A blupete Essay

Fair & Impartial, Part 7 to blupete's Essay
"On Judges"

Justice Peter Cory:
" A system of justice, if it is to have the respect and confidence of its society, must ensure that trials are fair and that they appear to be fair to the informed and reasonable observer. This is a fundamental goal of the justice system in any free and democratic society.
It is a well-established principle that all adjudicative tribunals and administrative bodies owe a duty of fairness to the parties who must appear before them. ... In order to fulfil this duty the decision-maker must be and appear to be unbiased. The scope of this duty and the rigour with which it is applied will vary with the nature of the tribunal in question.
... The right to trial by an impartial tribunal has been expressly enshrined by ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms.
Trial judges in Canada exercise wide powers. They enjoy judicial independence, security of tenure and financial security. Most importantly, they enjoy the respect of the vast majority of Canadians. That respect has been earned by their ability to conduct trials fairly and impartially. These qualities are of fundamental importance to our society and to members of the judiciary. Fairness and impartiality must be both subjectively present and objectively demonstrated to the informed and reasonable observer. If the words or actions of the presiding judge give rise to a reasonable apprehension of bias to the informed and reasonable observer, this will render the trial unfair....
It is right and proper that judges be held to the highest standards of impartiality since they will have to determine the most fundamentally important rights of the parties appearing before them. This is true whether the legal dispute arises between citizen and citizen or between the citizen and the state. Every comment that a judge makes from the bench is weighed and evaluated by the community as well as the parties. Judges must be conscious of this constant weighing and make every effort to achieve neutrality and fairness in carrying out their duties. This must be a cardinal rule of judicial conduct."10
The requirement for a judge to be neutral is not sacrificed simply because a judge has his own particular sympathies or opinions. As my old contracts professor, Horace Read use to say, "Each of us are, but the sum total of all that has gone before." A person is undeniably the product of the culture, traditions and beliefs to which he or she, as an ongoing process, has been exposed; a person can hardly shake being what she is, because she sits high on a bench. It is not expected that a judge should be able to discount the very life experiences that may have, so well, qualified him or her to preside over disputes. It has been observed that the primary judicial duty is to be impartial, however, it is to be expected that she will bring along with her existing sympathies, antipathies or attitudes. Indeed, as the Canadian Judicial Council has pronounced, "even if it were possible, a judge free of this heritage of past experience would probably lack the very qualities of humanity required of a judge. ... True impartiality does not require that the judge have no sympathies or opinions; it requires that the judge nevertheless be free to entertain and act upon different points of view with an open mind."11

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2011