| Provincial Judges Reference
Supreme Court of Canada
| Argued December 3–4, 1996
Decided September 18, 1997
|Full case name:
||Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island;Reference re Independence and Impartiality of Judges of the Provincial Court of Prince Edward Island
||  3 S.C.R. 3; 1997 CanLII 317 (S.C.C.);(1997),  156 Nfld. & P.E.I.R. 1; (1997), 150 D.L.R. (4th) 577;  10 W.W.R. 417.
| Prior history:
| There is a constitutional norm that protects the judicial independence of all judges.
| Court membership
| Chief Justice Antonio Lamer
Joseph Antonio Charles Lamer, PC, CC, CD was a Canadian lawyer, jurist and Chief Justice of the Supreme Court of Canada.-Personal life:...
| Puisne Justices Claire L'Heureux-Dubé
Claire L'Heureux-Dubé, served as a justice on the Supreme Court of Canada from 1987 to 2002. She was the first woman from Quebec and the second woman appointed to this position.- Personal history :...
, Charles Gonthier
Charles Doherty Gonthier, was a Puisne judge on the Supreme Court of Canada from February 1, 1989 to August 1, 2003. He was replaced by Morris Fish.-Early life:...
, Peter Cory, Frank Iacobucci
Frank Iacobucci, CC was a Puisne Justice on the Supreme Court of Canada from 1991 to 2004 when he retired from the bench. He is an expert in business and tax law.-Early career:...
, Gérard La Forest
Gérard Vincent La Forest, CC, QC, FRSC, LL.D was a Puisne Justice of the Supreme Court of Canada from January 16, 1985 to September 30, 1997....
, John Sopinka
John Sopinka, QC was a Canadian lawyer and puisne justice on the Supreme Court of Canada, the first Ukrainian-Canadian appointed to the high court....
| Case opinions
| Majority opinion by: Lamer C.J.
| Concurring: L'Heureux-Dubé, Gonthier, Cory, Iacobucci, and Sopinka JJ.
| Dissenting opinion by: La Forest J.
The Provincial Judges Reference
 3 S.C.R. 3 is a leading opinion of the Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
in response to a reference question
In Canadian law, a Reference Question is a submission by the federal or a provincial government to the courts asking for an advisory opinion on a major legal issue. Typically the question concerns the constitutionality of legislation....
regarding remuneration and the independence
Judicial Independence is the idea that the judiciary needs to be kept away from the other branches of government...
and impartiality of provincial court
The court system of Canada is made up of many courts differing in levels of legal superiority and separated by jurisdiction. Some of the courts are federal in nature while others are provincial or territorial....
judges. Notably, the majority opinion found all judges are independent, not just superior court judges and inferior court judges concerned with criminal law, as the written constitution stipulates. Unwritten constitutional principles were relied upon to demonstrate this, indicating such principles were growing in importance in constitutional interpretation. The reference also remains one of the most definitive statements on the extent to which all judges in Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
are protected by the Constitution
The Constitution of Canada is the supreme law in Canada; the country's constitution is an amalgamation of codified acts and uncodified traditions and conventions. It outlines Canada's system of government, as well as the civil rights of all Canadian citizens and those in Canada...
The majority opinion established that independent compensation commissions are required to help set salaries free of political manipulation. These commissions, described by the majority as "an institutional sieve" and by the dissent as "a virtual fourth branch of government
In the American political system, the fourth branch of government refers to a group that influences the three branches of governance defined in the American Constitution . Such groups can include the press , the people, and interest groups. U.S...
," make recommendations that governments may deviate from only with rational explanations. However, the reference has been subject to harsh published criticisms.
The reference was the amalgamation of three different sets of challenges to the impartiality and independence of provincial court judges in Manitoba
Manitoba is a Canadian prairie province with an area of . The province has over 110,000 lakes and has a largely continental climate because of its flat topography. Agriculture, mostly concentrated in the fertile southern and western parts of the province, is vital to the province's economy; other...
, Prince Edward Island
Prince Edward Island is a Canadian province consisting of an island of the same name, as well as other islands. The maritime province is the smallest in the nation in both land area and population...
, and Alberta
Alberta is a province of Canada. It had an estimated population of 3.7 million in 2010 making it the most populous of Canada's three prairie provinces...
. The powers of the provincial legislatures to reduce the salaries of the provincial court judges was challenged as a violation of section 11(d)
Section Eleven of the Canadian Charter of Rights and Freedoms is the section of the Canadian Constitution's Charter of Rights that protects a person's legal rights in criminal and penal matters. This includes both criminal as well as regulatory offences, as it provides rights for those accused by...
of the Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
, which gives an accused the right to be presumed innocent
The presumption of innocence, sometimes referred to by the Latin expression Ei incumbit probatio qui dicit, non qui negat, is the principle that one is considered innocent until proven guilty. Application of this principle is a legal right of the accused in a criminal trial, recognised in many...
until proven guilty "in a fair and public hearing by an independent and impartial tribunal".
