The Role of Judges - Backgrounder

Judges and the Law

Sources of Law and the Three Branches of Government
People living in Canada are governed by many laws. Some laws are enacted by legislatures, e.g. federal Parliament in Ottawa and the provincial Legislative Assembly in Victoria. These laws are called legislation, statutes, or acts (these three terms are essentially synonymous). Municipalities, based on authority delegated by provincial legislatures, also make laws, typically called bylaws. Other laws, often called regulations, are created by other bodies that are part of the executive branch of government. Finally, a number of laws are based on the decisions of the courts (often called common law, case law, or jurisprudence). In B.C., the governing courts are the B.C. Provincial Court, the B.C. Supreme Court, the B.C. Court of Appeal, and the Supreme Court of Canada.

Viewed in this light, one can say that there are three branches of government: the legislative, the executive, and the judicial. Each branch has its own function and its own method of operation.

Thus, for example, we elect members of the legislature, but do not elect either the members of the executive or the judiciary (the judges). And, again for example, the legislative branch makes laws but does not adjudicate on them – that is the role of the judiciary. Neither the legislative branch nor the judiciary enforces the laws – that is the role of the executive (such as the police).

The Structure of the Court System
One way of looking at the courts is to say that there are two “levels” of court in Canada: provincial courts (whose judges are appointed by the provincial government) and superior courts (whose judges are appointed by the federal government). In B.C., the “Provincial Court” has several divisions: Small Claims, Traffic, Family, and Youth. The “superior courts” include the Supreme Court of British Columbia, the B.C. Court of Appeal, and the Supreme Court of Canada. The judges of the superior courts are all appointed by the federal Prime Minister of Canada (for more on the appointment process in both levels of court, see the Backgrounder on “Judicial Appointments”).

Another way of looking at the courts is that there are two “levels”, that is, the trial courts (or “court of first instance”) and the appeal courts (sometimes called “appellate” courts). The Provincial Court is entirely a court of first instance. The B.C. Supreme Court is mostly a court of first instance, but it has some appellate jurisdiction, as it hears some appeals from Provincial Court. The B.C. Court of Appeal and the Supreme Court of Canada have only appellate jurisdiction. The difference between first instance and appellate jurisdiction affects the role of the judges in the legal system.

Most cases coming to the courts in British Columbia are disposed of by the Provincial Court. That court deals with about 90% of the criminal cases, many family cases, and many civil actions under $25,000. The B.C. Supreme Court hears serious criminal offences, family cases, and many civil matters, including all civil matters involving more than $25,000. The Court of Appeal reviews decisions made in those lower courts when one of the parties appeals a decision. The Supreme Court of Canada, the highest court in the country, hears appeals from provincial courts of appeal, such as the B.C. Court of Appeal.

Judicial Independence
Because the judiciary is an independent third branch of government, courts and judges function independently of political influence. This is the principle of “judicial independence.” There are many important facets of this principle, one of which is that the government - the legislative and executive branches - cannot tell a judge how to decide a case, nor can they fire a judge for making a decision even if the judgment may make the government officials, or even the general population, unhappy.

This is not to say that judges have completely free rein. Judges are subject to discipline through the Canadian Judicial Council (for superior court judges) or the provincial Judicial Council (for Provincial Court judges). A judge can only be removed from office for serious misconduct, after a decision to remove the judge by Parliament (for superior court judges) or by the Legislative Assembly (for Provincial Court judges).

The Hierarchy of Laws
The courts are the arbiters of the law of the land – the judges declare what is or what is not the law. But again, the judges do not have free rein to decide arbitrarily – they must decide according to the law. In the Canadian legal system there are three main sources of law:

  • the constitution, which includes the Constitution Act, 1867, the Constitution Act, 1982, and the Canadian Charter of Rights and Freedoms
  • legislation, bylaws, and regulations, such as enacted by the federal and provincial legislatures, municipal councils, and executive agencies
  • the common law (i.e. decisions of the courts), which includes what was historically the common law and the rules of equity (since 1858, it is safe to treat “common law” as encompassing both “common law” and “equity”).

A number of fundamental principles govern the role of courts and judges. One such principle is called “parliamentary supremacy” (or “legislative supremacy”). This means that enacted legislation, bylaws, and regulations are paramount over common law. In this respect, legislation overrides court judgments.

However, all laws must conform to the constitution - this is the principle of constitutionality - and it is the courts that decide whether a statute, for example, does or does not conform to the constitution. Thus, a court or judge may find that a statute is unconstitutional and so declare that statute to be invalid and therefore not law.

Two common examples of constitutionality are: 1) federal Parliament and provincial legislatures have been given separate areas in which they are allowed to legislate. This is called the “division of power.” A statute on a topic that has been passed by a legislature outside the scope of its powers is unconstitutional and invalid; 2) legislation must conform to the principles set out in the Charter of Rights and Freedoms and if it does not, such legislation is unconstitutional and invalid.

