Respondent, a Quebec Superior Court judge appointed on July 24, 1975, challenged the constitutional validity of s. 29.1 of the Judges Act. This section was introduced in Parliament on February 17, 1975 and was enacted December 20, 1975. Section 29.1(1) provided that judges appointed before February 17, 1975 would contribute one and one‑half per cent of their salary toward the cost of pensions, while s. 29.1(2) provided that judges appointed after February 16, 1975 would contribute six and one‑half per cent prior to January 1, 1977, and seven per cent thereafter. Prior to the enactment of s. 29.1, superior court judges were not required to contribute to their pension plan. The Federal Court, at trial and on appeal, accepted respondent's allegation, but for different reasons, that s. 29.1 violated s. 100 of the Constitution Act, 1867 but rejected his argument that s. 29.1 was inoperative in that it violated his right to equality before the law recognized by s. 1(b) of the Canadian Bill of Rights. This appeal is to determine whether s. 29.1 of the Judges Act infringes (1) s. 100 of the Constitution Act, 1867 and (2) s. 1(b) of the Canadian Bill of Rights.
Held (Beetz and McIntyre JJ. dissenting in part): The appeal should be allowed.
(1) Section 100 of the Constitution Act, 1867
Per curiam: The principle of judicial independence is fundamental to our Constitution. The role of our courts as resolver of disputes, interpreter of the law and defender of the Constitution, requires that they be completely separate in authority and function from all other participants in the justice system, in particular, from the executive and the legislative branches of government. One of the essential components of the principle of judicial independence is financial security. In the present case, the scheme for contributory pensions established in s. 29.1 of the Judges Act does not interfere with the independence of superior court judges. All s. 29.1 does is treat judges, pursuant to the constitutional obligation imposed by s. 100 of the Constitution Act, 1867 , in accordance with standard, widely used and generally accepted pension schemes in Canada. Canadian judges are Canadian citizens and must bear their fair share of the financial burden of administering the country. Parliament's power to fix the salaries and pensions of superior court judges, however, is not unlimited. 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 judges vis‑à‑vis other citizens, then serious issues relating to judicial independence would arise and the law might well be held to be ultra vires of s. 100 of the Constitution Act, 1867 . There is no suggestion of any of these considerations in the present appeal.
There is no "federalism" limitation on Parliament's capacity to change the basis of superior court judges' pensions from non‑contributory to contributory. Provincial legislatures under s. 92(14) of the Constitution Act, 1867 have no jurisdiction with respect to these pensions. Section 100 explicitly subtracts them from provincial jurisdiction respecting the administration of justice. This section states clearly that the salaries and pensions of superior court judges shall be fixed and provided by the Parliament of Canada.
Further, Parliament's ability to implement a widely used and accepted latter‑day pension model is not constrained by the words of s. 100. The word "pensions" is not limited to the type of pensions known and in existence for the judiciary in 1867 and the word "provided" does not impose on Parliament an obligation to pay the full cost of judicial pensions.
Finally, although it might well be unconstitutional in most contexts for Parliament to direct how judges are to spend their salaries, the word "pensions" in s. 100 specifically authorizes Parliament to deal with this subject matter. In exercising that jurisdiction Parliament must legislate with respect to both the quantum and the scheme of judicial pensions. The 1975 law enacting s. 29.1 of the Judges Act dealt with the scheme. There can be no objection here to Parliament's action since the scheme chosen was a widely used and accepted one and since it was introduced in conjunction with a substantial increase in judicial salaries and other benefits in 1975.
Cases Cited
Referred to: Valente v. The Queen, [1985] 2 S.C.R. 673; Toronto Corporation v. York Corporation, [1938] A.C. 415; McEvoy v. Attorney General for New Brunswick, [1983] 1 S.C.R. 704; Judges v. Attorney‑General of Saskatchewan, [1937] 2 D.L.R. 209; Evans v. Gore, 253 U.S. 245 (1920); O'Malley v. Woodrough, 307 U.S. 277 (1939); Di Iorio v. Warden of the Montreal Jail, [1978] 1 S.C.R. 152; Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714; Crevier v. Attorney General of Quebec, [1981] 2 S.C.R. 220.
(2) Section 1(b) of the Canadian Bill of Rights
Per Dickson C.J. and Estey and Lamer JJ.: Section 29.1 of the Judges Act does not violate s. 1(b) of the Canadian Bill of Rights. Once it is accepted that the general substance of the law is consistent with a valid federal objective‑‑here, to provide for remuneration of s. 96 judges‑‑and that it is not discriminatory for Parliament to draw some line between present incumbents and future appointees, the cases under the Canadian Bill of Rights do not permit the courts to be overly critical in reviewing the precise line drawn by Parliament. Some line is fair and is not discriminatory. Thus, while from the respondent's perspective a line drawn on the date of passage of the bill would have been preferable, it cannot be said that the choice of the date of first reading as the cut‑off date was contrary to the Canadian Bill of Rights.
Per Beetz and McIntyre JJ. (dissenting): The forms of discrimination prohibited by s. 1(b) of the Canadian Bill of Rights are not limited to the specifically mentioned grounds such as race, national origin, colour, religion or sex. This Court is also not bound by the Diceyan concept of equality nor is it prevented from adopting a more egalitarian approach.
A legislation passed by Parliament does not offend against the principle of equality before the law if passed in pursuance of a valid federal objective. The question which must be resolved in each case is whether an inequality that may be created by legislation affecting a special class is arbitrary, capricious or unnecessary, or whether it is rationally based and acceptable as a necessary variation from the general principle of the universal application of law to meet special conditions and to attain a necessary and desirable social objective. Where variation from the principle of universal application of the law is justified, the principle cannot be tampered with to a degree or to an extent which goes beyond what is necessary to reach a desirable social objective. This test, including its element of proportionality, clearly extends to the manner or means chosen to achieve a valid federal objective, particularly where this manner or these means introduce the very inequality complained of. This manner or these means must then be carefully scrutinized by the courts and they must be struck down whenever they do not meet the test.
In the case at bar, s. 29.1(2) of the Judges Act is inconsistent with s. 1(b) of the Canadian Bill of Rights. The policy decision reflected in s. 29.1 of the Judges Act is that judges' pension plans should be on a contributory basis in order to reduce the financial burden on future taxpayers. Parliament chose to phase in the contributory requirement, by requiring contributions at the higher rate only from newly appointed judges so that, through the attrition of senior appointees as a result of death or resignation, the whole body of the judiciary would eventually participate in the contributory scheme. However, in choosing the date of first reading of the bill as the cut‑off date to implement the phasing‑in feature of the federal legislation, the new measure "grandfathered" certain incumbent superior court judges, but did not "grandfather" them all. A small minority of them‑‑those appointed after February 16, 1975 but before December 20, 1975‑‑were not grandfathered. Applying the test to s. 29.1, it cannot be said that the distinction between incumbent judges, which resulted from the selection of the date of first reading as the cut‑off point, was necessary to achieve the federal objective. No rational motives were advanced or appear to exist for the selection of that date as the cut‑off point which, with its discriminatory effect, is entirely arbitrary and capricious.
Cases Cited
By the majority
Referred to: MacKay v. The Queen, [1980] 2 S.C.R. 370; Curr v. The Queen, [1972] S.C.R. 889; R. v. Drybones, [1970] S.C.R. 282; Attorney General of Canada v. Lavell, [1974] S.C.R. 1349; Attorney General of Canada v. Canard, [1976] 1 S.C.R. 170; R. v. Burnshine, [1975] 1 S.C.R. 693; Prata v. Minister of Manpower and Immigration, [1976] 1 S.C.R. 376; Bliss v. Attorney General of Canada, [1979] 1 S.C.R. 183.
By the minority
MacKay v. The Queen, [1980] 2 S.C.R. 370; Curr v. The Queen, [1972] S.C.R. 889; Attorney General of Canada v. Lavell, [1974] S.C.R. 1349; R. v. Burnshine, [1975] 1 S.C.R. 693; Roncarelli v. Duplessis, [1959] S.C.R. 121; Attorney General of Canada v. Canard, [1976] 1 S.C.R. 170; Prata v. Minister of Manpower and Immigration, [1976] 1 S.C.R. 376; Bliss v. Attorney General of Canada, [1979] 1 S.C.R. 183.
Statutes and Regulations Cited
Act of Settlement, 1700 (Engl.), 12 & 13 Will. 3, c. 2.
Act to amend the Judges Act and certain other Acts or related purposes and in respect of the reconstitution of the Supreme Courts of Newfoundland and Prince Edward Island, S.C. 1974‑75‑76, c. 48.
Canadian Bill of Rights, R.S.C. 1970, App. III, s. 1(b).
Canadian Charter of Rights and Freedoms .
Constitution Act, 1867 , preamble, ss. 55, 91(8), (27), 92(14), 96, 99, 100, 129.
Judges Act, R.S.C. 1970, c. J‑1, s. 29.1 [en. S.C. 1974‑75‑76, c. 81, s. 100].
Statute Law (Superannuation) Amendment Act, 1975, S.C. 1974‑75‑76, c. 81, s. 100.
Supplementary Retirement Benefits Act, R.S.C. 1970 (1st Supp.), c. 43 as amended.
Authors Cited
Lane, Lord. "Judicial Independence and the Increasing Executive Role in Judicial Administration". In Judicial Independence: The Contemporary Debate. Edited by Shimon Shetreet and Jules Deschênes. Dordrecht, The Netherlands: Martinus Nijhoff Publishers, 1985, pp. 525‑528.
Lederman, W. R. "The Independence of the Judiciary" (1956), 34 Can. Bar Rev. 769, 1139.
Shetreet, Shimon. "The Emerging Transnational Jurisprudence on Judicial Independence: The IBA Standards and Montreal Declaration". In Judicial Independence: The Contemporary Debate. Edited by Shimon Shetreet and Jules Deschênes. Dordrecht, The Netherlands: Martinus Nijhoff Publishers, 1985, pp. 393‑402.
Tarnopolsky, Walter S. The Canadian Bill of Rights. 2nd ed., Toronto: McClelland and Stewart Ltd., 1975.
APPEAL from a judgment of the Federal Court of Appeal, [1984] 1 F.C. 1010, 148 D.L.R. (3d) 205, 48 N.R. 252, dismissing appellant's appeal and respondent cross‑appeal from a judgment of the Trial Division, [1981] 2 F.C. 543, 130 D.L.R. (3d) 433. Appeal allowed, Beetz and McIntyre JJ. dissenting in part.
W. I. C. Binnie, Q.C., and D. M. Low, for the appellant.
David W. Scott, Q.C., and Carole Brown, for the respondent.
The judgment of Dickson C.J. and Estey and Lamer JJ. was delivered by
1. The Chief Justice‑‑This appeal concerns the financial position and security of federally appointed judges. Relatively narrow amendments by Parliament to a federal law relating to pension benefits for judges, and pensions for their dependants, gave rise to the case. The legal issues which must be addressed are, however, quite broad. They involve careful consideration of at least three important relationships‑‑the federal Parliament and the judiciary, the executive branch of the federal government and the judiciary, and the federal government and provincial governments. Moreover, it is crucial to the resolution of this appeal to develop a proper understanding and application of the fundamental constitutional principle of judicial independence.
I
Facts
2. The law attacked in this appeal, the Statute Law (Superannuation) Amendment Act, 1975, S.C. 1974‑75‑76, c. 81, came into force on December 20, 1975. But the events relevant to the appeal started a year and a day earlier, and there are other important dates in the chronology.
3. On December 19, 1974 the federal Government introduced a bill to amend the Judges Act, R.S.C. 1970, c. J‑1. At that time the Judges Act provided provincial superior court judges with salaries of $38,000, pensions* after retirement, and pensions for surviving spouses and children of deceased judges. Judges were not required to pay for, or contribute toward, the costs of these pensions. The bill introduced by the Government on December 19, 1974 dealt with only the first and third components of the regime then in existence. The bill made provision for a 39 per cent increase in the salaries of superior court judges and a 50 per cent increase in the pensions for their surviving spouses and children. But further changes were foreshadowed; on the date the bill was introduced the federal Minister of Justice wrote to all federally appointed judges, stating in part:
*In the English version of the Judges Act, ss. 23‑29 are found under the heading «Annuities» and the benefits to judges, spouses and children provided in these sections are referred to as `annuities'. The heading at the start of the French version of these sections is Pensions and the word pension is used throughout the sections. In this judgment I have used the word `pension' because I think it corresponds more closely to the ordinary understanding of the benefits being considered. Furthermore, s. 100 of the Constitution Act, 1867 , which is the pivotal constitutional provision in this appeal, uses the word `Pensions'; in the interests of consistency and ease of understanding I will use it to describe the benefits conferred by the Judges Act and in issue in this appeal.
However, these improvements were achieved in the context of a comprehensive review of federal policies in relation to pensions which has just recently been concluded. As a result, it may become necessary at some future time to ask judges now in office to make a modest contribution towards the cost of the improved pensions for widows, and to ask persons who are in the future appointed to judicial office to contribute in some measure to pension benefit costs.
4. On February 17, 1975 the judicial contribution to pension costs, signalled in the Minister's letter, was initiated. On that date the Statute Law (Superannuation) Amendment Act, 1975 was introduced. It provided that judges appointed before February 17, 1975 would contribute 1.5 per cent of salary toward the cost of pensions (this was intended to be a contribution toward improved pensions for the spouses and children of judges), and judges appointed after that date would contribute 6 per cent of salary toward the cost of pensions plus ½ per cent, rising later to 1 per cent, toward indexing them to keep pace with inflation. The relevant portion of this amendment, which became s. 29.1 of the Judges Act, reads:
29.1(1) Every judge appointed before the 17th day of February, 1975 to hold office as a judge of a superior or county court shall, by reservation from his salary under this Act, contribute to the Consolidated Revenue Fund one and one‑half per cent of his salary.
