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Judicial Independence and Canadian Judges

   Judicial Independence and Canadian Judges

   

   By thomasgguo

   

   Judicial independence is the precondition of justice and rule of law. None judges belong to any political party. Judges are security of tenure, and since 1867, none judge were remove from the bench for bribe, although there are some problem exist.

   

   

   In Canada the Federal Cabinet appoint Supreme Court and federal court, as well as provincial appeal and superior courts Judges, while provincial Cabinet appoint provincial courts judges. There are about 1000 judges in each category. All must be qualified lawyers who at least practiced ten years for higher level courts,five years for provincial courts.

   

   

   Judges are security of tenure, the higher courts’ mandatory retirement age of 75, the lower one are 65 or 70. Any judges serve on good behaviour, cannot remove unless by guilty of misbehaviour.

   

   

   Judges cannot be removed merely because the government regards their decisions as error or contrary to government policy, nor ruled against the Crown. Besides security of tenure, judicial independence involving financial, administrative, and political independence; salaries and pensions are fixed cannot intimidated by government threat to reduce. Judges at all levels never cease asking for increases in pay.

   

   

   Judges must be able to function without political pressure. However, Judges increasingly feel their independence is threatened by certain interest group, political correctness, media criticism, political criticism, and even demonstrations.

   

   

   Individual judges have occasionally made outrageous sexist, racist, or other inappropriate comments from the bench. Judges are rarely promoted from provincial court to federal court, 70 percent of appeal court judges have previous judicial experience.

   

   

   Judges are denied vote in federal election and none judges belong to any political party.

   

   

   The Canadian Judicial Council, consist of all the chief-justice and associate chief-justices of courts staffed by federally appointed judges, chaired by the chief-justice of the Supreme Court. The purpose of the Council is deal with the complaints raise against judges. For example, Thomas Berger of the BC Superior court publicly criticized the 1982 Constitution Act for its omission of Quebec and virtually neglect of Aboriginals, his action was investigated by the Canadian Judicial Council, which did not punished him, he resigned protest the process employed.[1]The Supreme Court judges are giving more public speech and interviews than previously, sometime got them into hot water. “It is clearly preferable for judges to exercise restraint when speaking publicly” Judicial Council warmed.

   

   

   In 1982Supreme Court had its first female judge, and in 2004 there were four female judges in the Supreme Court; the first female chief justice is Bererley McLachlan, now one-quarter of all judges in Canada are women.

   

   The Cabinet have used judicial appointment to reward faithful party supporters; although the legal expertise has been taken into account, but it was rarely the primary criterion.[2] Political patronage raises three problems: unsuitable one for his partisan be appointed;well-qualified candidate are overlooked for lack service to governing party;partisan judge may favour his political colleague.

   

   

   Judges are removable for serious criminal acts and for reasons of infirmity or incapacity,failure to execute their duty, or bring the judicial system into disrepute. Only four judges at intermediate and district level met their fate of remove charged since 1867. In 2001 the Supreme Court upheld the removal of Judge Richard Therrien from the court of Quebec on the ground thatwhen he was appointed a judge, he failed to disclose to the authority that he had been sentenced imprisonment for one year for unlawfully giving assistance to the FLQ.[3]Not a single Superior court judges has been removed from office; however, such proceedings were initiated in several cases,but judges either died or resigned during the removal process. Jean Bienvenue of the Quebec Superior court resigned in 1997, after the Canadian Judicial Council asked the federal Parliament to remove him, for having said on the bench that women can be crueller than men, and that even Nazi exterminated Jews painlessly.[4]In 1999, Robert Flahiff of the Quebec Superior Court lost his position when he was sentenced three years in jail after being found guilty of laundering $ 1.7million in drug money when he was a practicing lawyer.[5]Justice Matlow and Justice Cosgrove of Ontario Superior court, formal council vote not removal, later council recommended removal, he resigned.

   

   

   

   

   [1] Rand Dyck, Canadian Politics Critical Approaches, sixthe ed. Nelsoneducation 2010 P.678.

   

   [2] Rand Dyck, Canadian Politics Critical Approaches, sixthe ed. Nelsoneducation 2010 P.672.

   

   [3] Rand Dyck, Canadian Politics Critical Approaches, sixthe ed. Nelsoneducation 2010 p.677.

   

   [4]see, Gall, The Canadian Legal System,P.231, 238-39; Russel, The Judiciary in Canada; p.176-79; the courts p. 94-103.

   

   [5] Rand Dyck, Canadian Politics Critical Approaches, sixthe ed. Nelsoneducation 2010 P.677.

(2012/01/16 发表)

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