Judicial Activism and Judicial Independence: Implications of the Charter of Rights and Freedoms for the Reference Procedure and Judicial Service on Commissions of Inquiry.

Over the past five years the Supreme Court of Canada has addressed on three occasions the implications of the 1982Charter of Rights and Freedomsfor the principle of judicial independence. The justices agree that the Court's new role as guardian of constitutionally entrenched civil rights and liberties demands an expansion in its immunity from legislative and executive influence. The hoary principle of judicial independence can no longer be confined to such individual elements as security of salary and tenure but must encompass an institutional element, “reflected in [a court's] institutional or administrative relationships to the executive and legislative branches of government.” The “modern understanding of judicial independence,” according to Chief Justice Brian Dickson, recognizes that the Canadian judiciary is no longer confined to the resolution of disputes in individual cases but plays the role of “protector of theConstitutionand the fundamental values embodied in it—rule of law, fundamental justice, equality, preservation of the democratic process, to name perhaps the most important.” It is not enough, therefore, to ensure the impartiality of judges in individual cases. Courts must “be completely separate in ‘authority and function’ from all other branches of government.” Accordingly, the Court ruled in a 1989 case that a royal commission of inquiry cannot compel judges involved in a matter being investigated to testify as to the reasons for their judicial decision.