Beauregard v. Canada, (1986) 70 N.R. 1 (SCC)

• Judge: Dickson, C.J.C., Beetz, Estey, McIntyre and Lamer, JJ.
• Court: Supreme Court (Canada)
• Case Date: September 16, 1986
• Jurisdiction: Canada (Federal)
• Citations: (1986), 70 N.R. 1 (SCC);[1986] CarswellNat 1004;[1986] SCJ No 50 (QL);1986 CanLII 24 (SCC);[1986] 2 SCR 56;30 DLR (4th) 481;70 NR 1;26 CRR 59

Beauregard v. Can. (1986), 70 N.R. 1 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

.........................

Beauregard v. Canada

Indexed As: Beauregard v. Canada

Supreme Court of Canada

Dickson, C.J.C., Beetz, Estey, McIntyre and Lamer, JJ.

September 16, 1986.

Summary:

On February 17, 1975, a Bill to amend the Judges Act, R.S.C. 1970, c. J-1, was introduced. The amendment (s. 29.1 when enacted) provided that judges appointed before February 17, 1975, would now pay 1.5% of their salary to help fund their pensions; judges appointed after February 17, 1975 would contribute 6% plus an additional % (that would later arise to 1%). A Quebec Superior Court judge was appointed after the Bill was introduced but before it became law on December 20, 1975. The judge challenged that s. 29.1 was ultra vires Parliament as a violation of s. 100 of the Constitution Act 1867, and that s. 29.1, insofar as it required some judges to pay a higher percentage contribution, infringed his right to equality under s. 1(b) of the Canadian Bill of Rights.

The Federal Court of Canada, Trial Division, in a judgment reported [1981] 2 F.C. 543; 130 D.L.R.(3d) 433, held that s. 29.1, as against this judge, was ultra vires Parliament. The court held that s. 29.1 unconstitutionally reduced the salaries of incumbent judges, but did not infringe the right to equality under s. 1(b) of the Bill of Rights. The federal government appealed. The judge cross-appealed.

The Federal Court of Appeal, Pratte, J., dissenting, dismissed the appeal and cross-appeal. See [1984] 1 F.C. 1010; 148 D.L.R.(3d) 205; 48 N.R. 252. The court held that although Parliament had the power under s. 100 to fix and provide judge's salaries and pensions, it had no jurisdiction to impose a contributory pension scheme upon them. All three Federal Court of Appeal judges agreed that s. 29.1 did not infringe s. 1(b) of the Bill of Rights. The federal government appealed. The Supreme Court of Canada stated the two constitutional questions to be answered as follows: "1. Is section 29.1 of the Judges Act, as amended by section 100 of the Statute Law (Superannuation) Amendment Act, 1975, S.C. 1974-75-76, c. 81, inconsistent with section 100 of the Constitution Act, 1867 and, therefore, in whole or in part, ultra vires the Parliament of Canada? "2. Is section 29.1 of the Judges Act as amended by section 100 of the Statute Law (Superannuation) Amendment Act, 1975, S.C. 1974-75-76, c. 81, inconsistent with paragraph 1(b) of the Canadian Bill of Rights and to the extent of the inconsistency is it of no force and effect?" The Supreme Court of Canada allowed the appeal and held that s. 29.1 was not ultra vires Parliament under s. 100 of the Constitution Act. The court stated that all s. 29.1 did, pursuant to the s. 100 obligation to fix and provide salaries and pensions, was treat judges in accordance with standard, widely used and generally accepted pension schemes in Canada. The court held that s. 100 did not guarantee mandatory non-contributory pensions and the contributory pension scheme did not affect judicial independence. The court held that s. 29.1 was intra vires Parliament under s. 100. The court also held that since s. 29.1 was enacted for a valid federal objective and it was accepted that it was not discriminatory to draw some line between present judges and future judges, the fact that the judge was caught on the "wrong side of the line" did not infringe his right to equality under s. 1(b) of the Canadian Bill of Rights.