Another fundamental principle is the common law principle of precedent, or, to use a Latin term, “stare decisis” (literally, “to stand by the decision”). The doctrine of precedent means that Canadian judges are bound to follow judgments from other Canadian courts of higher jurisdiction in similar cases when making a judgment.

One aspect of the doctrine of precedent is that some judgments are considered binding and others are considered merely persuasive. For example, the B.C. Supreme Court is bound by a judgment of the B.C. Court of Appeal, but is not bound by a judgment of the Alberta Court of Appeal. Another aspect of the doctrine is that some parts of a judgement may be considered binding but other parts merely persuasive. The binding parts are referred to by the Latin term ratio decidendi (“ratio” for short) and the merely persuasive parts are called obiter dicta (another Latin term, often abbreviated as obiter or as dicta).

The term “court of first instance” indicates that a case is heard for the first time in this court. This is the trial. In the Provincial Court, all trials are heard by a judge alone. In the B.C. Supreme Court, some cases may be heard by a judge alone and some by a judge with a jury. Either way, there are two functions that must be performed – decisions must be made about the facts and decisions must be made about the law. In a jury trial, the jury is the “trier of fact” – that is, the jury decides what the facts are – and the judge is the “trier of law – that is, the judge decides what is the applicable law. In a judge-alone trial, the judge is both the trier of fact and trier of law.

The trier of fact must decide about the facts based on the evidence that is presented in court. This can include testimony of witnesses, documents, and physical evidence (such as a piece of clothing, or a rock sample). The judge, as trier of law, will decide whether a particular piece of evidence is admissible or inadmissible. If admissible, the trier of fact can consider it; if inadmissible, the trier of fact cannot consider it (a jury may not even know that it exists; a judge alone is expected to put it out of mind when deciding about the facts). The judge is essentially a gatekeeper as to the evidence.

At the end of a trial, a decision will be made. If the trial was by judge with jury, the jury will give its verdict. In a civil case, the jury will decide both liability and remedy (damages, that is, the monetary compensation that the defendant must pay to the plaintiff). In a criminal case, the jury will decide guilt or innocence, but the judge alone will impose sentence. If the trial was by judge alone, the judge will issue a judgment, about which more will be said below.

A litigant who is dissatisfied with the outcome of a judgment may appeal to a higher court. An appeal is not a chance to re-fight the trial. Generally speaking, the appellate court accepts the facts as found by the trier of fact at the trial. Appellate courts generally do not hear new evidence.

This is true both if the appeal is to an appellate court from a trial court (e.g. to the B.C. Court of Appeal from the B.C. Supreme Court), or to an appellate court from an appellate court (e.g. to the Supreme Court of Canada from a judgment of the B.C. Court of Appeal). In technical terms, appellate courts are bound by the “standard of review,” which means that they can only intervene (reverse a lower court judgment) if there is a legal error in the judgment of the lower court.

The party appealing the judgment may require leave (permission) to appeal. Different rules apply, depending on whether the appeal is to the B.C. Supreme Court, the B.C. Court of Appeal, or the Supreme Court of Canada. Different rules also apply depending on the nature of the appeal (civil or criminal, final or interlocutory, and special rules based on legislation).

Appeals, unlike trials, are heard by panels of judges. In the B.C. Court of Appeal, most appeals are heard by a panel of 3 judges (some cases have 5 judge panels). In the Supreme Court of Canada, panels may be made of 5, 7, or 9 judges.

Appellate courts do not hear witnesses and typically do not see the evidence first hand. Instead, they review the “record” of the trial, which includes the reasons for judgment of the court below, the transcript of oral evidence, and the appeal books that contain copies of documentary evidence (such as letters and photographs). The appeal judges consider the legal arguments presented by the lawyers or the litigants in person if they are unrepresented.

Jury trials are decided by the verdict of the jury, so there is no “judgment”. However, for judge alone trials, and for appeals, the judges render their decision by way of judgment (sometimes called reasons for judgment or opinions).

In many cases, the reasons for judgment are written, although some decisions are made orally. Oral judgments can be transcribed- the practice differs from court to court. Copies of written judgments, and sometimes of transcribed oral judgments, are typically made available to the public through case reports (books that provide copies of collected court judgments; many are now also available online through various publishers). As well, many courts now post copies of their judgments on their websites:

In a typical judgment, the judge will provide a description of the relevant facts of the case, an explanation of the issues, an outline of the arguments presented by the parties, an analysis of the applicable law, an explanation of the judge’s reasoning, and finally the judge’s conclusion.

A trial judge, after a judge-alone trial, will set out findings of fact, based on the evidence, often detailing which witnesses were considered credible or not credible, and why. Appellate judges will tend to summarize the facts as stated earlier by the trial judge, perhaps with further references to the record (testimony, documents) as necessary.

All judges, trial or appellate, in the analysis of the law and the explanation of the reasoning, are likely to set out and consider the applicable law and the interplay between those elements – the constitution, legislation or other enactments, or jurisprudence from B.C. or other courts in Canada or even other countries – in accordance with the principles of constitutionality, legislative supremacy, and stare decisis. In this way, the courts and judges fulfill their role as the third branch of government in Canada.