Reference Re Remuneration of Judges of the Provincial Court (P.E.I.), (1997) 156 Nfld. & P.E.I.R. 1 (SCC)

JudgeLamer, C.J.C., La Forest, L'Heureux- Dubé, Sopinka, Gonthier, Cory and Iacobucci, JJ.
CourtSupreme Court (Canada)
Case DateSeptember 18, 1997
JurisdictionCanada (Federal)
Citations(1997), 156 Nfld. & P.E.I.R. 1 (SCC);206 AR 1;[1997] 3 SCR 3;1997 CanLII 317 (SCC);156 Nfld & PEIR 1;150 DLR (4th) 577;[1997] 10 WWR 417;118 CCC (3d) 193;217 NR 1;49 Admin LR (2d) 1;JE 97-1787;[1997] SCJ No 75 (QL);11 CPC (4th) 1;121 Man R (2d) 2;158 WAC 1;[1997] ACS no 75;35 WCB (2d) 513;46 CRR (2d) 1;483 APR 1;73 ACWS (3d) 592

Ref. Re Remun. Judges (1997), 156 Nfld. & P.E.I.R. 1 (SCC);

    483 A.P.R. 1

MLB headnote and full text

[French language version follows English language version]

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

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

Temp. Cite: [1997] Nfld. & P.E.I.R. TBEd. SE.023

In The Matter Of a Reference from the Lieutenant Governor in Council pursuant to s. 18 of the Supreme Court Act, R.S.P.E.I. 1988, c. S-10, regarding the Remuneration of Judges of the Provincial Court of Prince Edward Island and the Jurisdiction of the Legislature in respect thereof;

And In The Matter Of a Reference from the Lieutenant Governor in Council pursuant to s. 18 of the Supreme Court Act, R.S.P.E.I. 1988, c. S-10, regarding the Independence and Impartiality of Judges of the Provincial Court of Prince Edward Island.

Merlin McDonald, Omer Pineau and Robert Christie (appellants) v. The Attorney General of Prince Edward Island (respondent) and The Attorney General of Canada, The Attorney General of Quebec, The Attorney General of Manitoba, The Attorney General for Saskatchewan, The Attorney General for Alberta, The Canadian Association of Provincial Court Judges, The Conférence des juges du Québec, The Saskatchewan Provincial Court Judges Association, The Alberta Provincial Judges' Association, The Canadian Bar Association and the Federation of Law Societies of Canada (intervenors)

(24508, 24778)

Her Majesty The Queen (appellant) v. Shawn Carl Campbell (respondent);

Her Majesty The Queen (appellant) v. Ivica Ekmecic (respondent);

Her Majesty The Queen (appellant) v. Percy Dwight Wickman (respondent) and The Attorney General of Canada, The Attorney General of Quebec, The Attorney General of Manitoba, The Attorney General of Prince Edward Island, The Attorney General for Saskatchewan, The Canadian Association of Provincial Court Judges, The Conférence des juges du Québec, The Saskatchewan Provincial Court Judges Association, The Alberta Provincial Judges' Association, The Canadian Bar Association and the Federation of Law Societies of Canada (intervenors)

(24831)

The Judges of the Provincial Court of Manitoba as represented by the Manitoba Provincial Judges Association, Judge Marvin Garfinkel, Judge Philip Ashdown, Judge Arnold Conner, Judge Linda Giesbrecht, Judge Ronald Myers, Judge Susan Devine and Judge Wesley Swail, and the Judges of the Provincial Court of Manitoba as represented by Judge Marvin Garfinkel, Judge Philip Ashdown, Judge Arnold Conner, Judge Linda Giesbrecht, Judge Ronald Myers, Judge Susan Devine and Judge Wesley Swail (appellants) v. Her Majesty The Queen in Right of the Province of Manitoba as represented by Rosemary Vodrey, The Minister of Justice and the Attorney General of Manitoba, and Darren Praznik, The Minister of Labour as the Minister responsible for The Public Sector Reduced Work Week and Compensation Management Act (respondents) and The Attorney General of Canada, The Attorney General of Quebec, The Attorney General of Prince Edward Island, The Attorney General for Saskatchewan, The Attorney General for Alberta, The Canadian Judges Conference, The Canadian Association of Provincial Court Judges, The Conférence des juges du Québec, The Saskatchewan Provincial Court Judges Association, The Alberta Provincial Judges' Association, The Canadian Bar Association and the Federation of Law Societies of Canada (intervenors)

(24846)

Indexed As: Reference Re Remuneration of Judges of the Provincial Court (P.E.I.)

Supreme Court of Canada

Lamer, C.J.C., La Forest, L'Heureux- Dubé, Sopinka, Gonthier, Cory and Iacobucci, JJ.

September 18, 1997.

Summary:

The following single judgment of the Supreme Court of Canada applies to four separate appellate judgments (two from Prince Edward Island, one from Alberta and one from Manitoba), each of which were united by a single issue: "whether and how the guarantee of judicial independence in s. 11(d) of the Canadian Charter of Rights and Freedoms restricts the manner by and the extent to which provincial governments and legislatures can reduce the salaries of Pro­vincial Court judges".

Appeal No. 1

As a deficit reducing measure, the Prince Edward Island government passed the Public Sector Pay Reduction Act, which reduced the salary of public sector employees. Employees earning more than $28,000 (in­cluding three Provincial Court judges) had their earnings reduced 7.5%. At issue by way of reference (Supreme Court Act, s. 18) was whether the reduction compromised judicial independence (Charter, s. 11(d)).

The Prince Edward Island Court of Appeal, in a judgment reported 125 Nfld. & P.E.I.R. 335; 389 A.P.R. 335, held that the judicial independence was not compromised. The three judges appealed.

The Supreme Court of Canada, La Forest, J., dissenting in part, allowed the appeal in part. The court held that, inter alia, any salary reduction was unconstitutional where there existed no independent, effective and objective commission to recommend changes to judge's salaries.

Appeal No. 2

Several accused submitted that their s. 11(d) Charter right to be tried by an inde­pendent and impartial tribunal was violated by the control that the Crown exercised over Provincial Court judges. A reference under s. 18 of the Supreme Court Act posed eight questions respecting financial security, se­curity of tenure and institutional or adminis­trative independence.

The Prince Edward Island Court of Appeal, in a judgment reported 130 Nfld. & P.E.I.R. 29; 405 A.P.R. 29, answered most questions to the effect that judicial independence was not compromised. However, the court did find a lack of security of tenure violating s. 11(d). The judges appealed. The Crown cross-appealed the finding respecting secu­rity of tenure.

The Supreme Court of Canada, La Forest, J., dissenting in part, allowed the appeal in part. The cross-appeal was now moot, given an amendment to the legislation giving rise to the dispute.

Appeal No. 3

Campbell and Ekmecic were charged with summary conviction offences and awaiting trial in the Provincial Court. Counsel in both submitted that the financial security of Pro­vincial Court judges, and hence their inde­pendence, was violated by "the process" by which the salaries of the judges were deter­mined by the provincial government. Coun­sel obtained an adjournment and brought a motion for an order staying the charges on the ground that the Provincial Court was not an "independent tribunal" as required by s. 11(d) of the Charter. Wickman was tried for summary conviction offences. After the evidence was heard, but before argument, the case was adjourned to allow Wickman to apply for certiorari and prohibition to quash the proceedings and prohibit the Provincial Court from proceeding. The three cases were heard together. The issue was whether, inter alia, the manner of determining Provincial Court judge's salaries, the provisions of the Provincial Court Judges Act respecting removal of judges, designation of residence, designation of sittings, etc., and certain comments of the Premier resulted in the Provincial Court not being an independent tribunal under s. 11(d) of the Charter.

