Disclaimer: This article is written in my personal capacity; the views expressed herein do not necessarily represent the position of the Ministry of the Attorney General.
Valente v. The Queen, [1985] 2 S.C.R. 673, at paras. 14-16 (“Valente”).
As articulated in Valente, judicial independence must be assessed through the eyes of a reasonable and informed person, one who asks whether the tribunal appears capable of deciding cases free from external influence: see para. 13
The Supreme Court of Canada has also clarified that judicial independence serves two core purposes. In The Queen v. Beauregard, [1986] 2 S.C.R. 56, the Court emphasized, at para. 24
- First, to ensure that individual judges have complete liberty to decide cases without interference from any external actor;
- Second, to preserve the courts as an independent branch of government responsible for safeguarding the Constitution and the rule of law.
This dual purpose underscores that judicial independence is not a privilege afforded to judges. Rather, it is a structural safeguard for the public.
In Ell v. Alberta, 2003 SCC 35, the Supreme Court further refined the doctrine, identifying two essential functions, at para. 23:
- Maintaining public confidence in the administration of justice; and
- Ensuring a judiciary capable of upholding the constitutional order.
As the Supreme Court recognized in Mackin v. New Brunswick (Minister of Finance), 2002 SCC 13, independence must exist both in fact and in perception. Without that perception, the judiciary cannot claim the legitimacy necessary to command public respect: see .
In the criminal context, this principle is especially vital. The courtroom is one of the few spaces where the full power of the state is brought to bear against the rights of the individual. The legitimacy of that process depends not only on fairness, but on the visible independence of the decision-maker.
When Law and Politics Collide
Tensions inevitably arise when judicial decisions appear to frustrate political objectives - particularly in areas such as sentencing, bail, or constitutional limits on state power.
Public commentary by elected officials in response to judicial decisions raises complex questions. On one hand, political actors are entitled - indeed expected - to engage in public discourse, particularly on matters of public interest. On the other, sustained or targeted criticism of individual judges risks eroding confidence in the neutrality of the courts.
Such commentary can subtly reframe courts as political actors rather than neutral arbiters. Once that perception takes hold, the authority of judicial decisions risks shifting from being grounded in law to being contingent on public acceptance.
This is where the distinction between accountability and interference becomes critical. Courts are accountable through appellate review, written reasons, and institutional transparency. They are not accountable to political approval or public popularity.
The Role of the Legal Profession
Moments of institutional tension place a particular responsibility on members of the bar.
As lawyers - whether Crown, defence, or civil - we operate within and rely upon the integrity of the judicial system. Our advocacy presumes an impartial decision-maker. Our legitimacy, in turn, is inseparable from the legitimacy of the courts.
The profession, therefore, plays a critical role in:
- Reinforcing public understanding of judicial independence; and
- Maintaining disciplined, principled discourse around contentious decisions.
This is not about insulating courts from criticism. It is about ensuring that criticism remains anchored in law and fact rather than rhetoric.
Judicial Independence as Democratic Infrastructure
Judicial independence is sometimes framed as being in tension with democracy. In reality, it is one of its preconditions.
Democracy is not simply majority rule. It is majority rule constrained by law.
Courts ensure that:
- Governments act within their lawful authority;
- Minority rights are protected; and
- Constitutional boundaries are respected even when inconvenient.
When courts invalidate state action or impose legal limits, they are not opposing democracy. They are enforcing its rules.
Preserving Institutional Legitimacy
The current discussion surrounding judicial independence reflects a broader dynamic: the increasing visibility of courts in politically charged matters, and the corresponding pressure that visibility generates.
In this environment, judicial independence must be more than a formal doctrine; it must be actively understood, respected, and practiced by judges, lawyers, and public officials alike.
Ultimately, the question is not whether we agree with a particular decision, but whether we remain committed to a system in which decisions are made according to law rather than influence.
Any article or other information or content expressed or made available in this Section is that of the respective author(s) and not of the OBA.