Provincial Judges Reference - Dissent

Dissent

La Forest J., alone in dissent, rejected the majority's finding of an unwritten constitutional principle that protects a right to judicial salary commissions. He was very wary of the "discovery" of such new principles, especially when some protection of judges can already be found elsewhere in the text of the Constitution, namely section 11(d), which was the subject of this case. The counsel had primarily relied on section 11(d) and only briefly spoke of unwritten rules. La Forest also suggested that section 11(d) granting independence only to inferior criminal law judges, and not inferior civil law judges, was deliberate, because "Being accused of a crime is one of the most momentous encounters an individual can have with the power of the state."

La Forest went on to caution that "judicial power" is limited so that a court "does not initiate matters and has no agenda of its own." This made him worried about the majority launching into an extensive, unneeded discussion on unwritten principles. He accepted unwritten principles exist, but disputed that limits on government decisions can be found in the preamble. There was no tradition guarding judicial independence against Parliament. Parliamentary supremacy remained important in Britain even after the Act of Settlement; thus British courts cannot invalidate a law, even if the law is generally thought to be wrong. La Forest acknowledged this could be seen as a "technical quibble" since courts in Canada can invalidate laws, but he went on to point out that the Act of Settlement only covered superior judges, and not inferior judges. He also said courts should have clearer grounds for limiting legislative actions, casting previous decisions such as Switzman v. Elbling (1957), which relied on the Implied Bill of Rights, into doubt. He pointed to Attorney General for Canada and Dupond v. Montreal (1978) as a prior Supreme Court decision questioning the Implied Bill of Rights. If an implied bill of rights existed, it should be found in the creation of Parliament, in section 17 of the Constitution Act, 1867, and should allow for Parliamentary supremacy instead of limiting it.

In this case, La Forest pointed to Valente and R. v. Lippé to show section 11(d) does not guarantee a type of independence that is most favourable to judges. The conclusion in Valente that judicial compensation committees were not needed was therefore valid; section 11(d) left room for determining what methods can be used to achieve independence. In this case, judges salaries were lowered along with those of other government employees, and this did not seem to raise reasonable concerns about judicial independence. As a judicial compensation commission likely should not have a problem with this, as acknowledged by Lamer, La Forest found the requirement that the commission look into the matter to be "a triumph of form over substance."

La Forest also felt requiring such commissions was also "tantamount to enacting a new constitutional provision to extend the protection provided by s. 11(d)" by forcing the creation of "what in some respects is a virtual fourth branch of government to police the interaction between the political branches and the judiciary." Judges simply asking whether government decisions seem reasonable would be enough.