The Alberta Court of Queen's Bench, in a judgment reported 160 A.R. 81, held that, inter alia, (1) a March 31, 1994 Order-in- Council reducing Provincial Court judge's salaries by 5% violated s. 11(d) and was invalid; (2) there was a constitutional obli­gation to maintain the financial security of judges by increasing their salaries to corre­spond with the increase in the cost of living; (3) s. 11(d) did not require a return to the formula of fixing a Provincial Court judge's salary at 80% of that received by a Court of Queen's Bench judge; (4) some provisions of the Provincial Court Judges Act respecting removal of judges were invalid, including the provision for nonjudges sitting on the Judicial Council; (5) the provisions of the Act empowering the Attorney General to designate the days of sitting and the resi­dence of a judge were invalid; (6) remarks made by the Premier did not constitute a direct attack on the independence of the Provincial Court; and (7) the implications of an action commenced by the Provincial Court judges against the province did not result in a perception that the Provincial Court lacked independence. The court ac­cordingly made declarations respecting the independence of the Provincial Court and dismissed the applications by the accused for a stay of proceedings and for certiorari and prohibition. The Crown appealed the decla­rations made notwithstanding the accused's applications were dismissed. The Crown claimed a right of appeal under s. 784 of the Criminal Code.

The Alberta Court of Appeal, Conrad, J.A., dissenting, in a judgment reported 169 A.R. 178; 97 W.A.C. 178, held that the court had no jurisdiction to hear the appeal, because the Crown had no right of appeal under s. 784. The Crown appealed.

The Supreme Court of Canada, La Forest, J., dissenting in part, allowed the appeal in part. First, the Crown had a right of appeal under s. 784. The court held that, inter alia, the salary reduction was unconstitutional where there existed no independent, effective and objective commission to recommend changes to judge's salaries.

Appeal No. 4

Manitoba Provincial Court judges were remunerated under the Provincial Court Act. In 1993, as an emergency fiscal measure, the Province enacted the Public Sector Reduced Work Week and Compensation Management Act, which reduced the work week and compensation for civil servants, medical practitioners, Legislative Assembly members and Provincial Court judges for a two year period. Judge's salaries were reduced 3.8% the first year and by way of a formula the second year. The Provincial Court Judge's Association applied for a declaration that the Act was unconstitutional as it applied to them, claiming that it violated the constitu­tional requirement of judicial independence (Charter, s. 11(d)). The judges claimed that the Act impermissibly interfered with two essential conditions of judicial independence (financial security and institutional indepen­dence).

The Manitoba Court of Queen's Bench, in a judgment reported 98 Man.R.(2d) 67, stated that the Act compromised judges' financial security. However, where the Act involved a fixed two year period, the court chose to read down the Act to constitute only a temporary deferral that would be payable after the two year period expired. The Province appealed. The judges cross­appealed.

The Manitoba Court of Appeal, in a judg­ment reported 102 Man.R.(2d) 51; 93 W.A.C. 51, allowed the appeal and dis­missed the cross-appeal. First, the Act could not be read down. Second, neither the Act nor other conduct of the Province com­plained of would compromise judicial inde­pendence in the eyes of a reasonable and informed person. The judges appealed.

The Supreme Court of Canada, La Forest, J., dissenting in part, allowed the appeal. The salary reduction was unconstitutional, where an existing independent commission for recommending changes to judge's salaries was not involved in the process. Further, the closure of the Provincial Court on certain Fridays was unconstitutional, as were the province's attempt to engage in salary nego­tiations with the Provincial Court judges. Respecting the Friday closures, the appropri­ate relief was to exempt Provincial Court employees from the closure legislation.

Common to all four appeals, the Supreme Court of Canada summarized the following major principles governing the collective or institutional dimension of financial security: "(1) It is obvious to us that governments are free to reduce, increase, or freeze the salaries of provincial court judges, either as part of an overall economic measure which affects the salaries of all or some persons who are remunerated from public funds, or as part of a measure which is directed at provincial court judges as a class. (2) Provinces are under a constitutional obligation to establish bodies which are independent, effective and objective, according to the criteria that I have laid down in these reasons. Any changes to or freezes in judicial remuner­ation require prior recourse to the indepen­dent body, which will review the proposed reduction or increase to, or freeze in, judicial remuneration. Any changes to or freezes in judicial remuneration made without prior recourse to the independent body are uncon­stitutional. (3) As well, in order to guard against the possibility that government inac­tion could be used as a means of economic manipulation, by allowing judges' real wages to fall because of inflation, and in order to protect against the possibility that judicial salaries will fall below the adequate mini­mum guaranteed by judicial independence, the commission must convene if a fixed period of time (e.g., three to five years) has elapsed since its last report, in order to consider the adequacy of judges' salaries in light of the cost of living and other relevant factors. (4) The recommendations of the independent body are non-binding. How­ever, if the executive or legislature choose to depart from those recommendations, it has to justify its decision according to the standard of simple rationality - if need be, in a court of law. (5) Under no circumstances is it permissible for the judiciary to engage in negotiations over remuneration with the executive or representatives of the legisla­ture. However, that does not preclude chief justices or judges, or bodies representing judges, from expressing concerns or making representations to governments regarding judicial remuneration."

Civil Rights - Topic 3135

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi­criminal proceedings - Right to indepen­dent and impartial tribunal - As part of a deficit reduction program, the Prince Edward Island government passed the Public Sec­tor Pay Reduction Act - The Act included a pay reduction of 7.5% for all public sector employees earning over $28,000 per year, including three judges of the Provin­cial Court - At issue by way of a refer­ence was whether the pay reduction com­promised judicial independence con­trary to s. 11(d) of the Charter - The Supreme Court of Canada held that absent recourse to an independent, effective and objective judicial compensation commis­sion (which did not exist in P.E.I.), the salary reduction was unconstitutional - The court stated that "however, if in the future, after P.E.I. establishes a salary commission, that com­mission were to issue a report with recom­mendations which the provincial legislature declined to follow, a salary reduction such as the impugned one would probably be prima facie rational, and hence justified, because it would be part of an overall economic measure which reduces the salaries of all persons who are remunerated by public funds" - See para­graphs 198 to 201.

Civil Rights - Topic 3135

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi­criminal proceedings - Right to indepen­dent and impartial tribunal - A reference was made on the issue of whether judges of the Provincial Court had a sufficient or basic degree of security of tenure to con­stitute an independent and impartial tribu­nal within the meaning of s. 11(d) of the Charter - The Prince Edward Island Court of Appeal held that s. 11(d) was contra­vened because s. 10 of the Provincial Court Act allowed "the Executive to sus­pend and remove a judge from office without cause related to capacity to per­form judicial functions having first been established at an independent inquiry where the judge has had a full opportunity to be heard and defend him or herself" - The Supreme Court of Canada held that the issue was now moot where s. 10 was repealed and replaced by an inquiry pro­cess - See paragraphs 248 to 249.

Civil Rights - Topic 3135

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi­criminal proceedings - Right to indepen­dent and impartial tribunal - A reference was made on the issue of whether judges of the Provincial Court had a sufficient or basic degree of security of tenure to con­stitute an independent and impartial tribu­nal within the meaning of s. 11(d) of the Charter - Issues included were the provi­sions in the Provincial Court Act dealing with pensions, leaves of absences and sabbatical leaves - The Prince Edward Island Court of Appeal held that those provisions did not disqualify a Provincial Court judge from constituting an indepen­dent and impartial tribunal - The Supreme Court of Canada held that the issue fell outside the ambit of security of tenure - See paragraph 250.

Civil Rights - Topic 3135

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi­criminal proceedings - Right to indepen­dent and impartial tribunal - A reference was made on the issue of whether judges of the Provincial Court had a sufficient or basic degree of security of tenure to con­stitute an independent and impartial tribu­nal within the meaning of s. 11(d) of the Charter - One concern was whether alter­ations to the pension provisions in s. 8 of the Provincial Court Act would affect a judge's independence (e.g., increasing or decreasing benefits, changing the years of service requirement or the changing the level of indexing of benefits) - The Prince Edward Island Court of Appeal held that it would depend on the circumstances, i.e., whether the changes were "enacted for an improper or colorable purpose or if there was discrimination vis-à-vis other citi­zens" - The Supreme Court of Canada held that the issue fell outside the ambit of security of tenure - See paragraph 250.

Civil Rights - Topic 3135

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi­criminal proceedings - Right to indepen­dent and impartial tribunal - A reference was made on the issue of whether judges of the Provincial Court had a sufficient or basic degree of security of tenure to con­stitute an independent and impartial tribu­nal within the meaning of s. 11(d) of the Charter - One concern was whether the different method of determining the sal­aries of judges appointed after April 1, 1994, would affect the security of tenure - The Prince Edward Island Court of Appeal held that the different pay scales did not affect security of tenure - However, the Court of Appeal stated that "paying judges of the same Court at different levels is highly undesirable as it is liable to have an adverse impact on collegiality" - The Supreme Court of Canada held that the issue fell outside the ambit of security of tenure - See paragraph 250.

