Judges preside over criminal and civil cases in federal and provincial courts. For many people, judges are the embodiment of the justice system itself. Despite popular belief, Canadian judges do not wear a white wig nor bang a gavel, that famous little wooden mallet!
Judges are entrusted with an important job that carries a number of privileges but also comes significant responsibilities. Judges, who may not retire until the age of 75, must never show their political preferences or express their feelings to the media on the decisions they render.
Not unlike a referee in a hockey game, a judge acts an impartial party to settle disputes (between individuals, groups, institutions, companies and even different levels of government). Judges do this by applying laws and the decisions of other courts in Canada while ensuring the rights of all parties are respected.
There are more than 2,000 judges in Canada. Their roles vary widely depending on the types of cases they hear – criminal, divorce, breach of contract, etc.
Before the trial
Regardless of the type of cases they preside over, judges are involved from the very beginning of the judicial process, which is simply the culmination of this process.
- Criminal cases
In a criminal case, prior to the trial, the judge (or justice of the peace):
- Determines whether the accused will be detained until trial;
- Decides the terms under which the accused may be released;
- Issues warrants, if necessary, for police to seize property; and
- Presides over the preliminary hearing, which allows the judge to determine if there is enough evidence to warrant a trial.
- Civil cases
In a civil case, such as a breach of contract or an application for alimony, a judge assesses the merits of preliminary exceptions presented by the parties at case conferences held before a trial. During these conferences, the judge may also act as a mediator between the parties to help them settle their dispute amicably. The judge’s role is to get them to enter into an agreement that benefits both parties. During the pre-trial conference, a judge (other than the trial judge) encourages the parties to settle their dispute by sharing with them what the outcome might be if the judge were to preside over the trial.
During the trial: Hearing the evidence and legal arguments
- During the trial
As the trial proceeds, the judge:
- Makes certain the trial proceeds as required;
- Ensures the rights of the parties’ are respected;
- Questions witnesses if clarification is required; and
- Handles objections raised by lawyers.
- Hearing the evidence
In addition to handling the objections, the judge must carefully review and consider all the evidence presented and hear all arguments put forward by the parties.
When hearing evidence, the judge:
- Listens to the testimony of the different parties and their witnesses;
- Assesses the attitude and body language of the parties and witnesses, determines the truthfulness and credibility of their statements, etc.;
- Reads all documents and considers the relevance and admissibility of the evidence, which can include testimony, photos, reports from experts (doctors, accountants, etc.) or plans. (If the judge determines evidence is not admissible, this evidence cannot be used to consider in the trial); and
- Hears to the parties’ arguments and pleadings.
The law and the facts
When rendering a decision, judges must take both the facts and the law into consideration. Judges should not allow themselves to be influenced by other factors and may consider only admissible evidence presented at the trial.
Burden proof in a criminal trial
In criminal cases, the judge must be convinced there is sufficient evidence to establish a verdict of guilty beyond a reasonable doubt.
Burden of proof in a civil trial
In civil cases, judges must determine whether the evidence presented by a plaintiff is convincing enough for a ruling in his or her favour.
Admissibility of evidence
At the request of either party, the judge determines whether the evidence was acquired legally and, if the judge determines it was not acquired legally, prevents the evidence from being used. In fact, the courts do not accept all evidence, particularly in cases when the rights of the accused have been violated. Everyone is entitled to respect for their physical integrity and human dignity. For example, if a confession is obtained as a result of the accused being mistreated by the police, the judge will consider the confession inadmissible and it cannot be used as evidence in court.
Once both sides have presented their evidence, the judge listens to the lawyers’ arguments. They will try to convince the judge to rule in their favour by presenting their legal arguments and citing evidence they presented in court.
Conclusion of the trial: Judgment, decision, verdict, deliberation
Regardless of the type of case a judge hears, he or she must render a decision at the end of the trial. However, in some criminal and civil cases, this responsibility is fulfilled by a jury.
Whether reaching at a verdict, rendering a decision or imposing a sentence, the judge must apply rules of law and interpret legislation. This means the judge must:
- Analyze the facts;
- Determine the answer the law provide to the type of problem before the judge;
- Look at precedents (decisions rendered by different courts in similar cases); and
- Give his or her interpretation of the law when necessary, such as when hearing a type of case never before ruled upon or when the judge does not agree with the interpretation of another judge.
