Valente V. The Queen - Opinion of The Court

Opinion of The Court

The Court held that provincial court judges had sufficient independence. The Court stated that a judge needs to be impartial and independent. Impartiality is "a state of mind" while independence is the quality of the relationship the judge has with the executive. The Court went on to say that even if a court acts as if it is independent, if its "objective status" does not match that of an independent court section 11(d) is triggered. Thus, section 11(d) can be considered through a test in which one asks whether it seems reasonable to believe a court is independent. This thus ensures the court has "respect and acceptance."

The Court gave three requirements for judicial independence within the meaning of section 11(d) of the Charter. There must be 1) security of tenure, 2) financial security, and 3) institutional independence in administrative matters relevant to the functioning of the judge.

On the facts, the Court found that all three requirements had been satisfied. The Court noted that difficult standards for judicial independence could not be set because section 11(d) applied to too many different types of tribunals. Thus, the degree of independence for higher-level judges under the Constitution Act, 1867 could not be found under section 11(d). The Court found that while the security of tenure of the provincial courts was not perfect, the fact that there must be a reason for the removal of a judge and that there be a review carried out not by the executive was enough.

As for salaries, Ontario at the time took recommendations from a salary commission. This was enough to suggest serious thought goes into the setting of the salaries, though the Supreme Court added such committees may not be needed in every case. The fact that there was a law ensuring judges should have remuneration was also taken as important. Regarding comparisons of judges to civil servants, the Supreme Court said that this was not meant to suggest the government has as much control over judges as over civil servants, or to devalue the role of judges. It was enough that the salaries be secure.

Finally, the Court turned to administrative independence. The Supreme Court noted the provincial courts already independently decided which judges should hear what cases. Those who questioned the independence of the provincial courts suggested the courts should also gain more control over their budgets, salaries and how judges are promoted. The Supreme Court replied more independence may be "highly desirable," but it was not "essential for purposes of s. 11(d)."