How are judges affected by the Charter?

Judges have an even stronger role to play in the Canadian justice system than they did before the Charter. There are three particularly important affects of the Charter on judges.

First, judges can declare that a law is of no force and effect if it conflicts with the freedoms guaranteed by the Charter. Parliament then must decide whether or not to redraft the law in such a way that the Charter is not breached.

Second, Canadian judges have control over many aspects of the conduct of criminal trials. For example, they can control the publicity surrounding a trial by ordering that evidence heard at bail hearings, preliminary inquiries, or when the jury is not present not be published until after the trial. This is known as a publication ban and a recent notorious example is the evidence at the preliminary hearing in the Bernardo trial. Judges may also move the location of a trial to a place where the publicity may be less. They may sequester juries or instruct them to disregard certain evidence. And judges may also exclude evidence from a trial if the evidence was obtained in a way that breaches Charter rights.

Third, section 11(d) of the Charter guarantees a trial before an independent and impartial tribunal. In practical terms, this means that Canadian judges are secure in their jobs and cannot be removed from office except for causes that relate to their capacity to perform their jobs. In Canada, judges are not elected; they are appointed and serve until they resign, reach retirement age, or are removed for cause. Removal for cause is almost unheard of in Canada though recently there have been some investigations which have resulted in resignations.

---

WARNING: The contents of these FAQs are intended as general legal information only.
If you have a personal problem, please consult a lawyer.