Re Remuneration of Judges (No. 2)

- ! bgcolor="6699FF" | Case opinions
-
"Re Remuneration of Judges (No. 2)""Re Remuneration of Judges (No. 2)" is the name by which Professor Peter Hogg calls the case; see Hogg, Peter W. Constitutional Law of Canada. 2003 Student Ed. Scarborough, Ontario: Thomson Canada Limited, 2003, page 187. He refers to the original Provincial Judges Reference as "Re Remuneration of Judges" on that page. The Supreme Court itself cites the 1998 decision as Ref. re Remuneration of Judges of Prov. Court of PEI; Ref. re Independence & Impartiality of Judges of Prov. Court of PEI; R. v. Campbell; R. v. Ekmecic; R. v. Wickman; Manitoba Prov. Judges Assn. v. Manitoba (Min. of Justice), [1998] 1 S.C.R. 3.] [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." 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.

Background

In the "Provincial Judges Reference" of 1997, the Court found that Alberta, Manitoba and Prince Edward Island's remuneration of provincial 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 PEI had to approach the Court again for a solution. Since judges in these provinces were found to lack judicial independence in 1997, it threw many criminal law cases into question. 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 were not independent, everyone charged with an offense and brought before a provincial court in PEI, Alberta and Manitoba would have been denied their section 11(d) right. Moreover, some governments needed time to set up commissions.

Decision

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. According to the "Doctrine of Necessity," Lamer found, a non-impartial judge can hear a case when there is no impartial judge available as an alternative. As Lamer wrote, "The law recognizes that in some situations a judge who is not impartial and independent is preferable to no judge at all." [Lamer, para. 4.] Lamer then claimed 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 claimed 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. [Lamer, para. 5.] 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. [Lamer, para. 7.]

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 judges could not be blamed for their lack of independence, and they had to continue working under the Criminal Code of Canada and because some defendants chose to come before provincial judge. [Lamer, para. 8.] Regarding PEI, the Court found it could not make a declaration that the criminal cases should be upheld for another reason. Namely, the PEI 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, PEI's actions were not found unconstitutional in a binding way. [Lamer, para. 9.]

The Court then considered whether it should give provincial governments more time to set up the salary commissions and receive recommendations. [Lamer, para. 17.] The Court decided it should delay the requirement of commissions until September 18, 1998, one year after the 1997 Reference. [Lamer, para. 18.]

Aftermath

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 even prior to September 18, 1998. Thus, the Court in "Mackin" found the government actions unconstitutional.

References

ee also

* List of Supreme Court of Canada cases (Lamer Court)
* Valente v. The Queen
* Mackeigan v. Hickman
* R. v. Généreux
* Provincial Court Judges' Assn. of New Brunswick v. New Brunswick (Minister of Justice)

External links

* [http://canlii.ca/ca/cas/scc/1998/1998scc1.html Full text of the decision]