co-authored by Adam Dodek and Lorne Sossin
This commentary was first published on the Globe and Mail website on November 23, 2007.
Why should Canadians care about judicial independence? For one, history shows that a strong independent judiciary can be a bulwark against tyranny. Often, the first thing that an aspiring dictator does is attempt to neutralize the independence and effectiveness of the judiciary through harassment or corruption. Robert Mugabe's success to this effect in Zimbabwe is an unfortunate recent case study in the demise of judicial independence and its impact on society. Similarly, in Pakistan, where a stacked Supreme Court ruled yesterday to clear General Pervez Musharraf's path to re-election, Chief Justice Iftikhar Chaudhry and other members of the court had been confined to house arrest.
In Canada, we have been fortunate to have escaped such upheavals. However, we often look to the independence of the judiciary to resolve some of the most divisive and highest-profile issues of the day — through commissions of inquiry, invariably headed by a judge. We need only think of Gomery, Goudge, Arar, Walkerton, Air-India and now, of course, the Mulroney inquiry. In Canada, judicial independence is the collective constitutional capital that we frequently draw against to help bail us out of messy problems; we should not take it for granted.
This year marks the 10th anniversary of the Supreme Court of Canada's landmark decision in the Provincial Judges Reference, which many observers see as the high-water mark of the protection of judicial independence in Canada. (Others see it as a piece of flawed and self-serving constitutional analysis.) That decision was important in a number of respects. First, the Supreme Court found that judicial independence was a constitutionally protected right, even though such a right could not be found within the text of the Constitution. Second, and perhaps most boldly, the court held that this "unwritten constitutional principle" required governments to set up arms-length commissions to remove the stench of politics from the remuneration process. During this period, the Supreme Court exuded confidence in wading directly into important public policy issues and setting the framework for their resolution, whether that was judicial remuneration or Quebec separation. In more recent times, the Beverley McLachlin court has become more cautious in its approach to such questions.
In retrospect, the court's confidence in its ability to take the politics out of the remuneration process and put an end to litigation on this issue has proven incredibly naive. Wherever there is a struggle over money and power, there will be politics, and sure enough, litigation over judges' salaries have continued throughout Canada in the decade since the Provincial Judges Reference. The Supreme Court itself has implicitly acknowledged a measure of hubris and taken a more moderate and deferential tone on the issue of judicial remuneration. Nonetheless, lawsuits between judges and governments over remuneration continue to dog several provinces.
Many issues of judicial independence beyond remuneration also continue to simmer and, occasionally, to boil over into public debate — over the addition of law-enforcement representatives to judicial appointment committees, over court budgets, over judicial discipline, and so forth. While courts may have difficulty making the case for resources in the face of significant needs in health, education and social welfare, governments of all stripes recognize that judicial independence is a cornerstone of democracy, not a barrier to it. While governments represent the will of the Canadian majority, judges guarantee the rights of all, even (and perhaps especially) minority groups. This balance, between the legitimate interests of elected governments and the fundamental rights of individuals, is the essence of a healthy democracy. Where judges are vulnerable to the influence, manipulation or control of government, this balance is thrown off-kilter and democracy inevitably falters.
The crucial link between judicial independence and a strong vibrant democracy has never been clearer. Canadians (through CIDA and various non-governmental organizations) are engaged in programs to build judicial capacity around the globe in Afghanistan, the former Yugoslavia, the Palestinian territories and Haiti. In a sense, the peoples of these places hope for what we sometimes take for granted in Canada: a democracy under the rule of law supported by an independent judiciary. We draw on the independence of that judiciary every day in courtrooms throughout the country and our political leaders draw upon it in setting up commissions of inquiry. If the situation in Pakistan has a lesson for countries such as Canada, it is that a strong and independent judiciary allows us to enjoy the rights and liberties of living in a free and democratic society.
Adam Dodek and Lorne Sossin are co-chairs of the conference "Looking Back, Looking Forward: Judicial Independence in Canada and the World," to take place Nov. 29 and 30 at the Law Society of Upper Canada and the University of Toronto.