Canada enjoys a degree of judicial independence, enshrined in its Constitution, which provides Supreme Court justices with various guarantees of independence under sections 96 to 100 of the Constitution Act, 1867. These include the right to employment (although the constitution has since been amended to introduce mandatory retirement at age 75) and the right to a salary set by the Canadian Parliament (as opposed to the executive branch). In 1982, section 11 of the Canadian Charter of Rights and Freedoms extended some degree of judicial independence to lower courts specializing in criminal (but not civil) law, although in Valente v. The Queen noted that these rights are limited. However, they involve ownership, financial security, and some administrative control. The question of whether such efforts to influence judicial decisions are compatible with the independence of the judiciary cannot be resolved by decree. Rather, defining judicial independence requirements in such cases requires a normative theory of what courts should consider when deciding cases, what judicial independence should achieve, and the extent to which judicial independence can and should be balanced against other objectives and considerations. In addition, the independence of the judiciary is guaranteed by the 2005 Constitutional Reform Act. [35] In order to promote the independence of the judiciary, the selection process is designed to minimize political interference.

The process focuses on senior members of the judiciary, not politicians. Part 2 of the Courts, Tribunals and Enforcement Act 2007 aims to increase diversity in the justice system. [ref. needed] Third, judges cannot be punished with a pay cut. This certainty allows judges to decide each case strictly on the basis of the legal issues they face, no matter how unpopular their decisions are. Another objection is that the independence of the judiciary is neither necessary nor sufficient to ensure impartial justice in accordance with the law, and may even undermine this objective if left unchecked. On the one hand, it is possible that a judge facing possible reprisals always decides impartially. On the other hand, there is no guarantee that judges will have the freedom to decide cases at will, which means that they choose to do so fairly and in accordance with the law. Even if it were possible to create a judiciary completely free from public and political control, what would prevent judges from deciding cases based on personal bias or self-interest? On the basis of these concerns, many consider it essential to strike a balance between the independence of the judiciary and judicial accountability and to distinguish between appropriate forms of influence on the judiciary and inappropriate forms. However, any mechanism that could be developed to prevent or punish abuses of judicial power is itself likely to be vulnerable to abuse. The resulting question of how to supervise the judges charged with supervising the government – quis custodiet ipsos custodes (Latin: “Who watches the guards?”) – has long irritated constitutional and political theorists and admits of no easy solution. The following basic principles, formulated to assist Member States in their task of ensuring and promoting the independence of the judiciary, should be taken into account and respected by Governments in their national laws and practices and brought to the attention of judges, lawyers, members of the executive and legislative branches and the public at large.

The principles were formulated primarily for professional judges, but may also apply to lay judges, where appropriate. In the second scenario, the prospects for judicial independence are again relatively favourable. The court is asked not to confront a powerful actor on behalf of a weak actor, but to impartially choose two powerful actors. Whichever side the court chooses, the result will be a two-on-one dynamic that should provide the court with some protection from retaliation. The government does not pose a significant threat to the independence of the judiciary in such cases because it is at war with itself. However, the independence of the judiciary means that judges can exercise their judicial powers without interference from litigants, the state, the media, or powerful individuals or entities such as corporations. This is an important principle, as judges often decide issues between the citizen and the state, and between citizens and powerful entities. For example, it is clearly inappropriate for the judge in charge of criminal proceedings against a citizen to be influenced by the State. It would be unacceptable for the judge to be pressured to admit or not admit certain evidence, to preside over the jury or to impose a particular verdict. Decisions should be made solely on the basis of the facts of the case and the law.

In addition, a highly independent judiciary would lack judicial accountability, which is the duty of a public decision-maker to explain and justify a decision and to make changes if a decision causes injustice or problems. Judges are not required to give full reasons for their decisions and are protected from public scrutiny and legal consequences. However, judicial accountability can strengthen the independence of the judiciary, as it could show that judges have the right reasons and justifications to make a particular decision. While judges are not democratically accountable to the people, the key is for judges to strike a balance between the two to ensure justice is respected. [7] In recent years, the principle of judicial independence has been identified as one of the fundamental values of the judicial system. [23] The essence of the commitment to judicial independence is found in the oath that all judges in England and Wales must take when they take office. (11) The term of office of judges, their independence, security, adequate remuneration, conditions of employment, pensions and retirement age shall be adequately protected by law.