The Rule of Law and the Courts
If anyone were above the law, none of our
provincial courts of appeal shall be removable
liberties would be safe.
only on address to the Governor General by
both houses of Parliament. The acts setting
What keeps the various authorities from getting
up the Supreme Court of Canada, the Federal
above the law, doing things the law forbids,
Court of Appeal, the Federal Court and the Tax
exercising powers the law has not given them?
Court of Canada have the same provision. No
judge of any Canadian superior court has ever
been so removed. All of them are perfectly safe
The courts. If they try anything of the sort, they
in their positions, no matter how much the
will be brought up short by the courts.
government may dislike any of their decisions.
The independence of the judiciary is even more
But what?s to prevent them from bending the
important in Canada than in Britain, because
courts to their will?
in Canada the Supreme Court interprets the
written Constitution, and so defi nes the limits
The great principle of the independence of the
of federal and provincial powers.
judiciary, which is even older than responsible
government. Responsible government goes
With the inclusion of the Canadian Charter of
back only about 200 years. The independence
Rights and Freedoms, the role of the courts has
of the judiciary goes back over 300 years to the
become even more important, since they have
English Act of Settlement, 1701, which resulted
the tasks of enforcing the rights and of making
from the English Revolution of 1688. That Act
the freedoms eff ective.
provided that the judges, though appointed by
the King (nowadays, of course, on the advice
Judges of the county courts can be removed
of a responsible cabinet), could be removed
only if one or more judges of the Supreme
only if both houses of Parliament, by a formal
Court of Canada, or the Federal Court, or any
address to the Crown, asked for their removal.
provincial superior court, report after inquiry
If a judge gave a decision the government
that they have been guilty of misbehaviour, or
disliked, it could not touch him or her, unless
have shown inability or incapacity to perform
both houses agreed. In the three centuries that
their duties.
have followed, only one judge in the United
Kingdom has been so removed, and none
since 1830.
The Supreme Court of Canada, established by an
act of the national Parliament in 1875, consists
of nine judges, three of whom must come from
The Constitution provides that almost all our
the Quebec Bar. The judges are appointed by the
courts shall be provincial, that is, created by
Governor General on the advice of the national
the provincial legislatures. But it also provides
cabinet, and hold offi
ce until they reach age 75.
that the judges of all these courts from county
The Supreme Court has the fi nal decision not
courts up (except courts of probate in Nova
only on constitutional questions but also on
Scotia and New Brunswick) shall be appointed
defi ned classes of important cases of civil and
by the federal government. What is more, it
