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Judicial Independence

Remarks of the Right Honourable Beverley McLachlin, P.C.
Chief Justice of Canada

Chief Justice McEachern, Chief Justices, Honorable Justices, distinguished Guests, Friends.

Thank you, Carol.

I am very pleased to be here with you to mark the closing of this conference on the independence of the judiciary and of the administration of justice.

I am especially pleased to be here as this conference marks the end of Chief Justice Allan McEachern’s career – a career devoted to judicial independence.

In this province, and indeed beyond it, one individual perhaps more than any other, has become synonymous with judicial independence. I refer to Chief Justice Allan McEachern - for more than two decades - first as Chief Justice of the Supreme Court and then as Chief Justice of the Court of Appeal and the province, Allan has steadfastly maintained the independence of the courts in all its forms.

Instances of his uncompromising defence of the rule of law and court independence abound. I mention only what is perhaps the most famous. In 1988 a labour dispute arose between court house workers and the government. Negotiations stalled, and the workers went out on strike. They decided to picket their place of work - the court house.

The predictable effect of the strike was to prevent people from entering the court house. Chief Justice McEachern did not wait for the government to bring an action to clear the court house doors.

Declaring that the courts must always be open to the public, he issued an order for removal of the pickets - ex proprio motu. He wrote, citing Sir William Holdsworth:

The judiciary has separate and autonomous powers just as truly as the king or parliament…The judges have powers of this nature because, being entrusted with the maintenance of the supremacy of law, they are and long have been regarded as a separate and independent part of the Constitution.

On the eve of retirement, Allan McEachern has chosen to host this conference on the independence of the judiciary. We have come to it from all parts of the world. We have listened, we have learned. Our expectations were high, and they have not been disappointed.

Allan, you who have for more than two decades been entrusted with the law, permit me, on behalf of all those here, to thank you for this conference and for all you have done for the cause of judicial independence and for us.

In the same vein, I would like to thank all those who have worked so hard to make this conference such a success and all those who have honoured us in Vancouver over the past days.

Against that background let me offer a few concluding thoughts on judicial independence.

Some time back, Mr. Justice Sydney L. Robins opined that “everything which can be said (on the topic of judicial independence) has already been said and repeated on so many occasions and in so many learned articles that any further observations are inevitably redundant”. If that was true then, what must be the situation after all that has been said on the subject in the past few days? Yet with your forbearance, I will persevere.

Few principles are more important than judicial independence. But few are so little understood. Perhaps one of the reasons that judicial independence is not understood is that it is so fundamental, at least to us. How could the accused get a fair trial if the judge is not independent and seen to be independent of the prosecution? How could one government in a dispute with another have confidence in the judge in absence of actual and perceived impartiality? To us, the answer seems obvious. Quite simply, without judicial independence, there can be no impartial justice.

Yet we, who take judicial independence for granted, too often forget that in many parts of the world, people have a hard time understanding judicial independence, much less implementing it. In parts of Asia, Africa and eastern Europe, the notion of judges deciding cases against the ruling party strikes many as impossible. Surely, they say, the judge must keep in mind what the rulers want when they make their decisions. At very least, does not the judge consult the minister involved on a serious state matter? And it is the same for those in power. Why should they not demote a judge who rules against the government, or send the judge to some remote backwater as a reward for contrariness? And what is wrong with issuing policy directives to the courts for the general good of the country, as happens, for example, in China?

Old habits of direction and corruption often are hard to break, and confidence in judicial impartiality may prove difficult to instill in a doubting population. A country may set up a judicial system that on paper seems independent. It may tell people that they can trust the judges. Yet the people, after filing their writs at the front door of the courthouse, may still slip round to the back door for a private word, or a gift, for the judge. These countries find themselves caught in a vicious circle. Without confidence in the judicial system, more transparent legal processes have difficulty getting off the ground. And without transparent legal processes, how can they hope to build confidence in the judicial system? The western observer, for one, is struck anew by the importance of what we take for granted - public confidence in the legal process. Only when it is absent does one realize how vital it is to the rule of law and how difficult it is to achieve.

These reflections raise a fundamental question: Why is it that we have achieved judicial independence when others have a hard time even understanding it? I would like, in the time that remains, to suggest three answers to this question. The first is historical - our good fortune as heritors of the British system of justice, the cradle of judicial independence. The second is our constitution. The third is the vigilance of lawyers and judges in preserving and promoting judicial independence.

