Reference re Remuneration of Judges of the Provincial Court
(P.E.I.), [1998] 1 S.C.R. 3
IN THE MATTER of a Reference from the Lieutenant Governor in Council
pursuant to Section 18 of the Supreme Court Act, R.S.P.E.I. 1988,
Cap. S‑10, Regarding the Remuneration of Judges of the Provincial
Court of Prince Edward Island and the Jurisdiction of the Legislature in
Respect Thereof
and
IN THE MATTER of a Reference from the Lieutenant Governor in Council
pursuant to Section 18 of the Supreme Court Act, R.S.P.E.I. 1988,
Cap. S‑10, Regarding the Independence and Impartiality of Judges of
the Provincial Court of Prince Edward Island
Merlin McDonald, Omer Pineau and Robert Christie Appellants
v.
The Attorney General of Prince Edward Island Respondent
and
The Attorney General of Canada,
the Attorney General of Quebec,
the Attorney General of Manitoba,
the Attorney General for Saskatchewan,
the Attorney General for Alberta,
the Canadian Association of Provincial Court Judges,
the Conférence des juges du Québec,
the Saskatchewan Provincial Court Judges Association,
the Alberta Provincial Judges’ Association,
the Canadian Bar Association and
the Federation of Law Societies of Canada Interveners
Indexed as: Reference re Remuneration of Judges of the Provincial
Court of Prince Edward Island; Reference re Independence and Impartiality of
Judges of the Provincial Court of Prince Edward Island
File Nos.: 24508, 24778.
Her Majesty The Queen Appellant
v.
Shawn Carl Campbell Respondent
and between
Her Majesty The Queen Appellant
v.
Ivica Ekmecic Respondent
and between
Her Majesty The Queen Appellant
v.
Percy Dwight Wickman Respondent
and
The Attorney General of Canada,
the Attorney General of Quebec,
the Attorney General of Manitoba,
the Attorney General of Prince Edward Island,
the Attorney General for Saskatchewan,
the Canadian Association of Provincial Court Judges,
the Conférence des juges du Québec,
the Saskatchewan Provincial Court Judges Association,
the Alberta Provincial Judges’ Association,
the Canadian Bar Association and
the Federation of Law Societies of Canada Interveners
Indexed as: R. v. Campbell; R. v. Ekmecic; R. v. Wickman
File No.: 24831.
The Judges of the Provincial Court of Manitoba
as represented by the Manitoba Provincial
Judges Association, Judge Marvin Garfinkel,
Judge Philip Ashdown, Judge Arnold Conner,
Judge Linda Giesbrecht, Judge Ronald Myers,
Judge Susan Devine and Judge Wesley Swail,
and the Judges of the Provincial Court of Manitoba
as represented by Judge Marvin Garfinkel,
Judge Philip Ashdown, Judge Arnold Conner,
Judge Linda Giesbrecht, Judge Ronald Myers,
Judge Susan Devine and Judge Wesley Swail Appellants
v.
Her Majesty The Queen in right of the
province of Manitoba as represented by
Rosemary Vodrey, the Minister of Justice and
the Attorney General of Manitoba, and
Darren Praznik, the Minister of Labour as
the Minister responsible for The Public
Sector Reduced Work Week and
Compensation Management Act Respondent
and
The Attorney General of Canada,
the Attorney General of Quebec,
the Attorney General of Prince Edward Island,
the Attorney General for Saskatchewan,
the Attorney General for Alberta,
the Canadian Judges Conference,
the Canadian Association of Provincial Court Judges,
the Conférence des juges du Québec,
the Saskatchewan Provincial Court Judges Association,
the Alberta Provincial Judges’ Association,
the Canadian Bar Association and
the Federation of Law Societies of Canada Interveners
Indexed as: Manitoba Provincial Judges Assn. v.
Manitoba (Minister of Justice)
File No.: 24846.
1998: January 19; 1998: February 10.
