Nunatsiaq News
COMMENTARY: Nunavut November 13, 2017 - 3:30 pm

Legal Ease, Nov. 13

What judges do


The simple answer is that a judge decides disputes brought to court.

But that doesn’t tell the story properly at all.

Judges are to decide disputes brought before them in accordance with law and precedent. They do not just decide cases according to whim.

So, a judge will always begin by asking if there some statute, say, a federal law or something passed by the Government of Nunavut, that governs the situation.

In Canada, it is the elected officials who get to set most laws, and if there is something that went through Parliament or the territorial legislature, then that must usually direct what the judge is to do.

That said, even the federal government cannot pass just any law it likes. There are limits on government powers—things that no government can lawfully do.

For example, no law can discriminate against women as women; if some government in Canada tried to remove, say, voting rights from women, that would be unconstitutional and unlawful.

This is important from time to time, because a judge may be asked to decide whether a law passed by the GN or the federal government is unconstitutional.

Of course, in so doing, the judge is not just saying, “I know better than the GN.” The judge is saying that the Constitution that creates Canada as a country does not allow the GN, for example, to pass certain laws.

Canadians have rights—say, to vote, to travel, to practice their religion—and governments cannot remove those rights except in very special and extraordinary circumstances.

If no statute exists, the judge must look back to see what happened in similar cases. Judges are supposed to decide similar cases similarly, so if there is a precedent—a case that is similar to the one before the court—the judge should try to decide the new case along the lines the old case was decided.

This means judges have to look at cases from all over Canada (indeed, sometimes from other countries too) to decide if there is an old precedent that needs to be considered.

As you can see, all this takes a lot of time and book learning. Being a judge is as difficult an intellectual job as that of any professor or scientist.

But there is more.

After all the book learning and scholarship, a judge has to make a decision that is fair and just. And that is something that you really cannot learn from a book or from going to school.

Indeed, it is almost impossible to define what is “fair and just.” You either can see it or you cannot. The best judges have an instinctive understanding of what is right.

And in truth, while there are always better or worse judges (just like lawyers and doctors and plumbers are not always triple A), just about every judge I have ever dealt with is fair and just.

James Morton is a lawyer practicing in Nunavut with offices in Iqaluit. The comments here are intended as general legal information and not as specific legal advice.

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