Civil Rights - Topic 3135

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi­criminal proceedings - Right to indepen­dent and impartial tribunal - A reference was made on the issue of whether judges of the Provincial Court had sufficient institutional independence to constitute an independent and impartial tribunal within the meaning of s. 11(d) of the Charter - Issues raised included concerns regarding the province's power to set the location of courts, the location of judges' offices, designation of where judges would reside, control over the court's budget and failure of the province to fund legal counsel to represent the Provincial Court judges as intervenors in an earlier reference - The Supreme Court of Canada held that judi­cial independence was not compromised - See paragraphs 248 to 267.

Civil Rights - Topic 3135

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi­criminal proceedings - Right to indepen­dent and impartial tribunal - A reference was made on the issue of whether judges of the Provincial Court had sufficient institutional independence to constitute an independent and impartial tribunal within the meaning of s. 11(d) of the Charter - Issues raised included concerns regarding the fact that the position of Chief Judge was vacant - The Prince Edward Island Court of Appeal held that judicial inde­pendence was not compromised "provided that, during the vacancy, the duties of the Chief Judge that bear directly and imme­diately on the adjudicative function of the tribunal are not being performed by per­sons other than judges of the Provincial Court" - The Supreme Court of Canada held that absent sufficient information the court could not determine this issue - See paragraph 257.

Civil Rights - Topic 3135

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi­criminal proceedings - Right to indepen­dent and impartial tribunal - A reference was made on the issue of whether judges of the Provincial Court had sufficient financial security to constitute an indepen­dent and impartial tribunal within the meaning of s. 11(d) of the Charter - One issue was whether judges appointed under the Provincial Court Act had to be paid the same remuneration as a Judge of the Supreme Court of Prince Edward Island appointed under the Judges Act - The Prince Edward Island Court of Appeal held that judicial independence did not require that the judges be paid the same remuner­ation - The Supreme Court of Canada affirmed the decision.

Civil Rights - Topic 3135

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi­criminal proceedings - Right to indepen­dent and impartial tribunal - [See first nine Courts - Topic 311 and Courts - Topic 315 ].

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law - The Supreme Court of Canada held that a measure which infringes a Charter right could never be justified under s. 1 solely on financial or budgetary grounds - However, financial considerations were relevant to tailoring the standard of review under the minimal impairment test and were relevant to the court's exercise of its remedial discretion when s. 52 of the Constitution Act, 1982, was engaged - See paragraph 284.

Constitutional Law - Topic 5

General - Canadian Constitution - What constitutes - [See first Constitutional Law - Topic 8655 ].

Constitutional Law - Topic 1001

Interpretation of Constitution Act - Prin­ciple of exhaustiveness - [See first Con­stitutional Law - Topic 8655 ].

Constitutional Law - Topic 1004

Interpretation of Constitution Act - Pre­amble - The Supreme Court of Canada discussed the legal effect of the preamble to the Constitution Act, 1867 - See para­graphs 94 to 109.

Constitutional Law - Topic 2507

Determination of validity of statutes or Acts - Reading down - Manitoba Provin­cial Court judges were remunerated under the Provincial Court Act - In 1993, as an emergency fiscal measure, the Province enacted the Public Sector Reduced Work Week and Compensation Management Act, which reduced the work week and com­pensation for civil servants, medical prac­titioners, Legislative Assembly members and Provincial Court judges for a two year period - Provincial court employees were forced to take off "Filmon Fridays", ne­cessitating closure of the Provincial Courts on those dates - The Supreme Court of Canada held that the Act violated judicial independence (Charter, s. 11(d)) - The appropriate remedy was to read down the legislation to exempt Provincial Court employees from the mandatory reduced work scheme - See paragraph 276.

Constitutional Law - Topic 8655

Judges - Independence - The Supreme Court of Canada discussed the source of judicial independence, stating that "not­withstanding the presence of s. 11(d) of the Charter, and ss. 96-100 of the Consti­tution Act, 1867, I am of the view that judicial independence is at root an unwrit­ten constitutional principle, in the sense that it is exterior to the particular sections of the Constitution Acts. The existence of that principle, whose origins can be traced to the Act of Settlement of 1701, is recog­nized and affirmed by the preamble to the Constitution Act, 1867. ... there are serious limitations to the view that the express provisions of the Constitution comprise an exhaustive and definitive code for the protection of judicial independence. ... the express provisions of the Constitution Act, 1867 and the Charter are not an exhaustive written code for the protection of judicial independence in Canada. Judicial indepen­dence is an unwritten norm, recognized and affirmed by the preamble to the Con­stitution Act, 1867. In fact, it is in that preamble, which serves as the grand entrance hall to the castle of the Constitu­tion, that the true source of our commit­ment to this foundational principle is located." - See paragraphs 82 to 109.

Constitutional Law - Topic 8655

Judges - Independence - The Supreme Court of Canada distinguished between independence and impartiality - Impartial­ity was "a state of mind or attitude of the tribunal in relation to the issues and the parties in a particular case" and was tied to the concern for the "absence of bias, actual or perceived" - Independence was "the independence of the judiciary from the other branches of government, and bodies which can exercise pressure on the judici­ary through power conferred on them by the state" - Independence was premised on "objective conditions or guarantees" - Independence requires that "the court or tribunal be reasonably perceived as inde­pendent" - See paragraphs 111 to 112.

Constitutional Law - Topic 8655

Judges - Independence - The Supreme Court of Canada stated that the test for the independence of the judiciary for the pur­poses of s. 11(d) of the Charter of Rights and Freedoms was whether a reasonable and informed person, informed of the relevant statutory provisions, their histori­cal background and the traditions sur­rounding them, perceived the court to be independent - See paragraph 113.

Constitutional Law - Topic 8655

Judges - Independence - The Supreme Court of Canada contrasted the three core characteristics of judicial independence (security of tenure, financial security and administrative independence) with the "two dimensions" of judicial independence - There existed both individual independence and the collective or institutional indepen­dence of the court - While individual in­dependence attached to individual judges, institutional or collective independence attached to the court as an institutional entity - The court stated that "it may be possible for a core characteristic to have both an individual and an institutional or collective dimension" - See paragraph 118.

Constitutional Law - Topic 8655

Judges - Independence - [See first eight Civil Rights - Topic 3135 and first nine Courts - Topic 311 ].

Constitutional Law - Topic 8656

Judges - Tenure - [See second, third, fourth and fifth Civil Rights - Topic 3135 ].

Constitutional Law - Topic 8660

Judges - Compensation - [See first Civil Rights - Topic 3135 and first nine Courts - Topic 311 ].

Courts - Topic 311

Judges - Independence of judiciary - Financial security - Provincial Court judge's salaries were "fixed" by the Lieu­tenant Governor-in-Council (Provincial Court Judges Act, s. 17(1)) - The province imposed a 5% reduction in salary on judges and all civil servants - The Supreme Court of Canada held that the salary reduction was unconstitutional, because there was no independent, effec­tive and objective commission in Alberta which recommended changes to judges' salaries - "However, if in the future, after Alberta establishes a salary commission, that commission were to issue a report with recommendations which the provin­cial legislature declined to follow, a salary reduction such as the impugned one would probably be prima facie rational because it would be part of an overall economic measure which reduces the salaries of all persons who are remunerated by public funds" - See paragraphs 217 to 219.

Courts - Topic 311

Judges - Independence of judiciary - Financial security - The Alberta Court of Queen's Bench discussed whether the process of Provincial Court judges making representations to the provincial govern­ment respecting salary would be viewed by a reasonable, well-informed, right-minded person as impairing the independence of the court (i.e., judge consciously or uncon­sciously influenced by a desire to favour the Crown in judicial proceedings) - The court stated that "in the absence of evi­dence that the judges had improperly applied the law, no reasonable, right­minded person would have even a suspi­cion that the judges' independence had been bartered." - The Supreme Court of Canada held that such salary negotiations between the judiciary and the executive were prohibited as compromising judicial independence.

