Reference Re Remuneration of Judges (No 2) | |
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Hearing: January 19, 1998 Judgment: February 10, 1998 | |
Full case name | Reference Re Remuneration of Judges of the Provincial Court of Prince Edward Island; Reference Re Independence and Impartiality of Judges of the Provincial Court of Prince Edward Island |
Citations | [1998] 1 S.C.R. 3; 1998 CanLII 833 (S.C.C.); [1998] 161 Nfld. & P.E.I.R. 125; (1998), 155 D.L.R. (4th) 1; (1998), 121 C.C.C. (3d) 474; (1998), 49 C.R.R. (2d) 1; (1998), 50 Admin. L.R. (2d) 273; (1998), 126 Man. R. (2d) 97 |
Prior history | None (rehearing) |
Holding | |
The doctrine of necessity states those tried under dependent tribunals in this case have not been denied their rights to an independent tribunal. | |
Court membership | |
Chief Justice: Antonio Lamer Puisne Justices: Claire L'Heureux-Dubé, Charles Gonthier, Peter Cory, Beverley McLachlin, Frank Iacobucci, John C. Major, Michel Bastarache, Ian Binnie | |
Reasons given | |
Unanimous reasons by | Lamer |
Reference Re Remuneration of Judges (No 2) [1] [1998] 1 S.C.R. 3 was a decision by the Supreme Court of Canada addressing questions regarding the 1997 Provincial Judges Reference, also known as Re Remuneration of Judges. [1] Since the Supreme Court, in 1997, found independent committees were needed to help determine judicial salaries, the Court now had to address challenges regarding the creation of such committees.
In the Provincial Judges Reference of 1997, the Court found that Alberta, Manitoba and Prince Edward Island's remuneration of Provincial Court judges was unconstitutional, since it breached a requirement for judicial independence. The Court said that independent salary commissions were needed to help recommend salaries, and governments could deviate from these recommendations only with rational reasons. Since Alberta and Prince Edward Island did not have such commissions, while Manitoba did but did not consult its commission, their actions regarding remuneration were deemed invalid.
The decision created certain challenges, and the governments of Alberta, Manitoba and Prince Edward Island had to approach the Court again for a solution. Since section 11(d) of the Canadian Charter of Rights and Freedoms guarantees a right to be tried before an independent tribunal, and in 1997 the Court decided the Provincial Courts of these three provinces were not independent, the decision threw many criminal law cases into question. Moreover, some governments needed time to set up commissions.
The Supreme Court's opinion was written by Chief Justice Antonio Lamer, who had also authored the 1997 Reference. He declined to give a declaration that the criminal law decisions by Provincial Courts should be considered constitutional, since they would be constitutional anyway. Lamer's finding was that, according to the "doctrine of necessity", a judge who is not impartial can hear a case when no impartial judge is available. He wrote, "The law recognizes that in some situations a judge who is not impartial and independent is preferable to no judge at all." [2] Lamer then held that this doctrine went back to 1430, when judges considered a challenge against themselves. This was allowed since there was no court besides their own that could hear the case. Lamer also concluded the doctrine was used, albeit not overtly, in Beauregard v. Canada (1986), since the Supreme Court had to consider its own independence, as well as that of other Canadian courts. [3] However, the Court in 1998 cited Laws v Australian Broadcasting Tribunal , a decision by the High Court of Australia, to say the doctrine was limited. It should not be used where it would lead to considerable injustice, and it should not be used more than necessity dictates. If these conditions are not followed, Lamer said, the doctrine would "gravely undermine" section 11(d). In all, Lamer acknowledged, this was a situation in which "finality and continuity" were needed over fairness, and section 11(d) does not provide total fairness. [4]
Regarding the facts of this case, Lamer said that for a decision to be challenged there needed to be evidence of considerable injustice. Lamer noted the Provincial Court judges could not be blamed for their lack of independence, and they had to continue working under the Criminal Code and because some defendants chose to come before Provincial Court judges. [5] Regarding Prince Edward Island, the Court found it could not make a declaration that the criminal cases should be upheld for another reason. Namely, the Prince Edward Island aspect of the Re Remuneration of Judges was brought before the Supreme Court in the form of a reference question. Reference questions are cases in which the Supreme Court gives non-binding opinions; thus, Prince Edward Island's actions were not found unconstitutional in a binding way. [6]
The Court then considered whether it should give provincial governments more time to set up the salary commissions and receive recommendations. [7] The Court decided it should delay the requirement of commissions until September 18, 1998, one year after the 1997 Reference. [8]
In a subsequent judicial independence case, Mackin v. New Brunswick (2002), the Supreme Court found a government action unconstitutional for not following the Provincial Judges Reference, although the action predated the reference. The action also came before September 18, 1998, the day the commission requirement became effective according to Re Remuneration of Judges (No. 2). However, the Supreme Court replied in Mackin that the 1998 decision was merely meant to keep courts running; unconstitutional remuneration was still considered unconstitutional prior to September 18, 1998. Thus, the Court in Mackin found the government actions unconstitutional.
