SINGAPORE ACADEMY OF LAW ANNUAL LECTURE 1996

• Author: BY THE RT. HON. ANTONIO LAMER, P.C. CHIEF JUSTICE OF CANADA
• Date: 01 December 1996
• Citation: (1996) 8 SAcLJ 291
• Published date: 01 December 1996

Chief Justice, Ladies and Gentlemen:

Thank you very much for that kind introduction and for having invited me to deliver the Third Annual Singapore Academy of Law Lecture. And thank you also for the wonderful hospitality that you have extended to me and to my wife since our arrival here last Sunday. The program that you organized for us this week has proven to be thoroughly enjoyable, and has done much to further not only our understanding of your country and its legal system, but also the links that bind our two countries as members of the common law world.

I should also like to take this opportunity to congratulate those responsible for the establishment of the Singapore Academy of Law. The formation of a body such as this, having as its objects the furtherance of such important goals as promoting high standards of professional conduct and advancing knowledge of the law, speaks very well of the legal profession here. So too does the fact that the Academy has so many members. I understand that the Academy has become more and more active with each passing year and that it has now assumed a role as an important contributor to the formation of public policy in areas in which the legal profession has particular interest and special expertise. I wish the Academy continued growth and success in the future.

I have chosen to speak to you this evening about an issue of growing importance in Canada: how best to resolve the tension between two important constitutional values, judicial independence on the one hand and judicial accountability on the other. I have chosen this topic in part because these values are recognized as important values in most if not all legal systems, and certainly in those based on the common law tradition. Hence, while my remarks tonight will be based on the origins and nature of this tension as it has evolved in Canada, it is my hope that what I have to say about our Canadian experience will be both understandable and of interest to you as members of the legal profession in Singapore.

I have also chosen this topic because of the recent publication in Canada of a report in which the tension between these values is explored in a broad range of different contexts and at considerable length. That report is entitled “A Place Apart: Judicial Independence and Accountability in Canada” and was prepared for the Canadian Judicial Council, a body which I chair in my capacity as Chief Justice of Canada, by Professor Martin L. Friedland of the Faculty of Law at the University of Toronto. The publication of this report at this time not only reflects the growing importance of the tension within our legal system between judicial independence and judicial accountability, but has also raised the stakes somewhat in terms of the need to come to terms with this tension.

In what follows, I propose to outline both the sources and the meaning of judicial independence as a core constitutional value in Canada. I then wish to say a few words about judicial accountability, and explain why judicial accountability can be said to be in tension with judicial independence. I then propose to examine two of the issues discussed in the Friedland Report from the perspective of the manner in which the tension between judicial independence and judicial accountability plays itself out in relation to them. The issues that I have selected are judicial discipline and judicial education.

I begin, then, with a brief overview of judicial independence as a core Canadian constitutional value:

I. Judicial Independence in Canada

The principle of judicial independence has formed an integral part of Canada’s Constitution from the country’s birth in 1867. The legislative instrument responsible for the country’s creation, what was known at the time as the British North America Act, 1867, and is now known as the Constitution Act, 1867, did not refer to the principle in explicit terms. However, part VII of that Act, headed “Judicature”, provided for both the security of tenure and financial security of federally appointed judges in terms that mirror very closely those used in the Act of Settlement of 1701, the legislation by which, as you well know, the British Parliament firmly entrenched the principle of judicial independence in the British Constitution. Section 99 of the Constitution Act, 1867 stipulates that the judges of the Superior Courts are to hold office during good behaviour and are to be removable only by the Governor General and then only on address of the Senate and House of Commons. Section 100 of that Act provides that the “Salaries, Allowances and Pensions” of these judges are to be “fixed and provided” by the Parliament of Canada.

To reinforce these commitments to the principle of judicial independence, the Preamble to the British North America Act, 1867 noted the desire of the constituent provinces of the new country being created to have “a constitution similar in principle to that of the United Kingdom”. That reference to the constitution of the United Kingdom has been understood

to introduce into Canada’s Constitution a number of the principles that had established themselves as defining principles of the United Kingdom by 1867. These principles include the rule of law, parliamentary supremacy, democratic self-governance, freedom of speech and of the press — and, of course, the independence of the judiciary.

With the entrenchment in 1982 of the Canadian Charter of Rights and Freedoms, the principle of judicial independence was given explicit constitutional recognition. There was a fundamental change in 1982 because of this charter. According to s. 11(d) of the Charter, persons charged with an offence have the right “to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal”. The concluding phrase of this new provision, which is not a new idea but a new provision, has generated a good deal of litigation over the last several years, one of the results of which has been the development by the Supreme Court of Canada of a definition or understanding of judicial independence against which the courts whose independence has been questioned are to be measured. In this regard, the Court has identified three distinct elements of judicial independence, each of which must be present in a particular court to the requisite degree before that court will be held to pass constitutional muster. The first two of these elements derive from ss. 99 and 100 of the Constitution Act, 1867 — security of tenure and financial security. The third element, which concerns the relationship between judiciary and the elected branches of government in relation to matters of administration bearing directly on the exercise of the judicial function, has been termed “Institutional Independence”.

I should note that the fact that the principle of judicial independence has been given explicit recognition in the context of criminal law in no way detracts from its importance in other contexts. This is not, in other words, a situation in which the axiom expressio unius est exclusio alterius applies. In fact, it is arguable that the reference to the principle in s. 11(d) has served to elevate its importance throughout the Canadian legal system.

Without digressing too far into the jurisprudence that has evolved in connection with s. 11(d) of the Charter, I should point out that an...