Courts - Topic 311

Judges - Independence of judiciary - Financial security - The Supreme Court of Canada held that "the salaries of provincial court judges can be reduced, increased, or frozen, either as part of an overall eco­nomic measure which affects the salaries of all or some persons who are remuner­ated from public funds, or as part of a measure which is directed at provincial court judges as a class. However, any changes to or freezes in judicial remunera­tion require prior recourse to a special process, which is independent, effective and objective, for determining judicial remuneration, to avoid the possibility of, or the appearance of, political interference through economic manipulation. ... Gov­ernments are consti­tutionally bound to go through the com­mission process. The recommendations of the commission would not be binding on the executive or the legislature. Neverthe­less ... they should not be set aside lightly, and, if the executive or legislature chooses to depart from them, it has to justify its decision - if need be, in a court of law. ... when governments pro­pose to single out judges as a class for a pay reduction, the burden of justification will be heavy." - See paragraph 133.

Courts - Topic 311

Judges - Independence of judiciary - Financial security - The Supreme Court of Canada held that "under no circumstances is it permissible for the judiciary - not only collectively through representative organizations, but also as individuals - to engage in negotiations over remuneration with the executive or representatives of the legislature. Any such negotiations would be fundamentally at odds with judicial independence. ... salary negotiations are indelibly political, because remuneration from the public purse is an inherently political issue. Moreover, negotiations would undermine the appearance of judi­cial independence, because the Crown is almost always a party to criminal prosecu­tions before provincial courts, and because salary negotiations engender a set of ex­pectations about the behaviour of parties to those negotiations which are inimical to judicial independence. ... The prohibition on negotiations therefore does not preclude expressions of concern or representations by chief justices and chief judges, and organizations that represent judges, to governments regarding the adequacy of judicial remuneration." - See paragraph 134.

Courts - Topic 311

Judges - Independence of judiciary - Financial security - The Supreme Court of Canada held that "any reductions to judi­cial remuneration, including de facto re­ductions through the erosion of judicial salaries by inflation, cannot take those salaries below a basic minimum level of remuneration which is required for the office of a judge. Public confidence in the independence of the judiciary would be undermined if judges were paid at such a low rate that they could be perceived as susceptible to political pressure through economic manipulation" - See paragraph 135.

Courts - Topic 311

Judges - Independence of judiciary - Financial security - The Supreme Court of Canada held that "the components of the collective or institutional dimension of financial security need not be adhered to in cases of dire and exceptional financial emergency precipitated by unusual cir­cumstances, for example, such as the outbreak of war or pending bankruptcy. In those situations, governments need not have prior recourse to a salary commission before reducing or freezing judges' sal­aries." - See paragraph 137.

Courts - Topic 311

Judges - Independence of judiciary - Financial security - The Supreme Court of Canada held that provinces are constitu­tionally obligated to establish independent, effective and objective judicial compensa­tion commissions - Any changes to or freezes in judicial remuneration require prior recourse to the commission, which will review the proposed reduction or increase to, or freeze in, judicial remuner­ation - Any changes to or freezes in judi­cial remuneration made without prior recourse to the independent body are un­constitutional - Commission members must have security of tenure (fixed term) and members should be appointed by the judiciary and the executive - The com­missions' recommendations must be made by reference to objective criteria, not political expediencies (court suggested a list of relevant factors be enacted) - The commissions must be effective - No salary change may be made without first con­sidering and responding to the report of the commission - The failure to adopt commission recommendations must be justified - The standard of justification was "simple rationality" - The commission must convene within a period of fixed time (three to five years suggested) - See para­graphs 166 to 185.

Courts - Topic 311

Judges - Independence of judiciary - Financial security - Manitoba Provincial Court judges were remunerated under the Provincial Court Act - In 1993, as an emergency fiscal measure, the Province enacted the Public Sector Reduced Work Week and Compensation Management Act, which reduced the work week and com­pensation for civil servants, medical prac­titioners, Legislative Assembly members and Provincial Court judges for a two year period - Judge's salaries were reduced 3.8% the first year and by way of a for­mula the second year - The Supreme Court of Canada held that the reduction violated s. 11(d) of the Charter, because the province failed to use the existing judicial compensation process - See para­graphs 224 to 236.

Courts - Topic 311

Judges - Independence of judiciary - Financial security - Under the Provincial Court Act, submissions regarding judges' salaries were made to the compensation committee - However, as an emergency fiscal measure, the Province passed legis­lation reducing Provincial Court judges' salaries by 3.8% - Subsequently, the judges and the Province reached an agree­ment to make a joint recommendation to the compensation committee - However, before the joint submission was signed, the Province sought to have the judges state whether they intended to challenge the validity of the new legislation - The judges declined to answer - No joint submission was signed - The judges claimed that the Province's pressure tactic compromised their judicial independence (Charter, s. 11(d)) - The Supreme Court of Canada held that judicial independence was compromised - The judiciary and executive were prohibited from negotiating compensation.

Courts - Topic 311

Judges - Independence of judiciary - Financial security - [See first Civil Rights - Topic 3135 ].

Courts - Topic 312

Judges - Independence of judiciary - Security of tenure - The Provincial Court Judges Act provided the procedure for removing Provincial Court judges from the bench - A judge could be removed by Order-in-Council, but only if removal was first recommended by the Judicial Council - The Alberta Court of Queen's Bench stated that several aspects of the removal procedure violated judicial independence (security of tenure) contrary to s. 11(d) - First, s. 11 of the Act provided for removal for "lack of competence" and "conduct", which were overly broad - A judge may only be removed "for cause related to the capacity to perform judicial functions" - Accordingly, the words "lack of competence" and "conduct" were incon­sistent with judicial independence guaranteed under s. 11(d) of the Charter and were struck from s. 11 of the Act - The Supreme Court of Canada held that the constitutionality of these provisions was not properly before the court - See paragraph 290.

Courts - Topic 312

Judges - Independence of judiciary - Security of tenure - The Provincial Court Judges Act provided for the removal of Provincial Court judges only if such a recommendation was made by the Judicial Council - The Judicial Council included non-judges appointed by the executive - The Alberta Court of Queen's Bench stated that "to the extent that non-judges may participate either in an inquiry by the Judicial Council as a whole or by a com­mittee of the Council, the inquiry cannot be said to be a 'judicial inquiry'" - The court stated that judicial independence required that the Judicial Council be com­posed entirely of judges - The court stated that "the provisions in ss. 11(1)(c) and 11(2) of the Act for an investigation by the Council, and for inquiry by a committee of the Judicial Council or by the Judicial Council itself and empowering the Judicial Council to recommend removal, are an infringement of judicial independence and therefore of s. 11(d) of the Charter." - The Supreme Court of Canada held that the constitutionality of these provisions was not properly before the court - See para­graph 290.

Courts - Topic 314

Judges - Independence of judiciary - Institutional independence - Section 13(1) of the Provincial Court Judges Act empowered the provincial Attorney Gen­eral to "designate the place at which the judge shall have his residence" (s. 13(1)(a)) and "designate the day or days on which the court shall hold sittings" (s. 13(1)(b)) - The Alberta Court of Queen's Bench declared both ss. 13(1)(a) and 13(1)(b) invalid as being inconsistent with the guaranteed right to judicial inde­pen­dence under s. 11(d) of the Charter - The Supreme Court of Canada affirmed the decision - See paragraph 290.

Courts - Topic 315

Judges - Independence of judiciary - Power to determine when the courts will sit - The Province of Manitoba passed the Public Sec­tor Reduced Work Week and Compensa­tion Management Act as a tem­porary emergency fiscal measure - Crown attor­neys and other court staff were required to take days of leave - Cases in the Provin­cial Court were not scheduled for those days of leave - Scheduling of cases was performed by the Crown, not the judges - The Supreme Court of Canada held that the closure of the court on "Fil­mon Fri­days" violated s. 11(d) of the Charter (administrative independence) - See para­graphs 269 to 276.

Courts - Topic 452.1

Judges - Discipline - Inquiry - Members of - [See second Courts - Topic 312 ].

