Judges and their Roles in the Constitutional Democracy of Canada
Judges has various roles and duties in the constitutional democracy of Canada. They interpret the law, assess the evidence presented, and control how hearings and trials unfold in their courtrooms. Most important of all, judges are impartial decision-makers in the pursuit of justice. (Canadian Superior Courts Judges Association, n.d.). The Canadian Judiciary is an adversarial system of justice and the legal cases are challenged between opposing sides, which assures that evidences and legal disputes will be completely and forcefully presented. The judge, however, remains above the all these problems, providing a totally independent and unbias assessment of the facts and how the law can be implemented to these facts.
The system is such that numerous criminal cases and almost all of the civil cases are heard by a judge sitting without a jury. The judge is the “trier of fact,” deciding whether the evidence is credible and which witnesses are telling the truth. Then the judge applies the law to these facts to determine whether a civil claim has been established on a balance of probabilities or whether there is proof beyond a reasonable doubt, in criminal cases, that the suspect is guilty (Canadian Superior Courts Judges Association, n.d.). According to the law anyone who faces five years or more in prison if convicted of a crime has the right, under the Charter, to request for a jury trial, and many defendants facing serious offences such as murder, chooses to have a jury hear their case. The jurors become the triers of fact and assess the evidence while the judge takes on the role of legal advisor, explaining the law to the jurors. The jurors then retire to deliberate on a verdict. In criminal cases the jury’s verdict, either “Guilty” or “Not Guilty” must be unanimous.
During the court proceeding, if the defendant is convicted of a crime, the judge passes sentence, imposing a penalty that can vary from a fine to a prison term depending on the severity of the offence or crime. However, in civil cases the judge decides whether a claim is reasonable and authentic and assesses damages, grants an injunction or orders some other form of redress to the plaintiff, unless a jury has been empaneled to make these decisions. In other words, the “the judiciary, collectively comprising of the judges of the law courts, is the branch of government in which judicial power is vested. It is independent of the legislative and executive branches. Judges are public officers appointed to preside in a court of justice, to interpret and apply the laws of Canada (The Canadian Encyclopedia, n.d.).
Talking about the qualities required by a judge, they are required to have the highest standards of integrity in both their professional and personal lives. They should be highly knowledgeable about the law, willing to undertake in-depth legal research, and able to write decisions that are fair and convincing. Their judgment should be clear, and they should be able to make informed decisions that will stand up to close scrutiny and issues arising from the disputes. Judges should be open-minded and fair, and should appear and represent themselves to be fair and open-minded. They should be good listeners but should be able, when required, to ask questions that get to the heart of the issue before the court. They should be respectful in the courtroom but strong whenever it is necessary to overpower a rambling lawyer, a disrespectful litigant or an ill-mannered spectator.
Judges arrives at the bench after making a major contribution to the legal profession and their society. Various judges have been active in law societies and have done volunteer and renowned charitable works. Others have been active in politics or won to the elected office. Judges who have served on a lower court are sometimes promoted to a higher court, such as a provincial court of appeal or the Supreme Court of Canada.
The selection of judges is a significant task undertaken by the federal government who appoints the judges to the federal courts, the superior courts of the territories and provinces, and the Supreme Court of Canada. Furthermore, the commissioner of Federal Judicial Affairs administers the advisory committees and they represent each province and territory, which examines the qualifications of the lawyers who apply for federal judicial positions. The law states that a candidate for a federal judiciary must have been a lawyer for a minimum of ten years and must be qualified and eligible to practice law in the respective jurisdiction the person has applied for. Judges to the provincial and territorial courts are appointed by the provincial and territorial governments respectively. The eligibility criteria for selection of judges to the judiciary panel are similar for the both provincial and territorial governments.
All federally appointed judges are appointed by the Governor in Council. This consists of the Governor General acting on the advice of the Prime Minister for judges of the Supreme Court of Canada and chief and associate chief justices in the provinces; and on the advice of the Minister of Justice for all other superior court judges. (Justice.gc.ca, n.d.)
Most of the judges have invested a very long time in courts or in the practice of law, and have broad information of court forms and the roles of the judge. When they are delegated, they can refine that learning by enrolling in instructive projects at both the territorial and provincial levels, and in addition substantive regions of the law. The National Judicial Institute conveys programs for all government, common place, and regional judges. The Institute is subsidized by each level of government, and routinely offers courses for new judges.
The Canadian Judicial Council (CJC) oversees the governmentally designated judges. It comprises of the central judges and associate chief judges of the major part of the government courts and the territorial and provincial courts. It advances proficiency, consistency, and quality of legal administration in these courts. One of the Council’s roles is to examine complaints and allegations of misconduct of federally appointed judges. The CJC has likewise built up an arrangement of Ethical Principles for Judges. Their motivation is to enable judges to guarantee that they keep up their freedom, trustworthiness, and unprejudiced nature. If it discovers confirmation of genuine unfortunate behavior, the CJC may prescribe to the Minister of Justice that the judge be expelled from office. The Minister of Justice may then look for the important endorsement of both the House of Commons and the Senate to have the judge expelled from office.
The evacuation forms for territorial and provincial judges differ from jurisdiction to jurisdiction, yet are comparatively created to secure legal autonomy and guarantee that the procedure works freely. Once a judge is appointed, they are eligible to be a judge until the age of retirement. For federally appointed judges, retirement is mandatory at age 75. In some provincial and territorial jurisdictions, the retirement age is 70. (What do Judges do, n.d.)