Provincial Judges Reference - Aftermath

Aftermath

Notably, the reference had the effect of damaging the reputation of the judicial system. The outcome affecting remuneration has been seen as being motivated by greed. As one academic wrote, the judiciary's "integrity has been tarnished by the perception of self-interest and bias." This author also claimed that a resulting 35% raise for federal judges has led to burdensome taxes. Another scholar wrote that the reference "demonstrates that judges can be audacious, greedy and jealous." This scholar said judges' standard of living prior to the reference was already good, and that provincial judges only seemed to want the same pay as federal judges.

Scholars have offered various specific critiques for the majority opinion. Among these was that it was self-contradictory. The request that government reasons should be rational and legitimate seemed to ask for two separate things, namely reasonableness and correctness. Rationality allows for government reasons to be accepted if they are not overly flawed, even if courts disagree with them. Legitimacy, meanwhile, implies government decisions should be correct, i.e., consistent with commission recommendations. Professor Peter Hogg objected to the notion that governments and judges cannot directly negotiate. He wrote that "It assumes that there is a real possibility that judges would violate their oath of office and decide cases wrongly (for example, by convicting an innocent person or imposing an unduly harsh penalty) in order to obtain some (highly speculative and likely trivial) advantage at the negotiating table."

Hogg also felt the Reference made it increasingly unlikely that judges' salaries can be lowered. In terms of case law, he pointed to Mackin v. New Brunswick (2002) as a case that, after the 1997 Reference, "reinforced and even extended" the notion that lowering judges' salaries could be unconstitutional.

After the Reference, all provinces had salary commissions. The Reference also inspired the federal government under Prime Minister Jean Chrétien to establish a salary commission for federal judges, the Judicial Compensation and Benefits Commission. Still, the Provincial Judges Reference sparked further litigation as some provincial government's decisions not to follow commissions' salary recommendations were challenged in the courts. The Supreme Court addressed the matter again in 2005 in Provincial Court Judges' Assn. of New Brunswick v. New Brunswick (Minister of Justice) and urged courts to be deferential when governments give sufficient reasons for rejecting salary commissions' recommendations.

Some scholars also expressed concern that the reference set a precedent for enforcing unwritten rules. This could lead to even wider grounds for judicial review. The study of unwritten rules is also said to have surfaced in the Supreme Court decisions New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly) (1993) and Reference re Secession of Quebec (1998), and one scholar called it a "very old and venerable" feature of common law. Conversely, one critic, who claimed the 1997 Reference represented the first time that the unwritten constitution was used to invalidate a statute in Canada, said that courts had consequently grown "bolder in their law-creating enterprise" and that "If law requires certainty, unwritten principles are bound to create problems."