Criminal Law - Topic 7185

Extraordinary remedies - Appeal respect­ing prerogative writs - Conditions prece­dent - In dismissing the accused's applica­tions for stays of proceedings and preroga­tive relief, the trial judge made declaratory orders that certain provisions of the Pro­vincial Court Judges Act and a Regulation were of no force and effect - The accused did not appeal - Because the Crown was successful in the result, the only possible appeal from the declaratory orders was s. 784(1) of the Criminal Code, which pro­vided an appeal "from a decision granting or refusing the relief sought in proceedings by way of mandamus, certiorari or pro­hibi­tion" - The Alberta Court of Appeal held that the Crown had no right of appeal under s. 784(1) - Harradence, J.A., held that s. 784(1) could only be invoked by the unsuccessful party and the declaratory orders were not in the nature of preroga­tive relief - O'Leary, J.A., agreed that a s. 784(1) appeal was limited to unsuccessful parties, making it unnecessary to determine whether the declaratory orders constituted prerogative relief - Conrad, J.A., dissent­ing, would have permitted the Crown to appeal on the ground that the declaratory orders were in the nature of prerogative relief - The Supreme Court of Canada held that the Crown had a right of appeal - First, it was not clear that s. 784(1) was restricted to unsuccessful parties - In any event, where the declaratory relief sought was essentially prohibitory in nature, there was a right of appeal under s. 784(1) - See paragraphs 208 to 216.

Statutes - Topic 1831

Interpretation - Intrinsic aids - Preamble - General - The Supreme Court of Canada held that although a preamble had no enacting force "under normal circum­stances, preambles can be used to identify the purpose of a statute, and also as an aid to construing ambiguous statutory lan­guage" - See paragraph 95.

Cases Noticed:

R. v. Valente, [1985] 2 S.C.R. 673; 64 N.R. 1; 14 O.A.C. 79; 23 C.C.C.(3d) 193; 24 D.L.R.(4th) 161, appld. [para. 2].

Beauregard v. Canada, [1986] 2 S.C.R. 56; 70 N.R. 1; 30 D.L.R.(4th) 481, appld. [paras. 2, 307].

Cooper v. Canadian Human Rights Com­mission, [1996] 3 S.C.R. 854; 204 N.R. 1, refd to. [para. 8].

R. v. Avery (M.G.) (1995), 135 Nfld. & P.E.I.R. 195; 420 A.P.R. 195 (P.E.I.T.D.), refd to. [para. 13].

R. v. Généreux, [1992] 1 S.C.R. 259; 133 N.R. 241; 70 C.C.C.(3d) 1; 88 D.L.R.(4th) 110, refd to. [paras. 25, 331].

MacKeigan, J.A. et al. v. Royal Commis­sion (Marshall Inquiry), [1989] 2 S.C.R. 796; 100 N.R. 81; 94 N.S.R.(2d) 1; 247 A.P.R. 1; 61 D.L.R.(4th) 688, refd to. [para. 44].

MacKeigan v. Hickman - see MacKeigan, J.A. et al. v. Royal Commission.

Marshall Inquiry - see MacKeigan, J.A. et al. v. Royal Commission.

Switzman v. Elbling, [1957] S.C.R. 285, refd to. [paras. 83, 316].

MacMillan Bloedel Ltd. v. Simpson et al., [1995] 4 S.C.R. 725; 191 N.R. 260; 68 B.C.A.C. 161; 112 W.A.C. 161, refd to. [para. 84].

Residential Tenancies Act of Ontario, Re, [1981] 1 S.C.R. 714; 37 N.R. 158; 123 D.L.R.(3d) 554, refd to. [para. 88].

New Brunswick Broadcasting Co. and Canadian Broadcasting Corp. v. Speaker of the House of Assembly (N.S.) et al., [1993] 1 S.C.R. 319; 146 N.R. 161; 118 N.S.R.(2d) 181; 327 A.P.R. 181, refd to. [paras. 90, 303].

Harvey v. New Brunswick (Attorney Gen­eral) et al., [1996] 2 S.C.R. 876; 201 N.R. 1; 178 N.B.R.(2d) 161; 454 A.P.R. 161, refd to. [para. 92].

Constitutional Amendment References 1981 (Man., Nfld., Que.), [1981] 1 S.C.R. 753; 39 N.R. 1; 11 Man.R.(2d) 1; 34 Nfld. & P.E.I.R. l; 95 A.P.R. 1, refd to. [para. 94].

Reference re Resolution to Amend the Constitution - see Constitutional Amendment References 1981 (Man., Nfld., Que.).

Hunt v. Lac d'Amiante du Québec Ltée et al., [1993] 4 S.C.R. 289; 161 N.R. 81; 37 B.C.A.C. 161; 60 W.A.C. 161, refd to. [para. 97].

Morguard Investments Ltd. et al. v. De Savoye, [1990] 3 S.C.R. 1077; 122 N.R. 81; [1991] 2 W.W.R. 217; 76 D.L.R.(4th) 256; 52 B.C.L.R.(2d) 160, refd to. [para. 97].

Huson v. South Norwich (Township) (1895), 24 S.C.R. 145, refd to. [para. 98].

Manitoba Language Rights Reference, [1985] 1 S.C.R. 721; 59 N.R. 321; 35 Man.R.(2d) 83; 19 D.L.R.(4th) 1; [1985] 4 W.W.R. 385, refd to. [para. 99].

Saumur v. Quebec (City), [1953] 2 S.C.R. 299, refd to. [para. 100].

Southam Inc. and Rusnell v. Canada (Attorney General) et al., [1990] 3 F.C. 465; 114 N.R. 255 (F.C.A.), refd to. [para. 101].

Reference re Alberta Legislation, [1938] S.C.R. 100, refd to. [paras. 102, 316].

Ontario Public Ser­vice Employees Union et al. v. Ontario (Attor­ney General) et al., [1987] 2 S.C.R. 2; 77 N.R. 321; 23 O.A.C. 161, refd to. [paras. 103, 316].

Reference Re Roman Catholic Separate High Schools Funding, [1987] 1 S.C.R. 1148; 77 N.R. 241; 22 O.A.C. 321; 40 D.L.R.(4th) 18, refd to. [para. 107].

Education Act Amendment Act (Ont.), Reference Re - see Reference Re Roman Catholic Separate High Schools Funding.

Reference Re Bill 30, An Act to Amend the Education Act (Ont.) - see Reference Re Roman Catholic Separate High Schools Funding.

Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455; 63 N.R. 161; 23 D.L.R.(4th) 122, refd to. [paras. 107, 316].

R. v. Power (E.), [1994] 1 S.C.R. 601; 165 N.R. 241; 117 Nfld. & P.E.I.R. 269; 365 A.P.R. 269; 89 C.C.C.(3d) 1; 29 C.R.(4th) 1, refd to. [para. 108].

Lippé et autres v. Québec (Procureur général) et autres, [1991] 2 S.C.R. 114; 128 N.R. 1; 39 Q.A.C. 241; 64 C.C.C.(3d) 513, refd to. [paras. 111, 330].

R. v. Lippé - see Lippé et autres v. Québec (Procureur général) et autres.

Committee for Justice and Liberty Foun­dation et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115; 68 D.L.R.(3d) 716, refd to. [para. 113].

R. v. Valente (No. 2) (1983), 2 C.C.C.(3d) 417 (Ont. C.A.), refd to. [paras. 113, 326].

R. v. Big M Drug Mart Ltd. (1983), 25 Alta. L.R.(2d) 195 (Prov. Ct.), affd. [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161; [1985] 3 W.W.R. 481; 18 C.C.C.(3d) 385; 18 D.L.R.(4th) 321; 37 Alta. L.R.(2d) 97; 85 C.L.L.C. 14,023; 13 C.R.R. 64, refd to. [para. 127].

R. v. Mills, [1986] 1 S.C.R. 863; 67 N.R. 241; 16 O.A.C. 81; 52 C.R.(3d) 1; 29 D.L.R.(4th) 161; 26 C.C.C.(3d) 481, refd to. [para. 127].

R. v. Askov, Hussey, Melo and Gugliotta, [1990] 2 S.C.R. 1199; 113 N.R. 241; 42 O.A.C. 81; 59 C.C.C.(3d) 449; 79 C.R.(3d) 273; 49 C.R.R. 1; 74 D.L.R.(4th) 355; 75 O.R.(2d) 673, refd to. [para. 127].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276; 56 C.R.(3d) 193; [1987] 3 W.W.R. 699; 38 D.L.R.(4th) 508; 33 C.C.C.(3d) 1; 13 B.C.L.R.(2d) 1; 28 C.R.R. 122, refd to. [para. 127].

Ramsden v. Peterborough (City), [1993] 2 S.C.R. 1084; 156 N.R. 2; 66 O.A.C. 10, refd to. [para. 128].