Present: Lamer C.J. and L’Heureux‑Dubé, Gonthier,
Cory and Iacobucci JJ.
rehearing
Courts ‑‑ Judicial independence ‑‑
Provincial Courts ‑‑ Supreme Court of Canada finding in original
judgment that provincial court judges of Alberta, Manitoba and Prince Edward
Island not independent ‑‑ Whether requests at rehearing for
declarations validating past decisions of provincial court judges should be
granted ‑‑ Doctrine of necessity.
Courts ‑‑ Judicial independence ‑‑
Provincial Courts ‑‑ Supreme Court of Canada finding in original
judgment that Alberta provincial court judges not independent ‑‑
Declarations invalidating legislation in original judgment clarified ‑‑
Provincial Court Judges Act, S.A. 1981, c. P‑20.1, s. 17(1) ‑‑
Payment to Provincial Judges Amendment Regulation, Alta. Reg. 116/94.
Courts ‑‑ Judicial independence ‑‑
Provincial Courts ‑‑ Judicial remuneration ‑‑
Requirement for independent, objective and effective process for setting
judicial remuneration suspended for one year from date of original judgment.
In a judgment rendered on September 18, 1997, the
Supreme Court found that the provincial court judges of the provinces of
Alberta, Manitoba and P.E.I. lacked the independence required by the preamble
of the Constitution Act, 1867 and s. 11 (d) of the Canadian
Charter of Rights and Freedoms . At the rehearing, the Attorneys General of
all three provinces requested declarations deeming past decisions made by the
judges of their provincial courts to be valid, despite the courts’ lack of
independence.
Held: The declarations requested should not be granted.
Although there is a general rule that a judge who is
not impartial is disqualified from hearing a case, the doctrine of necessity ‑‑
an exception to the general rule of disqualification ‑‑ allows in
certain circumstances a judge who would otherwise be disqualified to hear the
case nonetheless, if there is no impartial judge who can take his place. The
law recognizes that in some situations a judge who is not impartial and
independent is preferable to no judge at all. The doctrine of necessity
acknowledges the importance of finality and continuity in the administration of
justice and sanctions a limited degree of unfairness toward the individual
accused. Given this adverse effect, the exception should be applied rarely,
and with great circumspection. As this exception applies here, absent a
demonstration of positive and substantial injustice in the circumstances of a
particular case, the doctrine of necessity will prevent the reopening of past
decisions of the provincial courts of Alberta, Manitoba and P.E.I. by reason
only of their lack of independence. Further, in the case of P.E.I., the issue
of the independence of the provincial court judges came to this Court in the
form of two references. Therefore, the Court has no jurisdiction to grant the
relief requested.
In the case of Alberta, the September 18, 1997
judgment should be varied to clarify the orders made after the original hearing.
Section 17(1) of the Provincial Court Judges Act is declared
unconstitutional; however, given the institutional burdens that must be met by
Alberta, this declaration of invalidity is suspended for a period of one year
from the date of the original judgment. The Payment to Provincial Judges
Amendment Regulation, Alta. Reg. 116/94, is also declared of no force or
effect and that declaration takes effect retroactively as of September 18,
1997.
To allow governments time to comply with the
constitutional requirements mandated by the September 18, 1997 judgment, and to
ensure that the orderly administration of justice is not disrupted in the
interim, all aspects of the requirement for an independent, objective and
effective process for setting judicial remuneration, including any
reimbursement for past salary reductions, are suspended for one year from the
date of the original judgment. As of September 18, 1998, the judicial
compensation commission requirement will apply prospectively. The transition period
will apply throughout Canada.
Cases Cited
Distinguished: Reference
re Manitoba Language Rights, [1985] 1 S.C.R. 721; referred to: Air
Canada v. British Columbia, [1989] 1 S.C.R. 1161; Dimes v. Grand
Junction Canal (Proprietors of) (1852), 3 H.L.C. 759, 10 E.R. 301; Laws
v. Australian Broadcasting Tribunal (1990), 93 A.L.R. 435; United States
v. Will, 449 U.S. 200 (1980); Beauregard v. Canada, [1986] 2 S.C.R.
