R. v. Youngpine, 2009 ABCA 89
[12] It is true that judges in Canada have not only an adjudicative role, but also a role as defender of the Constitution: Re Therrien, 2001 SCC 35, [2001] 2 S.C.R. 3 at para. 108 . That said, there are limits as to how far a judge should go in raising, on his or her own motion, an issue potentially involving the defence of constitutional rights. Our system of law remains an adversarial one and where defence counsel advises that neither defence counsel nor the client wish to pursue a constitutional issue on which there is conflicting legal authority, it is not for a judge to impose on the offender his or her desire to address and determine that issue.
[13] Judges must be cautious in usurping counsel’s role especially where the judge has raised the issue squarely, and both defence counsel and client have nevertheless declined to pursue it. There are reasons for this caution. It is precisely because judges play a key role in deciding whether the state has breached an individual’s constitutional rights that judges must not descend improperly into the arena: Therrien, supra, at para. 111. When judges are highly interventionist in pursuing an issue, they run the risk that a reasonable and informed member of the public will view their approach as one of “have opinion; need case”.
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