In Prince Edward Island and Manitoba, the salaries of judges were lowered along with those of other civil servants to help combat deficits. In Prince Edward Island, various challenges of the judges' consequent independence were raised by defendants, causing the government to bring two reference questions to its Supreme Court. Only one reference resulted in a finding of dependence, namely for lack of adequate security of tenure. In Manitoba, the pay cut was challenged directly by a provincial judges association. Meanwhile, in Alberta, cuts to judicial salaries were challenged by defendants. Concerns in Alberta were also raised by Alberta Premier
The Premier of Alberta is the first minister for the Canadian province of Alberta. He or she is the province's head of government and de facto chief executive. The current Premier of Alberta is Alison Redford. She became Premier by winning the Progressive Conservative leadership elections on...
saying on the radio that a certain judge should be "very, very quickly fired." The judge had threatened to simply stop working due to his belief that his salary was insufficient. (The Supreme Court only briefly addressed this, saying Klein's words were "unfortunate and reflect a misunderstanding of the theory and practice of judicial independence in Canada.")
Opinion of the Court
Joseph Antonio Charles Lamer, PC, CC, CD was a Canadian lawyer, jurist and Chief Justice of the Supreme Court of Canada.-Personal life:...
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 Constitution Act, 1867 , is a major part of Canada's Constitution. The Act created a federal dominion and defines much of the operation of the Government of Canada, including its federal structure, the House of Commons, the Senate, the justice system, and the taxation system...
. 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
Civil law, as opposed to criminal law, is the branch of law dealing with disputes between individuals or organizations, in which compensation may be awarded to the victim...
). 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
A preamble is an introductory and expressionary statement in a document that explains the document's purpose and underlying philosophy. When applied to the opening paragraphs of a statute, it may recite historical facts pertinent to the subject of the statute...
to the Constitution. Although Lamer recognized case law such as the Patriation Reference
Reference re a Resolution to amend the Constitution,  1 S.C.R. 753 – also known as the Patriation Reference – is a historic Supreme Court of Canada reference case that occurred during negotiations for the patriation of the Constitution of Canada.The Court affirmed the existence of...
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
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
'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
Beauregard v. Canada  2 S.C.R. 56 was a decision by the Supreme Court of Canada on judicial independence. Notably, the Court found that judicial independence is based partly in an unwritten constitution, and that some institutional independence is needed so that judges can guard the...
(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
The constitution of the United Kingdom is the set of laws and principles under which the United Kingdom is governed.Unlike many other nations, the UK has no single core constitutional document. In this sense, it is said not to have a written constitution but an uncodified one...
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
Ultra vires is a Latin phrase meaning literally "beyond the powers", although its standard legal translation and substitute is "beyond power". If an act requires legal authority and it is done with such authority, it is...
by a court in British law. This is why academic Jeffrey Goldsworthy
Professor Jeffrey Denys Goldsworthy is an Australian academic and legal philosopher. He is known for his work in philosophy of law, as well as constitutional theory and interpretation.He holds a Personal Chair at Monash University Faculty of Law...
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
Valente v. The Queen,  2 S.C.R. 673 is a leading Supreme Court of Canada decision on protection of judicial independence under section 11 of the Canadian Charter of Rights and Freedoms.-Background:...
, 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
The rule of law, sometimes called supremacy of law, is a legal maxim that says that governmental decisions should be made by applying known principles or laws with minimal discretion in their application...
and fundamental justice
Fundamental justice is a legal term that signifies a dynamic concept of fairness underlying the administration of justice and its operation, whereas principles of fundamental justice are specific legal principles that command "significant societal consensus" as "fundamental to the way in which the...
. This required more separation of powers
The separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...
; 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.
R. v. Big M Drug Mart Ltd.,  1 S.C.R. 295, is a landmark decision by Supreme Court of Canada where the Court struck down the Lord's Day Act for violating section 2 of the Canadian Charter of Rights and Freedoms...
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
Section One of the Canadian Charter of Rights and Freedoms is the section of the Charter that confirms that the rights listed in that document are guaranteed. The section is also known as the reasonable limits clause or limitations clause, as it legally allows the government to limit an...
. 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
Reference re Anti-Inflation Act,  2 S.C.R. 373 was a landmark reference question opinion of the Supreme Court of Canada on the constitutionality of the Anti-Inflation Act...
