Role their role in Democratic state like Canada. Constitutional

 

 

Role of Judge in Canada’s
Constitutional Democracy: A view from all possible Angles

Judge’s
can be termed as guardians of the constitution in Democratic countries so the
same applies for Canada’s Constitutional Democracy. We will see a theme of
different views from various angles about judge’s role and their uncommon
proportion of their fortitude to do fulfil their role in Democratic state like
Canada.

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Constitutional
Democracy can be defined as system of government based on popular sovereignty
in which structures, limits and powers of government are set forth in a
constitution. Whereas, as per Oxford dictionary a judge is defined as an
officer with authority to decide cases in law court. In any country judicial
system acts as the independent body which brings justice to all the people of
the country as per constitutional rules. Judiciary is protective policy for
constitution where people can seek justice in the event ill treatment by any of
the government or private bodies violating constitutional laws. The main
responsibility of judge is to decide cases and administer justice, but it
varies from system to system. Since Canada is a constitutional Democracy, judge
has a role to play with deciding cases. In Canada elected public representative
will remain in power till end of term by constitution provision. These
representatives are expected to make laws which benefit country and its people.
During such process there are or may be a lot if grey areas which is filled by
judicial system in most of the cases.

Democracy
word means control or govern the country with majority opinion and different
bodies plays key roles in keeping the meaning of democracy. Out of all the
bodies judicial system is considered as vital system in keeping the system in place
with defending the rights of public and keeping space for government
administration and at times takes the additional role of liaising in between
government and people in situation where deference of opinion arises and judge
acts as the decision/suggestion maker by standing in a neutral position.

 

In
Canada, judicial body and its placements are carried out based on experience,
contribution and knowledge of a person which provides judges to act freely in
defending the constitution, protecting public interest, backing the policies
suggestion based on country advantage. The selection process of Canada
judiciary, irrespective of court, are picked from legal profession. if the
judges are appointed by federal government, that includes the judges of all the
courts irrespective of their level in hierarchy and which are known as
provincial courts, are qualified only if they are members of provincial or
territorial bar for ten years or more. The independence of the judiciary in
Canada is guaranteed both explicitly and implicitly by different parts of the
Constitution of Canada. This independence is understood to provide stability in
tenure, financial security and independence in institutional administration.

Our
laws embody the basic moral values of our society. They create limits on
behaviour of individuals which promoted the good nature of conduct and helps in
making our communities much safer to live. Stealing, hurting other person,
reckless driving or environmental pollution are some of the several ways that
law is providing us protection. All the people of Canada are equal before the
law and are ruled by it. Despite the amount of wealth or the power a man
acquires still considered as equal in the eyes of law and expected to obey law
or face consequences.

As
per official line judges in Canada don’t make law but they do make laws
generally in three situations, interpretation, filling the gaps, common law. It
is quite difficult for the parliament to define a law in each possible scenario
and define the terms, in such scenarios we clearly see the need for judge to
interpret the law so that it can be applied to the case in courts. Filling in
the law comes in play when the judge encounters a scenario with no to little
laws. In common law condition where there is no statute law. In such a
condition the judgements built by judges on existing cases are influenced by
previous cases in a way that could be called law making. Common law is also
referred as case law where majority of law’s created by judge, case by
case,  as they make rulings and determine
the ideal meaning of law of regulation.

 

Laws
are made by parliament and enforcing them is job of judge. This statement can
be put be out to sleep in Canada’s case. The two statutes in Canada are the
constitution Act 1867 and the Constitution Act 1982. The charter of Freedom and
Rights are included in constitution Act 1982. During the course there are
several unwritten traditions and customs that got evolved. An example can be
seen in Supreme Court of Canada’s stand in the Nadon appointment. In this case
Supreme Court of Canada had, with in course of time, achieved a constitutional
status, which implies to it that any changes to its enabling act can only be
made in similar path as the constitution changes were made. Judge-mage law is
another important to our society and how it runs. Much of our society revolves
around the laws made by judge rather than parliament. Most of contract law and
law of negligence is judge-made law. Judge-made law is vital to how our society
runs. Much of our society revolves around legal doctrines created by judges, not
Parliament.

 

 A shift from parliamentary Supremacy to one of
constitutional supremacy not only strengthen judicial role but also expanded
its traditional role with additional responsibilities. Charter related
inquiries of judges are more effective in content than compared to pre-charter.
Courts are being trusted in delivering justice to people with changing in
social realities. Courts are called on to settle disputes over the meaning of
rights and if an infringement was observed, if the government justified such
violation according to the law. In cases where court decides legislation to be
unconstitutional, a proposal of new legislation approach is observed from
legislation, all with in constitutional bounds. This process resulted in more
cooperation among various government branches which in turn strengthens
Canada’s institutions and values. The process of judicial review which has
constitutional bases will still raise concerns about the limits of judicial
authority. This is expected and cannot be avoided in constitutional democratic
system as courts are requested to weigh and balance rights. In most of the
cases it includes the obligation of court to protect the rights against
government authority to legislate. Courts should respect government and
branches of government and courts are also should be respected in the same
manner by these bodies. Debate most likely will continue, in general and
individual cases, regarding when the judiciary should defer to government and
the appropriate margins for legislative choices. Not all the issues are
justiciable and depending on situation courts may decline to second-guess
certain legislative choices while doing their best to manage the balance in
parallel systems.

Almost
all contract law is judge-made law. The law of negligence is also almost all
judge-made law. Negligence is involved in every car accident case in B.C.,
which makes up over one-third of all lawsuits filed in B.C. Supreme Court. If
there are no judge made laws, then we would have seen huge gaps in working of
law and our expectations towards it. A pedestrian who was hit by driver driving
while texting would not be able to claim damage claim from driver despite of
serious injuries.

Even
though constitutional legislation is made, the interpretation of those laws by
courts and judges creates the effective law. Under principle of stare decisis,
one judge interpretation of law is binding on future judges. Despite the
persuasive impact, it is the responsibility of judge who is hearing the case to
give their verdict depending on his or her interpretation of law. This shows
that judges not only enforce law but play a vital role in creating the law. In
fact, as per constitution judges are recognized as third Brach of Government.
The bigger question here is, are judges only responsible for enforcing the
law?  Despite of disagreeing with some of
the laws made in this country we all choose to comply with the law that are
made which shows our respect towards the laws is the pillar of our todays civilised
society. this is one of the reason we confer our trust in judges and elected
representatives. Even though both systems have their own strengths and
weaknesses our current system is managing a good balance in vesting of law
making privilege between elected representatives and Judges.

To
conclude, justice system in Canada is the mechanism that upholds the rule of
law. Our courts provide a forum to resolve disputes and to test and enforce
laws in a fair and rational manner. The courts are an impartial forum, and
judges are free to apply the law without regard to the government’s wishes or
the weight of public opinion. Court decisions are based on what the law says
and what the evidence proves; there is no place in the courts for suspicion,
bias or favouritism. Therefore, justice is often symbolized as a blindfolded
figure balancing a set of scales, oblivious to anything that could detract from
the pursuit of an outcome that is just and fair. Canada constitution provides a
system that brings cooperation between parallel systems of judicial, parliament
and public interest and providing space to all the systems in making laws for
better good with out indulging in obstructing any of the multiple systems
authority and responsibility in making and implementation of law. Finally we
has to appreciate the efforts and contributions of judges which make an
impression on today’s Canada’s society to shapeup this way turning out to be
one of the best liveable countries in the world.