Judiciary

… a core term in Governance and Institutions and Atlas100

Definition

Gerald Gall, writing in the Canadian Encyclopedia (reference below), defines the judiciary as the branch of government in which judicial power is vested.

Constitutional divisions in roles

Gall notes that:

“The Constitution Act of 1867 provides for the establishment and operation of Canada’s professional judiciary. It gave the federal government exclusive lawmaking power over criminal law and criminal procedure (but not over the establishment of criminal courts), and it gave the provinces exclusive lawmaking power over the administration of justice in each province.

“The federal government appoints the judges of the Supreme Court and the Federal Court, and under s96 of the Constitution Act it also appoints judges to some provincial courts. Sometimes referred to as “section 96 judges,” they sit in the provincial Supreme Court or Court of Appeal or in equivalent courts such as the Court of Queen’s Bench, the Superior Court (in Québec) or the General Division of the Court of Justice (in Ontario). Provincial or municipal governments appoint judges of provincial lower courts, magistrates, justices of the peace, coroners, sheriffs and other officers of provincial courts. Provincially appointed judges deal with both provincial and federal legislation.”

Judicial independence and appointment

Gall states that:

“Whether it presides over criminal prosecutions or civil lawsuits, the role of the judiciary is to serve as an impartial arbiter. The court’s impartiality flows from the essential feature of our judicial system – independence of the judiciary. Although the judiciary is sometimes regarded as equal to the executive and legislative branches of government, and although appointment, removal and remuneration of judges are dependent upon the other branches, the quality of justice to which Canadians are accustomed can only be maintained if an independent judiciary is jealously guarded.

“… The Supreme Court of Canada (in the Valente case) held that the 3 main principles of an independent judiciary are security of tenure, financial security and independence in matters of court administration where those matters bear directly on the judicial decision-making process.

“… The Constitution Act and the federal Judges Act provide the basis for the appointment, removal, retirement and remuneration (including matters such as pension) of federally appointed judges. Similar provisions contained in various provincial enactments, which vary to some extent from province to province, exist for provincially appointed judges. Most federal appointments are made by the minister of justice after Cabinet consultation and approval, but some (e.g., to the Supreme Court and to the various chief and associate chief justiceships and judgeships) are made by the prime minister, again after Cabinet consultation and approval.”

Atlas topic, subject, and course

Courts, Tribunals, and Commissions (core topic) in Governance and Institutions and Atlas100 Governance and Institutions.

Source

Gerald Gall (2013), Judiciary, Canadian Encyclopedia, at http://www.thecanadianencyclopedia.ca/en/article/judiciary/, accessed 7 November 2016.

Page created by: Ian Clark, last modified on 7 November 2016.