R. v. Morgentaler, [1993] 3 S.C.R. 463; 157 N.R. 97; 125 N.S.R.(2d) 81; 349 A.P.R. 81, refd to. [para. 128].

R. v. Sparrow, [1990] 1 S.C.R. 1075; 111 N.R. 241; 56 C.C.C.(3d) 263; 70 D.L.R.(4th) 385, refd to. [para. 128].

Lavigne v. Ontario Public Service Employees' Union et al., [1991] 2 S.C.R. 211; 126 N.R. 161; 48 O.A.C. 241; 81 D.L.R.(4th) 545; 4 C.R.R.(2d) 193, refd to. [para. 144].

Judges v. Saskatchewan (Attorney Gen­eral), [1937] 2 D.L.R. 209 (P.C.), refd to. [para. 150].

Anti-Inflation Act, Re, [1976] 2 S.C.R. 373; 9 N.R. 541, refd to. [para. 183].

Mahe, Martel, Dubé and Association d'Ecole Georges et Julia Bugnet v. Alberta, [1990] 1 S.C.R. 342; 105 N.R. 321; 106 A.R. 321, refd to. [para. 195].

Lowther v. Prince Edward Island (1994), 122 Nfld. & P.E.I.R. 221; 379 A.P.R. 221; 118 D.L.R.(4th) 665 (P.E.I.S.C.), refd to. [para. 205].

Canadian Broadcasting Corp. v. Dagenais et al., [1994] 3 S.C.R. 835; 175 N.R. 1; 76 O.A.C. 81; 94 C.C.C.(3d) 289; 120 D.L.R.(4th) 12; 25 C.R.R.(2d) 1, refd to. [para. 208].

R. v. Johnson et al., [1994] 3 S.C.R. 965; 174 N.R. 321; 76 O.A.C. 241; 94 C.C.C.(3d) 385, refd to. [para. 208].

R. v. Laba - see R. v. Johnson et al.

R. v. Paquette (No. 2) (1987), 83 A.R. 41; 38 C.C.C.(3d) 333 (C.A.), refd to. [para. 215].

R. v. Yes Holdings Ltd. and Yesmaniski (1987), 83 A.R. 81; 40 C.C.C.(3d) 30 (C.A.), refd to. [para. 215].

Ruffo (Juge) v. Conseil de la magistrature et autres, [1995] 4 S.C.R. 267; 190 N.R. 1, refd to. [para. 275].

Da­vidson v. Slaight Communi­cations Inc., [1989] 1 S.C.R. 1038; 93 N.R. 183; 59 D.L.R.(4th) 416; 26 C.C.E.L. 85; 89 C.L.L.C. 14,031; 40 C.R.R. 100, refd to. [para. 276].

Osborne, Millar and Barnhart et al. v. Canada (Treasury Board) et al., [1991] 2 S.C.R. 69; 125 N.R. 241; 82 D.L.R.(4th) 321, refd to. [para. 276].

R. v. Thomsen, [1988] 1 S.C.R. 640; 84 N.R. 347; 27 O.A.C. 85; 63 C.R.(3d) 1; 40 C.C.C.(3d) 411; 4 M.V.R.(2d) 185; 32 C.R.R. 257, refd to. [para. 280].

Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; 58 N.R. 1; 17 D.L.R.(4th) 422; 14 C.­R.R. 13; 12 Admin. L.R. 137, refd to. [para. 281].

Schachter v. Canada et al., [1992] 2 S.C.R. 679; 139 N.R. 1; 93 D.L.R.(4th) 1; 92 C.L.L.C. 14,036; 10 C.R.R.(2d) 1, refd to. [para. 282].

Irwin Toy Ltd. v. Québec (Procureur général), [1989] 1 S.C.R. 927; 94 N.R. 167; 24 Q.A.C. 2; 58 D.L.R.(4th) 577; 25 C.P.R.(3d) 417, refd to. [para. 283].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335; 26 D.L.R.(4th) 200; 50 C.R.(3d) 1; 24 C.C.C.(3d) 321; 19 C.R.R. 308, refd to. [para. 283].

McKinney v. University of Guelph et al., [1990] 3 S.C.R. 229; 118 N.R. 1; 45 O.A.C. 1; 76 D.L.R.(4th) 545; 2 C.R.R.(2d) 1, refd to. [para. 283].

Egan and Nesbit v. Canada, [1995] 2 S.C.R. 513; 182 N.R. 161; 12 R.F.L.(4th) 201; 124 D.L.R.(4th) 609, refd to. [para. 283].

Phillips et al. v. Richard, J., [1995] 2 S.C.R. 97; 180 N.R. 1; 141 N.S.R.(2d) 1; 403 A.P.R. 1; 124 D.L.R.(4th) 129; 98 C.C.C.(3d) 20; 28 C.R.R.(2d) 1, refd to. [para. 301].

Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy) - see Phillips et al. v. Richard, J.

Glassco and Quebec (Attorney General) v. Cumming, [1978] 2 S.C.R. 605; 22 N.R. 271, refd to. [para. 301].

Manitoba v. Air Canada and Canada (Attorney General) et al., [1980] 2 S.C.R. 303; 32 N.R. 244; 4 Man.R.(2d) 278, refd to. [para. 301].

Winner v. S.M.T. (Eastern) Ltd., [1951] S.C.R. 887, refd to. [para. 301].

Skapinker v. Law Society of Upper Canada, [1984] 1 S.C.R. 357; 53 N.R. 169; 3 O.A.C. 321; 11 C.C.C.(3d) 481; 9 D.L.R.(4th) 161; 8 C.R.R. 193, refd to. [para. 301].

Madzimbamuto v. Lardner-Burke and George, [1969] 1 A.C. 645 (P.C.), refd to. [para. 309].

Manuel v. Attorney General; Noltcho v. Attorney General, [1983] Ch. 77 (C.A.), refd to. [para. 309].

Dolphin Delivery Ltd. v. Retail, Wholesale and Department Store Union, Local 580, Peterson and Alexander, [1986] 2 S.C.R. 573; 71 N.R. 83; 33 D.L.R.(4th) 174; [1987] 1 W.W.R. 577; 38 C.C.L.T. 184; 25 C.R.R. 321; 87 C.L.L.C. 14,002, refd to. [para. 316].

Dupond v. Montreal (City), [1978] 2 S.C.R. 770; 19 N.R. 478, refd to. [para. 317].

United States of America v. McVey, [1992] 3 S.C.R. 475; 144 N.R. 81; 16 B.C.A.C. 241; 28 W.A.C. 241, refd to. [para. 322].

Gratton v. Canadian Judicial Council et al. (1994), 78 F.T.R. 214; 115 D.L.R.(4th) 81 (T.D.), refd to. [para. 329].

R. v. Kuldip, [1990] 3 S.C.R. 618; 114 N.R. 284; 43 O.A.C. 340; 1 C.R.(4th) 285, refd to. [para. 330].

Andrews v. Law Society of British Co­lumbia, [1989] 1 S.C.R. 143; 91 N.R. 255; 56 D.L.R.(4th) 1, refd to. [para. 346].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 11(d) [para. 329].

Constitution Act, 1867, preamble [para. 94]; sect. 96 [para. 88]; sect. 100 [para. 9].

Constitution Act, 1982, sect. 52(2) [para. 91].

Criminal Code, R.S.C. 1985, c. C-46, sect. 784(1) [para. 67].

Provincial Court Act, R.S.P.E.I. 1988, c. P-25, sect. 3(3) [paras. 198, 199]; sect. 4(1) [para. 260]; sect. 17 [para. 259].

Provincial Court Judges Act, S.A. 1981, c. P-20.1, sect. 10(1) [para. 61]; sect. 11(1)(b) [para. 62]; sect. 13(1) [para. 63]; sect. 17(1) [para. 218].

Supreme Court Act, R.S.P.E.I. 1988, c. S-10, sect. 18 [para. 12].

United Nations, Basic Principles of the Independence of the Judiciary, art. 11 [para. 194].

United Nations, Draft Universal Declara­tion on the Independence of the Judici­ary, art. 18(b) [para. 194].

Authors and Works Noticed:

Black's Law Dictionary (6th Ed. 1991), p. 1036 [para. 188].

Blackstone's Commentaries on The Laws of England (4th Ed. 1770), Book I, p. 267 [para. 305].

