Ell et al. v. Alberta, 2000 ABCA 248

• Judge: Bracco, McFadyen and Picard, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: September 18, 2000
• Citations: 2000 ABCA 248;(2000), 266 A.R. 266 (CA)

Ell v. Alta. (2000), 266 A.R. 266 (CA);

    228 W.A.C. 266

MLB headnote and full text

Temp. Cite: [2000] A.R. TBEd. OC.012

Her Majesty the Queen in Right of Alberta (appellant/respondent on cross-appeal) v. Devon Gary Ell, John Michael Maguire and Roselynne Margaret Spencer (respondents/cross-appellants)

(99-18284; 2000 ABCA 248)

Indexed As: Ell et al. v. Alberta

Alberta Court of Appeal

Bracco, McFadyen and Picard, JJ.A.

September 18, 2000.

Summary:

In 1991, the Justice of the Peace Act was amended to confer security of tenure to justices of the peace in Alberta. In 1998, s. 2.4 of the Justice Statutes Amendment Act retroactively imposed educational qualifica­tions for justices of the peace. The appli­cants, the only three full-time salaried non-sitting justices of the peace in Alberta, sought declaratory relief, asserting that s. 2.4 was invalid as it offended the constitutional principle of judicial independence.

The Alberta Court of Queen's Bench, in a decision reported at 240 A.R. 146, granted the declaratory relief. The court denied solicitor and client costs and ordered that the applicants' costs be taxed on Column 5 multiplied by 1.5 of Schedule C through­out, plus reason­able disbursements. The Crown appealed. The applicants cross-appealed the cost order.

The Alberta Court of Appeal dismissed the appeal and cross-appeal.

Constitutional Law - Topic 8655

Judges (incl. justices of the peace) - Inde­pendence - Sections 5, 5.1 and 5.2 of the Justice of the Peace Act conferred security of tenure to justices of the peace in Alberta - In 1998, the Justice Statutes Amendment Act retroactively imposed educational qualifications for justices of the peace - The applicants, the only three full-time salaried non-sitting justices of the peace in Alberta, did not meet the new requirements - They sought declaratory relief, asserting that s. 2.4 was invalid as it offended the constitutional principle of judicial indepen­dence - The trial judge agreed - The judi­cial functions carried out by the applicants demanded the indepen­dence guaranteed by the Charter - If a judicial officer could be dismissed by the retro­active impositions of a qualifica­tion which he or she could not meet, it would be perceived by a reason­able and informed person that there was no security of tenure under s. 11(d) of the Charter and thus no judicial indepen­dence - The Alberta Court of Appeal dismissed an appeal.

Constitutional Law - Topic 8656

Judges (incl. justices of the peace) - Ten­ure - The Alberta Court of Appeal stated that security of tenure was a necessary char­acteristic of judicial independence - There was no security of tenure if the Legisla­ture altered quali­fications of a ju­dic­ial office, resulting in the removal from office of judicial officers who had security of tenure prior to amend­ments - The mere fact that gov­ernment motives were not improper and that it intended on improving the judicial system by the appointing of more qualified indivi­duals did not alter the fact that the removal of a judicial officer from office without cause, and without the opportunity to be heard, con­stituted an arbitrary or discre­tionary inter­ference with the security of tenure of a judicial officer, thereby breaching the prin­ciple of judicial indepen­dence - Inde­pen­dence of the ju­dic­iary and the aspect of security of tenure pre­vented the retrospec­tive applica­tion of new criteria to remove judicial officers who had previo­usly enjoyed security of tenure - See paragraph 48.

Constitutional Law - Topic 8656

Judges (incl. justices of the peace) - Ten­ure - The Crown submitted that full con­stitutionally protected security of tenure should not be extended to justices of the peace, who were "minor judicial officers" -The Alberta Court of Appeal rejected the submission, stating that non-sitting justices of the peace played an important and essential function in the criminal law sys­tem - See paragraph 51.

Constitutional Law - Topic 8656

Judges (incl. justices of the peace) - Ten­ure - [See Constitutional Law - Topic 8655 ].

Courts - Topic 1346

Justices of the peace - Independence - Security of tenure - [See Constitutional Law - Topic 8655 and first and second Constitutional Law 8656 ].

