Conceptual Parallels in Judicial and Bar 'Independence' in Canada

Abstract

This paper examines Judicial and Bar independence in Canada. The first part critically considers standard concepts of the principle, which rely on indirect contextual descriptions, but are fragmented, and do not capture its increasingly unwieldy complexity in Canadian law. The second section proposes a more simplified characterization, rooted in parallel and underlying requirements that judges and lawyers be impartial, neutral and autonomous. This approach unifies the concept as between legal decision-makers and holistically identifies its common nature. The third part explains how independent judges and lawyers operate under this new conception, and share obligations to apply, protect and improve the law. These functions are closely connected to the modern justification for independence, which is to facilitate access to justice. The work concludes that Judicial and Bar independence are closely linked, but require clearer and more consistent theoretical guidelines, to better support the rule of law and access to justice in Canada today.