Canada, Department of Justice, Report and Recommendations of the 1995 Commis­sion on Judges' Salaries and Benefits (1995), p. 7 [para. 173].

Dicey, A.V., Introduction to the Study of the Law of the Constitution (10th Ed. 1959), pp. 39, 40 [para. 308].

Driedger, Elmer A., Construction of Stat­utes (3rd Ed. 1994), p. 261 [para. 95].

Dyzenhaus, David, Developments in Administrative Law: the 1992-93 Term (1994), 5 S.C.L.R.(2d) 189, p. 243 [para. 181].

Friedland, A Place Apart: Judicial Inde­pendence and Accountability in Canada (1995), pp. 53, 56 [para. 193]; 57 [para. 187].

Gibson, Dale, Constitutional Amendment and the Implied Bill of Rights (1966-67), 12 McGill L.J. 497, generally [para. 317].

Hamilton, Alexander, The Federalist, No. 78, p. 398 [para. 300].

Heuston, R.F.V., Lives of the Lord Chan­cellors (1885-1940), p. 514 [para. 310].

Hogg, Peter W., Constitutional Law of Canada (3rd Ed. 1992)(Looseleaf Supp.), pp. 7-6 [para. 338]; 13-18 [para. 97]; 31-12, 31-13 [para. 317].

Kurland, Philip B., The Constitution and the Tenure of Federal Judges: Some Notes from History (1968-69), 36 U. Chi. L. Rev. 665, p. 698 [para. 329].

Laskin, Bora, An Inquiry into the Diefenbaker Bill of Rights (1959), 37 Can. Bar Rev. 77, pp. 100 to 103 [para. 317].

Lederman, W.R., The Independence of the Judiciary (1956), 34 Can. Bar Rev. 769, pp. 795 [para. 338]; 1139 [para. 305]; 1164 [paras. 154, 338].

Manitoba, Law Reform Commission, Report on the Independence of Provincial Judges (1989), p. 41 [para. 186].

Renke, Wayne, Invoking Independence: Judicial Independence as a No-Cut Wage Guar­antee (1994), pp. 19 [para. 158]; 30 [paras. 156, 338].

Schauer, Frederick, Giving Reasons (1995), 47 Stan. L. Rev. 633, p. 658 [para. 181].

Schmeiser, Douglas A., and McConnell, W. Howard, The Independence of Pro­vincial Court Judges: A Public Trust (1996), p. 13 [para. 189].

Scott, F.R., Civil Liberties and Canadian Federalism (1959), p. 18-21 [para. 317].

Shetreet, S., and Deschenes, J., Judicial Independence: The Contemporary Debate - Judicial Independence: New Concep­tual Dimen­sions and Contempor­ary Chal­lenges (1985), p. 599 [para. 130].

Turpin, Colin, British Government and the Constitution (3rd Ed. 1995), pp. 298, 299 [para. 308].

United Kingdom, Parliamentary Debates, vol. 90, cols. 67, 68 (November 23, 1933), generally [para. 310].

Wade, E.C.S., and Bradley, A.W., Consti­tutional and Administrative Law (11th Ed. 1993), pp. 68 to 87 [para. 308].

Weiler, Paul C., The Supreme Court and the Law of Canadian Federalism (1973), 23 U.T.L.J. 307, p. 344 [para. 317].

Counsel:

Peter C. Ghiz, for the appellants, in the P.E.I. references;

Gordon L. Campbell and Eugene P. Rossiter, Q.C., for the respondents, in the P.E.I. references;

Richard F. Taylor and Ken Tjosvold, for the appellant, Her Majesty The Queen;

John Legge, for the respondents, Campbell and Ekmecic;

R.S. Prithipaul, for the respondent, Wickman;

Robb Tonn and M.B. Nepon, for the appellants, the Judges of the Provincial Court of Manitoba;

E.W. Olson, Q.C., and Vivian E. Rachlis, for the respondent, Her Majesty The Queen in right of Manitoba;

Edward R. Sojonky, Q.C., and Josephine A.L. Palumbo, for the intervener, the Attorney General of Canada;

Jean-Yves Bernard and Marise Visocchi, for the intervener, the Attorney General of Quebec;

Donna J. Miller, Q.C., for the intervener, the Attorney General of Manitoba;

Eugene P. Rossiter, Q.C., and Gordon L. Campbell, for the intervener, the Attor­ney General of Prince Edward Island;

Graeme G. Mitchell and Gregory Wm. Koturbash, for the intervener, the Attor­ney General for Saskatchewan;

Richard F. Taylor, for the intervener, the Attorney General for Alberta;

John P. Nelligan, Q.C., and J.J. Mark Edwards, for the intervener, the Canadian Association of Provincial Court Judges;

L. Yves Fortier, Q.C., and Leigh D. Crestohl, for the intervener, the Canadian Judges Conference;

Raynold Langlois, Q.C., for the intervener, the Conférence des juges du Québec;

Robert McKercher, Q.C., and Michelle Ouellette, for the intervener, the Saskatchewan Provincial Court Judges Association;

D.O. Sabey, Q.C., Bradley G. Nemetz and Scott H.D. Bower, for the intervener, the Alberta Provincial Judges' Association;

Thomas G. Heintzman, Q.C., and Michael J. Bryant, for the intervener, the Cana­dian Bar Association;

Ronald D. Manes and Duncan N. Embury, for the intervener, the Federation of Law Societies of Canada.

Solicitors of Record:

Peter C. Ghiz, Charlottetown, Prince Edward Island, for the appellants in the P.E.I. refer­ences;

Stewart McKelvey Stirling Scales, Char­lottetown, Prince Edward Island, for the respondent in the P.E.I. references;

Department of Justice, Edmonton, Alberta, for the appellant, Her Majesty The Queen;

Legge & Muszynski, Calgary, Alberta, for the respondents, Campbell and Ekmecic;

Gunn & Prithipaul, Edmonton, Alberta, for the respondent, Wickman;

Myers Weinberg Kussin Weinstein Bryk, Winnipeg, Manitoba, for the appel­lants, the Judges of the Provincial Court of Manitoba;

Thompson Dorfman Sweatman, Winni­peg, Manitoba, for the respondent, Her Maj­esty The Queen in right of Manitoba;

George Thomson, Deputy Attorney Gen­eral of Canada, Ottawa, Ontario, for the intervener, the Attorney General of Canada;

Department of Justice, Sainte-Foy, Quebec, for the intervener, the Attorney General of Quebec;

Department of Justice, Winnipeg, Man­itoba, for the intervener, the Attorney Gen­eral of Manitoba;

Stewart McKelvey Stirling Scales, Char­lottetown, Prince Edward Island, for the intervener, the Attorney General of Prince Edward Island;

Department of Justice, Regina, Saskatchewan, for the intervener, the Attor­ney General for Saskatchewan;

Department of Justice, Edmonton, Alberta, for the intervener, the Attorney General for Alberta;

Ogilvy Renault, Montreal, Quebec, for the intervener, the Canadian Judges Con­ference;

Nelligan Power, Ottawa, Ontario, for the intervener, the Canadian Association of Provincial Court Judges;

Langlois Robert, Quebec, Quebec, for the intervener, the Conférence des juges du Québec;

McKercher McKercher & Whitmore, Saska­toon, Saskatchewan, for the intervener, the Saskatchewan Provincial Court Judges Asso­ciation;

Bennett Jones Verchere, Calgary, Alberta, for the intervener, the Alberta Provincial Judges' Association;

McCarthy Tétrault, Toronto, Ontario, for the intervener, the Canadian Bar Associ­ation;

Torkin, Manes, Cohen & Arbus, Toronto, Ontario, for the intervener, the Feder­ation of Law Societies of Canada.

These appeals were heard on December 3-4, 1996, before Lamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory and Iacobucci, JJ., of the Supreme Court of Canada.

On September 18, 1997, the judgment of the Supreme Court of Canada was delivered in both official languages and the following judgments were filed:

Lamer, C.J.C. (L'Heureux-Dubé, Sopin­ka, Gonthier, Cory and Iacobucci, JJ., concurring) - paragraphs 1 to 295;

La Forest, J., dissenting in part - see paragraphs 296 to 375.