Let me turn first to history and the debt we owe to our British ancestors and early Canadian settlers. As I said a moment ago, we take judicial independence for granted. For more than six centuries, it has been the lynch pin of the anglo-saxon legal tradition. Yet, as Professor Robert Stevens reminded us in the opening session of the conference, judicial independence was not won without a struggle. The English courts were once the King’s courts and, as such, served at the good pleasure of the Crown, subject to dismissal without cause. Still, slowly, in the wake of the Magna Carta, the idea of individual rights began to emerge, and with that idea its inevitable concommittant, judicial independence. Jack Giles recounts one of the pivotal moments, in a forthcoming collection of essays in tribute to Chief Justice McEachern. In the fifteenth century, the son of King Henry IV, Prince Hal, later Henry V, marched into Court and ordered a prisoner released. The prisoner happened to be a servant of Prince Hal. As the story goes, the Chief Justice refused the Prince’s orders, responding simply “Your servant has broken the law, and must be punished by the law. If you wish to save him you must go to the King, your father, and beg mercy from him. He can grant it if he thinks fit. Now I pray you leave the court and allow me to deal as I think just with the prisoner”. At this, the young Prince is said to have flown into a rage and to have struck the judge. The Chief Justice, however, remained unmoved and charged the Prince in the name of the law to give up his sword for contempt and disobedience. The Prince went quietly to prison. We’re not sure how long his father let him languish there. But the moral of the story is clear. The judge’s duty is to apply the law independently and impartially, without fear or favour. And the monarch, all-powerful against all others, accepted this. Far from dismissing his father’s courageous judge when he came to power, Prince Hal confirmed him, and legend goes, showed him great honour.

Still, the battle was not won. Many, in the centuries that followed, rejected judicial independence. One as we heard, was James I. In 1616, he demanded that the monarch be consulted in cases affecting the Crown or any of its prerogatives. Chief Justice Coke refused to do so. James I dismissed him from office, complimenting himself on his magnanimity in saving the obstinate Chief Justice’s head. In the short term, the sovereign won, foreshadowing a long series of removals of judges for political reasons. But in the longer term, the views of Lord Coke on the independence of the judiciary and the rule of law prevailed. The result was the Act of Settlement of 1701, (which this conference is all about), which in one of its briefest clauses, finally gave statutory recognition to the principle of judicial independence. Yet Parliament continued to attempt to exert political pressure on the Bench even after the Act of Settlement.And the King and his ministers saw nothing wrong in pressuring judges on pending cases. For example, in 1770, two members charged in Parliament that a minister had tampered with a judge. The King himself sent the judge a letter of instructions on one occasion. The judge knew his duty and had the courage to do it. He returned the letter to the King, unopened and unread.

Judicial independence, the principle that holds that all litigants and all accused, no matter what their political beliefs or social status, should receive fair and equal treatment by a court functioning independently of illicit outside influences, was not easily won. Yet won it was. Our societies, which now take judicial independence as a given, owe much history to the ideas of Locke, and Montesquieu who envisioned the separation of powers of the judiciary, the executive and Parliament, to the statesmen who translated that vision into political practice and to the courageous justices who stood firm for the principle on pain of removal and imprisonment.

If the judges of England had difficulty in securing their independence, the position of colonial judges was worse, as Professor Friedland told us yesterday, judges in the British North American colonies held office at pleasure, where the 1701 Act of Settlement did not run, when it came to judges. A 1782 U.K. statute required the Privy Council to review any proposal by a colonial governor and council to dismiss a colonial judge. Nonetheless, the principle of judicial independence was frequently challenged in colonial Canada. At least two superior court judges were dismissed, one by the King in 1806 and one by the Privy Council in 1829. Moreover, judges sat as members of the executive council and even of the assembly, and often gave government members secret advisory opinions. Judges, if not actually “under the throne” during this period, were not far away from it! Only in 1834, did the Colonial Office make it clear that henceforth it would not appoint judges to the executive or legislative councils, and in 1939 Lord Durham recommended a tautly independent judiciary. The British heritage of judicial independence had finally crossed the Atlantic and been rooted in Canadian soil.

This brings us to the second reason why we have judicial independence when so many do not - our constitutions. Most countries that enjoy judicial independence not only have a history of it, indigenous or acquired, but constitutional principles that protect it. If the first stage of judicial independence was the refusal of judges to bow to the kings and ministers, the second stage was the consolidation of judicial independence as one of the founding constitutional principals upon which our country is built. In Canada, the British North America Act, 1867 (now the Constitution Act) confirmed for the new Confederation the judicial independence introduced in earlier decades. The Canadian Constitution contains no resounding declarations of judicial independence. Yet its preamble brought with it British rule of law and ss. 96, 99 and 100 cemented the British tradition of judicial independence securely in our country’s foundations the “three principal pillars in the temple of justice” that are not to be undermined"as Lord Atkin put it in 1938.

The Constitution Act of 1982 adopted the Charter of Rights and Freedoms and confirmed the inviolate character of judicial independence. Section 11(d) of the Charter expressly entitles those arraigned before courts to “an independent and impartial tribunal”. More fundamentally, the very notion of entrenched rights demands an independent judiciary. Canadians came to the 1982 Charter against the history of the 1960 Bill of Rights. It had come to little, not in small part because of the failure to give full and unequivocal content to the guarantee of protection “by an independent and impartial tribunal”. In adopting the Charter,and in the sustained public debates that preceded it, Canadians made it clear that they did not wish the rights guaranteed by the new Charter to be similarly stymied. The Courts responded and confirmed the fundamental status of judicial independence as one of our constitution’s inviolable principles. In Valente, the Supreme Court discussed three “essential conditions of judicial independence for purposes of s. 11(d) of the Charter, security of tenure, financial security and “institutional independence of the tribunal”. In the Judges Reference, the Court applied s. 11(d) of the Charter to restrict the manner by and the extent to which provincial governments and legislatures can reduce the salaries of provincial court judges. Most recently, in the Secession Reference, the Supreme Court described judicial independence as an “unwritten norm”, one of the underlying principles of our Constitution that “infuse [it] and breathe life into it”.

