The constitution of Canada is based on the ‘Living tree’ doctrine, this doctrine of constitutional interpretation says that a constitution is organic and must be read in broad and progressive manner to adapt it to changing times. It is because of this theory the role of judiciary in Canada has evolved over time and sometimes the limits of it are not clearly distinguishable.To understand the role of judiciary it is important to know how ‘Law’ works. The law regulates relationships between people. But the law of a society is a living organism. It is based on a factual and social reality that is constantly changing. Sometimes the change is drastic and easily identifiable. Sometimes the change is minor and gradual, and cannot be noticed without the proper distance and perspective. Law’s connection to this fluid reality implies that it too is always changing1. It reflects the values of society. The role of the judge is to understand the purpose of law in society and to help the law achieve its purpose.Firstly, the judges’ task is to decide on issues fairly and impartially in an unbiased manner, to accomplish this it is indeed important that the judiciary is independent of any social or political influences. The three core characteristics of judicial independence, security of tenure, financial security and administrative independence, ensure that the courts have unfettered ability to decide cases according to law and without being pressured by anyone2. But the judicial independence is often challenged with the argument of judges working in isolation. As per my opinion this argument is weak, independence does not mean isolation the judges are indeed aware of the social and political aspects their decisions might influence, and these sentiments do affect their decisions. Independence of judiciary is rather a necessity for a democratic government to function as it is probably the only way to ensure that the legislative and executive branches are working within the bounds of powers entitled to them by the constitution.Does Judicial independence make the courts the most powerful organization in the government? Are the judges in the courts not answerable or accountable for the decisions they make? These questions can be answered on the complexity of cases the judges are dealing with. When the judges are involved in resolving disputes between citizens or applying the criminal law the answer to these questions are straight forward, ‘They do what the law says’, These cases are subject to written laws and making decisions on these cases hardly attracts notice. When judges decide issues concerning the constitutional powers of the state, attention is sure to follow. It is then when the power and bounds of the judiciary are questioned. 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.3 The judges’ task is to decide these cases fairly and impartially, In discharging these tasks judges are not all-powerful. “In a constitutional democracy, all power is by definition limited” (McLachlin, 2003). This applies to judges as much as to legislators. The judges are limited to interpreters of law by the traditions of law, supported by the host of rules written and unwritten: The rule that courts must be open to public; the rule that judges must give reasons for their decisions; the principle that all decisions must be appealable, at least to one other court and the need of deference to parliament and legislatures on matters of social choice. (McLachlin, 2003). The charter has a profound influence on creation and interpretation of laws and policies in Canada. It has been 35 years since the charter was introduced and there have been several charter cases that have surfaced. The key role judiciary played in these cases was not confined to just interpreting the law, their decision on these cases resulted in shaping social and political norms. For example; in R. v. Morgentaler, 1988 1 SCR 30 case (Women’s rights to liberty and security), The majority of the Supreme Court decided to strike down the abortion provisions in the Criminal Code, because they forced women to carry a foetus to term unless they met certain criteria, like getting a certificate. The majority of the Court found that the provisions were not demonstrably justified in a free and democratic society, because they did not advance the state’s purpose of protecting the life and health of mothers. Since Parliament did not pass any law in response to this decision, abortion is no longer a criminal offence in Canada4. Does this imply that the supreme court has the ultimate power? The legislative branch is responsible to pass the law and not the courts, the courts have the responsibility to safe guard these laws, how then can the supreme court pass a new law that ‘legalizes’ abortion in Canada? The answer to these questions take us to another key role that the judiciary plays; The role of a negotiator or ‘neutral arbiter’. If observed closely most of the charter-related cases result when the state tries to infringe the rights and freedom of people in a non-justifiable manner, And the reason behind the states infringement can be varied, the state comprises of political parties and political parties can have different ideologies. There is always a chance of having a gap between the ideologies of the state and the expectations of the people. This is where the judiciary plays its role of an arbiter. It makes sure that the laws drafted by the legislative branch do not infringe the rights and freedom of people of the democracy. In other words, they try to bridge the gap between the legislations passed and their potential impact to the democracy of the society. In many countries, there is a fundamental disagreement about the legitimacy of courts invalidating legislative or executive action. In 1982, Canada’s elected and accountable governments made a deliberate choice to constitutionally entrench rights and freedoms. Parliament and provincial legislatures expressly gave courts the power to review state action for compliance with the Charter, and granted them wide remedial powers, including the power to declare unconstitutional legislation invalid. This express grant of judicial authority came about through a democratic process.5 It is important to notice that while deciding on such cases the judges are not completely independent. As stated earlier there are various unwritten laws and procedures that the courts need to work within. While the legitimacy of courts getting involved in executing legislative actions, judges being appointed federally and not elected democratically and appropriate limit of judicial authority are still debates that persist, It should be kept in mind that we have progressed from a system of parliamentary democracy to constitutional democracy and this transition has expanded the judiciary’s traditional role as the custodian of individual rights and freedom. For the democratic system to work, a synergy between all bodies of government is essential and the judicial branch makes a huge contribution in preserving the rights and freedom of the public. ReferencesBarak, A. (2006). The Judge in a Democracy. Princeton: Princeton University Press.Department of Justice. (2017). Examples of Charter-related cases. Canada’s System of Justice.McLachlin, B. (2003, September 1). Policy Options. The judiciary’s distinctive role in our constitutional democracy.
1Barak, A. (2006). The Judge in a Democracy. Princeton: Princeton University Press.
2 Mr. Justice Rowe’s answer to ‘Role of Judge in constitutional democracy’
3McLachlin, B. (2003, September 1). Policy Options. The judiciary’s distinctive role in our constitutional democracy.
4 Department of Justice. (2017). Examples of Charter-related cases. Canada’s System of Justice.
5 Mr. Justice Rowe’s answer to ‘Role of Judge in constitutional democracy’