Canada In a democracy, theexercise of political power must respect the law, the constitution, and thewill of the people, through the decisions of their elected legislativerepresentatives. This requires that power be separated so that thehead of government and his ministers do not have the power to make the law orto interfere in court cases. In a democracy, the executive branchimplements policies and programs, administers the national budget, and conductsnational affairs. It may also propose laws, but only the parliamentmay enact legislation, including the budget. Only the courts candecide the guilt or innocence of individuals charged with a crime, and only thehigher courts can determine whether a law or a government action or policy isconstitutional.
In a democracy, the judiciaryhas four main responsibilities. These includes formulating the rule of lawthrough the interpretation and application of law, settling disputes, checkinglegality 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 withthe principles of a legal democracy and state. The judiciary protects the citizens shouldtheir duly elected representatives in the legislature choose to undertake suchactions that violate constitutional rights of anyone in the society. Judiciary defendsthe citizens when such violations occurs.
According to Canadian JudicialCouncil; Judges must be free, but obliged, to decide on their own. Judges mustbe set apart from someone else’s influence or supervision. Judges must beinsulated against and independent from any and all sources of improper influence.
This includes all forms of coercion, threat or harassment, direct or indirect; whetherfrom government, politicians, persons in authority, relatives, neighbors,interested parties, fellow judges, chief justices, judicial bodies ororganizations. (Canadian Judicial Council)Unlike the legislative andexecutive branches, the judiciary is not answerable to any electedrepresentatives or the government. They can make independent decisions and theother branches has no powers to question them. The prime responsibility of the judgesis to guard the constitution and to make sure that any amendments made to itare not against the rights of citizen. This is the basic reason judges andjudiciary as a whole should be an independent institution. The involvement ofother branches of government in workings of the court should be as limited asis possible.
In instances where any rule is deemed unsuitable, constitutionalso outlines the process of amending the constitution. “Because our courtsmust protect the poor, the minority and the unpopular, as well as the rich andpowerful, we must defend the courts from improper political interference andpressure from special interests.” (National Association of Women Judges)As a democratic society, wehave seen earth-shattering changes in the relationship amongst people and thestate. The judiciary has the information and experience to make enormouscommitments to the support and proceeding with development of the democraticsociety. The part of the courts as resolver of debate, translator of the lawand protector of the Constitution, requires that they be separate in authorityand function from every single participant in a democratic framework.
“Thejudiciary has a different relationship with the public. It is accountable lessto the public’s opinions and more to the public interest. It discharges thataccountability by being principled, independent, and impartial.
Of all thepublic institutions responsible for delivering justice, the judiciary is theonly one for whom justice is the exclusive mandate.” (Abella, 2000)The sanctioning of theCanadian Charter of Rights and Freedoms in 1982 widely extended the power ofthe courts in Canada. With the Charter in place, the courts could arbitrate notjust upon the division of powers between various levels of government, butadditionally upon the constitutionality and legality of laws established byParliament and the provincial lawmaking bodies.
“The adoption of the Charterof Rights and Freedoms in 1982 has greatly increased the number ofsuch cases. The recognition of same-sex marriage, the existence and scope ofAboriginal rights, the legality of assisted suicide, the constitutionality ofthe offence of possession of pornography and the appropriate sentence for ‘mercykilling’. These are but a few of the charged issues that our judges have beenobliged to tackle in the two decades since the Charter wasadopted.” (McLachlin, 2003)In a democracy, the activityof political power must regard the law, the constitution, and the will of thecitizen, through the choices of their elected representatives. This requirespower be isolated, so the head of government and his ministers don’t have theability to make the law or to interfere in court cases.
In a democratic countrylike canada, the executive branch implements laws and policies. It mightlikewise propose laws, however, just the parliament may order enactment. Justthe courts can decide the guilty or innocence of people accused of a crime, andjust the higher courts can decide if a law or an administration activity orarrangement is in accordance to the constitution. “Each judge is a distinctworld unto himself or herself, and we would not wish it otherwise. Ideologicalpluralism, not ideological uniformity, is the hallmark of judges in democraticlegal systems. Diverse judges reflect – but do not represent – the differentopinions 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: http://policyoptions.irpp.org/magazines/canadian-universities/the-judiciarys-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