Role of Judge in Canada’sConstitutional Democracy: A view from all possible Angles Judge’scan be termed as guardians of the constitution in Democratic countries so thesame applies for Canada’s Constitutional Democracy. We will see a theme ofdifferent views from various angles about judge’s role and their uncommonproportion of their fortitude to do fulfil their role in Democratic state likeCanada.ConstitutionalDemocracy can be defined as system of government based on popular sovereigntyin which structures, limits and powers of government are set forth in aconstitution. Whereas, as per Oxford dictionary a judge is defined as anofficer with authority to decide cases in law court.
In any country judicialsystem acts as the independent body which brings justice to all the people ofthe country as per constitutional rules. Judiciary is protective policy forconstitution where people can seek justice in the event ill treatment by any ofthe government or private bodies violating constitutional laws. The mainresponsibility of judge is to decide cases and administer justice, but itvaries from system to system.
Since Canada is a constitutional Democracy, judgehas a role to play with deciding cases. In Canada elected public representativewill remain in power till end of term by constitution provision. Theserepresentatives are expected to make laws which benefit country and its people.During such process there are or may be a lot if grey areas which is filled byjudicial system in most of the cases. Democracyword means control or govern the country with majority opinion and differentbodies plays key roles in keeping the meaning of democracy. Out of all thebodies judicial system is considered as vital system in keeping the system in placewith defending the rights of public and keeping space for governmentadministration and at times takes the additional role of liaising in betweengovernment and people in situation where deference of opinion arises and judgeacts as the decision/suggestion maker by standing in a neutral position.
InCanada, judicial body and its placements are carried out based on experience,contribution and knowledge of a person which provides judges to act freely indefending the constitution, protecting public interest, backing the policiessuggestion based on country advantage. The selection process of Canadajudiciary, irrespective of court, are picked from legal profession. if thejudges are appointed by federal government, that includes the judges of all thecourts irrespective of their level in hierarchy and which are known asprovincial courts, are qualified only if they are members of provincial orterritorial bar for ten years or more. The independence of the judiciary inCanada is guaranteed both explicitly and implicitly by different parts of theConstitution of Canada.
This independence is understood to provide stability intenure, financial security and independence in institutional administration.Ourlaws embody the basic moral values of our society. They create limits onbehaviour of individuals which promoted the good nature of conduct and helps inmaking our communities much safer to live. Stealing, hurting other person,reckless driving or environmental pollution are some of the several ways thatlaw is providing us protection. All the people of Canada are equal before thelaw and are ruled by it.
Despite the amount of wealth or the power a manacquires still considered as equal in the eyes of law and expected to obey lawor face consequences.Asper official line judges in Canada don’t make law but they do make lawsgenerally in three situations, interpretation, filling the gaps, common law. Itis quite difficult for the parliament to define a law in each possible scenarioand define the terms, in such scenarios we clearly see the need for judge tointerpret the law so that it can be applied to the case in courts.
Filling inthe law comes in play when the judge encounters a scenario with no to littlelaws. In common law condition where there is no statute law. In such acondition the judgements built by judges on existing cases are influenced byprevious cases in a way that could be called law making.
Common law is alsoreferred as case law where majority of law’s created by judge, case bycase, as they make rulings and determinethe ideal meaning of law of regulation. Lawsare made by parliament and enforcing them is job of judge. This statement canbe put be out to sleep in Canada’s case. The two statutes in Canada are theconstitution Act 1867 and the Constitution Act 1982. The charter of Freedom andRights are included in constitution Act 1982.
During the course there areseveral unwritten traditions and customs that got evolved. An example can beseen in Supreme Court of Canada’s stand in the Nadon appointment. In this caseSupreme Court of Canada had, with in course of time, achieved a constitutionalstatus, which implies to it that any changes to its enabling act can only bemade in similar path as the constitution changes were made. Judge-mage law isanother important to our society and how it runs. Much of our society revolvesaround the laws made by judge rather than parliament.
Most of contract law andlaw of negligence is judge-made law. Judge-made law is vital to how our societyruns. Much of our society revolves around legal doctrines created by judges, notParliament. A shift from parliamentary Supremacy to one ofconstitutional supremacy not only strengthen judicial role but also expandedits traditional role with additional responsibilities. Charter relatedinquiries of judges are more effective in content than compared to pre-charter.
Courts are being trusted in delivering justice to people with changing insocial realities. Courts are called on to settle disputes over the meaning ofrights and if an infringement was observed, if the government justified suchviolation according to the law. In cases where court decides legislation to beunconstitutional, a proposal of new legislation approach is observed fromlegislation, all with in constitutional bounds. This process resulted in morecooperation among various government branches which in turn strengthensCanada’s institutions and values.
The process of judicial review which hasconstitutional bases will still raise concerns about the limits of judicialauthority. This is expected and cannot be avoided in constitutional democraticsystem as courts are requested to weigh and balance rights. In most of thecases it includes the obligation of court to protect the rights againstgovernment authority to legislate.
Courts should respect government andbranches of government and courts are also should be respected in the samemanner by these bodies. Debate most likely will continue, in general andindividual cases, regarding when the judiciary should defer to government andthe appropriate margins for legislative choices. Not all the issues arejusticiable and depending on situation courts may decline to second-guesscertain legislative choices while doing their best to manage the balance inparallel systems.
Almostall contract law is judge-made law. The law of negligence is also almost alljudge-made law. Negligence is involved in every car accident case in B.C.
,which makes up over one-third of all lawsuits filed in B.C. Supreme Court. Ifthere are no judge made laws, then we would have seen huge gaps in working oflaw and our expectations towards it. A pedestrian who was hit by driver drivingwhile texting would not be able to claim damage claim from driver despite ofserious injuries.
Eventhough constitutional legislation is made, the interpretation of those laws bycourts and judges creates the effective law. Under principle of stare decisis,one judge interpretation of law is binding on future judges. Despite thepersuasive impact, it is the responsibility of judge who is hearing the case togive their verdict depending on his or her interpretation of law. This showsthat judges not only enforce law but play a vital role in creating the law. Infact, as per constitution judges are recognized as third Brach of Government.
The bigger question here is, are judges only responsible for enforcing thelaw? Despite of disagreeing with some ofthe laws made in this country we all choose to comply with the law that aremade which shows our respect towards the laws is the pillar of our todays civilisedsociety. this is one of the reason we confer our trust in judges and electedrepresentatives. Even though both systems have their own strengths andweaknesses our current system is managing a good balance in vesting of lawmaking privilege between elected representatives and Judges.Toconclude, justice system in Canada is the mechanism that upholds the rule oflaw. Our courts provide a forum to resolve disputes and to test and enforcelaws in a fair and rational manner. The courts are an impartial forum, andjudges are free to apply the law without regard to the government’s wishes orthe weight of public opinion.
Court decisions are based on what the law saysand what the evidence proves; there is no place in the courts for suspicion,bias or favouritism. Therefore, justice is often symbolized as a blindfoldedfigure balancing a set of scales, oblivious to anything that could detract fromthe pursuit of an outcome that is just and fair. Canada constitution provides asystem that brings cooperation between parallel systems of judicial, parliamentand public interest and providing space to all the systems in making laws forbetter good with out indulging in obstructing any of the multiple systemsauthority and responsibility in making and implementation of law.
Finally wehas to appreciate the efforts and contributions of judges which make animpression on today’s Canada’s society to shapeup this way turning out to beone of the best liveable countries in the world.