(2) Every judge appointed after the 16th day of February, 1975 to hold office as a judge of a superior or county court, to whom subsection (1) does not apply, shall, by reservation from his salary under this Act,
(a) contribute to the Consolidated Revenue Fund an amount equal to six per cent of his salary; and
(b) contribute to the Supplementary Retirement Benefits Account established in the accounts of Canada pursuant to the Supplementary Retirement Benefits Act,
(i) prior to 1977, an amount equal to one‑half of one per cent of his salary, and
(ii) commencing with the month of January 1977, an amount equal to one per cent of his salary.
5. The next relevant date is July 4, 1975. On that date the bill amending the Judges Act to increase salaries by 39 per cent and pensions to surviving spouses and children by 50 per cent became law.
6. On July 24, 1975 the respondent, Marc Beauregard, was appointed a judge of the Superior Court of Quebec. The financial arrangements for a superior court judge in Quebec on that date were a salary of $53,000 (an increase of 39 per cent from the salary in effect just three weeks before), entitlement to a non‑contributory retirement pension and a pension, in certain circumstances, for his widow and children. When the respondent assumed his position on July 24, 1975 the Statute Law (Superannuation) Amendment Act, 1975 had not been enacted. It was still before Parliament and had been before Parliament since the previous February. The respondent contended, however, and the Crown conceded, that he did not know of its existence when he accepted his judicial appointment. In other words, on July 24, 1975 the ‘salary and increased benefits’ component of the proposed amendments to the Judges Act was in place but the negative aspect of the package (from the perspective of the respondent and, presumably, other superior court judges) was not.
7. The contributory requirement of the pension scheme became effective on the last relevant date in the chronology, December 20, 1975. On that date the amendments introduced on February 17, 1975 were enacted. Although the respondent's salary remained at $53,000, as a consequence of the amendments he was required to contribute 6½ per cent of his total salary to his pension plan until 1977 and 7 per cent thereafter.
8. The respondent, as plaintiff, challenged the constitutionality of the new s. 29.1 of the Judges Act. His challenge was two‑pronged. First, he alleged that s. 29.1 violated s. 100 of the Constitution Act, 1867 which provides:
100. The Salaries, Allowances, and Pensions of the Judges of the Superior, District, and County Courts (except the Courts of Probate in Nova Scotia and New Brunswick), and of the Admiralty Courts in Cases where the Judges thereof are for the Time being paid by Salary, shall be fixed and provided by the Parliament of Canada.
Secondly, the respondent contended that the words "before the 17th day of February, 1975" in s. 29.1(1) of the Judges Act and the whole of s. 29.1(2) were inoperative because they violated his right to equality before the law recognized by s. 1(b) of the Canadian Bill of Rights which provides:
1. It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely
...
(b) the right of the individual to equality before the law and the protection of the law;
II
Judgments
Federal Court, Trial Division
9. In his judgment, reported at [1981] 2 F.C. 543, Addy J. held that s. 29.1(2) of the Judges Act was ultra vires in so far as it applied to the respondent. He said that the effect of this provision was to reduce the salaries of incumbent judges and that this was unconstitutional for two reasons: first, because it intruded into provincial jurisdiction under s. 92(14) of the Constitution Act, 1867 with respect to the `administration of justice' (i.e. reductions in salary for superior court judges would require a constitutional amendment in which both the federal and provincial governments would participate); and secondly, because non‑reduction of the salaries of incumbent judges is a fundamental principle of constitutional law which Canada inherited from the United Kingdom.
10. Addy J. dismissed the respondent's argument based on s. 1(b) of the Canadian Bill of Rights. He said that that provision was not concerned with issues relating to the "mere quantum of remuneration for services rendered". Additionally, following the language of McIntyre J. of this Court in MacKay v. The Queen, [1980] 2 S.C.R. 370 at p. 406, he held that the requirement of making contributions for pension and survivor benefits was not "arbitrary, capricious or unnecessary" and therefore did not constitute a denial of equality before the law.
Federal Court of Appeal
11. The majority of the Federal Court of Appeal, in a decision reported at [1984] 1 F.C. 1010, agreed with the conclusion of Addy J. but disagreed with his reasoning (and with the reasoning of each other).
12. Thurlow C.J. held that Parliament had the power under s. 100 of the Constitution Act, 1867 to fix the salaries of superior court judges. He further held that the power to fix salaries included the power to reduce them and that this reduction could be achieved by federal statute and did not require constitutional amendment. Thurlow C.J. concluded, however, that s. 100 of the Constitution Act, 1867 does not give Parliament the power to dictate how judges use their salaries. Both parts of s. 29.1 of the Judges Act impermissibly do this by compulsorily taking from judges part of their salaries to help pay for their pension and survivor benefits.
13. Heald J. concluded that the clear wording of s. 100 of the Constitution Act, 1867 meant that Parliament had to pay the total cost of the pensions of superior court judges. It followed that s. 29.1(2) of the Judges Act was ultra vires because it compelled a contribution to the pensions of judges by the judges themselves. Section 29.1(1) of the Judges Act, however, was intra vires because it was dedicated exclusively to the cost of the improved pensions for widowed spouses and other dependants of judges.
14. Pratte J. dissented. He held that the words "fixed and provided" in s. 100 of the Constitution Act, 1867 gave Parliament a plenary power with respect to the salaries of superior court judges. This included the power to change them.
15. Although the three justices of the Federal Court of Appeal disagreed sharply on the interpretation of s. 100 of the Constitution Act, 1867 and its application to s. 29.1 of the Judges Act they were in agreement, both amongst themselves and with Addy J., that the respondent's argument based on s. 1(b) of the Canadian Bill of Rights failed.
16. In summary, the respondent's Canadian Bill of Rights attack on s. 29.1 of the Judges Act failed in both the Federal Court, Trial Division and the Federal Court of Appeal. He was, however, successful in both courts in his argument based on s. 100 of the Constitution Act, 1867 . Addy J. held that s. 100 prevented Parliament from reducing the compensation paid to incumbent judges. The majority of the Court of Appeal held that it would be unconstitutional for Parliament to require any superior court judge to contribute to his or her pension plan.
III
Issues
17. Although there are a myriad of legal issues to be addressed, they are all subsumed in the two constitutional questions stated by this Court on March 22, 1984:
1. Is section 29.1 of the Judges Act, as amended by s. 100 of the Statute Law (Superannuation) Amendment Act, 1975, S.C. 1974‑75‑76, c. 81, inconsistent with s. 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 s. 100 of the Statute Law (Superannuation) Amendment Act, 1975, S.C. 1974‑75‑76, c. 81, inconsistent with s. 1(b) of the Canadian Bill of Rights and to the extent of the inconsistency is it of no force or effect?
IV
Section 100 of the Constitution Act, 1867 and s. 29.1 of the Judges Act
18. For convenience of reference I set out again s. 100 of the Constitution Act, 1867 :
100. The Salaries, Allowances, and Pensions of the Judges of the Superior, District, and County Courts (except the Courts of Probate in Nova Scotia and New Brunswick), and of the Admiralty Courts in Cases where the Judges thereof are for the Time being paid by Salary, shall be fixed and provided by the Parliament of Canada.
In the context of this appeal, it seems to me that three introductory points can be made about this provision. First, it deals explicitly with both judicial salaries and pensions. Secondly, it stands as a constitutional affirmation that superior, district and county court judges will receive at least some salary and pension benefits. Thirdly, it assigns the responsibility, in both a federalism sense and a separation of powers sense, for providing judicial salaries and pensions. In the federalism sense, the assignment is to Parliament, not the provincial governments. In the separation of powers sense, the assignment is to the federal legislative branch, Parliament, not to any component of the executive branch.
19. The respondent makes three distinct arguments about the relationship between s. 100 of the Constitution Act, 1867 and s. 29.1 of the Judges Act. These arguments correspond quite closely to the different bases for decision in the judgments of Addy J. at trial and Thurlow C.J. and Heald J. on appeal. They include:
(1) Under the Constitution, Parliament could not, on December 20, 1975, diminish, reduce or impair the established benefits of the respondent.
(2) Section 100 of the Constitution Act, 1867 requires Parliament to provide to superior court judges non‑contributory retirement pensions.
(3) Section 100 does not authorize Parliament to compel superior court judges to contribute to a fund through deductions from their salaries.
20. Although different points are made under each of these arguments, there is a common thread running through all three. This common thread is the principle of judicial independence. The respondent contends that judicial independence is an important principle of Canadian constitutional law which must be interpreted to invalidate the legislation under review. Before assessing the merits of the specific arguments above, it is important to examine the principle of judicial independence.
V
Judicial Independence
1. General Considerations
21. Historically, the generally accepted core of the principle of judicial independence has been the complete liberty of individual judges to hear and decide the cases that come before them: no outsider‑‑be it government, pressure group, individual or even another judge‑‑should interfere in fact, or attempt to interfere, with the way in which a judge conducts his or her case and makes his or her decision. This core continues to be central to the principle of judicial independence. Nevertheless, it is not the entire content of the principle.
22. Of recent years the general understanding of the principle of judicial independence has grown and been transformed to respond to the modern needs and problems of free and democratic societies. The ability of individual judges to make decisions in discrete cases free from external interference or influence continues, of course, to be an important and necessary component of the principle. Today, however, the principle is far broader. In the words of a leading academic authority on judicial independence, Professor Shimon Shetreet: "The judiciary has developed from a dispute‑resolution mechanism, to a significant social institution with an important constitutional role which participates along with other institutions in shaping the life of its community" ("The Emerging Transnational Jurisprudence on Judicial Independence: The IBA Standards and Montreal Declaration", in S. Shetreet and J. Deschênes (eds.), Judicial Independence: The Contemporary Debate (1985), at p. 393).
23. There is, therefore, both an individual and a collective or institutional aspect to judicial independence. As stated by Le Dain J. in Valente v. The Queen, [1985] 2 S.C.R. 673, at pp. 685 and 687:
[Judicial independence] connotes not merely a state of mind or attitude in the actual exercise of judicial functions, but a status or relationship to others, particularly to the executive branch of government, that rests on objective conditions or guarantees.
...
It is generally agreed that judicial independence involves both individual and institutional relationships: the individual independence of a judge, as reflected in such matters as security of tenure, and the institutional independence of the court or tribunal over which he or she presides, as reflected in its institutional or administrative relationships to the executive and legislative branches of government.
24. The rationale for this two‑pronged modern understanding of judicial independence is recognition that the courts are not charged solely with the adjudication of individual cases. That is, of course, one role. It is also the context for a second, different and equally important role, namely as protector of the Constitution and the fundamental values embodied in it‑‑rule of law, fundamental justice, equality, preservation of the democratic process, to name perhaps the most important. In other words, judicial independence is essential for fair and just dispute‑resolution in individual cases. It is also the lifeblood of constitutionalism in democratic societies.
2. Foundations of Judicial Independence in Canada
25. It is trite history that the Canadian court system has its primary antecedents in the United Kingdom. (This is not true of our substantive law which has deep roots in both the United Kingdom and France.) In the United Kingdom the cornerstone of the constitutional system has been for centuries, and still is today, the principle of parliamentary supremacy. But it is not the only principle. The rule of law is another. Judicial independence is a third. The history of the Constitution of the United Kingdom reveals continuous growth towards independent judicial authority. That history is well‑described in Professor Lederman's classic article, "The Independence of the Judiciary" (1956), 34 Can. Bar Rev. 769‑809 and 1139‑1179. Judicial authority in the United Kingdom has matured into a strong and effective means of ensuring that governmental power is exercised in accordance with law. Judicial independence is the essential prerequisite for this judicial authority. In the recent words of Lord Lane: "Few constitutional precepts are more generally accepted there in England, the land which boasts no written constitution, than the necessity for the judiciary to be secure from undue influence and autonomous within its own field" ("Judicial Independence and the Increasing Executive Role in Judicial Administration", in S. Shetreet and J. Deschênes (eds.), Judicial Independence: The Contemporary Debate (1985), at p. 525).
26. In Canada, the constitutional foundation for the principle of judicial independence is derived from many sources. Because the sources for the principle are both varied and powerful, the principle itself is probably more integral and important in our constitutional system than it is in the United Kingdom.
27. Indeed, two of the sources of, or reasons for, judicial independence in Canada do not exist in the United Kingdom. First, Canada is a federal country with a constitutional distribution of powers between federal and provincial governments. As in other federal countries, there is a need for an impartial umpire to resolve disputes between two levels of government as well as between governments and private individuals who rely on the distribution of powers. In most federal countries the courts play this umpiring role. In Canada, since Confederation, it has been assumed and agreed that the courts would play an important constitutional role as umpire of the federal system. Initially, the role of the courts in this regard was not exclusive; in the early years of Confederation the federal government's disallowance power contained in s. 55 of the Constitution Act, 1867 was also central to federal‑provincial dispute‑ resolution. In time, however, the disallowance power fell into disuse and the courts emerged as the ultimate umpire of the federal system. That role, still fundamental today, requires that the umpire be autonomous and completely independent of the parties involved in federal‑provincial disputes.
28. Secondly, the enactment of the Canadian Charter of Rights and Freedoms (although admittedly not relevant to this case because of its date of origin) conferred on the courts another truly crucial role: the defense of basic individual liberties and human rights against intrusions by all levels and branches of government. Once again, in order to play this deeply constitutional role, judicial independence is essential.