- Delivering judgment from the bench
When an oral judgment is delivered by the judge immediately after the closing arguments, it is known as delivering “judgment from the bench.”
When a judge takes time to review a case and then give a decision in writing (for example, when the evidence must be thoroughly reviewed), this is known as “deliberation.” During deliberation, the judge spends many hours reviewing the evidence, studying the law and precedents, doing research and writing a decision.
Judges work mainly in provincial and federal courts. The specific functions they carry out and the types of cases they hear depend on the court they sit in.
Trials are heard in trial courts (such as small claims courts or provincial superior courts). Judges who sit in these types of courts play a very active role and are sometimes involved in discussions between the parties, especially if the parties are not represented by lawyers.
Courts of appeal and the Supreme Court of Canada
Judges who sit on provincial courts of appeal or the Supreme Court of Canada do not hear trials and, therefore, no testimony. Their role is rather to hear the submissions of the lawyers contesting or appealing a trial judge’s decision.
Anyone who wishes to become a judge must:
- Become a lawyer;
- Have at least 10 years before the bar; and
- Submit an application for the position.
Judges are appointed by the federal or a provincial government. Each government has its own appointment process, so individuals wishing to become a judge should first decide on the court they wish to sit in.
An advisory committee (formed to ensure the nomination process is carried out in an objective, impartial manner) recommends candidates to the government. The committee makes certain a candidate possesses all the professional requirements necessary to perform the duties of the position.
Candidate’s professional file and experience
The candidate must have an impeccable professional record as a lawyer. Because a judge serves as a symbol of righteousness and embodies the justice system, the committee also thoroughly examines the past behaviour and moral values of each individual who wish to become a judge. The person is expected to have a past free of drug addiction, alcoholism, fraud, complaints of sexual harassment or domestic violence, etc.
Society is constantly evolving, and laws must adapt to new situations. Judges must also be able to change along with the new realities faced by society. Judges must stay on top of the major issues facing society. They regularly receive training on various subjects to ensure they remain at the forefront of legal knowledge.
For example, since the Canadian Charter of Rights and Freedoms was introduced, judges have had to rule on sensitive issues that touch on social values, issues such as:
- Same-sex marriage;
- Reasonable accommodation; and
- Rights of linguistic minorities.
But be aware that judges do not express their personal opinions but rather render decisions based on facts and the law.
To learn more about role and everyday duties of a judge, visit Try Judging, an interactive site where you can be the judge!
Here are the main skills you should have to be a judge.
Ability to analyze
Understanding and analyzing the evidence and arguments presented and applying the appropriate rule of law in each case is at the core of a judge’s work. This important responsibility requires sound judgment and analytical skills.
You have what it takes if:
- You find it easy to solve puzzles;
- You find it easy to understand new material; and
- You are curious and like to solve complex problems.
Ability to listen
The judge must be able to listen attentively. Indeed, hearing the witnesses and the parties in the same case, sometimes for full days, requires a great deal of concentration, attention and patience.
You have what it takes if:
- You listen attentively what others share with you in confidence;
- You listen more often rather than talk during conversations with friends; and
- You easily remember the details of stories you hear.
Judges provide guidance to citizens, court staff and lawyers alike during the various stages of the judicial process. Therefore, candidates must demonstrate strong leadership abilities.
You have what it takes if:
- You have lots of ideas for projects and are able to get people interested in these projects;
- You show initiative when working in a team; and
- You are able to juggle a number of things at once and rarely feel overwhelmed by events.
Judges must be neutral when hearing a case. They must remain objective, impartial and ensure that their cultural background or personal values do not influence their decisions.
You have what it takes if:
- You remain objective if you have a disagreement, even if it involves a friend;
- You are able to resolve conflicts without letting your emotions get in the way; and
- You are able to find compromises to situations involving your parents or teachers.
These are just some examples of skills you would need. If you are hard working, can concentrate well, have advanced critical thinking skills and are someone who pays attention to detail, you might make an excellent judge.