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Re Remuneration of Judges (No. 2)
Encyclopedia
| Re Remuneration of Judges (No. 2) | ||||||
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 Supreme Court of Canada |
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| Argued January 19, 1998 Decided February 10, 1998 |
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| The doctrine of necessity states those tried under dependent tribunals in this case have not been denied their rights to an independent tribunal. | ||||||
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Re Remuneration of Judges (No. 2) [1998] 1 S.C.R. 3 was a decision by the Supreme Court of Canada
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...
addressing questions regarding the 1997 Provincial Judges Reference
Provincial Judges Reference
The Provincial Judges Reference [1997] 3 S.C.R. 3 is a leading opinion of the Supreme Court of Canada in response to a reference question regarding remuneration and the independence and impartiality of provincial court judges...
, 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 AlbertaAlberta
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...
, Manitoba
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...
and Prince Edward Island
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...
's remuneration of provincial judges was unconstitutional, since it breached a requirement for judicial independence
Judicial independence
Judicial Independence is the idea that the judiciary needs to be kept away from the other branches of government...
. 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)
Section Eleven of the Canadian Charter of Rights and Freedoms
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
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...
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 JusticeChief Justice of Canada
The Chief Justice of Canada, like the eight puisne Justices of the Supreme Court of Canada, is appointed by the Governor-in-Council . All nine are chosen from either sitting judges or barristers who have at least ten years' standing at the bar of a province or territory...
Antonio Lamer
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:...
, 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 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
Beauregard v. Canada
Beauregard v. Canada [1986] 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), since the Supreme Court had to consider its own independence, as well as that of other Canadian courts. However, the Court in 1998 cited Laws v Australian Broadcasting Tribunal, a decision by the High Court of Australia
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
, 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.
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
Criminal Code of Canada
The Criminal Code or Code criminel is a law that codifies most criminal offences and procedures in Canada. Its official long title is "An Act respecting the criminal law"...
and because some defendants chose to come before provincial judge. 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 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....
. 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.
The Court then considered whether it should give provincial governments more time to set up the salary commissions and receive recommendations. The Court decided it should delay the requirement of commissions until September 18, 1998, one year after the 1997 Reference.
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.See also
- List of Supreme Court of Canada cases (Lamer Court)
- Valente v. The QueenValente v. The QueenValente v. The Queen, [1985] 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:...
- Mackeigan v. HickmanMackeigan v. HickmanMackeigan v. Hickman, [1989] 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. GénéreuxR. v. GénéreuxR. v. Genereux, [1992] 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...
- Provincial Court Judges' Assn. of New Brunswick v. New Brunswick (Minister of Justice)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 [2005] 2 S.C.R...