Practice - Topic 7114

Costs - Party and party costs - Special orders - Increase in scale of costs - Novel or important issues - The Justice of the Peace Act conferred security of tenure to justices of the peace in Alberta - In 1998, s. 2.4 of the Justice Statutes Amendment Act retro­actively imposed educational qualifi­cations for justices of the peace - The applicants, the only three full-time salaried non-sitting justices of the peace in Alberta, did not meet the new requirements - They obtained a declaration that s. 2.4 was invalid as it offended judicial inde­pendence - The parties disputed costs - The applicants sought client and their own solicitor costs, where they had defended the public inter­est in judicial in­dependence - The trial judge denied sol­icitor and own client costs, but ordered that the applicants' costs be taxed on Column 5 multiplied by 1.5 of Sched­ule C where the case raised an im­portant public interest and was complex - The Alberta Court of Appeal dismissed an appeal - See para­graphs 60 to 66.

Practice - Topic 7115

Costs - Party and party costs - Special orders - Increase in scale of costs - Diffi­culty and complexity of proceedings - [See Practice - Topic 7114 ].

Practice - Topic 7407

Costs - Solicitor and client costs - Power to award solicitor and client costs - The Justice Statutes Amendment Act retro­act­ively imposed qualifi­cations for justices of the peace - The applicants, the only three full-time salaried non-sitting justices of the peace in Alberta, did not meet the new requirements - They obtained a declaration that the Act was invalid as it offended secu­rity of tenure and judi­cial inde­pen­dence - They suc­cessfully defended an appeal and sought costs - The Alberta Court of Appeal stated that: "[t]here is no binding authority in Alberta that solicitor client costs are not to be awarded to a judge who seeks a court ruling on the basis that legi­slation or gov­ernment action con­stitutes a perceived threat to judicial in­dependence - Judicial independence cases can be distin­guished from other constitu­tional cases because of the obliga­tion imposed on judges by codes of con­duct and the ethical principles for judges to defend the inde­pendence of the courts, and because of the threat to finan­cial secur­ity ... solicitor client costs may be awarded in the appro­priate case, even in the absence of evi­dence of misconduct in the litigation pro­cess on the part of the government" - The court awarded full indemnity - See para­graphs 66 to 76.

Practice - Topic 7470.5

Costs - Solicitor and client costs - Enti­tlement to - Public interest cases - [See Prac­tice - Topic 7407 ].

Practice - Topic 7803

Costs - Solicitor and his own client costs - Entitlement to - General - [See Prac­tice - Topic 7114 and Prac­tice - Topic 7407 ].

Cases Noticed:

R. v. Valente, [1985] 2 S.C.R. 673; 64 N.R. 1; 14 O.A.C. 79; 24 D.L.R.(4th) 161, refd to. [para. 6].

Reform Party of Canada et al. v. Canada (Attor­ney General), [1995] 10 W.W.R. 764; 174 A.R. 169; 102 W.A.C. 169 (C.A.), refd to. [para. 21].

Vriend et al. v. Alberta (1996), 184 A.R. 351; 122 W.A.C. 351; 40 Alta. L.R.(3d) 352 (C.A.), refd to. [para. 21].

R. v. Généreux, [1992] 1 S.C.R. 259; 133 N.R. 241; 88 D.L.R.(4th) 110, refd to. [para. 42].

Canadian Pacific Ltd. v. Matsqui Indian Band et al., [1995] 1 S.C.R. 3; 177 N.R. 325; 122 D.L.R.(4th) 129, refd to. [para. 44].

Reference Re Remuneration of Judges of the Provincial Court (P.E.I.), [1997] 3 S.C.R. 3; 217 N.R. 1; 206 A.R. 1; 156 W.A.C. 1; 121 Man.R.(2d) 1; 158 W.A.C. 1; 156 Nfld. & P.E.I.R. 1; 483 A.P.R. 1; 150 D.L.R.(4th) 577, refd to. [para. 47].

Reference Re Public Sector Pay Reduction Act (P.E.I.), s. 10 - see Reference Re Remuneration of Judges of the Prov­incial Court (P.E.I.).