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 Supreme Court of Canada is the highest court in the judicial system of Canada. It comprises nine justices, whose decisions are the ultimate application of Canadian law, and grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts. The Supreme Court is bijural, hearing cases from two major legal traditions and bilingual, hearing cases in both official languages of Canada.
In Canadian and New Zealand law, fundamental justice is the fairness underlying the administration of justice and its operation. The principles of fundamental justice are specific legal principles that command "significant societal consensus" as "fundamental to the way in which the legal system ought fairly to operate", per R v Malmo-Levine. These principles may stipulate basic procedural rights afforded to anyone facing an adjudicative process or procedure that affects fundamental rights and freedoms, and certain substantive standards related to the rule of law that regulate the actions of the state. The degree of protection dictated by these standards and procedural rights vary in accordance with the precise context, involving a contextual analysis of the affected person's interests. In other words, the more a person's rights or interests are adversely affected, the more procedural or substantive protections must be afforded to that person in order to respect the principles of fundamental justice. A legislative or administrative framework that respects the principles of fundamental justice, as such, must be fundamentally fair to the person affected, but does not necessarily have to strike the "right balance" between individual and societal interests in general.
The Implied Bill of Rights is a judicial theory in Canadian jurisprudence that recognizes that certain basic principles are underlying the Constitution of Canada.
The court system of Canada forms the judicial branch of government, formally known as "The Queen on the Bench", which interprets the law and is made up of many courts differing in levels of legal superiority and separated by jurisdiction. Some of the courts are federal in nature, while others are provincial or territorial.
In Canadian law, a reference question or reference case is a submission by the federal or a provincial government to the courts asking for an advisory opinion on a major legal issue. Typically the question concerns the constitutionality of legislation.
Section 3 of the Canadian Charter of Rights and Freedoms is a section that constitutionally guarantees Canadian citizensdemocratic right to vote in a general federal or provincial election and the right to be eligible for membership in the House of Commons or of a provincial legislative assembly, subject to the requirements of Section 1 of the Charter. Federal judges, prisoners and those in mental institutions have gained the franchise as a result of this provision, whereas the restriction on minors voting was found to be permissible due to section 1.
Canadian constitutional law is the area of Canadian law relating to the interpretation and application of the Constitution of Canada by the courts. All laws of Canada, both provincial and federal, must conform to the Constitution and any laws inconsistent with the Constitution have no force or effect.
Section 11 of the Canadian Charter of Rights and Freedoms is the section of the Canadian Constitution that protects a person's legal rights in criminal and penal matters. There are nine enumerated rights protected in section 11.
The Reference re Remuneration of Judges of the Provincial Court (P.E.I.) [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.
Quebec law is unique in Canada because Quebec is the only province in Canada to have a juridical legal system under which civil matters are regulated by French-heritage civil law. Public law, criminal law and federal law operate according to Canadian common law.
Valente v R, [1985] 2 S.C.R. 673 is a leading Supreme Court of Canada decision on protection of judicial independence under section 11(d) of the Canadian Charter of Rights and Freedoms.
R v Généreux, [1992] 1 S.C.R. 259 is a leading Supreme Court of Canada decision where the Court held that the government had the constitutional right to create a military justice system that existed in parallel to the regular court system. However, the Supreme Court ruled that that system must comply with the constitutional requirements for judicial independence under section 11(d) of the Canadian Charter of Rights and Freedoms.
Provincial Court Judges' Assn of New Brunswick v New Brunswick ; Ontario Judges Assn v Ontario ; 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.
Beauregard v Canada [1986] 2 S.C.R. 56 was a decision by the Supreme Court of Canada on judicial independence. Notably, the Court found that judicial independence is based partly in an unwritten constitution, and that some institutional independence is needed so that judges can guard the Constitution of Canada. These findings were repeated, with far-reaching consequences, in the Provincial Judges Reference (1997).
The table below lists the reasons delivered from the bench by the Supreme Court of Canada during 1998. The table illustrates what reasons were filed by each justice in each case, and which justices joined each reason. This list, however, does not include decisions on motions.
Judicial independence is protected by Singapore's Constitution, statutes such as the State Courts Act and Supreme Court of Judicature Act, and the common law. Independence of the judiciary is the principle that the judiciary should be separated from legislative and executive power, and shielded from inappropriate pressure from these branches of government, and from private or partisan interests. It is crucial as it serves as a foundation for the rule of law and democracy.
The Preamble to the Constitution Act, 1867 is a provision of the Constitution of Canada, setting out some of the general goals and principles of the Act. Although not itself a substantive provision, the courts have used it as a guide to the interpretation of the Constitution of Canada, particularly unwritten constitutional principles which inform the history and meaning of the Constitution.
Section 99 of the Constitution Act, 1867 is a provision of the Constitution of Canada relating to the tenure and retirement age of the provincial superior court judges in Canada.
Section 100 of the Constitution Act, 1867 is a provision of the Constitution of Canada requiring the federal Parliament to fix and provide for the salaries for judges of the provincial superior, district and county courts.