A Tale of Two Immunities: Judicial and Prosecutorial Immunities in Canada

Abstract

The author discusses and analyzes some recent decisions emanating from the Supreme Court of Canada on the question of judicial and prosecutorial immunities Canada. The analysis is, first, undertaken with particular attention given to pre-existing judicial precedent at common law. Next, public policy reasons for and the need for judicial immunity, and its derivative in the form of prosecutorial immunity, are canvassed. Professor Law then looks to the evolving principle of judicial independence, which itself provides the policy underpinnings for judicial immunities, in order to explain the phenomena of judicial and prosecutorial immunities. Finally, these immunities, as defined by the Supreme Court of Canada, are discussed from a constitutional perspective.