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  • Rice, P.C.J. v. New Brunswick, (1999) 235 N.B.R.(2d) 1 (CA)
    • Canada
    • New Brunswick Court of Appeal (New Brunswick)
    • November 26, 1999
    ...A.R. 81 ; 25 Alta. L.R.(3d) 158 (Q.B.), affd. (1995), 169 A.R. 178 ; 97 W.A.C. 178 ; 31 Alta. L.R.(3d) 190 (C.A.), revd. in part [1997] 3 S.C.R. 3; 217 N.R. 1 ; 206 A.R. 1 ; 56 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 ; 11 C.P.C.(4......
  • Reference Re Secession of Quebec, (1998) 228 N.R. 203 (SCC)
    • Canada
    • Canada (Federal) Supreme Court (Canada)
    • August 20, 1998
    ...N.R. 247 ; 127 A.R. 161 ; 20 W.A.C. 161 , refd to. [para. 30]. Reference Re Remuneration of Judges of the Provincial Court (P.E.I.), [1997] 3 S.C.R. 3; 217 N.R. 1 ; 156 Nfld. & P.E.I.R. 1 ; 483 A.P.R. 1 ; 150 D.L.R.(4th) 577 , refd to. [para. Hirsch v. Montreal Protestant School B......
  • Reference re Securities Act, [2011] 3 SCR 837
    • Canada
    • Supreme Court (Canada)
    • December 22, 2011
    ...re Secession of Quebec, [1998] 2 S.C.R. 217 ; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3; Northern Telecom Canada Ltd. v. Communication Workers of Canada, [1983] 1 S.C.R. 733 ; Attorney‑General for Canada v. Attorney‑General for ......
  • Compagnie des chemins de fer nationaux du Canada c. Emerson Milling Inc.,
    • Canada
    • Court of Appeal (Canada)
    • April 18, 2017
    ...Island; Reference re Independence and Impartiality of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3, (1997), 150 D.L.R. (4th) 577, at paragraph 10.[10] The only exceptions are where a legislative limit is unconstitutional or the rule of law justies court ......
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386 cases
  • Rice, P.C.J. v. New Brunswick, (1999) 235 N.B.R.(2d) 1 (CA)
    • Canada
    • New Brunswick Court of Appeal (New Brunswick)
    • November 26, 1999
    ...A.R. 81 ; 25 Alta. L.R.(3d) 158 (Q.B.), affd. (1995), 169 A.R. 178 ; 97 W.A.C. 178 ; 31 Alta. L.R.(3d) 190 (C.A.), revd. in part [1997] 3 S.C.R. 3; 217 N.R. 1 ; 206 A.R. 1 ; 56 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 ; 11 C.P.C.(4......
  • Reference Re Secession of Quebec, (1998) 228 N.R. 203 (SCC)
    • Canada
    • Canada (Federal) Supreme Court of Canada
    • August 20, 1998
    ...N.R. 247 ; 127 A.R. 161 ; 20 W.A.C. 161 , refd to. [para. 30]. Reference Re Remuneration of Judges of the Provincial Court (P.E.I.), [1997] 3 S.C.R. 3; 217 N.R. 1 ; 156 Nfld. & P.E.I.R. 1 ; 483 A.P.R. 1 ; 150 D.L.R.(4th) 577 , refd to. [para. Hirsch v. Montreal Protestant School B......
  • Compagnie des chemins de fer nationaux du Canada c. Emerson Milling Inc.,
    • Canada
    • Court of Appeal (Canada)
    • April 18, 2017
    ...Island; Reference re Independence and Impartiality of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3, (1997), 150 D.L.R. (4th) 577, at paragraph 10.[10] The only exceptions are where a legislative limit is unconstitutional or the rule of law justies court ......
  • R. v. N.S. et al., (2012) 297 O.A.C. 200 (SCC)
    • Canada
    • Canada (Federal) Supreme Court of Canada
    • December 20, 2012
    ...Quebec, [1998] 2 S.C.R. 217; 228 N.R. 203, refd to. [para. 74]. 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, refd to. [para. Canadian B......
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4 firm's commentaries
  • When Is A Rule Not The Law? A Note On Tan And Comity In The Federal Court Of Appeal
    • Canada
    • Mondaq Canada
    • November 13, 2018
    ...of Health and Welfare) (1995), 64 C.P.R. (3d) 65 at 67-68. See, e.g., Ref re Remuneration of Judges of the Prov. Court of P.E.I., [1997] 3 SCR 3 at para. 105 ("Provincial Judges 8 Tan, supra note 1, at para. 24 See also Apotex Inc. v. Eli Lilly Canada Inc., 2016 FCA 267 at para. 2 ("Eli Lil......
  • COURT OF APPEAL SUMMARIES (August 24 – 28, 2020)
    • Canada
    • LexBlog Canada
    • September 1, 2020
    ...Div.)), Reference re Secession of Quebec, [1998] 2 S.C.R. 217, Manitoba Provincial Judges Assn. v. Manitoba (Minister of Justice), [1997] 3 S.C.R. 3, Roncarelli v. Duplessis, [1959] S.C.R. 121, Conseil des Ports Nationaux v. Langelier et al., [1969] S.C.R. 60, Roman Corp. v. Hudson’s Bay Oi......
  • Court Of Appeal Summaries (August 24 ' 28, 2020)
    • Canada
    • Mondaq Canada
    • September 2, 2020
    ...Div.)), Reference re Secession of Quebec, [1998] 2 S.C.R. 217, Manitoba Provincial Judges Assn. v. Manitoba (Minister of Justice), [1997] 3 S.C.R. 3, Roncarelli v. Duplessis, [1959] 121, Conseil des Ports Nationaux v. Langelier et al., [1969] S.C.R. 60, Roman Corp. v. Hudson's Bay Oil & Gas......
  • Apprehending Reasonable Apprehension Of Bias
    • Canada
    • Mondaq Canada
    • December 15, 2014
    ...address such issues when they arise. Footnotes [1] R. v. S. (R. D.), [1997] 3 S.C.R. 484, at para. 113. [2] R. v. Campbell, [1997] 3 S.C.R. 3, at para [3] Wewaykum Indian Band v. Canada, [2003] 2 S.C.R. 259, at para. 66. [4] R. v. S. (R. D.), [1997] 3 S.C.R. 484, at para. 111. [5] Laver v. ......
91 books & journal articles
  • A JUDICIARY CLEAVED: SUPERIOR COURTS, STATUTORY COURTS AND THE ILLOGIC OF DIFFERENCE.
    • Canada
    • University of New Brunswick Law Journal No. 68, January 2017
    • January 1, 2017
    ...(30) Ref re Remuneration of Judges of the Prov Court of PEI; Ref re Independence and Impartiality of Judges of the Prov Court of PEI, [1997] 3 SCR 3 at 85-86, 156 Nfld & PEIR 1 [Judges' (31) 2016 SCC 54, [2016] 2 SCR 617 (5:4 majority) [Windsor], I was the author of the reasons in the c......
  • Limitation of Charter Rights
    • Canada
    • Irwin Books Archive The Charter of Rights and Freedoms. Sixth Edition
    • June 22, 2021
    ...s 1”; Egan v Canada , [1995] 2 SCR 513 at para 99; Reference Re Remuneration of Judges of the Provincial Court of Prince Edward Island , [1997] 3 SCR 3 at para 281; Martin , above note 74 at para 109. 123 Newfoundland , above note 80 at para 72. 124 Ibid at para 64. THE CHARTER OF RIGHTS AN......
  • Special Classes of Government Employment
    • Canada
    • Irwin Books Ontario Public Service Employment and Labour Law
    • June 15, 2005
    ...Act (P.E.I.); R. v. Campbell; R. v. Ekmecic; R. v. Wickman; Manitoba Provincial Judges’ Association v. Manitoba (Minister of Justice), [1997] 3 S.C.R. 3, [P.E.I. Reference ]; Moreau-Bérubé v. New Brunswick, [2002] 1 S.C.R. 249; Provincial Court Judges’ Assn. of New Brunswick v. New Brunswic......
  • Table of Cases
    • Canada
    • Irwin Books The Law Society of Upper Canada Special Lectures 2017
    • June 24, 2021
    ...294, 585 Reference re Remuneration of Provincial Court Judges, [1997] 3 SCR 3 ...................................................................................................... 106 Reference re Same-Sex Marriage, 2004 SCC 79 ....................................... 130–31, 599 Reference ......
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