Ontario Federation of Justices of the Peace Associations et al. v. Ontario (Attorney General) (1999), 119 O.A.C. 107; 171 D.L.R.(4th) 337 (Div. Ct.), refd to. [para. 52].

R. v. Airth et al., [1999] A.R. Uned. 400 (Q.B.), refd to. [para. 53].

R. v. Baylis (1986), 47 Sask.R. 15; 28 C.C.C.(3d) 40 (Q.B.), refd to. [para. 53].

Heagle v. R. and Ziegler (1983), 26 Sask.R. 173; 2 D.L.R.(4th) 693 (Q.B.), refd to. [para. 53].

R. v. Yellowhorse (1990), 111 A.R. 21 (Prov. Ct.), refd to. [para. 53].

Lavoie v. Quebec, [1994] A.Q. No. 1133 (Sup. Ct.), affd. [1995] A.Q. No. 187 (C.A.), refd to. [para. 53].

R. v. Magee (1988), 85 A.R. 118 (Q.B.), refd to. [para. 53].

R., Niagara Escarpment Commission and Anderson v. Currie; Reference Re the Justices of the Peace Act, R.S.O. 1980, c. 227, as amended (1984), 6 O.A.C. 203; 48 O.R.(2d) 609 (C.A.), refd to. [para. 53].

Reference Re Justices of the Peace Act - see R., Niagara Escarpment Commission and Anderson v. Currie; Reference Re the Justices of the Peace Act, R.S.O. 1980, c. 227, as amended.

R. v. Universal Spa Ltée (1986), 6 Q.A.C. 201; 33 C.C.C.(3d) 535 (C.A.), refd to. [para. 53].

R. v. Valois - see R. v. Universal Spa Ltée.

Westersund v. Westersund (1993), 157 A.R. 276; 77 W.A.C. 276 (C.A.), refd to. [para. 60].

Alberta Provincial Judges' Association v. Alberta (1999), 237 A.R. 276; 197 W.A.C. 276; 177 D.L.R.(4th) 418 (C.A.), refd to. [para. 67].

Sidorsky et al. v. CFCN Communications Ltd. et al. (1997), 206 A.R. 382; 156 W.A.C. 382 (C.A.), refd to. [para. 68].

Ruffo v. Minister of Justice (Quebec), [1998] R.J.Q. 254; [1997] A.Q. No. 3658 (S.C.), refd to. [para. 70].

Reilly, P.C.J. v. Wachowich, C.J.P.C. (1999), 252 A.R. 293 (Q.B.), affd. (2000), 266 A.R. 296; 228 W.A.C. 296 (C.A.), refd to. [para. 71].

Hamann v. Quebec (Ministre de la justice), [1999] A.Q. No. 559 (S.C.), refd to. [para. 71].

Reference Re Territorial Court Act (N.W.T.), s. 6(2) (1997), 152 D.L.R.(4th) 132 (N.W.T.S.C.), refd to. [para. 72].

Mackin, P.C.J. v. New Brunswick (Minis­ter of Finance), [1999] N.B.R.(2d) Uned. 194 (C.A.), refd to. [para. 73].

Rice, P.C.J. v. New Brunswick (1999), 235 N.B.R.(2d) 1; 235 R.N.-B.(2e) 1; 607 A.P.R. 1 (C.A.), refd to. [para. 73].

Statutes Noticed:

Justice of the Peace Act, R.S.A. 1980, c. J-3, sect. 2.4(8) [para. ]; sect. 5.1, sect. 5.2 [para. ].

Authors and Works Noticed:

Irving, H., Canadian Bar Association, Alberta Branch, Report on policies and practices of the Alberta Attorney General's Department (1984), generally [para. 6]

Klinck, J.E., Department of Attorney General's Report, Report concerning pol­icies of the Alberta Attorney General's Department (1986), generally [para. 6].

Counsel:

Robert C. Maybank and Christine Enns, for the appellant;

Alan D. Hunter, Q.C., and Megan L. McMahon, for the respondents.

This appeal was heard on February 28 and 29, 2000, before Bracco, McFadyen and Picard, JJ.A., of the Alberta Court of Appeal.

McFadyen, J.A., delivered the following judgment for the Court of Appeal on Sep­tember 18, 2000.