29. Beyond these two fundamental sources of, or reasons for, judicial independence there is also textual recognition of the principle in the Constitution Act, 1867 . The preamble to the Constitution Act, 1867 states that Canada is to have a Constitution "similar in Principle to that of the United Kingdom". Since judicial independence has been for centuries an important principle of the Constitution of the United Kingdom, it is fair to infer that it was transferred to Canada by the constitutional language of the preamble. Furthermore, s. 129 of the Constitution Act, 1867 continued the courts previously in existence in the federating provinces into the new Dominion. The fundamental traditions of those courts, including judicial independence, were also continued. Additionally, the judicature provisions of the Constitution Act, 1867 , especially ss. 96, 99 and 100, support judicial authority and independence, at least at the level of superior, district and county courts. As Lord Atkin said in Toronto Corporation v. York Corporation, [1938] A.C. 415 at p. 426:
While legislative power in relation to the constitution, maintenance and organization of Provincial Courts of Civil Jurisdiction, including procedure in civil matters, is confided to the Province, the independence of the judges is protected by provisions that the judges of the Superior, District, and County Courts shall be appointed by the Governor‑General (s. 96 of the British North America Act, 1867), that the judges of the Superior Courts shall hold office during good behaviour (s. 99 ), and that the salaries of the judges of the Superior, District, and County Courts shall be fixed and provided by the Parliament of Canada (s. 100). These are three principal pillars in the temple of justice, and they are not to be undermined.
(Emphasis added.)
30. In summary, Canadian constitutional history and current Canadian constitutional law establish clearly the deep roots and contemporary vitality and vibrancy of the principle of judicial independence in Canada. The role of the courts as resolver of disputes, interpreter of the law and defender of the Constitution requires that they be completely separate in authority and function from all other participants in the justice system.
31. I emphasize the word ‘all’ in the previous sentence because, although judicial independence is usually considered and discussed in terms of the relationship between the judiciary and the executive branch, in this appeal the relevant relationship is between the judiciary and Parliament. Nothing turns on this contextual difference. Although particular care must be taken to preserve the independence of the judiciary from the executive branch (because the executive is so often a litigant before the courts), the principle of judicial independence must also be maintained against all other potential intrusions, including any from the legislative branch. In McEvoy v. Attorney General for New Brunswick, [1983] 1 S.C.R. 704, the Court said, at p. 720:
The judicature sections of the Constitution Act, 1867 guarantee the independence of the Superior Courts; they apply to Parliament as well as to the Provincial Legislatures.
In a similar vein, these sections, including s. 100, apply to both the executive and legislative branches of government.
3. Content of the Principle of Judicial Independence
32. Turning from the general definition and constitutional foundations of judicial independence, it becomes necessary to consider its content or conditions in a Canadian setting. In the context of this appeal, it is particularly important to discuss the question of financial security as a component of judicial independence.
33. There is, and has been at least since the Act of Settlement, 1700 (Engl.), 12 & 13 Will. 3, c. 2, agreement that judicial independence requires security of tenure and financial security. In recent years, important international documents have fleshed out in more detail the content of the principle of judicial independence in free and democratic societies: see, for example, the thirty‑two articles in the Syracuse Draft Principles on the Independence of the Judiciary (1981), the forty‑seven standards enunciated in the International Bar Association Code of Minimum Standards of Judicial Independence (1982), and, especially, the Universal Declaration of the Independence of Justice (adopted at the final plenary session of the First World Conference on the Independence of Justice held in Montréal in 1983). Invariably, financial security has been recognized as a central component of the international concept of judicial independence. For a recent example, the Universal Declaration of the Independence of Justice (the Montreal Declaration) provides:
2.21 a) During their terms of office, judges shall receive salaries and after retirement, they shall receive pensions.
b) The salaries and pensions of judges shall be adequate, commensurate with the status, dignity and responsibility of their office, and be regularly adjusted to account fully for price increases.
c) Judicial salaries shall not be decreased during the judges' term of office, except as a coherent part of an overall public economic measure.
34. This international understanding of one of the essential features of judicial independence is, in my opinion, given powerful expression in a Canadian context by s. 100 of the Constitution Act, 1867 , earlier quoted. Speaking of financial security in Valente, Le Dain J. said, at p. 704:
The second essential condition of judicial independence ...is...what may be referred to as financial security. That means security of salary or other remuneration, and, where appropriate, security of pension. The essence of such security is that the right to salary and pension should be established by law and not be subject to arbitrary interference by the Executive in a manner that could affect judicial independence.
I agree with this passage, although I believe it requires a somewhat broader expression by reason of the circumstances of this appeal. Valente dealt substantially, although not exclusively, with the relationship between the executive branch of a provincial government and a statutory court. In that context, Le Dain J.'s discussion of judicial independence in terms of the prevention of arbitrary interference "by the Executive" is, in my opinion, both apposite and correct. In this appeal, the relevant relationship is different; it is between the legislative branch of the federal government and a superior court with its combination of a constitutional position and statutory and equitable jurisdiction. In the context of this appeal it must be declared that the essence of judicial independence for superior court judges is complete freedom from arbitrary interference by both the executive and the legislature. Neither the executive nor the legislature can interfere with the financial security of superior court judges. That security is crucial to the very existence and preservation of judicial independence as we know it.
35. Against this background of the historical foundations for, and contemporary content of, judicial independence in Canada it is now possible to consider the three specific grounds of attack on s. 29.1 of the Judges Act.
VI
Grounds of Attack
1. Parliament cannot diminish, reduce or impair established salary or remunerative benefits
36. Of the three arguments made by the respondent this is the one, in my opinion, deserving of special consideration. It is contended that Parliament cannot impair or diminish the established salary or benefits of incumbent judges because this might interfere in fact, or be perceived as interfering, with the independence of those judges. Since I have already concluded that judicial independence is an important constitutional value in Canada, the relevant question becomes: does the scheme for contributory pensions established in s. 29.1 of the Judges Act violate this principle?
37. The starting point in this inquiry is recognition that someone must provide for judicial salaries and benefits and that, by virtue of s. 100 of the Constitution Act, 1867 , that someone is, explicitly, Parliament.
38. What then can Parliament do and not do in meeting its constitutional obligation to provide salaries and pensions to superior court judges? As a general observation, Canadian judges are Canadian citizens and must bear their fair share of the financial burden of administering the country. Thus, for example, judges must pay the general taxes of the land. See Judges v. Attorney‑General of Saskatchewan, [1937] 2 D.L.R. 209 (P.C.) Judges also have an amount deducted from their salaries as a contribution to the Canada Pension Plan. These two liabilities are, of course, general in the sense that all citizens are subject to them whereas the contributions demanded by s. 29.1 of the Judges Act are directed at judges only. (Other legislation, federal and provincial, establishes similar pension schemes for a substantial number of other Canadians.) Conceding the factual difference that s. 29.1 of the Judges Act is directed only at judges, I fail to see that this difference translates into any legal consequence. As I have earlier indicated, the essential condition of judicial independence at the individual level is the necessity of having judges who feel totally free to render decisions in the cases that come before them. On the institutional plane, judicial independence means the preservation of the separateness and integrity of the judicial branch and a guarantee of its freedom from unwarranted intrusions by, or even intertwining with, the legislative and executive branches. It is very difficult for me to see any connection between these essential conditions of judicial independence and Parliament's decision to establish a pension scheme for judges and to expect judges to make contributions toward the benefits established by the scheme. At the end of the day, all s. 29.1 of the Judges Act does, pursuant to the constitutional obligation imposed by s. 100 of the Constitution Act, 1867 , is treat judges in accordance with standard, widely used and generally accepted pension schemes in Canada. From that factual reality it is far too long a stretch, in my opinion, to the conclusion that s. 29.1 of the Judges Act violates judicial independence.
39. I want to qualify what I have just said. The power of Parliament to fix the salaries and pensions of superior court judges is not unlimited. If there were any hint that a federal law dealing with these matters was enacted for an improper or colourable purpose, or if there was discriminatory treatment of judges vis‑à‑vis other citizens, then serious issues relating to judicial independence would arise and the law might well be held to be ultra vires s. 100 of the Constitution Act, 1867 .
40. There is no suggestion, however, of any of these considerations in the present appeal. First, the motive underlying s. 29.1 of the Judges Act, especially when viewed in the context of the substantial increase in salaries received by superior court judges at virtually the same time, was, without question, to try to deal fairly with judges and with judicial salaries and pensions. Secondly, although superior court judges were required to contribute to their pension benefits commencing December 20, 1975, the contributory scheme was effectively introduced as part of a remuneration package which included a 39 per cent salary increase and a 50 per cent increase in pensions to dependants. The salary and pension changes were intended to be complementary and, as a comprehensive package, did not diminish, reduce or impair the financial position of federally‑appointed judges. Thirdly, there was no discriminatory treatment of judges. Contributory pension schemes are now widespread in Canada; s. 29.1 of the Judges Act merely moved superior court judges into the mainstream of Canadian pension schemes. Recognition of that reality draws me, by way of conclusion on this point, to the words of Holmes and Frankfurter JJ. in two American cases. Article III, section 1 of the Constitution of the United States also protects judicial tenure and financial security. Speaking generally about this article, and admittedly in the context of a ‘taxation’, not a ‘pension’, fact situation, Holmes J. (dissenting) said in Evans v. Gore, 253 U.S. 245 (1920), at p. 265:
I see nothing in the purpose of this clause of the Constitution to indicate that the judges were to be a privileged class, free from bearing their share of the cost of the institutions upon which their well‑being if not their life depends.
In the same vein, Frankfurter J. said in O'Malley v. Woodrough, 307 U.S. 277 (1939), at p. 282:
To suggest that it makes inroads upon the independence of judges who took office after Congress had thus charged them with the common duties of citizenship, by making them bear their aliquot share of the cost of maintaining the Government, is to trivialize the great historic experience on which the framers based the safeguards of Article III, s. 1. To subject them to a general tax is merely to recognize that judges are also citizens, and that their particular function in government does not generate an immunity from sharing with their fellow citizens the material burden of the government whose Constitution and laws they are charged with administering.
2. Section 100 mandates non‑contributory retirement pensions
41. There are two separate arguments that have been advanced in support of the claim that Parliament must provide non‑contributory retirement pensions to superior court judges. I would label one the ‘federalism’ argument and the other the ‘strict construction’ argument.
42. The `federalism' argument is that s. 100 of the Constitution Act, 1867 must be read against the backdrop of s. 92(14) of the Constitution Act, 1867 which gives provincial legislatures jurisdiction to make laws in relation to ‘the administration of justice in the province’. Since that phrase includes matters relating to the judiciary, it follows that Parliament alone cannot change the basis of judicial pensions from non‑contributory to contributory. Such a change would require a constitutional amendment following on from the proper degree of legal participation and consent of the federal and provincial governments.
43. It is true that s. 92(14) of the Constitution Act, 1867 gives the provincial governments jurisdiction over the field of the administration of justice. It is also true that, even more specifically, s. 92(14) entrusts to the provinces "the constitution, maintenance and organization of provincial courts" which, without question, includes superior courts. Without more, it would not be a large step to move from these constitutional foundations to recognition of a provincial role in setting salaries and providing benefits, including pensions, to superior court judges. But s. 92(14) of the Constitution Act, 1867 cannot be read in isolation. Although it is "intended to have [a] wide meaning" (Di Iorio v. Warden of the Montreal Jail, [1978] 1 S.C.R. 152 at p. 204), it must be read in light of other provisions of the Constitution. There are subtractions from what would appear, without more, to be complete provincial jurisdiction with respect to the justice system. One such subtraction, and it is a major one, is federal jurisdiction by virtue of s. 91(27) of the Constitution Act, 1867 over criminal law and criminal procedure. See Di Iorio, at p. 199. A second subtraction flows from s. 96 of the same Act. Although provincial governments have the power to establish, maintain and organize provincial superior courts, s. 96 explicitly provides that only the Governor General, in effect the Governor General in Council, has power to appoint the judges of those courts. See, among many cases, Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714; Crevier v. Attorney General of Quebec, [1981] 2 S.C.R. 220.
44. Section 100 of the Constitution Act, 1867 provides a third, and particularly explicit, subtraction from provincial jurisdiction with respect to the administration of justice. It states that the salaries and pensions of superior court judges shall be fixed and provided by the Parliament of Canada. It is difficult to conceive of clearer words. To attempt to create a provincial role in the determination of the salaries and pensions of superior court judges is blithely to ignore this clear mandate. Indeed, it turns s. 100 on its head. Just as s. 96 of the Constitution Act, 1867 provides for federal appointment of superior court judges, so s. 100 provides for federal jurisdiction over their salaries and pensions. Both the intent and the actual wording of s. 100 are clear. There is no `federalism' limitation on Parliament's capacity to change the basis of pensions for superior court judges from non‑contributory to contributory.
45. I turn now to what I have labelled the ‘strict construction’ argument. It has two dimensions. First, it is contended that, since judges received non‑contributory pensions before and at Confederation, the word ‘pensions’ in s. 100 of the Constitution Act, 1867 meant then, and must continue to mean today, non‑contributory pensions. Secondly, it is contended that the words ‘fixed and provided’ mean that Parliament must pay for the full cost of the pensions of superior court judges, which rules out a contributory scheme.
46. With respect to the first of these arguments, I do not think s. 100 imposes on Parliament the duty to continue to provide judges with precisely the same type of pension they received in 1867. The Canadian Constitution is not locked forever in a 119‑year old casket. It lives and breathes and is capable of growing to keep pace with the growth of the country and its people. Accordingly, if the Constitution can accommodate, as it has, many subjects unknown in 1867‑‑airplanes, nuclear energy, hydroelectric power‑‑it is surely not straining s. 100 too much to say that the word `pensions', admittedly understood in one sense in 1867, can today support federal legislation based on a different understanding of `pensions'.
