Practice Relating to Rule 100. Fair Trial Guarantees
Section B. Trial by an independent, impartial and regularly constituted court
Canada’s LOAC Manual (1999) provides for the necessity that “the tribunal offers the essential guarantees of independence and impartiality generally recognized as compatible with the rule of law”.
The manual also contains the requirement of “an impartial and regularly constituted tribunal” for internees in occupied territories.
With respect to non-international armed conflicts, the manual states:
No sentences shall be passed or penalties executed for offences related to the conflict except pursuant to a conviction pronounced by a court offering the essential guarantees of independence and impartiality.
Canada’s LOAC Manual (2001) states in its chapter on the treatment of prisoners of war (PWs):
2. PWs are also subject to the laws, regulations and orders in force in the armed forces of the Detaining Power and may only be tried by the same courts and under the same procedures applicable to those armed forces.
4. … PWs may only be tried by a civil court if the Detaining Power’s forces may also be so tried for the offence involved, and provided the tribunal offers the essential guarantees of independence and impartiality generally recognized as compatible with the rule of law.
In its chapter on the treatment of civilians in the hands of a party to the conflict or an occupying power and, more specifically, in a section entitled “Additional Protocol I”, the manual states:
No sentence may be passed and no penalty may be executed on a person found guilty of a penal offence related to the armed conflict except pursuant to a conviction pronounced by an impartial and regularly constituted court respecting the generally recognized principles of regular judicial procedure.
In its chapter on non-international armed conflicts, the manual restates the provisions of common Article 3 of the 1949 Geneva Conventions:
By Common Article 3, the parties to a non-international armed conflict occurring in the territory of a party to the Conventions are obliged to apply, as a minimum, the following provisions:
a. Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, gender, birth or wealth, or any other similar criteria.
To this end, the following are at any time and in any place prohibited with regard to such persons:
iv the passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
In the same chapter, the manual also states: “No sentences shall be passed or penalties executed for offences related to the conflict except pursuant to a conviction pronounced by a court offering the essential guarantees of independence and impartiality”.
In 2003, in Ell v. Alberta, the Supreme Court of Canada noted with regard to the meaning of judicial independence:
18 Judicial independence has been recognized as “the lifeblood of constitutionalism in democratic societies”: see Beauregard v. Canada,  2 S.C.R. 56, at p. 70, per Dickson C.J. It requires objective conditions that ensure the judiciary’s freedom to act without interference from any other entity. The principle finds explicit constitutional reference in ss. 96 to 100 of the Constitution Act, 1867 and s. 11(d) of the Canadian Charter of Rights and Freedoms. The application of these provisions is limited: the former to judges of superior courts, and the latter to courts and tribunals that determine the guilt of those charged with criminal offences: see Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island,  3 S.C.R. 3 (“Provincial Court Judges Reference”), at para. 84, per Lamer C.J. The respondents do not fall into either of these categories. Nonetheless, as this Court has recognized, the principle of judicial independence extends beyond the limited scope of the above provisions.
19 Judicial independence has been a cornerstone of the United Kingdom’s constitutional structure back to the Act of Settlement of 1700, 12 & 13 Will. 3, c. 2. See the comments of Lord Lane, cited in Beauregard, supra, at p. 71:
Few constitutional precepts are more generally accepted there in England, the land which boasts no written constitution, than the necessity for the judiciary to be secure from undue influence and autonomous within its own field (“Judicial Independence and the Increasing Executive Role in Judicial Administration”, in S. Shetreet and J. Deschênes (eds.), Judicial Independence: The Contemporary Debate (1985), at p. 525).
The preamble to the Constitution Act, 1867 provides for Canada to have “a Constitution similar in Principle to that of the United Kingdom”. These words, by their adoption of the basic principles of the United Kingdom’s Constitution, serve as textual affirmation of an unwritten principle of judicial independence in Canada. Lamer C.J. concluded as follows in Provincial Court Judges Reference, supra, at para. 109:
… it is in that preamble, which serves as the grand entrance hall to the castle of the Constitution, that the true source of our commitment to this foundational principle is located.
The preamble acknowledges judicial independence to be one of the pillars upon which our constitutional democracy rests.
