Provincial Court Judges' Assn of New Brunswick v New Brunswick (Minister of Justice)

Provincial Court Judges' Assn of New Brunswick v New Brunswick (Minister of Justice)
	Supreme Court of Canada
Hearing: November 9–10, 2004 ; Judgment: Decided July 22, 2005
Full case name	Provincial Court Judges’ Association of New Brunswick, Honourable Judge Michael McKee and Honourable Judge Steven Hutchinson v Her Majesty The Queen in Right of the Province of New Brunswick, as represented by the Minister of Justice
Citations	[2005] 2 S.C.R. 286; 2005 SCC 44 (CanLII); (2005), 288 N.B.R. (2d) 202; (2005), 255 D.L.R. (4th) 513; (2005), 30 Admin. L.R. (4th) 1; (2005), 201 O.A.C. 293
Docket No.	30006
Prior history	Judgment for the Crown in the Court of Appeal for New Brunswick.
Holding
	The reasons given by the governments of Alberta, Ontario and New Brunswick for not following judicial remuneration recommendations were rational.
Court Membership
	Chief Justice: Beverley McLachlin ; Puisne Justices: John C. Major, Michel Bastarache, Ian Binnie, Louis LeBel, Marie Deschamps, Morris Fish, Rosalie Abella, Louise Charron
Reasons given
Unanimous reasons by	The Court

Last updated May 03, 2019

Provincial Court Judges' Assn of New Brunswick v New Brunswick (Minister of Justice); Ontario Judges Assn v Ontario (Management Board); Bodner v Alberta; Conférence des juges du Québec v Quebec (AG); Minc v Quebec (AG) [2005] 2 S.C.R. 286 was a decision by the Supreme Court of Canada in which the Court attempted to resolve questions about judicial independence left over from the landmark Provincial Judges Reference (1997). The Court found that government remuneration of provincial court judges that is lower than what an independent salary commission recommended can be justified. A broader perspective should be taken whether overall conditions of judicial independence have been met and some deference to the government is needed.

The Supreme Court of Canada is the highest court of Canada, the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts. Its decisions are the ultimate expression and application of Canadian law and binding upon all lower courts of Canada, except to the extent that they are overridden or otherwise made ineffective by an Act of Parliament or the Act of a provincial legislative assembly pursuant to section 33 of the Canadian Charter of Rights and Freedoms.

Judicial independence is the concept that the judiciary should be independent from the other branches of government. That is, courts should not be subject to improper influence from the other branches of government or from private or partisan interests. Judicial independence is important to the idea of separation of powers.

The Provincial Judges Reference [1997] 3 S.C.R. 3 is a leading opinion of the Supreme Court of Canada in response to a reference question regarding remuneration and the independence and impartiality of provincial court judges. Notably, the majority opinion found all judges are independent, not just superior court judges and inferior court judges concerned with criminal law, as the written constitution stipulates. Unwritten constitutional principles were relied upon to demonstrate this, indicating such principles were growing in importance in constitutional interpretation. The reference also remains one of the most definitive statements on the extent to which all judges in Canada are protected by the Constitution.

Background

The decision arose from cases from four different provinces, namely Provincial Court Judges’ Assn. of New Brunswick v. New Brunswick (Minister of Justice) from New Brunswick, Ontario Judges’ Assn. v. Ontario (Management Board) from Ontario, Bodner v. Alberta from Alberta, and Conférence des juges du Québec v. Quebec (Attorney General); Minc v. Quebec (Attorney General) from Quebec. Each case involved interpretation of how to properly pay provincial court judges. The cases arose following the Provincial Judges Reference, which found that in order to ensure salaries are free of political manipulation, independent salary commissions should recommend salaries and governments could deviate from recommendations only for rational reasons. This finding was grounded in principles found in the preamble to the Constitution Act, 1867 . As the Supreme Court admitted in its 2005 decision, in attempting to ease relations between courts and government, "The Reference has not provided the anticipated solution, and more is needed."^[1]

New Brunswick is one of four Atlantic provinces on the east coast of Canada. According to the Constitution of Canada, New Brunswick is the only bilingual province. About two thirds of the population declare themselves anglophones and a third francophones. One third of the population describes themselves as bilingual. Atypically for Canada, only about half of the population lives in urban areas, mostly in Greater Moncton, Greater Saint John and the capital Fredericton.

