Provincial Judges Reference - Opinion of The Court

Opinion of The Court

Lamer C.J. with L'Heureux-Dubé, Sopinka, Gonthier, Cory and Iacobucci JJ, allowed the appeals in part, stating that there was constitutional protection of judicial independence and impartiality for all judges.

One problem identified was that the independence of provincial judges was not protected as extensively as the federal judges were under sections 96 to 100 of the Constitution Act, 1867. The majority read section 11(d) as only protecting independence in the exercise of jurisdiction in relation to offence (i.e., it would protect judges concerned with criminal law, but not civil law). However, section 11(d) is not a broad or exhaustive code. Instead, the Court looked to constitutional norms and found that judicial independence was one such norm implied by the preamble to the Constitution. Although Lamer recognized case law such as the Patriation Reference which noted the preamble technically has no binding effect in itself, he also found the preamble reveals the "basic principles which are the very source of the substantive provisions of the Constitution Act, 1867" and "invites the use of those organizing principles to fill out gaps in the express terms of the constitutional scheme". The implication of the importance of judicial independence came from the preamble's statement that Canada's constitution should be similar to the United Kingdom's, and the UK has a tradition of judicial independence. The Act of Settlement of 1701 was particularly important for independence. The Supreme Court had previously reached this conclusion in Beauregard v. Canada (1986). However, the Court now claimed that since courts are more important today, judicial independence has become a fundamental issue that should not just be reserved for the superior courts, as dictated by the Act of Settlement. The Constitution could adapt to changing circumstances in this regard. (This interpretation of the British Constitution has inspired criticism. The British form of judicial independence was more limited in 1867, neither extending to inferior courts nor limiting government power to lower the judges' remuneration. At any rate, no act of Parliament can be declared ultra vires by a court in British law. This is why academic Jeffrey Goldsworthy attacked the decision as "a self-contradiction, a vague reference to 'evolution' combined with a plainly false analogy, and an evasion.")

The Court turned back to examine section 11(d) and from precedent, namely Valente v. The Queen, identified three fundamental requirements of judicial independence: 1) security of tenure, 2) financial security, and 3) some administrative independence. As well, judicial independence can be divided into two types of independence: 1) individual independence belonging to a judge and 2) institutional independence of a court as a whole. A judge must also be reasonably seen as being independent. It is possible, Lamer found, to interpret each of the three requirements in light of the two types of independence; this case, in particular, would explore how financial security belongs to both a judge and the court as a whole. This discussion would go beyond Valente, since that decision only treated financial security as a matter of individual independence.

The Court emphasized that the role of institutional independence has become expected of provincial courts due to their increased role in dispute resolution in the country. As a previous judicial independence case, Beauregard had demonstrated, institutional independence was needed so that courts could guard the Constitution, the rule of law and fundamental justice. This required more separation of powers; whereas judicial independence has normally been understood to protect the judiciary from the executive, the Court now found the judiciary should be free of manipulation from the legislative branch. Provincial courts should benefit from this independence, as demonstrated by their handling of important cases such as R. v. Big M Drug Mart Ltd. in 1983.

For these reasons, it was strongly suggested that the government establish judicial salary commissions, thus overruling obiter dicta in the previous landmark judicial independence case, Valente v. The Queen, which had found such commissions were desirable but not necessary. In this case, it was noted commissions could guard against manipulation by both the executive and legislatures. If remuneration of provincial judges is to be raised, lowered or kept the same, this may be done along with the remuneration of other government employees or with the judges' alone. The continued independence of judges, however, will be kept apparent in any of these circumstances if it involves review by an "independent, effective, and objective" body, i.e. the salary commissions. While salary recommendations of these commissions should not be binding, they should be taken seriously. Any government rejection of a recommendation will have to be justified and may be challenged in a court. However, the justification need not be scrutinized to the extent that a government decision will be strutinized under Section One of the Canadian Charter of Rights and Freedoms. Instead, governments must only show their rejections are rational, and rationality can be measured in the way it was measured by the Supreme Court in Reference re Anti-Inflation Act (1976).

Another benefit for having salary commissions was that it eliminated direct salary negotiations between the government and judges. Such direct negotiations would naturally raise concerns about what exactly is being negotiated. Namely, there was a concern that governments could manipulate judges to make decisions in certain ways. In order to ensure the government would not deliberately let judges' salaries fall below the cost of living, in relation to inflation, it was also decided that the commissions should meet regularly, for example once every three to five years.

Since judicial independence is guaranteed by the preamble, civil law judges have a right to these salary commissions, even though they have no rights under section 11(d).

Turning to the facts of the case, the Supreme Court faulted the governments of Prince Edward Island and Alberta for neither consulting salary commissions nor having such bodies to begin with. For this reason, the actions of these governments breached section 11(d) of the Charter of Rights. Manitoba did have a salary commission, but its actions were unconstitutional because the provincial government did not use it. Since these considerations were made using section 11(d), the Court considered whether violations of these rights could be justified under section 1 of the Charter of Rights, as is normal procedure. Section 1 typically requires a valid government reason for violating rights, and in this case Prince Edward Island and Alberta's actions failed the section 1 test because they did not explain why they did not have salary commissions. Likewise, Manitoba did not explain why they did not use their salary commission. An academic commentator has suggested the section 1 analysis was actually unneeded since the right to a commission is based in the preamble, which is not subject to section 1; the analysis was thus "a first year law school mistake."