47. The second `strict construction' argument is, as noted above, that the words "Pensions ... shall be fixed and provided" in s. 100 impose on Parliament an obligation to pay the full cost of the pension. This is the argument which Heald J. accepted in the Federal Court of Appeal. He was particularly drawn to this argument because of the contrast he saw between the wording of s. 100 dealing with judicial pensions ("shall be fixed and provided") and s. 91(8) dealing with pensions for federal public servants ("The fixing of and providing for the Salaries and Allowances of Civil and other Officers of the Government of Canada"). In his words, at p. 1040:
In my view, subsection 91(8) is in no way analogous or comparable to section 100. Subsection 91(8) is an enabling section. It empowers Parliament to provide for the salaries of civil servants but does not require it to do so. There is no provision in the subsection at all for the pensions of civil servants. Section 100, on the other hand, imposes a responsibility, inter alia, to provide the pensions of judges. The word "for" in subsection 91(8) is absent from section 100. In my view, the obligation imposed by section 100 to provide pensions imposes a duty on Parliament to provide the total amount of those pensions.
48. I accept Heald J.'s description of the mandatory‑‑permissive distinction between ss. 100 and 91(8). Section 100 makes it clear that superior court judges will have some salary and pension benefits. Section 91(8) does not go that far. It merely authorizes, in a federalism sense, Parliament to make laws respecting salaries and pensions for federal public servants; it does not require Parliament to legislate.
49. Agreement with the mandatory‑‑permissive distinction between the two provisions, however, does not necessarily entail acceptance of the conclusion which Heald J. suggests flows from it, namely that Parliament must pay the total cost of the pensions of superior court judges. I fail to see how the absence of the word `for' in s. 100 leads to this conclusion. My view is that what emerges clearly from the word `provided' in s. 100 is that Parliament must provide salaries and pensions to superior court judges. What does not emerge clearly from this word is any constitutional qualification on the type, scheme or even amount of these salaries or pensions. In light of the modern‑day reality that a great many people pay for a portion of their pension benefits, it is, in my opinion, construing too literally the word `provided' to say that it means that Parliament must pay every cent of the pensions of superior court judges.
50. In my view, strict construction is rarely controlling in constitutional interpretation. My conclusion on the respondent's `strict construction' arguments is simply that the word `pensions' in s. 100 of the Constitution Act, 1867 is not limited to the type of pensions known and in existence for the judiciary in 1867 and the word `provided' does not necessarily mean that Parliament must pay the total cost of judicial pensions. Parliament's ability to implement a widely used and accepted latter‑day pension model is not constrained by either of these words in terms of their strict construction.
3. Parliament cannot dictate how judges spend their salaries by requiring pension contributions
51. The respondent's argument here is that nothing in the Constitution Act, 1867 , including s. 100 , authorizes Parliament to make any deductions from the salaries of superior court judges because such deductions constitute an unconstitutional direction as to how judges are to spend their salaries and therefore a direct interference on judicial independence. For three reasons, I cannot accept what the respondent tries to read into s. 100.
52. First, there is a close relationship between salaries and pensions. They are both remunerative benefits. Superior court judges are not in any sense `employees' of anyone, including the federal government. Yet, as I have noted, they must be paid by someone and that someone, according to s. 100, is Parliament. In fulfilling its constitutional obligation to establish salaries and pensions for superior court judges, it is reasonable that Parliament would ask: what is an appropriate total benefit package and what components should constitute the package? Salary and pension must be two of the components and Parliament must consider the relationship between them. It did this in 1975; the 1975 ‘package’ significantly raised judicial salaries and increased certain benefits but, at the same time, compelled judges to contribute to their own pension schemes. Parliament could have reached precisely the same financial result by leaving the former non‑contributory pension scheme in place but not raising salaries as much as it did. No one contests that this would have been constitutional. But if that is so, I see no reason why Parliament cannot achieve the same result in the way it chose. There is nothing in the wording of s. 100 to suggest the limitation on Parliament's jurisdiction contended for by the respondent.
53. Indeed, there is wording in s. 100 that points the other way, which brings me to the second reason for holding against the respondent on this issue. The fatal defect of the respondent's argument is that it ignores the word ‘pensions’ in s. 100 of the Constitution Act, 1867 . Although it might well be unconstitutional in most contexts for Parliament to direct how judges are to spend their salaries, the word `pensions' in s. 100 specifically authorizes Parliament to deal with this subject‑matter. In exercising that jurisdiction Parliament must legislate with respect to both the quantum and the scheme of judicial pensions. The 1975 law dealt with the scheme. Since the scheme chosen was a widely used and accepted one and since it was introduced in conjunction with other changes to judicial benefits in 1975, I see no objection to it on the ground contended for by the respondent.
54. Thirdly, the limitation proposed by the respondent would have nothing to do with my understanding of proper governmental respect for the independent role of the courts; neither would it bear directly upon the relationship between the judiciary and either Parliament or the executive; nor would it have any meaning in a federal‑provincial sense. In short, I simply do not see any conceptual, principled or practical reason for drawing a line in the place contended for by the respondent.
55. For all of these reasons I conclude that s. 29.1 of the Judges Act does not violate s. 100 of the Constitution Act, 1867 .
VII
Section 1(b) of the Canadian Bill of Rights and s. 29.1 of the Judges Act
56. For convenience of reference I set out again the relevant part of s. 1(b) of the Canadian Bill of Rights:
1. It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely,
...
(b) the right of the individual to equality before the law and the protection of the law;
I commence by noting that the respondent calls this his subsidiary argument and that it was dismissed by all four of the judges of the Federal Court, Trial Division and Federal Court of Appeal who heard the case.
57. The respondent's argument is not that he or other superior court judges are being treated differently and more harshly than other Canadians. As discussed above, because of the broad use throughout the country of contributory pension schemes, such an argument would not be possible. Rather, the respondent's argument is that s. 29.1 of the Judges Act treats him more harshly than other superior court judges and that s. 1(b) of the Canadian Bill of Rights protects him from this treatment.
58. The fact situation underlying this claim is somewhat complex and needs to be understood clearly before proceeding. There are three, not two, categories of judges affected by s. 29.1 of the Judges Act because, although the section was introduced into Parliament on February 17, 1975 and that date was selected as the cut‑off for imposition of the contributory payments on judges, the section was not enacted until December 20, 1975. Accordingly, the three categories of judges are:
1. Judges appointed before February 17, 1975 (they are ‘grandfathered’ from the contributory schemes in s. 29.1(2); they must, however, pay 1½ per cent of heir salaries toward improving pension benefits for their spouses and children).
2. Judges appointed after December 20, 1975 (the law would be in force; they must pay under s. 29.1(2) of the Act).
3. Judges appointed after February 17, 1975 but before December 20, 1975 (the law would not be in force when they were appointed but, once enacted, it purports to reach backward and apply to them).
The respondent is in the third category which, I understand, consists of a relatively small number of judges.
59. The respondent's argument is that "equality before the law" in s. 1(b) of the Canadian Bill of Rights prohibits the different statutory treatment of some judges vis‑à‑vis other judges with respect to their pensions. In assessing this argument it is important to be aware of the cases in which s. 1(b) has been considered by this Court and the conclusion reached in each such case.
60. Only in R. v. Drybones, [1970] S.C.R. 282, did a majority of the Court hold a federal statute to be inconsistent with s. 1(b) of the Canadian Bill of Rights. In that case, a provision of the Indian Act made it an offence for an Indian to be intoxicated outside an Indian reserve. The gist of Ritchie J.'s reasons is summarized in the following passage at p. 297:
... I am therefore of opinion that an individual is denied equality before the law if it is made an offence punishable at law, on account of his race, for him to do something which his fellow Canadians are free to do without having committed any offence or having been made subject to any penalty.
There is not the faintest resemblance between Drybones, which involved racial discrimination regarding a quasi‑criminal offence, and the present case, which involves a legislative distinction on the basis of the appointment date of judges.
61. In Attorney General of Canada v. Lavell, [1974] S.C.R. 1349, the Court had occasion to consider another provision of the Indian Act. The legislation under review stipulated that an Indian woman who married a non‑Indian man lost her Indian status, although an Indian man who married a non‑Indian woman retained his Indian status. A majority of the Court held that this did not offend "equality before the law" under s. 1(b).
62. A third provision of the Indian Act was assessed against s. 1(b) of the Canadian Bill of Rights in Attorney General of Canada v. Canard, [1976] 1 S.C.R. 170. In this case the legislation denied the widow of a deceased Indian the right to administer the estate of her late husband. A majority of the Court rejected the claim that such differential treatment of Indians violated the equality provision of the Canadian Bill of Rights, noting that this type of legislative distinction was within federal competence under s. 91(24) of the Constitution Act, 1867 .
63. In R. v. Burnshine, [1975] 1 S.C.R. 693, the majority again found no violation of equality before the law under the Canadian Bill of Rights. A provision in the Prisons and Reformatories Act called for sentences of "indeterminate" length for offenders under the age of twenty‑two. A person older than twenty‑two would not in the circumstances have been subjected to indeterminate sentences under the Criminal Code . The law had application only in Ontario and British Columbia since the requisite special correctional facilities were unavailable in other provinces. The legislation thus created distinctions on the basis of both age and province of residence. Martland J., writing for the majority, noted at p. 702:
I am not prepared to accept the respondent's submission as to the meaning of the phrase "equality before the law" in s. 1(b) of the Bill of Rights. Section 1 of the Bill declared that six defined human rights and freedoms "have existed" and that they should "continue to exist". All of them had existed and were protected under the common law. The Bill did not purport to define new rights and freedoms. What it did was to declare their existence in a statute, and, further, by s. 2, to protect them from infringement by any federal statute.
He referred with approval to the passage in the judgment of Ritchie J. in Lavell, in which equality before the law was said to mean that the law must apply to all individuals without exemption from the duty to obey it. Martland J. also quoted with approval the following passage from Curr v. The Queen, [1972] S.C.R. 889 at p. 899:
... compelling reasons ought to be advanced to justify the Court in this case to employ a statutory (as contrasted with a constitutional) jurisdiction to deny operative effect to a substantive measure duly enacted by a Parliament constitutionally competent to do so, and exercising its powers in accordance with the tenets of responsible government, which underlie the discharge of legislative authority under the British North America Act.
The majority concluded with the observation that in order to have succeeded Burnshine would have to have demonstrated that Parliament was not seeking to achieve a "valid federal objective".
64. In Prata v. Minister of Manpower and Immigration, [1976] 1 S.C.R. 376, the appellant claimed that a limitation on the discretionary power of the Immigration Appeal Board to quash a deportation order on compassionate grounds was contrary to equality before the law. The limitation was triggered by the filing of a certificate by the Minister, based upon intelligence reports, that it would be contrary to the national interest for the Board to so exercise its discretion. The prospective deportee had no statutory right to a hearing to go behind the Minister's certificate to challenge the accuracy of the intelligence reports. The Court disposed of the s. 1(b) claim easily, saying that the limitation sought to achieve a valid federal objective.
65. Bliss v. Attorney General of Canada, [1979] 1 S.C.R. 183, involved provisions in the Unemployment Insurance Act, 1971 which denied the standard unemployment insurance benefits to persons whose employment was interrupted by pregnancy. Although the Act provided maternity benefits, it required a longer qualification period for maternity benefits than for standard benefits. Mrs. Bliss had satisfied the qualification period for standard benefits, but not for maternity benefits. In holding that these provisions did not offend the appellant's right to equality before the law, the judgment of the Court, delivered by Ritchie J., emphasized that s. 91 of the British North America Act, 1867 had been amended in 1940 by the addition of unemployment insurance as a class of subjects reserved to Parliament. Since the impugned legislation was an integral part of Parliament's unemployment insurance scheme it was enacted for the purpose of achieving a valid federal objective. Ritchie J. also quoted the excerpt from Curr which I have reproduced above.
66. The last case is MacKay v. The Queen, supra. The legislation under review created a special criminal procedure and forum for servicemen charged with criminal offences. Amongst other attributes, the court martial procedure deprived the accused serviceman of a preliminary hearing, the right to a jury trial, and in some circumstances the plea of autrefois convict. The majority judgment again relied on the "valid federal objective" test in denying any conflict between the National Defence Act and s. 1(b) of the Canadian Bill of Rights.
67. This short history of "equality before the law" under s. 1(b) of the Canadian Bill of Rights demonstrates that a majority of the Court was never prepared to review impugned legislation according to an exacting standard which would demand of Parliament the most carefully tailored, finely crafted legislation. On the contrary, a majority of the Court was consistently prepared to look in a general way to whether the legislation was in pursuit of a valid federal legislative objective. This approach was followed in cases involving legislative distinctions on the basis of race, sex and age, and in cases involving profoundly important interests of the person asserting the equality right. The passages which I have quoted from these cases indicate that the Court was concerned with the merely statutory status of the Canadian Bill of Rights and the declaratory nature of the rights it conferred. I believe the day has passed when it might have been appropriate to re‑evaluate those concerns and to reassess the direction this Court has taken in interpreting that document.
68. Against this background of previous cases under s.1(b), the questions in this appeal are: Was it discriminatory for Parliament to choose any cut‑off date in s. 29.1 of the Judges Act? Was the specific cut‑off date chosen, February 17, 1975, legal?
