How Judges Make Decisions

In the course of a single case, a judge may make countless decisions interpreting the intent of the Charter or a piece of legislation, or applying legal principles and precedents established under the common law. If there is a Supreme Court of Canada or other higher-court ruling in that province or territory that interprets the law or deals with a similar dispute, the judge is obligated to make a ruling that is consistent with this precedent. The details of every case are different, however, and the judge may be able to “distinguish” the rulings of other courts and make a decision that breaks with precedent. And, of course, if a novel issue arises and there is no precedent to follow, the judge must craft a decision that breaks new ground but is consistent with the principles laid down in common law. Judges also consider common law precedents from other jurisdictions and countries. While not binding, these may offer guidance as to the best way to resolve a dispute.

A similar approach is taken when deciding the sentence to impose on someone convicted of a crime. The Criminal Code sets out the maximum prison term for each offence and sometimes a minimum sentence that must be served in custody. The maximum penalty is reserved for the worst crimes and the worst offenders, and there is a wide array of sentencing options – discharges, fines, probation or conditional sentences served in the community. The judge must take into account the seriousness of the offence, the offender’s background and prospects for rehabilitation, and the need to deter others from committing crimes. Judges also review the sentences other judges have imposed for similar crimes, to ensure the punishment is fair and fits the crime. In Canada, sentencing is not based on revenge but rather on the fundamental concepts of protection of the public, fairness, deterring others from committing crime and reforming the individual offender.