The Administrative Independence of the Federal Courts: A Case for Reform
| Author | Martine Valois |
| Pages | 229-265 |
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7
The Administrative Independence of
the Federal Courts: A Case for Reform
Martine Valois*
judicial independence is a pillar of our con-
stitutional democracy. It is a principle anchored in the Canadian state struc-
ture and recognized as essential to the protection of the fundamental rights
and individual freedoms of citizens, as well as to the sound administration
of justice in our society. Beyond our borders, it has established itself as a
universal value transcending the legal orders of democratic states.1 It must
therefore be the subject of guarantees enshrined in constitutional texts and
be implemented in practice through the adoption of legisl ative structures and
administrative measures.2
In Canada, judicial independence has its origins in the common law and
in Canadian constitutional law.3 It is the subject of mandatory provisions in
* The author wishes to extend her utmost gratitude to Emilie Bouchard, Rachel Muzaic,
Andrea Roulet, and Henri Barbeau for their assistance in researching and writing this
chapter.
1 Luc Huppé, “Les déclarations de principes internationales relatives à l’indépendance
judicaire” (2002) 43:2 Cahiers de droit 299 at 326.
2 Ibid at 307.
3 Provincial Court Judges’ Assn of New Brunswick v New Brunswick (Minister of Justice);
Ontario Judges’ Assn v Ontario (Management Board); Bodner v Alberta; Conférence des
juges du Québec v Quebec (Attorney General); Minc v Quebec (Attorney General), [2005]
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the Constitution Act, ,4 and is guaranteed by section (d) of the Canadian
Charter of Ri ghts and Freedom s.5 It also stems from unwritten principles inherited
from the United Kingdom, as recognized by the Supreme Court of Canada.6
However, if we rely only on the specific provisions of the Canadian Consti-
tution, the independence of the judiciary has a dierent scope depending on
the court to which it is applied and the nature of its proceedings.7
Being one of the pillars of the Canadian political make-up, the concept
of judicial independence is vigilantly defended and dictates that a safe dis-
tance between the executive, the legislature on one side, and the judiciary on
the other side, be maintained in order to guarantee that the latter is saved
from any influence over its powers. e caselaw to date has favoured a con-
stitutionally founded interpretation by which independence of the judicial
institution as a whole is viewed as essential.8 is principle is further codi-
fied and enforced by means of statutes such as the Judges Act and the Federal
Courts Act, pursuant to which the salaries and tenure of judges are established
independently of the Canadian government.9 Financial security, security of
tenure, and judicial administration therefore represent the three imperative
conditions of Canadian judicial independence.10 While the first two con-
ditions are now clearly defined, the third has not been addressed quite as
explicitly, resulting in a great deal of uncertainty regarding the proper role
of the executive and legislative powers, and of the judiciary regarding the
administration of the courts.
In , the Supreme Court of Canada highlighted the significant role of
judicial administration in upholding judicial independence.11 In the Valente
decision, the Court expressly recognized it as a fundamental feature of judi-
cial independence, one that is essential to the decision-making freedom
4 Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 91, reprinted in RSC 1985, Appendix II,
No 5 [Constitution Act, 1867].
5 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being
Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 7 [Charter].
6 The Queen v Beauregard, [1986] 2 SCR 56 at para 25 [Beauregard]; Reference re Remuner-
ation of Judges of the Provincial Court (PEI), [1997] 3 SCR 3 at para 106 [Reference re
Remuneration].
7 Douglas A Schmeiser & William H McConnell, The Independence of Provincial Court
Judges: A Public Trust (Canadian Association of Provincial Court Judges: 1996) at 44.
8 Reference re Remuneration, above note 6 at paras 106–7.
9 Judges Act, RSC 1985, c J-1, ss 9–42 [Judges Act]; Federal Courts Act, RSC 1985, c F-7,
s 8(1) [Federal Courts Act].
11 Ibid at para 47.
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The Administrative Independence of the Federal Courts: A Case for Reform
of judges and central to the eciency of the justice system. e condition
of administrative independence had led to questions about the “degree to
which the judiciary should ideally have control over the administration of
the courts,”12 as Justice Le Dain wrote in Valente.
Historically, court administration fell under the executive branch in
order to relieve the judiciary of the administrative burden and allow it to
better focus on the adjudicative role assigned to it. is is the so-called exec-
utive model that still prevails today, with some variation, in most Canadian
jurisdictions and, save some exceptions, around the world.13 Contemporary
criticism of the executive model stems from the opinion that this system of
court administration puts the independence of its courts in a dicult, if not
precarious, position.
While the role of the courts grew following the adoption of the Charter
of Ri ghts and Fre edoms, the expectations of litigants with respect to the admin-
istration of justice have evolved not through legislation but in response to
major issues arising in court, such as the importance of delays, the growing
backlog of files, and the increasing complexity of procedures.14 Popular pres-
sure clamours for the delivery of more ecient, transparent, accessible, and
democratic judicial services.
It was in this context of dissatisfaction of litigants and intense public
scrutiny that the prevailing model of court administration was called into
question in the second half of the twentieth century15 and that the need
to transform existing institutional relationships was invoked. Indeed, these
concerns directly related to the capacity of the courts, in the context of lim-
ited public resources, to respond to the challenges they faced on a daily basis
and at the same time preserve judicial independence, the ultimate purpose
12 Valente, above note 10 at para 47.
13 Karim Benyekhlef, Cléa Iavarone-Turcotte & Nicolas Vermeys, Comparative Analysis of
Key Characteristics of Court Administration Systems (Ottawa: Canadian Judicial Coun-
cil, 2011) [Comparative Analysis].
14 Tin Bunjevac, “From Individual Judge to Judicial Bureaucracy: The Emergence of
Judicial Councils and the Changing Nature of Judicial Accountability in Court Admin-
istration” (2017) 40:2 University of New South Wales Law Journal 806 at 840; Robert
Pidgeon, “L’autonomie administrative des tribunaux” in Denis Lemieux & Patrick A
Molinari, eds, Governance of Public Institutions, Professions, Corporations, Tribunals
and Courts: Ethics, Responsibility and Independence (Montreal: Canadian Institute
for the Administration of Justice, 2004) at 8, online: https://ciaj-icaj.ca/wp-content/
uploads/documents/import/2004/683Pidgeon.pdf?id=1263&1607729196.
15 Simon Shetreet, “The Challenge of Judicial Independence in the Twenty-First Century”
(2000) 8 Asia Pacific Law Review 153 at 165.
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