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Independent and impartial adjudication is essential to a free and democratic society. Chief Justice Antonio Lamer expressed the issue as follows:

The rule of law, interpreted and applied by impartial judges is the guarantee of everyone's rights and freedoms. We cannot expect judges to be superhuman; we can expect them to be as impartial as it is humanly possible to be, and to allow them, indeed require them, to work in institutions where the conditions promote and protect that impartiality. Otherwise how could our system work? 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 dispute with another have confidence in the judge in absence of actual and perceived impartiality, in appearance and fact. And these, of course are elements to an effective judiciary. Independence is not a perk of judicial office. It is a guarantee of the institutional conditions of impartiality.

 (Speech to the Canadian Bar Association, August 1994)




In 1982, Canada was transformed from a parliamentary democracy to a constitutional democracy with the passing of our Charter of Rights and Freedoms. As a result, while Parliament remains supreme, all its laws must now conform to the Charter. This has led to a new and very important role for the judiciary. Our courts must now act as "guardians" of the Charter charged with the responsibility of determining whether or not Parliament's laws (and those of our provincial legislatures} comply with every citizen's basic constitutional rights. This role has been eloquently explained by our Supreme Court of Canada:

The Charter is predicated on a particular conception of the place of the individual in society. An individual is not a totally independent entity disconnected from the society in which he or she lives. Neither, however, is the individual a mere cog in an impersonal machine in which his or her values, goals and aspirations are subordinated to those of the collectivity. The individual is a bit of both. The Charter reflects this reality by leaving a wide range of activities and decisions open to legitimate government control while at the same time placing limits on the proper scope of that control. Thus, the rights guaranteed in the Charter erect around each individual, metaphorically speaking, an invisible fence over which the state will not be allowed to trespass. The role of the courts is to map out, piece by piece, the parameters of the fence.

(Wilson J. in R. v. Morgentaler at paragraph 292)


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