Judicial Independence and Judicial Place of Residence

A Tale of Two (or more) Cities?

Abstract

Judicial independence is an “unwritten constitutional principle” of democratic constitutional governance and the rule of law. At its most basic, judges must be independent and impartial in their adjudicative functions—an individual dimension of independence. More broadly, the Supreme Court of Canada has declared that judicial independence also recognizes the dimension of institutional independence from the executive and legislative branches of government. One aspect of that is “place of residence” of a superior court judge, in which case a distinction must be made between initial appointment and subsequent transfer from one judicial district to another. While appointment to a particular judicial district is the prerogative of the executive, transfer to another district is fraught with issues of judicial independence, particularly when the executive claims a veto on the transfer of a judge. This article examines judicial independence in the context of “place of residence” through the lens of Canadian law, supplemented with international and comparative perspectives. The article concludes that a provincial law requiring executive consent to transfer a judge from one judicial district to another is unconstitutional.