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What is the role of judges in Canada?

The Supreme Court of Canada seen at night.
Stock photo of the Supreme Court of Canada from iStock/Getty Images

In some countries, judges are elected like politicians. Canada is different. Here, judges are appointed to the bench either by the federal government or by one of the provincial or territorial governments.

The federal government appoints judges via judicial appointment committees to provincial and territorial superior courts, provincial courts of appeal, the federal courts, and the Supreme Court of Canada. The provincial and territorial governments appoint judges to lower courts.  A judge can only hear cases that fall within the jurisdiction of the court where he or she sits.

Judicial candidates must have experience practising law among other requirements. In most cases, there are appointed for life with the exception of judicial appointments that come with a mandatory age of retirement of 70 or 75. Judges can be removed from judicial office if an investigation by the Canadian Judicial Council reveals they have broken professional and ethical rules of conduct.

Judges sit on both criminal and civil cases. Judges may sit on a trial alone or alongside a jury.

The role for a judge is multi-fold. The judge is a finder of fact if there is no jury and is also responsible in interpreting the law and applying it to the situation. When there is a jury involved, the role of the judge is to guide the jury what legal test they should use to come up with their verdict. The decision of the judge is final and must be followed unless one or both sides appeal the decision to a higher court.

At the trial level, there is one judge presiding who hears the evidence and renders a decision and the penalty or sentence that goes with it. On appeals, one judge or a panel of judges may review a lower court’s decision.

Another important aspect of the judges’ role is to decide whether a challenged law is constitutional. For example, they can strike down a law if violates the Charter of Rights and Freedoms. They can also strike down a law if they determine that the legislative body that made it was acting outside its jurisdiction and powers.

In Canada we have judicial independence because our judges are separate from the legislative and executive branch. What this means is that our judges are not part of the government. They don’t make the laws. They interpret them.

Read More:

Canadian Judicial Counsel – what do judges do?

Choosing judges in Canada