20 Historically, the principle of judicial independence was confined to the superior courts. As a result of the expansion of judicial duties beyond that realm, it is now accepted that all courts fall within the principle’s embrace. See Provincial Court Judges Reference, supra, at para. 106:
… our Constitution has evolved over time. In the same way that our understanding of rights and freedoms has grown, such that they have now been expressly entrenched through the enactment of the Constitution Act, 1982, so too has judicial independence grown into a principle that now extends to all courts, not just the superior courts of this country.
The scope of the unwritten principle of independence must be interpreted in accordance with its underlying purposes. In this appeal, its extension to the office held by the respondents depends on whether they exercise judicial functions that relate to the bases upon which the principle is founded.
21 The historical rationale for independence was to ensure that judges, as the arbiters of disputes, are at complete liberty to decide individual cases on their merits without interference: see Beauregard, supra, at p. 69. The integrity of judicial decision making depends on an adjudicative process that is untainted by outside pressures. This gives rise to the individual dimension of judicial independence, that is, the need to ensure that a particular judge is free to decide upon a case without influence from others.
22 In modern times, it has been recognized that the basis for judicial independence extends far beyond the need for impartiality in individual cases. The judiciary occupies an indispensable role in upholding the integrity of our constitutional structure: see Provincial Court Judges Reference, supra, at para. 108. In Canada, like other federal states, courts adjudicate on disputes between the federal and provincial governments, and serve to safeguard the constitutional distribution of powers. Courts also ensure that the power of the state is exercised in accordance with the rule of law and the provisions of our Constitution. In this capacity, courts act as a shield against unwarranted deprivations by the state of the rights and freedoms of individuals. Dickson C.J. described this role in Beauregard, supra, at p. 70:
[Courts act as] protector of the Constitution and the fundamental values embodied in it — rule of law, fundamental justice, equality, preservation of the democratic process, to name perhaps the most important.
This constitutional mandate gives rise to the principle’s institutional dimension: the need to maintain the independence of a court or tribunal as a whole from the executive and legislative branches of government.
23 Accordingly, the judiciary’s role as arbiter of disputes and guardian of the Constitution require that it be independent from all other bodies. A separate, but related, basis for independence is the need to uphold public confidence in the administration of justice. Confidence in our system of justice requires a healthy perception of judicial independence to be maintained amongst the citizenry. Without the perception of independence, the judiciary is unable to “claim any legitimacy or command the respect and acceptance that are essential to it”: see Mackin v. New Brunswick (Minister of Finance),  1 S.C.R. 405, 2002 SCC 13, at para. 38, per Gonthier J. The principle requires the judiciary to be independent both in fact and perception.
B. The Essential Conditions of Independence
28 As stated, judicial independence encompasses both an individual and institutional dimension. The former relates to the independence of a particular judge, and the latter to the independence of the court to which the judge is a member. Each of these dimensions depends on objective conditions or guarantees that ensure the judiciary’s freedom from influence or any interference by others: see Valente, supra, at p. 685. The requisite guarantees are security of tenure, financial security and administrative independence: see Provincial Court Judges Reference, supra, at para. 115.
32 The ultimate question in each case is whether a reasonable and informed person, viewing the relevant statutory provisions in their full historical context, would conclude that the court or tribunal is independent: Valente
, at p. 689. The perception of independence will be upheld if the essence of each condition of independence is met …
[emphasis in original]
In 2004, in Application under s. 83.28 of the Criminal Code (Re), the Supreme Court of Canada noted:
80 Judicial independence is the “lifeblood of constitutionalism in democratic societies”: Beauregard v. Canada,  2 S.C.R. 56, at p. 70. The importance of judicial independence to the promotion and preservation of the rule of law cannot be overstated. In this respect, as the late Professor Lederman noted, judicial independence is one of the original principles of the English Constitution: W. R. Lederman, “The Independence of the Judiciary”, in A. M. Linden, ed., The Canadian Judiciary (1976), 1, at p. 2. An independent judiciary is absolutely necessary to “ensure that the power of the state is exercised in accordance with the rule of law and the provisions of our Constitution. In this capacity, courts act as a shield against unwarranted deprivations by the state of the rights and freedoms of individuals”: Ell v. Alberta,  1 S.C.R. 857, 2003 SCC 35, at para. 22, per Major J.
