THE INDEPENDENCE OF THE JUDICIARY

Abstract

The purpose of this article is to examine Canada’s concept of judicial independence as inherited from England, in order to stress the importance of autonomous courts. First, the historical elements of judicial independence as developed in England are examined. The author then explains the delay in extending these principles to British North America until after the American Revolution and describes the position under Imperial constitutional law on the eve of Confederation. Next, he analyses relevant federal statutes and provisions of the B.N.A. Act in an attempt to uncover the present constitutional position of Canada on the subject of judicial independence, addressing a series of questions dependent on that position. Finally, he conducts some theoretical analyses, and assesses the nature of the judicial function and the modern importance of judicial autonomy.