69. I have no trouble with the first question. Parliament could have imposed the new scheme on all superior court judges, including those appointed before 1975. However, taking into account the settled expectations of those earlier appointees, Parliament decided to `grandfather' them. I can see no objection to this decision. Nor, in fairness, does the respondent. His complaint is not so much against the `old judge/new judge' line drawn by Parliament. Rather, his complaint is against Parliament's assignment of him, by virtue of the February 17, 1975 cut‑off date, to the `new judge' side of the line.
70. That brings me to the second question, which is whether the February 17, 1975 cut‑off date chosen by Parliament and reflected in s. 29.1 of the Judges' Act unlawfully discriminates against the respondent. I cannot see how it does. Once it is accepted that the general substance of the law is consistent with the valid federal objective of providing for remuneration of s. 96 judges and that it is not discriminatory of Parliament to draw some line between present incumbents and future appointees, I do not think the jurisprudence I have summarized above allows the courts to be overly critical in reviewing the precise line drawn by Parliament in Canadian Bill of Rights cases. Some line is fair and is not discriminatory. From the respondent's perspective a line drawn on December 20, 1975 would obviously be preferable. But that does not mean that the choice of a different date, February 17, 1975, is illegal. In light of the validity of the overall policy reflected in the 1975 amendments and the legality and fairness of Parliament's attempt to protect the settled expectations of incumbent judges, I cannot say that the choice of February 17, 1975 as the cut‑off date was contrary to the Canadian Bill of Rights.
71. For these reasons, I conclude that s. 29.1 of the Judges Act does not violate s. 1(b) of the Canadian Bill of Rights. Accordingly, in my view, neither Addy J. at trial nor any of the justices of the Federal Court of Appeal erred in this aspect of their judgments.
VIII
Conclusion
72. I would answer the constitutional questions stated in this appeal as follows:
1. Question: Is section 29.1 of the Judges Act, as amended by s. 100 of the Statute Law (Superannuation) Amendment Act, 1975, S.C. 1974‑75‑76, c. 81, inconsistent with s. 100 of the Constitution Act, 1867 and, therefore, in whole or in part, ultra vires the Parliament of Canada?
Answer: No.
2. Question: Is section 29.1 of the Judges Act as amended by s. 100 of the Statute Law (Superannuation) Amendment Act, 1975, S.C. 1974‑75‑76, c. 81, inconsistent with s. 1(b) of the Canadian Bill of Rights and to the extent of the inconsistency is it of no force or effect?
Answer: No.
73. The appeal should be allowed, the judgments below set aside and the action dismissed. There should be no costs payable in this Court or in the courts below.
The reasons of Beetz and McIntyre JJ. were delivered by
74. Beetz J. (dissenting in part)‑‑This is an appeal from a judgment of the Federal Court of Appeal, [1984] 1 F.C. 1010 (Thurlow C.J., Heald J., concurring in the result but for different reasons, and Pratte J., dissenting), which upheld (but on different grounds) the judgment of the Federal Court, Trial Division, [1981] 2 F.C. 543, wherein Addy J. ordered and declared that s. 29.1(2) of the Judges Act, R.S.C. 1970, c. J‑1, as amended by s. 100 of the Statute Law (Superannuation) Amendment Act, 1975, S.C. 1974‑75‑76, c. 81, is, in so far as the respondent is concerned, ultra vires the Parliament of Canada.
I‑‑The Facts
75. As was put by the trial judge (at p. 545):
The facts in this case are undisputed: no witnesses were called and the case was tried on the basis of admissions in the pleadings, an agreed statement of facts and certain exhibits which were filed on consent.
76. On July 24, 1975, the respondent, now a judge of the Quebec Court of Appeal, accepted to be and was appointed a puisne judge of the Superior Court for the District of Montréal, with, as stated in the commission issued to him under the Great Seal of Canada in the name of Her Majesty the Queen,
... all and every the powers, rights, authority, privileges, profits, emoluments and advantages unto the said office of right and by law appertaining during your good behaviour....
77. On the date of the respondent's appointment, the Judges Act, R.S.C. 1970, c. J‑1, as amended by R.S.C. 1970 (2nd Supp.), c. 16; S.C. 1972, c. 17: S.C. 1973‑74, c. 17; S.C. 1974‑75‑76, c. 19; S.C. 1974‑75‑76, c. 48, and the Supplementary Retirement Benefits Act, R.S.C. 1970 (1st Supp.), c. 43 as amended by R.S.C. 1970 (2nd Supp.), c. 30 and by S.C. 1973‑74, c. 36, provided that puisne judges of the Superior Court in and for the Province of Quebec enjoyed the following "profits, emoluments and advantages":
1. Global salaries of $53,000 (Judges Act, as amended, ss. 9 and 20);
2. Non‑contributory retirement annuities (Judges Act, as amended, s. 23);
3. Non‑contributory annuities for the judges' widows and children (Judges Act, as amended, s. 25);
4. Non‑contributory supplementary retirement benefits (the Supplementary Retirement Benefits Act as amended).
78. The Judges Act was enacted pursuant to s. 100 of the Constitution Act, 1867 which provides:
100. The Salaries, Allowances, and Pensions of the Judges of the Superior, District, and County Courts (except the Courts of Probate in Nova Scotia and New Brunswick), and of the Admiralty Courts in Cases where the Judges thereof are for the Time being paid by Salary, shall be fixed and provided by the Parliament of Canada.
It will be observed that the pensions of judges' widowed spouses and children are not a benefit mentioned in s. 100 of the Constitution Act, 1867 .
79. Subsequent to the date of his appointment, namely from July 24 to December 20, 1975, the respondent's net monthly income was calculated and paid on the basis of the foregoing salary of $53,000 per annum, the same salary as that of all his fellow puisne judges of the Quebec Superior Court. In addition, he was not required any more than any one of them to contribute or pay anything towards the cost of his pension or that of his widow and children.
80. On December 20, 1975, approximately five months after the respondent's appointment, Parliament enacted the legislative provisions impugned in this case, s. 29.1 of the Judges Act, added to this Act by s. 100 of the Statute Law (Superannuation) Amendment Act, 1975, S.C. 1974‑75‑76, c. 81, an enactment which, it is important to note, was introduced in the House of Commons and given first reading on February 17, 1975.
81. Section 29.1 of the Judges Act provides in part:
29.1 (1) Every judge appointed before the 17th day of February, 1975 to hold office as a judge of a superior or county court shall, by reservation from his salary under this Act, contribute to the Consolidated Revenue Fund one and one‑half per cent of his salary.
(2) Every judge appointed after the 16th day of February, 1975 to hold office as a judge of a superior or county court, to whom subsection (1) does not apply, shall, by reservation from his salary under this Act.
(a) contribute to the Consolidated Revenue Fund an amount equal to six per cent of his salary; and
(b) contribute to the Supplementary Retirement Benefits Account established in the accounts of Canada pursuant to the Supplementary Retirement Benefits Act,
(i) prior to 1977, an amount equal to one‑half of one per cent of his salary, and
(ii) commencing with the month of January 1977, an amount equal to one per cent of his salary.
Here is how the trial judge characterized the effect of s. 29.1(2) upon the respondent:
Its effect was to oblige the plaintiff thenceforth to contribute six per cent of his salary toward the cost of his own retirement and the annuities for his widow and children as well as one‑half of one per cent prior to the 1st of January, 1977 and thereafter one per cent, for the indexing of retirement annuities under the Supplementary Retirement Benefits Act. He thus suffered a reduction of seven per cent of the salary to which he was entitled as of the date of his appointment and for some five months following that appointment.
82. The extent of a more global effect upon the respondent has been agreed upon by the parties in the pleadings as amended by the agreed statement of facts:
The Plaintiff's contribution towards his retirement pension plan for the year 1977 will amount to $3,815.00 and for the year of 1978 to $3,955.00 and in subsequent years such contribution, it is to be expected, will be calculated on any and all adjustments to the Plaintiff's salary. On the assumption that the Plaintiff retires at the minimum age of 65, after 27 years in office, his contribution towards such annuities and supplementary retirement benefits will be at least $100,000.00 and in the light of adjustments from time to time to the Plaintiff's salary, his contribution is likely to be in the order of $125,000.00.
...
Upon his retirement, the Plaintiff's minimum contribution of $3,815.00 per annum with interest compounded annually using a rate of interest of ten per cent per annum will have established in the hands of the defendant a capital sum in the order of $400,000.00 an amount more than sufficient to take care of the Plaintiff's retirement annuities and the Plaintiff's supplementary retirement benefits.
83. On the other hand all the respondent's fellow puisne judges of the Superior Court appointed before February 17, 1975 and who until then had received the same salary as that of the respondent and had not been required to contribute and pay anything towards the cost of their pensions or that of their widowed spouses and children, remained entitled to the same salary as well as dispensed from contributions except, under s. 29.1(1), to the extent of one and one‑half per cent of their salary, a contribution described as being "in respect of the cost of the improved annuities for widowed spouses and other dependants" in a letter sent on February 17, 1975, by the Minister of Justice and Attorney General of Canada to all federally appointed judges.
84. In other words, the new measure "grandfathered" incumbent superior court judges, but it did not "grandfather" them all; a small minority of them, including the respondent, that is those appointed after February 16, 1975, but before December 20, 1975, were not so "grandfathered": the impugned provisions were not in force when these judges were appointed, but they were retroactive to the date of first reading and reached the judges in question ex post facto on the date of enactment. Until the latter date, the respondent belonged to the class of incumbent puisne superior court judges, all the members of which were treated equally under the Judges Act. With respect to non‑contributory and contributory retirement annuities, the impugned enactment transferred him from that class into the class of judges who were not incumbent judges at the time of the enactment and who were not treated as favourably as judges who had been "grandfathered". The respondent was no longer the equal of his colleagues. Where there had been equality, the impugned provisions introduced inequality.
85. On the date of his appointment, July 24, 1975, the respondent was unaware of the existence of the bill which was to amend the Judges Act by adding s. 29.1 thereto, and the Minister of Justice did not mention the existence of the bill to the respondent at the time that his appointment was discussed.
86. I should state at once however that the respondent's unawareness of the existence of the bill is in my view irrelevant. The bill was before Parliament and was not yet law. One is presumed to know the law and to act accordingly, but not a bill which may or may not become law.
87. In November 1977, the respondent launched a declaratory action in the Trial Division of the Federal Court. The statement of claim concludes with the following prayer for relief:
WHEREFORE the Plaintiff claims:
a)A declaration that the words "before February 17, 1975" of Section 29.1 and that the whole of Section 29.1(2) of the Judges Act, as enacted by Section 100 of 1974‑75‑76, c. 81 are
i) ultra vires of the Parliament of Canada, or, in the alternative:
ii)ultra vires of the Parliament of Canada insofar as the Plaintiff is concerned:
or, in the alternative,
b)A declaration that the words "before February 17, 1975" of Section 29.1 and the whole Section 29.1 (2) of the Judges Act, as enacted by Section 100 of 1974‑75‑76, c. 81 are inoperative insofar as the Plaintiff is concerned;
c)His costs of the within proceedings;
d)Such further and other relief as to this Honourable Court may seem meet.
88. The declaration claimed in paragraph a) of the prayer for relief is allegedly founded upon s. 99 of the Constitution Act, 1867 , relating to the tenure of office of judges as well as upon s. 100 of the same Act, quoted above and relating to the salaries, allowances, and pensions of judges.
89. The declaration claimed in paragraph b) of the prayer for relief is allegedly founded upon s. 1(b) of the Canadian Bill of Rights which provides:
1. It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely,
...
(b) the right of the individual to equality before the law and the protection of the law;
II‑‑The Judgments of the Courts Below
90. In the Trial Division, Addy J. found that the effect of the impugned amendment to the Judges Act was to reduce the salary of the respondent and held that Parliament has no legislative authority to reduce the salary of a judge during his or her tenure of office. However he rejected the submission that s. 29.1 of the Judges Act contravened s. 1(b) of the Canadian Bill of Rights. He granted the respondent a declaration that s. 29.1(2) of the Judges Act was ultra vires of the Parliament of Canada in so far as the respondent was concerned.
91. The appellant appealed to the Federal Court of Appeal and the respondent cross‑appealed from the refusal of the trial judge to grant him a declaration that the impugned enactment was inoperative because it infringed s. 1(b) of the Canadian Bill of Rights.
92. The Federal Court of Appeal dismissed the appeal by a majority judgment but was unanimous in dismissing the cross‑appeal. All three judges of the Federal Court of Appeal held, contrarily to the trial judge, that Parliament can reduce judges' salaries, provided it is not for a colourable purpose such, for instance, as to undermine the independance of the judiciary, which nobody has suggested was the case with respect to the impugned legislation. However, the majority of the Federal Court of Appeal held that it is ultra vires of Parliament to require any judge appointed pursuant to s. 96 of the Constitution Act, 1867 , whenever appointed, to participate in a contributory pension plan for his own or her own pension, an issue not dealt with by the trial judge.
93. Thurlow C.J., who characterized the impugned enactment as effecting a forced contribution to a pension scheme rather than a reduction in salary, took the view that whereas under s. 100 of the Constitution Act, 1867 Parliament must fix and provide judges salaries, it "has no authority to dictate how they are to be used by the recipient or to require that they be used for any particular purpose". Thurlow C.J. accordingly held that s. 29.1 of the Judges Act is wholly ultra vires, including s. 29.1(1), which, as stated above, was said to be "in respect of the cost of the improved annuities for widowed spouses and other dependants".
94. Heald J., for his part, was of the opinion that the obligation set out in s. 100 of the Constitution Act, 1867 imposes a duty on Parliament to provide the total amount of judges' pensions and s. 29.1(2) is contrary to s. 100 of the Constitution Act, 1867 and ultra vires in that it requires judges to pay a portion of the cost of their own pension. However, s. 29.1(1) of the Judges Act is not ultra vires in his view since the deduction provided for therein is dedicated to the cost of improved annuities for widowed spouses and other dependants of judges.