Constitutions alone cannot ensure judicial independence. In too many countries, reality belies high-sounding constitutional guarantees of impartial, independent justice. Yet constitutions can serve to protect and enhance existing notions of judicial independence. They give judges the means to protect it. Henry IV’s Chief Justice and Lord Coke had no option but to stand alone for judicial independence. Modern judges are more fortunate. They have constitutions to stand on.

This brings us to the third, and final, reason why we are privileged to possess judicial independence - the vigilance of the legal profession and of judges. Judicial independence, as its history attests, has not been won by fiat or by accident. It has been won by the vigilance and courage of lawyers and judges over the centuries. And it is by that same vigilance and courage that it is sustained. As former Chief Justice Dickson once explained:

The tradition of law which we share is a living thing, built by lawyers and judges imbued with a love of individual freedom and a dedication to justice for all, according to law. The legal doctrines that we have inherited constitute not the bare bones of a dead tradition but a vital body of living experience. It is only where the law is interpreted by an independent judiciary with vision, a sense of purpose, and a profound sensitivity to society’s values, that the rule of law, and therefore the citizen’s rights and freedoms, are safe.

We congratulate ourselves on our judicial independence. Yet we would be foolish to take it for granted. Just as judicial independence has been won by long struggle, so it is by struggle that it will be carried forward into the future. Challenges to judicial independence did not end with the victory of Henry IV’s Chief Justice, not with Lord Coke, nor even with the Act of Settlement. They continue in the 21st century.

Our modern history too has its heros of judicial independence:

Modern challenges to judicial independence may be blatant. But too often they are likely to take a more subtle form than their more distant precursors, at least in western-style democracies. Modern ministers do not telephone judges about pending decisions and modern prime ministers do not send judges letters of instructions. Yet the pressures, if more subtle, are nonetheless insidious. No less respected figure than American Justice Robert H. Bork at one time suggested amending the U.S. Constitution to authorize Congress, by a majority vote of each House, to overrule any federal or state court decision resolving a constitutional question. Canada, Justice Bork noted, had adopted such a measure, claiming as inspiration s. 33 of the Charter permitting the Parliament and provincial legislatures to declare an act or provision operative notwithstanding conflict with rights prescribed in the Charter. The “ineffectiveness” of this measure, he said later, caused him to reconsider, and he has since abandoned the proposal.

In our own country there is sporadic talk of introducing Parliamentary review of judicial decisions and calls for appointment procedures that would permit legislators to choose judges on the basis of political ideology. In Israel, there is currently discussion of removing the power of constitutional review from its courageous and respected Supreme Court by the creation of a new constitutional court more amenable to Parliamentary control. We hear talk of “report cards” whose purpose, we suspect, is not to evaluate performance but to influence judges to decide cases according to popular and political pressure instead of according to the law and justice. And while criticism of judicial decisions is appropriate and salutary, personal attacks on judges may rise to a level where they raise concerns about whether the judge, however courageous, may be unconsciously affected.

A final threat to judicial independence lies in the notion that the judicial role and the independence on which it rests is undemocratic. Legislative review of court decisions resolving constitutional questions “would be more democratic in the sense that it would remove constraints on majority rule”, as Anthony Lewis points out. But Lewis is quick to add, in the words of Aharon Barak, President of the Supreme Court of Israel: “Democracy is not only majority rule. Democracy is also the rule of basic values […] values upon which the whole democratic structure is built, and which even the majority cannot touch”. Without independent judges, we cannot have protection of rights or the rule of law. And without protection of rights and the rule of law we cannot have democracy. Far from being antithetical to democracy, an independent judiciary is its guarantee.

Modern threats to judicial independence, like the old, demand a courageous, steadfast response. When all is said and done, the last bastion – the final refuge – of judicial independence is the conscience of each and every judge and lawyer. We, the bar and the bench, are the guardians of our legal system and the rule of law. We must resolve to stand firm against all pressures, and to ensure that our courts remain “a place apart”, to cite the title Marty Friedlan’s recent report on judicial independence in Canada. That place is built on a solid historical foundation. It is reinforced by formidable constitutional protections. But ultimately it is up to us, the inheritors of judicial independence, to pass it on to our successors, not only intact, but even stronger than we found it. That is our challenge. With God’s grace we will meet it. Nothing can be more important to our countries, and to the world.

Remarks of the Right Honourable Beverley McLachlin, P.C.
Chief Justice of Canada
The 300th Anniversary of the Act of Settlement Conference
Vancouver, British Columbia
May 11, 2001

Date modified: 2024-12-20