81 This principle exists in Canadian law in a number of forms. In the Constitution, it is explicitly referenced in ss. 96 to 100 of the Constitution Act, 1867 and in s. 11(d) of the Charter. The application of these provisions, however, is limited. The former applies to judges of superior courts, and the latter to courts and tribunals charged with trying the guilt of persons charged with criminal offences: Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island,  3 S.C.R. 3, at para. 84; Ell, supra, at para. 18. Judicial independence has also been implicitly recognized as a residual right protected under s. 7, as it, along with the remaining protections in ss. 8 to 14, are specific examples of broader principles of fundamental justice: Re B.C. Motor Vehicle Act,  2 S.C.R. 486, at p. 503. Moreover, the commitment to the “foundational principle” of judicial independence has also been referenced by way of the Preamble to the Constitution Act, 1867: Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, at para. 109; see also Ell, at para. 19. Judicial independence further represents the cornerstone of the common law duty of procedural fairness, which attaches to all judicial, quasi-judicial and administrative proceedings, and is an unwritten principle of the Constitution.
82 The twin aspects of judicial independence and impartiality are relevant to this appeal. The first is the requirement that the judiciary function independently from the executive and legislative branches of government: Beauregard, supra, at pp. 72-73. The second is the recognition that judicial independence is necessary to uphold public confidence in the administration of justice: Mackin v. New Brunswick (Minister of Finance),  1 S.C.R. 405, 2002 SCC 13. The relationship between judicial independence and impartiality was considered by the Court in R. v. Lippé,  2 S.C.R. 114, at p. 139:
The overall objective of guaranteeing judicial independence is to ensure a reasonable perception of impartiality; judicial independence is but a “means” to this “end”. If judges could be perceived as “impartial” without judicial “independence”, the requirement of “independence” would be unnecessary. However, judicial independence is critical to the public’s perception of impartiality. Independence is the cornerstone, a necessary prerequisite, for judicial impartiality.
83 In this respect, we must ultimately consider whether a reasonable and informed person would conclude that the court under s. 83.28 is independent: Valente v. The Queen
,  2 S.C.R. 673, at p. 689; Ell
, at para. 32.
In 2005, in the Judges’ Associations case, the Supreme Court of Canada noted:
2 The concept of judicial independence has evolved over time. Indeed, “[c]onceptions have changed over the years as to what ideally may be required in the way of substance and procedure for securing judicial independence . … Opinions differ on what is necessary or desirable, or feasible”: Valente v. The Queen,  2 S.C.R. 673, at p. 692, per Le Dain J.
II. General Principles
A. The Principle of Judicial Independence
4 The basis for the principle of judicial independence can be found in both our common law and the Canadian Constitution; see Beauregard v. Canada,  2 S.C.R. 56, at pp. 70-73; Ell v. Alberta,  1 S.C.R. 857, 2003 SCC 35, at paras. 18–23. Judicial independence has been called “the lifeblood of constitutionalism in democratic societies” (Beauregard, at p. 70), and has been said to exist “for the benefit of the judged, not the judges” (Ell, at para. 29). Independence is necessary because of the judiciary’s role as protector of the Constitution and the fundamental values embodied in it, including the rule of law, fundamental justice, equality and preservation of the democratic process; Beauregard, at p. 70.
5 There are two dimensions to judicial independence, one individual and the other institutional. The individual dimension relates to the independence of a particular judge. The institutional dimension relates to the independence of the court the judge sits on. Both dimensions depend upon objective standards that protect the judiciary’s role: Valente, at p. 687; Beauregard, at p. 70; Ell, at para. 28.
6 The judiciary must both be and be seen to be independent. Public confidence depends on both these requirements being met: Valente, at p. 689. “Judicial independence serves not as an end in itself, but as a means to safeguard our constitutional order and to maintain public confidence in the administration of justice”: Ell, at para. 29.
7 The components of judicial independence are: security of tenure, administrative independence and financial security; see Valente
, at pp. 694, 704 and 708; the Reference
, at para. 115; Ell
, at para. 28.
[emphasis in original]
In the Lia case
before a Canadian Federal Court in 2007, the applicants challenged a Pre-Removal Risk Assessment (PRRA) decision which held, inter alia
, that diplomatic assurance against the risk of torture was sufficient to allow for their deportation. In its analysis relating to reasonable apprehension of bias, the Federal Court stated: “There is no doubt that the independence of the judiciary and the impartiality of its members are the cornerstones of our judicial system and essential characteristics of a state governed by the rule of law.”