95. Pratte J., dissenting, found that s. 29.1 of the Judges Act does not affect the judges' right to a pension but rather their right to salaries. The real question then was whether Parliament has the power to reduce the salaries of incumbent judges. He held that Parliament has this power.
96. In the result, the declaration of unconstitutionality granted by the trial judge with respect to s. 29.1(2) of the Judges Act remained undisturbed.
97. The appellant appealed to this Court by leave of this Court. The respondent cross‑appealed pursuant to s. 29(1) of the Rules of this Court asking for the declaration claimed in paragraph b) of his prayer for relief on the basis of s. 1(b) of the Canadian Bill of Rights.
III‑‑Constitutional Questions
98. On March 22, 1984, Dickson J., as he then was, stated the two following constitutional questions:
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 s. 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 s. 100 of the Statute Law (Superannuation) Amendment Act, 1975, S.C. 1974‑75‑76, c. 81, inconsistent with s. 1(b) of the Canadian Bill of Rights and to the extent of the inconsistency is it of no force or effect?
99. With the greatest of respect for those who hold a contrary view, I have reached the conclusion that, subject to one qualification to be mentioned later, the second constitutional question should receive an affirmative answer. However, this may not be sufficient to dispose of the entire case, given the declaration of unconstitutionality granted by the trial judge. In any event, the variety of opinions expressed in the courts below on the issues raised by the first constitutional question and the need for certainty in this important area of the law make it preferable that I also answer the first constitutional question.
IV‑‑TheConstitution Act, 1867 and s. 29.1 of the Judges Act
100. I have had the advantage of reading the reasons for judgment written by the Chief Justice. I agree with his general considerations on judicial independance, on the foundation of judicial independance in Canada and on the content of the principle of judicial independance. I also agree with him that the first constitutional question should be answered in the negative, and I agree with his reasons for so answering it.
101. I now turn to the second constitutional question.
V‑‑Section 1(b) of the Canadian Bill of Rights and s. 29.1of the Judges Act
102. As was already stated above, all the judges in the courts below held that s. 29.1 of the Judges Act was not inconsistent with s. 1(b) of the Canadian Bill of Rights. They had different reasons for so deciding however.
103. The reasons of the trial judge read in part as follows at pp. 554 to 557 of the Federal Court Reports:
The plaintiff, in arguing that the words "before the 17th day of February, 1975" in subsection 29.1(1) and "after the 16th day of February, 1975" in subsection 29.1(2) offend the principle of equality before the law, relied on and referred to the following cases: The Queen v. Drybones, [1970] S.C.R. 282; Curr v. The Queen, [1972] S.C.R. 889; Attorney General of Canada v. Lavell, [1974] S.C.R. 1349; The Queen v. Burnshine, [1975] 1 S.C.R. 693; Prata v. Minister of Manpower and Immigration, [1976] 1 S.C.R. 376; Bliss v. The Attorney General of Canada, [1979] 1 S.C.R. 183; and MacKay v. The Queen, [1980] 2 S.C.R. 370.
All of these cases with the exception of the Bliss case, which dealt with entitlement to unemployment insurance benefits and where in fact the Canadian Bill of Rights was held not to apply, dealt with loss or denial of very substantive fundamental rights of some kind or involved criminal or quasi‑criminal responsibility and had nothing to do with the mere quantum of remuneration for services rendered.
"Equality before the law" in the Canadian Bill of Rights has, since its enactment, been interpreted as understood by Dicey, namely, that there are no exemptions from the ordinary law of the land for any privileged class. As Ritchie J. stated in Curr v. The Queen, supra, at page 916:
... I prefer to base this conclusion on my understanding that the meaning to be given to the language employed in the Bill of Rights is the meaning which it bore at the time when the Bill was enacted ...
104. The trial judge then referred to and quoted reasons to the same effect written by Ritchie J. in Attorney General of Canada v. Lavell, [1974] S.C.R. 1349, including the second meaning proposed by Dicey for the principle of the "rule of law":
It means again equality before the law or the equal subjection of all classes to the ordinary law of the land administered by the ordinary courts; the "rule of law" in this sense excludes the idea of any exemption of officials or others from the duty of obedience to the law which governs other citizens or from the jurisdiction of the ordinary courts.
The trial judge noted that these reasons of Ritchie J. had been quoted with approval by Martland J. speaking for the majority in R. v. Burnshine, [1975] 1 S.C.R. 693. The trial judge continued:
Even section 3 of the Canadian Human Rights Act, S.C. 1976‑1977, c. 33 which has been enacted since then (proclaimed in force on the 14th of July, 1977) and by means of which counsel for the plaintiff sought to draw an analogy with the Canadian Bill of Rights, does not prohibit discrimination generally on grounds other than "race, national or ethnic origin, colour, religion, age, sex, marital status, conviction for which a pardon has been granted and, in matters related to employment, physical handicap ...." It seems obvious that, in the case at bar, there exists no discrimination on any of the above‑mentioned grounds.
Counsel for the plaintiff emphasized particularly the following statement of McIntyre J. in the MacKay case, supra, which is found at page 406 of the above‑mentioned report:
The question which must be resolved in each case is whether such inequality as may be created by legislation affecting a special class‑‑here the military‑‑is arbitrary, capricious or unnecessary, or whether it is rationally based and acceptable as a necessary variation from the general principle of universal application of law to meet special conditions and to attain a necessary and desirable social objective.
This statement, in my view, does not support the proposition advanced on behalf of the plaintiff. As Martland J. stated in delivering the judgment for the Supreme Court of Canada in the Prata case, supra, at page 382 of the above‑cited report of the case:
This Court has held that s. 1(b) of the Canadian Bill of Rights does not require that all federal statutes must apply to all individuals in the same manner. Legislation dealing with a particular class of people is valid if it is enacted for the purpose of achieving a valid federal objective (R. v. Burnshine (1974), 44 D.L.R. (3d) 584).
Since I find that the plaintiff cannot succeed under paragraph 1(b) of the Canadian Bill of Rights because the term "equality before the law" as used in that enactment does not refer and was never intended to refer to a question of equal pay for equal work, I shall refrain from dealing with the further answer advanced on behalf of the defendant to the effect that, even if "inequality": is found to exist, it in effect arises in the pursuit of a valid federal objective and that, in addition, the plaintiff has failed to discharge the onus of establishing that the requirement of making contributions is arbitrary, capricious or unnecessary.
105. To summarize the trial judge's reasons on this issue, as I understand them, s. 29.1 does not contravene the Canadian Bill of Rights because: first, s. 29.1 does not offend the kind of equality defined by Dicey in the second meaning he gave to the rule of law; second, the provisions of the Canadian Bill of Rights cannot be held to apply to "the mere quantum of remuneration for services rendered" without trivializing these provisions. Furthermore, the trial judge may also have suggested as is indicated by his reference to the Canadian Human Rights Act, that discrimination is not prohibited by the Canadian Bill of Rights, except on specifically mentioned grounds.
106. In the Federal Court of Appeal, Thurlow C.J. speaking for himself and for Heald J. had this to say on the Canadian Bill of Rights issue, at pp. 1016‑17 of the Federal Court Reports:
The argument on the last‑mentioned point, as I understood it, was that inequality before the law was created by the enactment because under it the respondent no longer enjoyed his right to salary without deductions for contributions to the same extent as other judges who held office before December 20, 1975. Reliance was placed on the reasoning of McIntyre J., in MacKay v. The Queen, [1980] 2 S.C.R. 370, at page 406, and it was said that there was no valid federal objective to be attained by discriminating on December 20, 1975 between judges appointed on or before and those appointed after February 16, 1975, and that to do so was arbitrary, capricious and unnecessary.
...
The submission is thus based on the assumption that the legislation is within the legislative powers of Parliament. On that basis it seems to me that it cannot be said that Parliament, in requiring judges to participate in and contribute to a contributory pension scheme, was not seeking to achieve a valid federal objective. Moreover, the distinction made in the statute between judges appointed before a fixed date, for whom non‑contributory pension provisions were already in existence, and judges to be appointed after that date so as ultimately, by the attrition of senior appointees through deaths and resignations, the whole body of the judiciary would be participants in and contributors to the contributory pension scheme seems to me to be but a manner of achieving the otherwise valid federal objective. Difficulty arises from the fact that the particular date chosen was earlier than the date of the coming into force of the Act but, harsh as the result may seem to be to one who did not know, as opposed to one who did know when appointed, that a contributory scheme to be applicable to all judges appointed after the date of the introduction of the bill was to be imposed, I do not think it can on that account be said that it has been established, in the sense referred to by Ritchie J., in the same case (MacKay v. The Queen, [1980] 2 S.C.R. 370, at page 393, citing The Queen v. Burnshine, [1975] 1 S.C.R. 693), that the provisions of the bill, including the choice of the date, were not enacted for the purpose of achieving the valid federal objective or that it was arbitrary or capricious or unnecessary for Parliament to have defined the class required to make contributions by reference to their being appointed after the date of the introduction of the bill. Accordingly, I would reject the contention and dismiss the cross‑appeal.
107. At pages 1035 and 1036 of the Federal Court Reports, Pratte J. agreed with Addy J. that the Dicey concept of equality before the law had not been offended by the impugned provision. He also agreed that the whole of s. 29.1 of the Judges Act has been enacted by Parliament for the purpose of achieving a valid federal objective.
108. In this Court, counsel for the appellant did not reply upon the reasons of the trial judge to support their submission that the second constitutional question should be answered in the negative. They relied essentially upon the reasons of Thurlow C.J. on this point. They quoted part of these reasons in their factum and amplified them as follows:
The policy decision reflected in section 29.1 is that all federally funded and administered pension plans should be on a contributory basis, so that all those who might eventually receive retirement benefits from the Consolidated Revenue Fund will have contributed toward the cost of those benefits and thereby reduce the financial burden on future taxpayers. It is submitted that a decision to shift part of the costs of the plan to its beneficiaries cannot be considered arbitrary, capricious or unnecessary.
If the policy that the beneficiary should contribute is not unreasonable it is submitted that the means chosen to implement that policy do not render it objectionable or invalid in relation to the right to equality before the law. Parliament could have chosen to impose a contributory requirement at the full rate of 6½% and then 7% on all judges. However, it chose to protect the position of judges who were appointed prior to the introduction of the amending legislation and to phase in the contributory requirements progressively, by requiring contributions at the higher rate only from newly appointed judges. This progressive implementation of full contributions protected the legitimate expectations of the judges appointed prior to April [sic] 17, 1975, but it necessarily put them in a different position from that of judges appointed after the "trigger date" for the higher contributions.
109. While no submissions were made to us by counsel for the appellant with respect to the reasons of the trial judge on the Canadian Bill of Rights issue, I feel that these reasons should be addressed.
110. I first wish to dispel any suggestion that, in order to offend the Canadian Bill of Rights, a discriminatory provision must be discriminatory on some specifically mentioned ground such as race, national origin, colour, etc. The learned trial judge erred in this respect. In Curr v. The Queen, [1972] S.C.R. 889, Laskin J. as he then was, speaking for himself and six other members of the Court stated at pp. 896‑97:
In considering the reach of ... s. 1(b) ... I do not read it as making the existence of any of the forms of prohibited discrimination a sine qua non of its operation. Rather, the prohibited discrimination is an additional lever to which federal legislation must respond. Putting the matter another way, federal legislation which does not offend s. 1 in respect of any of the prohibited kinds of discrimination may nonetheless be offensive to s. 1 if it is violative of what is specified in any of the clauses (a) to (f) of s. 1. It is, a fortiori, offensive if there is discrimination by reason of race so as to deny equality before the law. That is what this Court decided in Regina v. Drybones and I need say no more on this point.
It is, therefore, not an answer to reliance by the appellant on ... s. 1(b) of the Canadian Bill of Rights that [a particular provision] does not discriminate against any person by reason of race, national origin, colour, religion or sex. The absence of such discrimination still leaves open the question whether [a particular provision] can be construed and applied without abrogating, abridging or infringing the rights of the individual listed in ... s. 1(b).
111. See also the Burnshine case, supra, at p. 700, and Bliss v. Attorney General of Canada, [1979] 1 S.C.R. 183, at p. 191.
112. As for the Diceyan concept of equality and the rule of law, perhaps its most classical application in Canadian jurisprudence was in Roncarelli v. Duplessis,[1959] S.C.R. 121, a case which antedates the Canadian Bill of Rights. It is true that this concept was sometimes adopted for the purposes of the Canadian Bill of Rights, but the early dicta in Curr and in Lavell, supra, to which Addy J. refers, do not represent the opinion of the majority of this Court in those cases. However, that concept was adopted by the majority of this Court in Burnshine, supra, although the extent to which the latter case turned on this adoption is not clear.
113. The adoption of Dicey's concept of equality for the purposes of the Canadian Bill of Rights was criticized in some doctrinal works. Dicey's concept of equality was said to be outdated, unduly narrow and otherwise inappropriate for the purposes of the Canadian Bill of Rights: W. S. Tarnopolsky, The Canadian Bill of Rights (2nd ed. 1975), pp. 120, 158 to 160, 297 and 298.
114. Of the five equality cases decided by this Court after the Burnshine case, supra, on the basis of the Canadian Bill of Rights that is, Attorney General of Canada v. Canard, [1976] 1 S.C.R. 170, Prata v. Minister of Manpower and Immigration, [1976] 1 S.C.R. 376, the Bliss case, supra, and MacKay v. The Queen, [1980] 2 S.C.R. 370, only one, the Bliss case, alludes to the Dicey concept of equality, at p. 192. But on the same page, Ritchie J., who delivered the judgment of the Court, mentioned a broader test applied by Pratte J. of the Federal Court of Appeal:
... the right to equality before the law could be defined as the right of an individual to be treated as well by the legislation as others who, if only relevant facts were taken into consideration, would be judged to be in the same situation.
