Judges play many roles. They interpret the law, assess the evidence presented, and control how hearings and trials unfold in their courtrooms. Most important of all, judges are impartial decision-makers in the pursuit of justice. We have what is known as an adversarial system of justice – legal cases are contests between opposing sides, which ensures that evidence and legal arguments will be fully and forcefully presented. The judge, however, remains above the fray, providing an independent and impartial assessment of the facts and how the law applies to those facts.
Many criminal cases – and almost all civil ones – are heard by a judge sitting without a jury. The judge is the "trier of fact," deciding whether the evidence is credible and which witnesses are telling the truth. Then the judge applies the law to these facts to determine whether a civil claim has been established on a balance of probabilities or whether there is proof beyond a reasonable doubt, in criminal cases, that the suspect is guilty.
Anyone who faces five years or more in prison if convicted of a crime has the right, under the Charter, to request a jury trial, and many defendants facing serious offences such as murder opt to have a jury hear their case. The jurors become the triers of fact and assess the evidence while the judge takes on the role of legal advisor, explaining the law to the jurors. The jurors then retire to deliberate on a verdict. In criminal cases the jury's verdict, either "Guilty" or "Not Guilty" must be unanimous.
If the defendant is convicted of a crime, the judge passes sentence, imposing a penalty that can range from a fine to a prison term depending on the severity of the offence. In civil cases the judge decides whether a claim is valid and assesses damages, grants an injunction or orders some other form of redress to the plaintiff, unless a jury has been empanelled to make these decisions. An Independent and Impartial Judiciary Judicial Independence The judiciary is independent from other branches of government.
In the words of a former Canadian prime minister, Arthur Meighen, judges are in "a place apart" from the other institutions of our society. Governments appoint and pay judges, but once appointed judges are shielded from bureaucratic control. Judges must be able to make courageous, even unpopular decisions knowing that no one – a chief justice, another judge, a government official or even the most powerful politician – can fire them or cut their salaries as retaliation. Justice is not a popularity contest, and judicial independence also protects judges who make controversial decisions that spark public outrage.
The concept of judicial independence is enshrined in the Charter, which guarantees everyone accused of crimes that their case will be heard by "an independent and impartial tribunal. " Independence is vital to fostering public confidence in the fairness and objectivity of the justice system. The Supreme Court of Canada has described judicial independence as "the cornerstone, a necessary prerequisite for judicial impartiality. " A number of measures are taken to protect this independence. Judges oversee the administration of the courts and the government does not set hearing dates or assign a judge to a particular case.
An independent body, the Judicial Compensation and Benefits Commission, reviews judges' salaries, benefits and retirement annuities and recommends improvements and changes. Judges also enjoy security of tenure – superior court judges can remain on the bench until age 75 and can be removed from office only after an independent investigation determines they are unfit or guilty of misconduct and both houses of Parliament vote to remove the judge from the bench. Finally, judges enjoy legal immunity and do not have to worry about being sued for something they say or do while carrying out their duties.
Impartiality It is not enough for the judiciary, as an institution, to be independent – individual judges must be seen to be objective and impartial. In their personal lives, judges must avoid words, actions or situations that might make them appear to be biased or disrespectful of the laws they are sworn to uphold. They must treat lawyers, clients and witnesses with respect and must refrain from comments that suggest they have made up their minds in advance. Outside the courtroom, judges do not socialize or associate with lawyers or other persons connected with the cases they hear, or they may be accused of favouritism.
Judges typically declare a conflict and withdraw from a case that involves relatives or friends. The same is true if the case involves a former client, a member of the judge's former law firm, law partners or a former business associate, at least until a year or two has passed since the judge was appointed and those ties were severed. Judges often choose to avoid most forms of community involvement. A judge may undertake community or charitable work but cannot offer legal or investment advice.
Judges cannot take part in politics, either as a party member, fundraiser or donor, and many choose to relinquish their right to vote. While judges have been more willing in recent years to make public speeches or agree to media interviews, they refrain from expressing opinions on legal issues that could come before them in a future case. Judges are forbidden from being paid to do anything other than their judicial duties, but can accept appointments to serve on royal commissions, inquiries and other official investigations.