Judicial Immunity: Difference between revisions

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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.<ref>
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.<ref>
R v Beauregard, [http://canlii.ca/t/1fts8 1986 CanLII 24] (SCC){{perSCC| J}}<br>  
R v Beauregard, [http://canlii.ca/t/1fts8 1986 CanLII 24] (SCC){{perSCC|Dickson J}} (3:2)<br>  
R v Parente, [http://canlii.ca/t/237tm 2009 CanLII 18685] (ON SC){{perONSC| J}} at para 7
R v Parente, [http://canlii.ca/t/237tm 2009 CanLII 18685] (ON SC){{perONSC|Templeton J}} at para 7
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Where the evidence would concern events from prior to the judge's appointment then they will be compellable.<ref>
Where the evidence would concern events from prior to the judge's appointment then they will be compellable.<ref>
e.g. R v Wolf, [http://canlii.ca/t/1rbbs 2007 ONCA 327] (CanLII){{perONCA| JA}} at para 10</ref>
e.g. R v Wolf, [http://canlii.ca/t/1rbbs 2007 ONCA 327] (CanLII){{TheCourtONCA}} (3:0) at para 10</ref>


Judicial immunity will cover chamber discussions in front of the preliminary inquiry judge.<ref>
Judicial immunity will cover chamber discussions in front of the preliminary inquiry judge.<ref>
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==Judicial Independence==
==Judicial Independence==
Tribunals are generally not protected by the constitutional rules around judicial independence as their role is largely to affect government policy.<ref>
Tribunals are generally not protected by the constitutional rules around judicial independence as their role is largely to affect government policy.<ref>
Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), [http://canlii.ca/t/520r 2001 SCC 52] (CanLII){{perSCC| J}} at para 24<br>
Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), [http://canlii.ca/t/520r 2001 SCC 52] (CanLII){{perSCC|McLachlin CJ}} at para 24<br>
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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".<Ref>
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".<Ref>
R v Beauregard, [1986] 2 SCR 56, [http://canlii.ca/t/1fts8 1986 CanLII 24] (SCC){{perSCC| J}}<br>
R v Beauregard, [1986] 2 SCR 56, [http://canlii.ca/t/1fts8 1986 CanLII 24] (SCC){{perSCC|Dickson J}} (3:2)<br>
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'''Sources of Judicial Independence'''<br>
'''Sources of Judicial Independence'''<br>
Judicial Independence comes from an "unwritten constitutional principle"<ref>
Judicial Independence comes from an "unwritten constitutional principle"<ref>
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] 3 SCR 3, [http://canlii.ca/t/1fqzp 1997 CanLII 317] (SCC){{perSCC| J}}<br>
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] 3 SCR 3, [http://canlii.ca/t/1fqzp 1997 CanLII 317] (SCC){{perSCC|Lamer CJ}}<br>
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Independence is also derived from the separation of powers between the branches of government.<ref>
Independence is also derived from the separation of powers between the branches of government.<ref>
Ontario v Criminal Lawyers' Association of Ontario, [2013] 3 SCR 3, [http://canlii.ca/t/fzw43 2013 SCC 43] (CanLII){{perSCC| J}} at para 28<br>
Ontario v Criminal Lawyers' Association of Ontario, [2013] 3 SCR 3, [http://canlii.ca/t/fzw43 2013 SCC 43] (CanLII){{perSCC|Karakatsanis J}} (5:4) at para 28<br>
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Judicial independence involves two aspects. Independence must have "both an individual and a collective or institutional aspect".<ref>
Judicial independence involves two aspects. Independence must have "both an individual and a collective or institutional aspect".<ref>
Beauregard{{ibid}}<br>
Beauregard{{ibid}}<br>
MacKeigan v Hickman, [1989] 2 SCR 796, [http://canlii.ca/t/1ft26 1989 CanLII 40] (SCC){{perSCC| J}}<br>
MacKeigan v Hickman, [1989] 2 SCR 796, [http://canlii.ca/t/1ft26 1989 CanLII 40] (SCC){{perSCC|McLachlin J}} (5:2)<br>
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'''Purpose'''<Br>
; Purpose  
The objective of judicial independence is "to ensure a reasonable perception of impartiality".<ref>
The objective of judicial independence is "to ensure a reasonable perception of impartiality".<ref>
R v Lippe, [1991] 2 SCR 114, [http://canlii.ca/t/1fslj 1990 CanLII 18] (SCC){{perSCC| J}}<Br>
R v Lippe, [1991] 2 SCR 114, [http://canlii.ca/t/1fslj 1990 CanLII 18] (SCC){{perSCC|Gonthier J}}<Br>
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Independence is a "necessary prerequisite for judicial impartiality".<ref>
Independence is a "necessary prerequisite for judicial impartiality".<ref>
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'''Salaries'''<Br>
; Salaries  
Judicial salaries are a means by which judicial independence is preserved.<ref>  
Judicial salaries are a means by which judicial independence is preserved.<ref>  
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] 3 SCR 3, [http://canlii.ca/t/1fqzp 1997 CanLII 317] (SCC){{perSCC| J}}<Br>
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] 3 SCR 3, [http://canlii.ca/t/1fqzp 1997 CanLII 317] (SCC){{perSCC|Lamer CJ}}<Br>
Provincial Court Judges' Assn. of New Brunswick v. New Brunswick (Minister of Justice), [2005] 2 SCR 286, [http://canlii.ca/t/1l6wl 2005 SCC 44] (CanLII){{perSCC| J}} <br>
Provincial Court Judges' Assn. of New Brunswick v. New Brunswick (Minister of Justice), [2005] 2 SCR 286, [http://canlii.ca/t/1l6wl 2005 SCC 44] (CanLII){{TheCourtSCC}} <br>
Provincial Court Judges’ Association of British Columbia v. British Columbia (Attorney General), [http://canlii.ca/t/gxbqp 2017 BCCA 63] (CanLII){{perBCCA| JA}}<Br>
Provincial Court Judges’ Association of British Columbia v. British Columbia (Attorney General), [http://canlii.ca/t/gxbqp 2017 BCCA 63] (CanLII){{perBCCA|Saunders JA}} (3:0)<Br>
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Revision as of 14:02, 10 January 2019