Mr. Justice Pratte concluded that where difference in treatment of individuals is based on a relevant distinction, the right to equality before the law would not be offended.
Not only did Ritchie J. not disapprove this other test but, on p. 193, he proceeded to apply it to decide that the legislation challenged in that case did not offend the Canadian Bill of Rights. Furthermore, in the Canard case, supra, Ritchie J. with whom Martland and Judson JJ. agreed, in concurring reasons allowing the appeal, took at p. 191, at least in terms if not in the result, a much broader approach than the narrow Diceyan test:
The Bill of Rights was designed to eradicate any discriminatory laws passed by the Parliament of Canada and to guarantee the rights and freedoms therein specified to all Canadian citizens, but these guarantees are expressly declared in the preamble to the Bill to be enacted so as to "reflect the respect of Parliament for its constitution", and s. 91(24) of that document clearly vests in the Parliament of Canada the authority to pass laws concerning Indians which are different from the laws which the provincial legislatures may enact concerning the citizens of the various provinces.
115. I accordingly think that this Court is not bound by the Dicey test of equality nor prevented from adopting a more egalitarian approach.
116. Finally I come to the trivialization point made by the trial judge to the effect that the Canadian Bill of Rights should not be applied to "the mere quantum of remuneration for services rendered" and "to a question of equal pay for equal work".
117. Before I do so however, I should perhaps define my position with respect to the characterization of the impugned enactment. The trial judge and Pratte J. dissenting, held that s. 29.1 of the Judges Act operated a reduction in the respondent's salary whereas Thurlow C.J., and as it seems, Heald J., held that the provision did not reduce the amount credited to the respondent as salary but forced him to contribute to a pension scheme. Given the form of s. 29.1, I am rather inclined to share the view of Thurlow C.J. on this point although, on the Canadian Bill of Rights issue, it does not matter whether the respondent suffered a reduction in salary or was forced to contribute to a pension scheme with a corresponding reduction of the amount actually paid to him as his salary.
118. In my view however, this case has nothing to do with the "equal pay for equal work" principle. It does have to do with money and the financial benefits attached to the respondent's office, but I think that the uneven distribution of financial benefits is quite capable of producing the type of inequality forbidden by s. 1(b) of the Canadian Bill of Rights. It was the entitlement of women to unemployment insurance benefits that was in issue in the Bliss case, supra, and nobody suggested that on that ground the case was incapable of or somehow unworthy of giving rise to arguable submissions advanced pursuant to the equality provisions of the Canadian Bill of Rights. More individuals were affected by the Bliss case, than by the case at bar. However, the amounts involved in the case at bar are considerably more substantial than those in the Bliss case.
119. Furthermore, the benefits involved in the case at bar represent an important incident attached to the status of a high judicial officer and are linked with the dignity of his office, in real as well as in symbolic terms. The following remarks written by Thurlow C.J. are apposite. They are indicative of the gravity of the issues raised by this case, and that is the sole reason I quote them. At pages 1024 and 1025 of the Federal Court Reports, the learned Chief Justice wrote:
The commission issues upon appointment of a judge by the Governor General under the authority of section 96 and the provincial statute setting up the office. It constitutes a grant both of the office with its authority and of the salary and other benefits attached by law at that time to the office as fixed by Parliament under section 99. The grant entitles the appointee to the salary so fixed in much the same way as a grant of money or land vests title to the money or the land in the grantee. It is something that cannot be taken from him except by due process of law. Due process may include expropriation by the authority of the legislature, but it is established principle that the legislature is not, in the absence of a clear expression of intent to the contrary, to be taken as intending to expropriate without due compensation. And a taking without compensation is extraordinary. It is something that Parliament, ordinarily at least, avoids. It is, in my view, the reason why, in a number of statutes relating to judges' salaries, provisions referred to as grandfather clauses to protect the position of incumbent judges have been included. But the fact they have been included is not in itself a basis for saying that Parliament does not have the legal power to expropriate without compensation or to take away rights that have been lawfully granted.
As Parliament has under section 100 the responsibility to fix and provide the salaries of judges, it seems to me that as a matter of interpretation of the language of the section Parliament must have a continuing power to fix such salaries and that that power is not restricted to the fixing of salaries for judges to be subsequently appointed. Plainly Parliament can increase the salaries of judges who are in office and it seems to me that as a matter of naked power it can also decrease them even though such decrease may be regarded by the incumbent judges as confiscatory and unjust and may be in substance a derogation from the grant lawfully made by the Governor General in the judge's commission.
120. Finally if, as I think, the impugned enactment contravenes s. 1(b) of the Canadian Bill of Rights, it takes on an added dimension in that it treats unevenly judges who are expected to administer justice with an even hand. Furthermore, it emanates from the very Parliament which is the custodian of judges' independence. While the impugned enactment is not sufficiently severe to impair the independence of judges, it is one that tend to affect the serenity of those concerned for the rest of their term of office. Judges may be expected to rise above such considerations but it is difficult to see how it could be conducive to the better administration of justice that they should be put to the test.
121. I now turn to the "valid federal objective" argument retained by the majority of the Federal Court of Appeal and advanced by the appellant in support of the impugned enactment.
122. Relying on the authority of Burnshine, supra, at pp. 707 and 708, and of Bliss, supra, at p. 194, the appellant submits that the onus lies with the respondent to demonstrate that a valid federal objective was not being sought by Parliament. The extent to which this onus is of an evidentiary or of a persuasive nature, and whether this onus, whatever its weight, can be discharged by inferences drawn from the impugned legislation, are questions which may ultimately require clarification. I should have thought that where a challenged provision prima facie offends against the principle of equality before the law and does so for reasons which neither appear on its face nor can be inferred from its nature, then it would be incumbent upon the Attorney General, who is in a much better position to do so, to demonstrate what valid objective was being sought by the legislation.
123. Be that as it may, the question of onus does not really arise in the case at bar since I am quite prepared to accept that s. 29.1 of the Judges Act was enacted by Parliament in the pursuit of a valid federal objective, as was held by the Federal Court of Appeal and as is submitted by the appellant.
124. Paraphrasing the above‑quoted reasons of Thurlow C.J. and the submissions of the appellant, I would describe the valid federal objective in question as follows: the policy decision reflected in s. 29.1 of the Judges Act is that judges' pension plans should be on a contributory basis in order to reduce the financial burden on future taxpayers; Parliament chose to phase in the contributory requirement, by requiring contributions at the higher rate only from newly appointed judges so that, through the attrition of senior appointees as a result of death and resignations, the whole body of the judiciary would eventually participate in the contributory scheme.
125. To repeat, I am prepared to accept that the above‑mentioned federal objective is a valid one.
126. What I am not prepared to agree with, on the other hand, with great respect for those who hold a contrary view, is that the manner or means chosen to achieve this valid federal objective, which manner or means themselves establish a new classification and discriminate between incumbent judges, should be immunized from the principle of universal application of the law. So to dispense altogether such manner or means from the equality provision of the Canadian Bill of Rights would have the effect of emasculating this provision; in my view, it is in part to guard against this danger that McIntyre J., writing for himself and for Dickson J., as he then was, wrote his concurring reasons in the MacKay case, supra. I find it appropriate to quote a substantial portion of those reasons. The main issue in that case was set out in these words at p. 401:
Whether the provisions of the National Defence Act which authorize the trial by a service tribunal of military personnel charged with criminal offences committed in Canada contrary to the Narcotic Control Act or the Criminal Code are inoperable by reason of the Canadian Bill of Rights.
At page 402, McIntyre J. dealt with the historical background of military law and, at pp. 403 to 405, with the application of s. 2(f) of the Canadian Bill of Rights to the facts of that case. Then, at pp. 405 and following, McIntyre J. dealt with the application of s. 1(b) of the Canadian Bill of Rights:
The appellant's second point raises the question of whether the trial of servicemen by court martial under military law for an offence under the criminal law of Canada or as here under the Narcotic Control Act deprives the serviceman of equality before the law contrary to the provisions of s. 1(b) and s. 2 of the Canadian Bill of Rights.
This Court decided in Regina v. Drybones, [1970] S.C.R. 282, that the Canadian Bill of Rights was effective to render inoperative validly enacted federal legislation where such legislation infringed the right of a subject to equality before the law. Judicial construction of the words "equality before the law" found in such cases as The Queen v. Burnshine, [1975] 1 S.C.R. 693, Prata v. The Minister of Manpower and Immigration, [1976] 1 S.C.R. 376, and Bliss v. A.G. Canada, [1979] 1 S.C.R. 183, has advanced the proposition that legislation passed by Parliament does not offend against the principle of equality before the law if passed in pursuance of a "valid federal objective". The significance of these words must be examined.
Prior to the passing of the Canadian Bill of Rights, Parliament could have passed in the exercise of its power under s. 91(7) of the British North America Act without restriction such legislation in respect of the governance and control of the armed forces as it wished. The Canadian Bill of Rights, however, has introduced another dimension and federal legislation must now be construed according to its precepts. Certainly the creation and maintenance of the armed forces of the land constitute a valid federal objective within the legislative competence of the federal Parliament. A valid federal objective, however, must mean something more than an objective which simply falls within the federal legislative competence under the British North America Act. Even in the absence of the Canadian Bill of Rights, a federal enactment could not be supported constitutionally if it did not embody such an objective. The word "valid" in this context must import a concept of validity not only within the field of constitutional legislative competence but also valid in the sense that it does not offend the Canadian Bill of Rights. Our task then is to determine whether in pursuit of an admittedly constitutional federal objective Parliament has, contrary to the provisions of the Canadian Bill of Rights, created for those subject to military law a condition of inequality before the law.
It seems to me that it is incontestable that Parliament has the power to legislate in such a way as to affect one group or class in society as distinct from another without any necessary offence to the Canadian Bill of Rights. The problem arises however when we attempt to determine an acceptable basis for the definition of such a separate class, and the nature of the special legislation involved. Equality in this context must not be synonymous with mere universality of application. There are many differing circumstances and conditions affecting different groups which will dictate different treatment. The question which must be resolved in each case is whether such inequality as may be created by legislation affecting a special class‑‑here the military‑‑is arbitrary, capricious or unnecessary, or whether it is rationally based and acceptable as a necessary variation from the general principle of universal application of law to meet special conditions and to attain a necessary and desirable social objective.
There are many such acceptable distinctions recognized in the law. If we are to have safety on the highways, the blind or those with deficient sight must be forbidden to drive. If young people and children are to be protected and their welfare fostered in youth, we have long recognized that special legislative provisions must be made for them imposing restrictions and limitations upon their freedom more stringent than upon adults. In matters of criminology, differences which have been considered conductive to the welfare of society and to young offenders have been considered permissible (see Regina v. Burnshine, supra). There are many such cases where the needs of society and the welfare of its members dictate inequality for the achievement of socially desirable purposes. It would be difficult, if not impossible, to propound an all‑embracing test to determine what departures from the general principle of the equal application of law would be acceptable to meet a desirable social purpose without offence to the Canadian Bill of Rights. I would be of the opinion, however, that as a minimum it would be necessary to inquire whether any inequality has been created for a valid federal constitutional objective, whether it has been created rationally in the sense that it is not arbitrary or capricious and not based upon any ulterior motive or motives offensive to the provisions of the Canadian Bill of Rights, and whether it is a necessary departure from the general principle of universal application of the law for the attainment of some necessary and desirable social objective. Inequalities created for such purposes may well be acceptable under the Canadian Bill of Rights.
Applying this test, it seems to me that the creation of a body of military law and the tribunals necessary for its administration, involving as a necessary incident thereto different treatment at law for servicemen in certain cases from that afforded to civilians, does not by itself constitute a denial of equality before the law contrary to the provisions of the Canadian Bill of Rights. It is apparent that the creation of military law and its courts was undertaken in pursuit of a constitutional federal objective. It has been done in my view rationally, not arbitrarily or capriciously, and no ulterior motive has been shown which could be construed as an assault upon any of the rights, liberties and freedoms protected by the Canadian Bill of Rights. It seems abundantly clear to me that the emergence of a body of military law with its judicial tribunals has been made necessary because of the peculiar problems which face the military in the performance of its varied tasks. In my opinion, the recognition of the military as a class within society in respect of which special legislation exists dealing with legal rights and remedies, including special courts and methods of trial, fulfilling as it does a socially desirable objective, does not offend the Canadian Bill of Rights.
It must not however be forgotten that, since the principle of equality before the law is to be maintained, departures should be countenanced only where necessary for the attainment of desirable social objectives, and then only to the extent necessary in the circumstances to make possible the attainment of such objectives. The needs of the military must be met but the departure from the concept of equality before the law must not be greater than is necessary for those needs. The principle which should be maintained is that the rights of the serviceman at civil law should be affected as little as possible considering the requirements of military discipline and the efficiency of the service. With this concept in mind, I turn to the situation presented in this case.
