Judges play an important role in the Canadian democratic government system. The roles of judges vary from interpretation of laws to controlling how the trials and hearing are conducted in their respective courts (The Role of the Judge, 2006). Judges are the most powerful persons in a courtroom and along with that they are expected to be unbiassed and independent. As said by The Honourable Sheilah Martin the role of a judge in a constitutional democracy is very complex and evolving. She also points out that the judge not only have an adjudicative role but, also as the defender of constitutional law (The Honourable Sheilah Martin’s questionnaire, 2017). Performing these roles as a judge puts immense pressure not to get biased and preserving their independent rule of the law might compromise their security as well. The ultimate duty is to serve the public interest and ensure the rule of law is applicable to all. (The Role of the Judge, 2006).
To begin with, the whole system of governance is of three parts, judicial executive and administrative. The enactment and policy making is done by the legislative branch while the executive branch enforces and administer the laws passed by the legislature. The judicial branch is responsible for the interpretation and application of the law in accordance with the constitution (The Honourable Sheilah Martin’s questionnaire, 2017). The primary duty of a judge is to make right decision according to the law and constitution of Canada. This includes the fact that the law is supreme, and it is applicable to all with no difference between rich or poor or any other social differences. Judicial independence is a key factor in the system and affects greatly to uphold the above-mentioned value. This has been a long-debated topic in this field and surprisingly there has been incident of threats to judges for being independent. In a study conducted among judges, out of eighty judges who responded more than two thirds of them have experienced one or more threats (Greene, Baar, & McCormick, 1997). While the judicial independence is a major factor in the preservation of the law, it should also be in the public interest and for the benefit of the public. It is because of this, the role of judges in constitutional democracy is considered important and highly threatened.
The role of judges is also dependent on the number of cases he or she is conducting. If a judge is having more cases to deal with the outcome of the cases are delayed significantly. Therefore, the judges also must make sure that the cases do not take too much time to complete. This puts additional burden to the judges and they have to do the extra work of manging the time consumed for each case. For example, Justice Ian Nordheimerof the Ontario superior court in downtown Toronto had to announce the first available trial date for Brian Dickson, a student of York university for high profile “webcam slaying” almost a year after last court appearance and two years after the crime (O’Toole, 2012). This is not only applicable for trials but, also for the other court proceedings as well such as pardon hearing and other crucial proceedings such as approval for abortion. It is at least five years to become eligible for a pardon in cases of summary offences and at least ten years for indictable offences (Ashby, 2013). This is a huge time, if viewed in a client’s prospective. There have been a lot of criticism to the judiciary especially the Ontario judicial system regarding this.
The judges are also expected to act as a neutral arbiter between the state and the citizens. But, many people are of the opinion this is not always done is the appropriate way. As Paul MacMahon says about the court systems “Litigation is less concerned with getting at the truth than with deciding whether to impose sanctions on those who alleged to have violated their legal obligations”. He also states that “criminal and civil proceedings are thus far from being a pure search for truth” (MacMahon, 2017). This can be seen in a variety of cases which dates back decades. For example, the Dalkon Shield bankruptcy case was considered bending the law using the judge as a shield. In this case, the Dalkon Shield IUD (Intrauterine devices) by A.H.Robins company injured thousands of women and the company was granted a bankruptcy proceedings to compensate the reorganization of the company rather than to compensate the women who had been injured. The judge Robert M. Merhige was criticised for shaping and organizing entire area of litigation to get a specific outcome (Sobol B, 1992). This are perfect examples of how the neutral arbiter aspect of judging is utilized in the judicial system. The judges should make their decisions based on evidence and reasons and not based on their personal priority.
Judges are also expected to resolve public policies put forward b the government. This enables the blockade of public laws passed by the government in support the public opinion. Countries like the U.S.A which have federal court system highly use the integration of judiciary in public reforms and policies. For instance, the supreme court had intervened in changes to the rights of immigrants to determining the outcome of 2000 presidential elections (Binder & Maltzman, 2009). The judiciary and legislature must work collaboratively to prevent mishaps and policies against the public opinion. There is an argument saying that the parliament’s policy making power has been compromised by the judicial interference. However, there is also emotion against the parliament promoting anti-minority laws and the judiciary being against it (MacKay & Vovan, 2004). This is said to be due to decreased social and political involvement that might have lead to rise of skilled bodies such as the judiciary and these may crumble democratic politics (Greene, Baar, & McCormick, 1997).
The preservation of charter and rights according to the constitution is one among the primary objectives of the judicial system. This can vary according to the context and can be interpreted according to the dynamic nature of cases. This plays a huge role in determining the authenticity of the judicial system among the public. According to Grant Huscroft, there is a growing demand for the accusation on the judiciary that the charter has given the judiciary too much power compared to what they had in the past. He also states that the recent charter decisions made by the Canadian courts have had an immense power on the constitutionality they upheld. The establishment of same-sex marriage, abortion on demand, legalisation of marijuana, softening of tobacco advertisement are some of the examples of the usage of these powers (Huscroft, 2017). However, these can also be said as political allegations against public or judicial will. The judiciary have an important role in defining the freedom and rights guaranteed by the constitution as long as it meets with fundamental principles of parliamentary democracy (Richard, 2000). The judiciary had also been blamed of judicial activism in recent years that it is not real and is anti-democratic. But, despite the fact that the supreme court had been inappropriately activist in certain instances, it is legitimate and democratic, says Sanjeev Anand (Anand, 2016).
All of these brings the question of accountability of judges in the system. Judges are accountable for their actions through hearings, trials and ruling which are open to public involvement. The decision is made by the higher court and if found to have made an error, a new trial will be ordered (How Judges are Held Accountable and by Whom, n.d.). However, this is also specific to the context it is involved in. The role of judges has changed dramatically in defining the accountability of the judges in regard to the cases they do. Since the law-making role have expanded to wider limits, this is mainly due to the constitutionalization of rights exposes the courts to a broad spectrum of social policies (McLachlin, 2006).
To conclude, the role of judges in a constitutional democracy such as Canada, is very complex. The importance of judges and the decisions they make have only increased due to the much vast expanse of activities they have to perform. The making of such complex decisions which involve cases of a multicultural population and government is very demanding and requires a skill to do so. The integration of charter of rights to the constitution is one of the most important reasons why there is such an increase in the role of judiciary in Canada. However, the Canadian judiciary is one of the better alternatives in the field of its vast expanse of activities they are doing and the complexity of decisions they must make.