General Principles

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), per Dickson J (3:2)
    R v Parente, 2009 CanLII 18685 (ON SC), per Templeton J at para 7
  2. ↑ Parente, ibid. at para 6, 12
    Ermina v Canada (Minister of Citizenship and Immigration), 1998 CanLII 8969 (FC), per Tremblay-Lamer J at paras 5 - 11 citing MacKeigan v Hickman (1988), 43 CCC (3d) 287 (N.S.T.D.), 1988 CanLII 7124 (NS SC), per Glube CJ
    R v 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

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), per McLachlin CJ at para 24
  2. ↑ R v Beauregard, [1986] 2 SCR 56, 1986 CanLII 24 (SCC), 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] 3 SCR 3, 1997 CanLII 317 (SCC), per Lamer CJ
  4. ↑ Ontario v Criminal Lawyers' Association of Ontario, [2013] 3 SCR 3, 2013 SCC 43 (CanLII), per Karakatsanis J (5:4) at para 28
  5. ↑ Beauregard, ibid.
    MacKeigan v Hickman, [1989] 2 SCR 796, 1989 CanLII 40 (SCC), per McLachlin J (5:2)
  6. ↑ MacKeigan, ibid.
  7. ↑ R v Lippe, [1991] 2 SCR 114, 1990 CanLII 18 (SCC), 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] 3 SCR 3, 1997 CanLII 317 (SCC), per Lamer CJ
    Provincial Court Judges' Assn. of New Brunswick v. New Brunswick (Minister of Justice), [2005] 2 SCR 286, 2005 SCC 44 (CanLII), per curiam
    Provincial Court Judges’ Association of British Columbia v. British Columbia (Attorney General), 2017 BCCA 63 (CanLII), per Saunders JA (3:0)
  10. ↑ PEI Reference, supra

See Also

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