Judicial Immunity: Difference between revisions
| Line 24: | Line 24: | ||
==Judicial Independence== | ==Judicial Independence== | ||
Tribunals are generally not protected by the constitutional rules around judicial independence as their role is largely to | 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) 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) at para 24<br> | ||
</ref> | </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> | 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<br> | R v Beauregard, [1986] 2 SCR 56, [http://canlii.ca/t/1fts8 1986 CanLII 24] (SCC),<br> | ||
</ref> | </ref> | ||
'''Sources of Judicial Independence'''<br> | '''Sources of Judicial Independence'''<br> | ||
Judicial Independence comes from an "unwritten constitutional | 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)<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)<br> | ||
</ref> | </ref> | ||
| Line 44: | Line 44: | ||
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<br> | MacKeigan v Hickman, [1989] 2 SCR 796, [http://canlii.ca/t/1ft26 1989 CanLII 40] (SCC)<br> | ||
</ref> | </ref> | ||
| Line 53: | Line 53: | ||
'''Purpose'''<Br> | '''Purpose'''<Br> | ||
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<Br> | R v Lippe, [1991] 2 SCR 114, [http://canlii.ca/t/1fslj 1990 CanLII 18] (SCC)<Br> | ||
</ref> | </ref> | ||
Independence is a "necessary prerequisite for judicial impartiality".<ref> | Independence is a "necessary prerequisite for judicial impartiality".<ref> | ||
Revision as of 12:41, 21 October 2018
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]
- ↑
R v Beauregard, 1986 CanLII 24 (SCC)
R v Parente, 2009 CanLII 18685 (ON SC) at para 7 - ↑
Parente, ibid. at para 6, 12
Ermina v Canada (Minister of Citizenship and Immigration), 1998 CanLII 8969 (FC) at paras 5 - 11 citing MacKeigan v Hickman (1988), 43 CCC (3d) 287 (N.S.T.D.), 1988 CanLII 7124 (NS SC), per Glube CJTD
R v Beauregard, supra at p. 69
- ↑ Parente, supra at para 10
- ↑ e.g. R v Wolf, 2007 ONCA 327 (CanLII) at para 10
- ↑ 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]
- ↑
Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52 (CanLII) at para 24
- ↑
R v Beauregard, [1986] 2 SCR 56, 1986 CanLII 24 (SCC),
- ↑
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)
- ↑
Ontario v Criminal Lawyers' Association of Ontario, [2013] 3 SCR 3, 2013 SCC 43 (CanLII) at para 28
- ↑
Beauregard, ibid.
MacKeigan v Hickman, [1989] 2 SCR 796, 1989 CanLII 40 (SCC)
- ↑
MacKeigan, ibid.
- ↑
R v Lippe, [1991] 2 SCR 114, 1990 CanLII 18 (SCC)
- ↑ Lippe, ibid.
- ↑
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)
Provincial Court Judges' Assn. of New Brunswick v. New Brunswick (Minister of Justice), [2005] 2 SCR 286, 2005 SCC 44 (CanLII),
Provincial Court Judges’ Association of British Columbia v. British Columbia (Attorney General), 2017 BCCA 63 (CanLII)
- ↑
PEI Reference, supra