Judicial Immunity

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2018. (Rev. # 95881)

General Principles

See also: Role of the Trial Judge

The principle of judicial immunity protects judges from testifying to observations made during any proceedings they are administering. This principle derives from the principle of judicial independence which protects judges from certain consequences when making decisions.[1]

This typically means that a judge cannot be compelled to testify regarding "events experienced in the course of their judicial duties" or "matters encountered in the course of exercising a judicial function."[2] However, some suggestion is that this also means they are not competent to testify either.[3]

Where the evidence would concern events from prior to the judge's appointment then they will be compellable.[4]

Judicial immunity will cover chamber discussions in front of the preliminary inquiry judge.[5]

  1. ↑ R v Beauregard, 1986 CanLII 24 (SCC), [1986] 2 SCR 56, per Dickson J (3:2)
    R v Parente, 2009 CanLII 18685 (ON SC), per Templeton J, at para 7
  2. ↑ Parente, ibid., at paras 6, 237tm12
    Ermina v Canada (Minister of Citizenship and Immigration), 1998 CanLII 8969 (FC), 167 DLR (4th) 764, per Tremblay-Lamer J, at para 5 - 11 citing MacKeigan v Hickman, 1988 CanLII 7124 (NS SC), 43 CCC (3d) 287, per Glube CJ
    Beauregard, supra, at p. 69
  3. ↑ Parente, supra, at para 10
  4. ↑ e.g. R v Wolf, 2007 ONCA 327 (CanLII), per curiam (3:0), at para 10
  5. ↑ Parente, supra, at para 16

Giving Evidence and Compelling Attendance

A judge is not compellable to give evidence concerning their "process of adjudication."[1] However, a judge may be compellable concerning their administrative functions.[2]

  1. ↑ Mackeigan v Hickman, 1989 CanLII 40 (SCC), [1989] 2 SCR 796, per Lamer J
  2. ↑ R v Butler, 2014 NLTD 36(complete citation pending)

Judicial Independence

Tribunals are generally not protected by the constitutional rules around judicial independence as their role is largely to affect government policy.[1]

In order to resolve disputes, interpret the law and defend the Constitution it is necessary that courts be "completely separate in authority and function from all other participants in the justice system."[2]

Sources of Judicial Independence

Judicial Independence comes from an "unwritten constitutional principle"[3]

Independence is also derived from the separation of powers between the branches of government.[4]

Two Aspects of Independence

Judicial independence involves two aspects. Independence must have "both an individual and a collective or institutional aspect."[5]

Individual (or personal) independence means that a judge has a "right to refuse to answer to the executive or legislative branches of government ... as to how and why the judge arrived at a particular judicial conclusion."[6]

Purpose

The objective of judicial independence is "to ensure a reasonable perception of impartiality."[7] Independence is a "necessary prerequisite for judicial impartiality."[8]

Salaries

Judicial salaries are a means by which judicial independence is preserved.[9]

Independence requires that independence commissions play a role in the setting of salary rates.[10]

  1. ↑ Ocean Port Hotel Ltd. v British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52 (CanLII), [2001] 2 SCR 781, per McLachlin CJ, at para 24
  2. ↑ R v Beauregard, 1986 CanLII 24 (SCC), [1986] 2 SCR 56, per Dickson J (3:2)
  3. ↑ Ref re Remuneration of Judges of the Prov. Court of P.E.I.; Ref re Independence and Impartiality of Judges of the Prov. Court of P.E.I., 1997 CanLII 317 (SCC), [1997] 3 SCR 3, per Lamer CJ
  4. ↑ Ontario v Criminal Lawyers' Association of Ontario, 2013 SCC 43 (CanLII), [2013] 3 SCR 3, per Karakatsanis J (5:4), at para 28
  5. ↑ Beauregard, ibid.
    MacKeigan v Hickman, 1989 CanLII 40 (SCC), [1989] 2 SCR 796, per McLachlin J (5:2)
  6. ↑ MacKeigan, ibid.
  7. ↑ R v Lippe, 1990 CanLII 18 (SCC), [1991] 2 SCR 114, per Gonthier J
  8. ↑ Lippe, ibid.
  9. ↑ Ref re Remuneration of Judges of the Prov. Court of P.E.I.; Ref re Independence and Impartiality of Judges of the Prov. Court of P.E.I., 1997 CanLII 317 (SCC), [1997] 3 SCR 3, per Lamer CJ
    Provincial Court Judges' Assn. of New Brunswick v New Brunswick (Minister of Justice), 2005 SCC 44 (CanLII), [2005] 2 SCR 286, per curiam
    Provincial Court Judges’ Association of British Columbia v British Columbia (Attorney General), 2017 BCCA 63 (CanLII), 409 DLR (4th) 492, per Saunders JA (3:0)
  10. ↑ PEI Reference, supra

Judicial Privilege

See also: privilege

Judicial independence includes a judicial privilege that protects judges from civil suits and an immunity from testimony concerning their conduct in the course of their judicial duties.[1]

This privilege protects the judicial institution not individual judges.[2] It cannot be waived by parties or the individual judges.[3]

  1. ↑ R v KJMJ, [1]
  2. ↑ KJMJ, ibid. at para 44 ("Judicial privilege exists to protect the institution of the court, not individual judges.")
  3. ↑ KJMJ, ibid. at para 44 ("The privilege cannot be waived by an individual judge.")
    Kosko c. Bijimine, 2006 QCCA 671 (CanLII), at para 43 ("Judges may not voluntarily waive this immunity and agree to testify.[16] Immunity belongs neither to judges nor to the parties before them. Rather, it exists to protect the institution of the judiciary and the public's confidence in it. Consequently, it may not be waived by either the judges or the parties.")
    R v Baldovi et al, 2016 MBQB 90 (CanLII), at para 22

See Also

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