Beetz, J., dissenting (McIntyre, J., concurring), agreed that s. 29.1 was intra vires Parliament under s. 100, but held that s. 29.1 did violate the judge's right to equality where he was appointed before s. 29.1 was enacted. Beetz, J., stated that equality would not be denied if s. 29.1 were not retroactive to the date the Bill was introduced.

Civil Rights - Topic 5502

Equality and protection of the law - Whether right abridged - Section 29.1 of the Judges Act, R.S.C. 1970, c. J-1, changed superior court judges' pensions from non- contributory to contributory - Section 29.1 became law on December 20, 1975, after Beauregard was appointed, but was retroactively applied to February 17, 1975, before he was appointed - Judges appointed before the cut-off date contributed 1.5% of their salary; judges appointed after that date contributed 6% - The Supreme Court of Canada held that s. 29.1 did not violate a post February 17, 1975 judges' right to equality under s. 1(b) of the Canadian Bill of Rights, even where the judge was caught by the retroactive effect of the change, because s. 29.1 was enacted for a valid federal objective and it was accepted that it was not discriminatory to draw some line between present and future judges (i.e. "grandfathering") - See paragraphs 56 - 71.

Constitutional Law - Topic 1005

Interpretation - Constitution Act - Flexibility - The Supreme Court of Canada stated that "strict construction is rarely controlling in constitutional interpretation" - See paragraph 50.

Constitutional Law - Topic 8660

Judges - Compensation - Salaries and benefits - The Supreme Court of Canada stated that Parliament's power to fix and provide judges' salaries and benefits under s. 100 of the Constitution Act, 1867, was not unlimited - The court stated that "if there were any hint that a federal law dealing with these matters was enacted for an improper or colourable purpose, or if there were discriminatory treatment of the judges vis-a-vis other citizens, then serious issues relating to judicial independence would arise and the law might well be said to be ultra vires s. 100 of the Constitution Act, 1867" - See paragraph 39.

Constitutional Law - Topic 8660

Judges - Compensation - Pensions - S. 100 of the Constitution Act, 1867, provided that judges' salaries, pensions, etc. "shall be fixed and provided by Parliament" - The Supreme Court of Canada held that s. 100 obligated Parliament to provide some pension benefit but did not entitle judges to a non-contributory pension - The court held that s. 29.1 of the Judges Act, which changed judges' pensions from non-contributory to contributory, was not ultra vires Parliament under s. 100; that s. 100 clearly empowered Parliament to do what it did - The court held that a contributory pension scheme did not interfere with judicial independence; that all s. 29.1 did was treat judges in accordance with standard, widely used and generally accepted pension schemes in Canada - See paragraphs 21 - 55.

Courts - Topic 306

Judges - Independence of judiciary - General - The Supreme Court of Canada examined the broadening of judicial independence through the changing role of the courts - Historically, judicial independence meant that judges had complete liberty to hear and decide cases without interference - Judicial independence has developed to include institutional independence from executive and legislative branches of the government - The court stated that the role of the courts as resolver of disputes, interpreter of the law and defender of the Constitution requires complete separation in authority from all other participants in the justice system - The court stated that two important requirements of judicial independence were security of tenure and financial security - See paragraphs 21 - 39.

Courts - Topic 311

Judges - Independence of judiciary - Financial security - The Supreme Court of Canada held that judicial independence required that the financial security of judges must be free from interference by both the executive and legislative branches of government - The court held that a contributory pension scheme for all superior court judges under s. 29.1 of the Judges Act, established under Parliament's obligation under s. 100 of the Constitution Act 1867 to fix and provide salaries and pensions, did not interfere with the independence of the judiciary - The court stated that all s. 29.1 did was treat judges in accordance with standard, widely used and generally accepted pension schemes in Canada - See paragraphs 21 - 39.

Cases Noticed:

R. v. MacKay, [1980] 2 S.C.R. 370; 33 N.R. 1, refd to. [paras. 10, 66, 126, 127].

R. v. Valente, [1985] 2 S.C.R. 673; 64 N.R. 1, refd to. [paras. 23, 24].

Toronto Corporation v. York Corporation et al., [1983] A.C. 415, refd to. [para. 29].