Ontario is one of the 13 provinces and territories of Canada and is located in east-central Canada. It is Canada's most populous province accounting for 38.3 percent of the country's population, and is the second-largest province in total area. Ontario is fourth-largest jurisdiction in total area when the territories of the Northwest Territories and Nunavut are included. It is home to the nation's capital city, Ottawa, and the nation's most populous city, Toronto, which is also Ontario's provincial capital.

Alberta is a western province of Canada. With an estimated population of 4,067,175 as of 2016 census, it is Canada's fourth most populous province and the most populous of Canada's three prairie provinces. Its area is about 660,000 square kilometres (250,000 sq mi). Alberta and its neighbour Saskatchewan were districts of the Northwest Territories until they were established as provinces on September 1, 1905. The premier is Jason Kenney as of April 30, 2019.

Specifically, in each of the four cases there were disputes as to what reasons for not following recommendations were rational. Since it was found commissions should have a "meaningful effect" on remuneration, some courts suggested that the recommendations must be followed.^[2] In Alberta, the courts won their case against the government before the Alberta Court of Appeal. The government of Alberta, in not accepting some of the recommendations, noted its economic responsibilities and that compared to other salaries, the recommended judicial salaries were very large.^[3] The Court of Appeal, conversely, thought that the requirement that government reasons be rational should be a very difficult test to pass and only "extraordinary circumstances" could justify not following recommendations.^[4] This was based on the fact that the 1997 Reference had mentioned the Anti-Inflation Reference of 1976, which dealt with the definition of economic emergencies.

Decision

The decision of the Supreme Court was unanimous and written by "The Court" (i.e., not attributed to a particular judge). In it, the Court quickly dismissed the notion that commission recommendations are mandatory on the grounds that this contradicted the 1997 Reference.^[5] The Supreme Court also found that rational justification for not following recommendations could be defined as the government giving full reasons that address the Commissions' points. The government must operate in good faith and its decisions must be constitutional. An irrational rejection would be "Bald expressions of rejection or disapproval."^[6] The Court added that salaries of judges could be compared with salaries of other government workers as long as the governments explains how they selected who is compared to whom. New evidence can also be cited for not following recommendations, including discoveries that a recommendations' evidence is inaccurate.^[7]

Good faith, in human interactions, is a sincere intention to be fair, open, and honest, regardless of the outcome of the interaction. While some Latin phrases lose their literal meaning over centuries, this is not the case with bona fides; it is still widely used and interchangeable with its generally accepted modern-day English translation of good faith. It is an important concept within law and business. The opposed concepts are bad faith, mala fides (duplicity) and perfidy (pretense). In contemporary English, the usage of bona fides is synonymous with credentials and identity. The phrase is sometimes used in job advertisements, and should not be confused with the bona fide occupational qualifications or the employer's good faith effort, as described below.

When government reasons are legally challenged, the Supreme Court instructs reviewing courts to exercise deference to the government.^[8] Following the 1997 Reference, the Supreme Court found reviewing courts should ask two questions, namely whether reasons are given by the government and whether they are reasonable. In 2005, the Court announced that "We are now adding a third stage which requires the reviewing judge to view the matter globally and consider whether the overall purpose of the commission process has been met."^[9] This "global perspective" requires a general evaluation of the situation, questions whether the government has acted rationally despite some small flaws in the government's reasons, and some deference to the government.^[10]

Deference is the condition of submitting to the espoused, legitimate influence of one's superior or superiors. Deference implies a yielding or submitting to the judgment of a recognized superior, out of respect or reverence. Deference has been studied extensively by political scientists, sociologists, and psychologists.

As for the Anti-Inflation Reference, the Court in 2005 noted that mention of it in the 1997 Reference was merely to demonstrate what constitutes a reviewing method. It was not to say that reasons for not following recommendations should be made only in light of economic emergencies.^[11]

Applying these new standards to the four cases, the Supreme Court found only the Quebec government's reasons were irrational. The Supreme Court faulted the Quebec government for not addressing the main recommendations.^[12]

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References

↑ Para. 3.
↑ Para. 19.
↑ Para. 111.
↑ Para. 118.
↑ Para. 20.
↑ Para. 25.
↑ Para. 26.
↑ Para.30.
↑ Para. 31.
↑ Para. 38.
↑ Para. 34.
↑ Para.159.

External links

Full text of Supreme Court of Canada decision available at LexUM and CanLII

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[1] Para. 3.

[2] Para. 19.

[3] Para. 111.

[4] Para. 118.

[5] Para. 20.

[6] Para. 25.

[7] Para. 26.

[8] Para.30.

[9] Para. 31.

[10] Para. 38.

[11] Para. 34.

[12] Para.159.