Wednesday, May 5, 2010

Gelinas on Judicial Independence in Canada

Professor Fabien Gelinas (McGill University) has posted "Judicial Independence in Canada: A Critical Overview" on SSRN. It will be published in "Judicial Independence in Transition -- Strengthening the Rule of Law in the OSCE Region," Anja Seibert-Fohr, ed. (Max Planck Institute Series, "Beitraege zum Auslaendischen Oeffentlichen Recht und Voelkerrecht, Heidelberg: Springer, 2010).

The abstract states:

In Canada, judicial independence is broadly understood as a fundamental principle underlying the constitution. The specific norms that give life to this general principle form a highly complex patchwork of rules and practices which range from unwritten political understandings to constitutionally entrenched legal provisions. The complexity of this patchwork is partly a function of a federal structure having been superimposed onto pre-existing constitutional arrangements, the fundamentals of which are largely unwritten.

The source of judicial independence in Canada goes back to the understanding of that principle which took shape in the British constitutional tradition with the Act of Settlement of 1701. Its importance in the Canadian context has been a function of the special role played by the judiciary as an impartial arbiter of the federal system. Since the adoption of the Canadian Charter of Rights and Freedoms in 1982, the importance of judicial independence has been enhanced by a renewed role of the judiciary in the protection of individual rights and freedoms against intrusion by any organ of the state. 

The aim of this paper is to provide a critical overview of judicial independence in Canada in terms of both institutional structures and informal practices. The paper broadly follows a template suggested by the editor, but emphasizes the features which may appear useful as best practices or which may require attention as problem areas.


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