McEvoy v. Attorney General (New Brunswick), [1983] 1 S.C.R. 704; 48 N.R. 228; 46 N.B.R.(2d) 219; 121 A.P.R. 219, refd to. [para. 31].

Judges v. Attorney General (Saskatchewan), [1937] 2 D.L.R. 209 (P.C.), refd to. [para. 38].

Evans v. Gore (1920), 253 U.S. 245, refd to. [para. 40].

O'Malley v. Woodrough (1938), 307 U.S. 277, refd to. [para. 40].

Di Iorio and Fontaine v. Warden of the Common Jail of the City of Montreal, [1978] 1 S.C.R. 152; 8 N.R. 361, refd to. [para. 43].

Reference re Residential Tenancies Act 1979, [1981] 1 S.C.R. 714; 37 N.R. 158, refd to. [para. 43].

Crevier v. Attorney General of Quebec et al., [1981] 2 S.C.R. 220; 38 N.R. 541, refd to. [para. 43].

Attorney General of Canada v. Lavell, [1974] S.C.R. 1349, refd to. [paras. 61, 104].

Attorney General of Canada v. Canard, [1976] 1 S.C.R. 170; 4 N.R. 91, refd to. [paras. 62, 114].

R. v. Burnshine, [1975] 1 S.C.R. 693; 2 N.R. 53, refd to. [paras. 63, 104, 111, 112, 132].

Curr v. The Queen, [1972] S.C.R. 889, refd to. [paras. 63, 110, 112].

Prata v. Minister of Manpower and Immigration, [1976] 1 S.C.R. 376; 3 N.R. 484, refd to. [para. 64].

Bliss v. Attorney General of Canada, [1979] 1 S.C.R. 183: 23 N.R. 527, refd to. [paras. 65, 118, 122].

Roncarelli v. Duplessis, [1959] S.C.R. 121, refd to. [para. 112].

Statutes Noticed:

Statute Law (Superannuation) Amendment Act, S.C. 1974-75-76, c. 81, generally [para. 2].

Judges Act, R.S.C. 1970, c. J-1, sect. 29.1 [paras. 4, 81].

Constitution Act, 1867, sect. 91(8) [para. 48]; sect. 92(14) [para. 9]; sect. 100 [paras. 8, 18, 78].

Canadian Bill of Rights, R.S.C. 1970, App. III, sect. 1(6) [paras. 8, 56, 89].

Universal Declaration of Independence of Justice (1983), sect. 2.21 [para. 33].

Supplementary Retirement Benefits Act, R.S.C. 1970 (1st Supp.), c. 43, generally, [para. 77].

Authors and Works Noticed:

Shetreet and Deschenes, Judicial Independence: The Contemporary Debate, pp. 393 [para. 22]; 525 [para. 25].

Lederman, The Independence of the Judiciary (1956), 34 Can. Bar Rev. 769, pp. 769-809, 1139-1179 [para. 25].

Syracuse Draft Principles on the Independence of the Judiciary (1981) [para. 33].

International Bar Association Code of Minimum Standards of Judicial Independence (1982) [para. 33].

Tarnopolsky, W.S., The Canadian Bill of Rights (2nd Ed. 1975), pp. 120, 158-160, 297, 298 [para. 113].

Counsel:

W.I.C. Binnie, Q.C., and D.M. Low, for the appellant;

David W. Scott, Q.C., and Carole Brown, for the respondent.

This appeal was heard on October 4, 1985, before Dickson, C.J.C., Beetz, Estey, McIntyre and Lamer, JJ., of the Supreme Court of Canada.

On September 16, 1986, the judgment of the Supreme Court of Canada was delivered and the following opinions were filed:

Dickson, C.J.C. (Estey and Lamer, JJ., concurring) - see paragraphs 1 - 73;

Beetz, J., dissenting (McIntyre, J., concurring) - see paragraphs 74 - 150.