Section 2 of the National Defence Act defines a service offence as "an offence under this Act, the Criminal Code , or any other Act of the Parliament of Canada, committed by a person while subject to the Code of Service Discipline". The Act also provides that such offences will be triable and punishable under military law. If we are to apply the definition of service offence literally, then all prosecutions of servicemen for any offences under any penal statute of Canada could be conducted in military courts. In a country with a well‑established judicial system serving all parts of the country in which the prosecution of criminal offences and the constitution of courts of criminal jurisdiction is the responsibility of the provincial governments, I find it impossible to accept the proposition that the legitimate needs of the military extend so far. It is not necessary for the attainment of any socially desirable objective connected with the military service to extend the reach of the military courts to that extent. It may well be said that the military courts will not, as a matter of practice, seek to extend their jurisdiction over the whole field of criminal law as it affects the members of the armed services. This may well be so, but we are not concerned here with the actual conduct of military courts. Our problem is one of defining the limits of their jurisdiction and in my view it would offend against the principle of equality before the law to construe the provisions of the National Defence Act so as to give this literal meaning to the definition of a service offence. The all‑embracing reach of the questioned provisions of the National Defence Act goes far beyond any reasonable or required limit.
...
It is of course evident that there are many matters peculiar to the military which require a special code and special courts. I refer to what I would describe as specifically military offences, such as absence without leave, desertion, insubordination, failure to observe and comply with military regulations regarding care and handling and use of military store and equipment, failure to obey lawful commands of officers and a host of other matters dealt with in the National Defence Act which relate to service matters and concerns and which require special military rules and procedures. These form part of the proper field of military law and military courts. There are, in addition, other offences which, while offences under the civil law, are also, when committed by servicemen in relation to military service, properly to be considered within the scope of the military courts. Theft is a criminal offence punishable in the civil courts but it would, I suggest, be impossible to say that theft by one soldier from another in barracks is not as well an offence which could be categorized as a military offence and come within the purview of military law. The same is true of trafficking or possession of forbidden narcotics in barracks, the same is true of many other matters and the military courts must have power to deal with them in addition to those offences which could be categorized as military offences pure and simple.
The question then arises: how is a line to be drawn separating the service‑related or military offence from the offence which has no necessary connection with the service? In my view, an offence which would be an offence at civil law, when committed by a civilian, is as well an offence falling within the jurisdiction of the courts martial and within the purview of military law when committed by a serviceman if such offence is so connected with the service in its nature, and in the circumstances of its commission, that it would tend to affect the general standard of discipline and efficiency of the service. I do not consider it wise or possible to catalogue the offences which could fall into this category or try to describe them in their precise nature and detail. The question of jurisdiction to deal with such offences would have to be determined on a case‑by‑case basis. A serviceman charged in a service court who wished to challenge the jurisdiction of the military court on this basis could do so on a preliminary motion. It seems, by way of illustration, that a case of criminal negligence, causing death resulting from the operation of a military vehicle by a serviceman in the course of his duty, would come within the jurisdiction of the court martial, while the same accident, occurring while the serviceman was driving his own vehicle on leave and away from his military base or any other military establishment, would clearly not. It may be observed that, on an admittedly different constitutional basis, this approach has been taken in American courts where a possible conflict of jurisdiction has arisen between the military tribunals and the civil courts.
I would therefore hold that the provisions of the National Defence Act, in so far as they confer jurisdiction upon courts martial to try servicemen in Canada for offences which are offences under the penal statutes of Canada for which civilians might also be tried, and where the commission and nature of such offences has no necessary connection with the service, in the sense that their commission does not tend to affect the standards of efficiency and discipline of the service, are inoperative as being contrary to the Canadian Bill of Rights in that they create inequality before the law for the serviceman involved.
Turning to the case at bar, I have no difficulty in holding that the offences here under consideration are sufficiently connected with the service to come within the jurisdiction of the military courts. Trafficking and possession of narcotics, in a military establishment, can have no other tendency than to attack the standards of discipline and effeciency of the service and must clearly come within the jurisdiction of the military courts and I would , therefore, dismiss the appeal.
127. I adopt the above‑quoted reasons in MacKay, supra.
128. The test which is emphasized throughout those reasons is that of the necessity of a specific discrimination with respect to the attainment of a desirable social objective:
The question which must be resolved in each case is whether such inequality as may be created by legislation affecting a special class ... is arbitrary, capricious or unnecessary, or whether it is rationally based and acceptable as a necessary variation from the general principle of universal application of law to meet special conditions and to attain a necessary and desirable social objective.
(Emphasis added.)
129. Furthermore, the test is all the more exacting in that it includes an essential element of proportionality; even where variation from the principle of universal application of the law is justified, the principle cannot be tampered with to a degree or to an extent which goes beyond what is necessary to reach a desirable social objective:
... since the principle of equality before the law is to be maintained, departures should be countenanced only where necessary for the attainment of desirable social objectives, and then only to the extent necessary in the circumstances to make possible the attainment of such objectives. The needs of the military must be met but the departure from the concept of equality before the law must not be greater than is necessary for those needs.
(Emphasis added.)
130. To the extent that a specific discrimination is unnecessary to achieve a valid social objective, it is arbitrary or capricious and in violation of the principle of equality.
131. It seems to me that this test, including its element of proportionality, clearly extends to the manner or means chosen to achieve a valid federal objective, particularly where this manner or these means introduce the very inequality complained of. This manner or these means must then be carefully scrutinized by the courts and they must be struck down whenever they do not meet the test.
132. Applying this test to the facts of the case at bar, it evidently cannot be said that the distinction made by s. 29.1 of the Judges Act between incumbent judges was necessary to achieve the above‑mentioned federal objective. This distinction was effected by the selection of the date of first reading of the bill as a cut‑off point to implement the phasing‑in feature of the federal enactment and there was clearly no necessity to select this date.
133. In order to prevent hoarding and other type of speculation, budgetary measures are sometimes enforced from the time they are announced in the House of Commons and there might be similar rational motives to make a law retroactive to the time it was introduced in Parliament. But no such rational motives have been advanced or appear to exist in the case at bar where the selection of the cut‑off point, with its discriminatory effect, is entirely arbitrary and capricious. The selection of a cut‑off point reaching back two or three years earlier for instance would appear even more glaringly arbitrary and in my view, in the circumstances of the case at bar, there is no difference in the date of first reading that makes its selection any less arbitrary and capricious than the selection of an earlier date.
134. It may well be that if Parliament wanted to phase‑in the implementation of the new measure and to abide by s. 1(b) of the Canadian Bill of Rights, its only choice as to the cut‑off date was the date of enactment. The selection of the latter date would admittedly have put all incumbent judges and judges appointed after the date of enactment on a different footing. But that is what "grandfather" clauses are about and it is accepted in the case at bar that "grandfathering" was an essential feature of the valid federal objective pursued by Parliament. The only alternative would be to hold that Parliament could not "grandfather" incumbent judges at all without offending the principle of equality before the law. Nobody has made such a far‑reaching submission which would run contrary to a seemingly ancient and constant usage, as was indicated by Addy J. at p. 557 of the Federal Court Reports:
. . . the numerous Canadian statutes effecting judges' salaries enacted since 1846 until 1932 quoted by the defendant . . . clearly establish various categories of compensation for judges of equal rank from time to time, without the slightest objection being raised even indirectly on the grounds that the legislation was discriminatory. It is important to note also, however, that in this legislation whenever required to protect the compensation being paid to incumbents, "grandfather" clauses were inserted in the legislation and that, in the one or two cases where that precaution was not taken at the time of the passing of the legislation, an amending statute was subsequently enacted to rectify the situation. (V.g.: S.C. 1927, c. 33 which reduced the retirement annuity of certain judges to two‑thirds of salary was amended by S.C. 1930, c. 27 where retirement at full salary of those judges was restored).
135. Furthermore, judges appointed after the date of enactment know or are presumed to know the law when they freely accept the appointment, and none of them has ever been treated on the same footing as judges who have been "grandfathered": they are members of a new class the creation of which was necessary to attain a valid federal objective.
136. Assuming that Parliament is under no constitutional obligation to "grandfather" any incumbent judge, it may appear anomalous, at first, that it should be blamed for not "grandfathering" all incumbent judges, but only some of them, albeit the majority in this case. The apparent anomaly is explained however when it is remembered that the principle of equality is capable of being offended against by the uneven granting of favourable treatment within a class, as well as by the uneven imposition of unfavourable treatment.
137. In the above‑quoted passage of their factum, counsel for the appellant write that the
. . . progressive implementation of full contributions protected the legitimate expectations of the judges appointed prior to April [sic] 17, 1975 . . .
(Emphasis added.)
And I note that in his reasons for judgment, the Chief Justice characterizes the same concept as "the settled expectations" of earlier appointees. With the greatest of respect, I fail to see why the respondent's expectations were any less settled or legitimate than those of his fellow judges appointed before the date of first reading of the bill.
138. Implicit in the position of the appellant is the following proposition: if the respondent, unlike judges appointed before February 17, 1975 could have no expectations susceptible to be protected, it must be because he was put on notice that the Judges Act was likely to be amended by the mere fact of first reading of the bill, and he should have been alerted to the risk of changing his position. It is the only rational explanation that comes to mind for the selection of the cut‑off date and it is the only one that is inferentially suggested in appellant's factum. It is also an explanation which must have crossed the mind of the trial judge who, at p. 548 of the Federal Court Reports wrote as follows, and correctly so in my view:
Although one is deemed to know the law of the land, there is no such presumption in the case of Bills not yet enacted. No one is bound by their contents. Having regard to the substantive and progressive emasculation of certain Bills in their stormy passage through Parliament, such Bills as are finally passed into law frequently bear little resemblance either in substance or in form to the original proposal. It would be grossly unjust to impute to anyone, other than perhaps a Member of Parliament, constructive knowledge of the business of Parliament.
139. The suggestion that the respondent may have been put on notice by the mere fact of first reading is not only factually erroneous in this case where it is conceded that he was unaware of that fact: it is also founded on a dangerous and far‑reaching error in law in that it presumes knowledge of and reliance upon a bill as opposed to knowledge of and reliance upon the law.
140. On January 27, 1976, the Minister of Justice and Attorney General of Canada responded in writing to a letter written to him by the respondent. After stating that the impugned enactment had received Royal Assent on December 20, 1975, with its provisions unchanged, the Minister's letter continues as follows:
Prior to this event I had raised your concerns with several of my colleagues and indeed, an attempt was made while the Bill was before the joint House of Commons‑Senate Committee to amend the clause so that the higher rate of contributions would apply only to judges appointed to office after the Royal Assent date. Unfortunately, the amendment that would have had this result was ruled out of order on procedural grounds.
141. In my opinion, this late and unsuccessful attempt to have the bill amended along the lines indicated by the Minister, and the Minister's letter constitute an admission that the bill in question was flawed in that it unnecessarily discriminated against certain incumbent judges.
142. I have reached the conclusion that s. 29.1(2) of the Judges Act is inconsistent with s. 1(b) of the Canadian Bill of Rights and that the respondent is entitled to a declaration that this subsection is inoperative in so far as the respondent is concerned.
143. In addition, the respondent seeks a declaration that the words "before February 17, 1975" in s. 29.1(1) of the Judges Act are inoperative in so far as he is concerned. The reason why the respondent is seeking such a declaration, according to his factum, is to avoid being placed on a higher footing than that of his senior colleagues, appointed before February 17, 1975, who at present, have to contribute one and one‑half per cent of their salary to the Consolidated Revenue Fund. In other words, the respondent is asking us to remedy one element of inequality with his colleagues, but not at the cost of creating or leaving another element of inequality within the same class of judges.
144. On the face of it, we could not grant such a declaration at large without creating an insoluble problem: judges appointed after February 16, 1975 would then have to contribute one and one‑half per cent of their salary in addition to the seven per cent they have to contribute under s. 29.1(2). However, no problem would arise, so far as I can see, if the effect of the declaration is limited to the respondent.
145. The respondent is not asking us to redraft the impugned enactment but simply to declare these few words inoperative in so far as he is concerned, in order to restore complete equality within the class to which he belongs. I have reached the conclusion that it is legitimate for him to seek complete redress in a case of this sort and that he is entitled to the full declaration he is requesting.
146. Before I reach my final conclusion, I should perhaps state that a short time before the respondent's appointment, judges' salaries were increased by 39 per cent, and pensions to widowed spouses and children by 50 per cent: An Act to amend the Judges Act and certain other Acts for related purposes and in respect of the reconstitution of the Supreme Courts of Newfoundland and Prince Edward Island, S.C. 1974‑75‑76, c. 48. These increases together with the subsequent enactment of s. 29.1 of the Judges Act were sometimes referred to as a "package" and may be relevant to a discussion of the first constitutional question. In my view however, these increases are entirely irrelevant in so far as the second constitutional question is concerned since all incumbent judges profited by these increases, including those appointed before February 17, 1975.
VI‑‑Conclusion
147. I would allow the appeal, set aside the judgment of the Federal Court of Appeal and the declaration granted by the trial judge. I would allow the cross‑appeal and, to the declaration granted by the trial judge, I would substitute the following declaration:
148. The words "before February 17, 1975" of s. 29.1(1) and the whole of s. 29.1(2) of the Judges Act, as enacted by s. 100 of S.C. 1974‑75‑76, c. 81, are inoperative in so far as the plaintiff is concerned.
149. I would answer the first constitutional question in the negative.
150. I would answer the second constitutional question as follows:
151. The words "before February 17, 1975" of s. 29.1(1) and the whole of s. 29.1(2) of the Judges Act as amended by s. 100 of the Statute law (Superannuation) Amendment Act, 1975, S.C. 1974‑75‑76, c. 81, are inconsistent with s. 1(b) of the Canadian Bill of Rights and, to the extent of the inconsistency, of no force or effect in so far as the respondent is concerned.
152. I would allow the respondent his costs throughout.
Appeal allowed, Beetz and McIntyre JJ. dissenting in part.
Solicitor for the appellant: Roger Tassé, Ottawa.
Solicitor for the respondent: David W. Scott, Ottawa.
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