56; Reference re Public Schools Act (Man.), S. 79(3), (4) and (7),
[1993] 1 S.C.R. 839; Attorney‑General for Ontario v. Attorney-General
for Canada, [1912] A.C. 571; R. v. Brydges, [1990] 1 S.C.R. 190; R.
v. Feeney, [1997] 2 S.C.R. 117; Year Book, 8 Hen. 6, 19b.
Statutes and Regulations Cited
Canadian
Charter of Rights and Freedoms, s. 11 (d).
Criminal Code, R.S.C., 1985, c. C‑46, ss. 553 [rep. &
sub. c. 27 (1st Supp.), s. 104; am. 1992, c. 1, s. 58(1)
(Sch. I, item 11); am. 1994, c. 44, s. 57; am. 1995, c. 22,
s. 2; am. 1996, c. 19, s. 72; am. 1997, c. 18, s. 66],
554(1) [am. c. 27 (1st Supp.), s. 203].
Payment to Provincial Judges
Amendment Regulation, Alta. Reg. 116/94.
Payment to Provincial Judges
Amendment Regulation, Alta. Reg. 171/91.
Payment to Provincial Judges
Regulation, Alta. Reg. 27/80.
Provincial Court Judges Act, S.A. 1981, c. P‑20.1, s. 17(1).
Provincial Judges and Masters
in Chambers Pension Plan Amendment Regulation,
Alta. Reg. 29/92.
Provincial Judges and Masters
in Chambers Pension Plan Regulation, Alta. Reg.
265/88.
Public Sector Reduced Work Week
and Compensation Management Act, S.M. 1993,
c. 21.
Authors Cited
de Smith, Stanley A. Judicial
Review of Administrative Action, 5th ed. By Lord Woolf and Jeffrey Jowell.
London: Sweet & Maxwell, 1995.
Halsbury’s Laws of England, vol. 1(1), 4th ed. (reissue). By Lord Hailsham of St. Marylebone.
London: Butterworths, 1989.
Rolle’s Abridgment, vol. 2, 1668.
Tracey, R. R. S. “Disqualified
Adjudicators: The Doctrine of Necessity in Public Law”, [1982] Public Law
628.
REHEARING of appeals on independence of provincial
court judges of Prince Edward Island, Manitoba and Alberta, [1997] 3 S.C.R. 3.
Peter C. Ghiz, for the
appellants in the P.E.I. references.
Gordon L. Campbell and Tracey
Clements, for the respondent in the P.E.I. references.
Richard F. Taylor, for
the appellant Her Majesty the Queen.
John A. Legge, for the
respondents Campbell, Ekmecic and Wickman.
Robb Tonn and Colin
S. Robinson, for the appellants the Judges of the Provincial Court of
Manitoba.
E. W. Olson, Q.C.,
for the respondent Her Majesty the Queen in right of Manitoba.
Edward R. Sojonky, Q.C.,
and Jon Brongers, for the intervener the Attorney General of Canada.
Robb Tonn and Colin
S. Robinson, for the intervener the Canadian Association of Provincial
Court Judges.
L. Yves Fortier, Q.C.,
and Leigh D. Crestohl, for the intervener the Canadian Judges
Conference.
Raynold Langlois, Q.C.,
for the intervener the Conférence des juges du Québec.
D. O. Sabey, Q.C.,
and Scott H. D. Bower, for the intervener the Alberta Provincial Judges’
Association.
//The Chief Justice//
The judgment of the Court was delivered by
1
The Chief Justice -- On
September 18, 1997, this Court issued a judgment dealing with the
unconstitutionality of certain actions of the provincial governments of
Alberta, Manitoba and Prince Edward Island that interfered with the judicial
independence of their provincial courts ([1997] 3 S.C.R. 3 (the “Provincial
Court Judges Case”)). The Court issued several declarations invalidating
statutes or censuring acts that impinged upon the security of tenure, financial
security and/or administrative independence of the judges of the Provincial
Courts of Alberta and Manitoba, and we gave our advisory opinion in response to
reference questions on the same issues with respect to the Provincial Court of
Prince Edward Island. The declarations of invalidity of offending provisions
in provincial statutes and regulations retroactively nullified them. However,
those declarations do not “cure” all of the unconstitutional effects those
provisions had while they were in force: Air Canada v. British Columbia,
[1989] 1 S.C.R. 1161, at p. 1195.