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
In economics, inflation is a rise in the general level of prices of goods and services in an economy over a period of time.When the general price level rises, each unit of currency buys fewer goods and services. Consequently, inflation also reflects an erosion in the purchasing power of money – a...
, 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."
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
Switzman v. Elbing  SCR 285 was a landmark Supreme Court of Canada decision where the Court struck down Quebec's Padlock Law.Max Bailey, was a resident of a Park Avenue apartment in Montreal...
(1957), which relied on the Implied Bill of Rights
The Implied Bill of Rights is a judicial theory in Canadian jurisprudence that recognizes that certain basic principles are underlying the Constitution of Canada...
, 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.
The 1997 Reference caused numerous challenges regarding the creation of compensation committees. Some governments needed more time to establish and consult them. Moreover, by finding provincial courts were not independent because salary commissions were not used, the Reference seemed to imply criminal law decisions by provincial courts were invalid under section 11(d), since defendants were not tried before independent tribunals. Consequently, the governments of Alberta, Manitoba and Prince Edward Island turned to the Court again. In Re Remuneration of Judges (No. 2)
Re Remuneration of Judges  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...
(1998), Lamer for a unanimous court decided that necessity dictated that dependent provincial courts be deemed acceptable for the time being. Also as a result of the second decision, the requirement for commissions did not become binding until September 18, 1998.
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
Bias is an inclination to present or hold a partial perspective at the expense of alternatives. Bias can come in many forms.-In judgement and decision making:...
." This author also claimed that a resulting 35% raise for federal judges has led to burdensome tax
To tax is to impose a financial charge or other levy upon a taxpayer by a state or the functional equivalent of a state such that failure to pay is punishable by law. Taxes are also imposed by many subnational entities...
es. Another scholar wrote that the reference "demonstrates that judges can be audacious, greedy and jealous." This scholar said judges' standard of living
Standard of living is generally measured by standards such as real income per person and poverty rate. Other measures such as access and quality of health care, income growth inequality and educational standards are also used. Examples are access to certain goods , or measures of health such as...
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
Peter Wardell Hogg, CC, QC, FRSC is a Canadian lawyer, author and legal scholar. He is best known as a leading authority on Canadian constitutional law....
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
The Prime Minister of Canada is the primary minister of the Crown, chairman of the Cabinet, and thus head of government for Canada, charged with advising the Canadian monarch or viceroy on the exercise of the executive powers vested in them by the constitution...
Joseph Jacques Jean Chrétien , known commonly as Jean Chrétien is a former Canadian politician who was the 20th Prime Minister of Canada. He served in the position for over ten years, from November 4, 1993 to December 12, 2003....
to establish a salary commission for federal judges, the Judicial Compensation and Benefits Commission
The Judicial Compensation and Benefits Commission is a Canadian commission that recommends judicial salaries for federally appointed judges.The commission was created in 1999 by the government of Prime Minister Jean Chrétien, under the Judges Act...
. 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)
Provincial Court Judges’ Assn. of New Brunswick v. New Brunswick ; Ontario Judges’ Assn. v. Ontario ; Bodner v. Alberta; Conférence des juges du Québec v. Quebec ; Minc v. Quebec  2 S.C.R...
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
Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...
. 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)
New Brunswick Broadcasting Co. v. Nova Scotia is a leading Supreme Court of Canada decision wherein the court has ruled that parliamentary privilege is a part of the unwritten convention in the Constitution of Canada...
(1993) and Reference re Secession of Quebec
Reference re Secession of Quebec,  2 S.C.R. 217 was an opinion of the Supreme Court of Canada regarding the legality, under both Canadian and international law, of a unilateral secession of Quebec from Canada....
(1998), and one scholar called it a "very old and venerable" feature of common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
. 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."
- List of Supreme Court of Canada cases (Lamer Court)
- Mackeigan v. Hickman
Mackeigan v. Hickman,  2 S.C.R. 796 is a leading Supreme Court of Canada decision on judicial independence. The Court unanimously held that to require a federal judge to explain his or her decisions would violate the principle of judicial independence....
- R. v. Généreux
R. v. Genereux,  1 S.C.R. 259 is a leading Supreme Court of Canada decision where the Court held that the government had the constitutional right to create a military justice system that existed in parallel to the regular court system...
- Therrien (Re)
Therrien ,  2 S.C.R. 3, 2001 SCC 35, is a leading decision of the Supreme Court of Canada on judicial independence.-Background:In the 1970s Richard Therrien was convicted of assisting four members of the Front de libération du Québec during the October Crisis. Once he was released he studied...