2
One effect of those legislative provisions that had undermined the
financial security of provincial court judges was to render those tribunals
dependent. The retroactive annulment of the salary reductions by this Court does
not change the fact that provincial court judges were not independent during
the period of time when those reductions were imposed upon them. Section 11 (d)
of the Canadian Charter of Rights and Freedoms guarantees the right “to
be presumed innocent until proven guilty according to law in a fair and public
hearing by an independent and impartial tribunal” (emphasis added). The
upshot of this Court’s judgment is that every person found guilty by a
provincial court in Alberta, Manitoba or Prince Edward Island while those
unconstitutional laws were being applied has suffered a breach of his or her s.
11 (d) rights. The retroactive nullification of the legislation that
caused those breaches does not, however, have the effect of “deeming” them
never to have occurred.
3
The Attorneys General of Alberta, Manitoba and Prince Edward Island
have returned to this Court primarily to request declarations deeming past
decisions of provincial court judges in those provinces to be valid. The
reasons why such relief is unnecessary and the Court’s decision regarding other
relief requested by individual provinces are set out below. I will also
explain our decision to suspend temporarily the requirement of an independent,
objective and effective process for setting judicial remuneration.
A. Doctrine
of Necessity
4
The Attorneys General of all three provinces have returned to this Court
primarily to seek additional remedies to ensure that the Provincial Court
Judges Case does not have the effect of opening every decision made by
their provincial courts to a s. 11 (d) challenge. All three provinces
have requested declarations deeming past acts and decisions of the members of
their provincial courts to be valid, despite the courts’ lack of independence.
There is no need for this Court to make such declarations. Past decisions
cannot be reopened by relying on the constitutional defects in the Provincial
Courts of Alberta, Manitoba and Prince Edward Island that were discussed in
this Court’s reasons in the Provincial Court Judges Case.
Although there is a general rule that a judge who is not impartial is
disqualified from hearing a case, there is an exception to this rule that
allows a judge who would otherwise be disqualified to hear the case
nonetheless, if there is no impartial judge who can take his or her place. The
law recognizes that in some situations a judge who is not impartial and
independent is preferable to no judge at all.
5
This exception, usually referred to as the “doctrine of necessity” or
the “rule of necessity”, developed side by side with the general rule of
disqualification. The first recorded case in which this principle was applied
seems to be one decided in 1430, in which it was held that the judges of the
Common Pleas were not disqualified from judging an action against all of them,
because there was no other court in which the case could be brought: Year
Book, 8 Hen. 6, 19b; 2 Rolle’s Abridgment (1668), at p. 93. This
rule has been applied by the highest courts of several common law
jurisdictions; see, e.g., Dimes v. Grand Junction Canal (Proprietors of)
(1852), 3 H.L.C. 759, 10 E.R. 301; Laws v. Australian Broadcasting Tribunal
(1990), 93 A.L.R. 435 (H.C.); and United States v. Will, 449 U.S. 200
(1980). It was implicitly relied upon by this Court in Beauregard v. Canada,
[1986] 2 S.C.R. 56, in which we considered the constitutionality of provisions
requiring federally appointed judges, including the judges of this Court, to
contribute part of their salaries toward the cost of pensions.
6
This doctrine is explained by Halsbury’s Laws of England (4th ed.
1989), vol. 1(1), at para. 93, as follows:
If all members of the only tribunal competent to determine a matter are
subject to disqualification, they may be authorised and obliged to hear and
determine that matter by virtue of the operation of the common law doctrine of
necessity.
Like the more
general doctrine of necessity considered in Reference re Manitoba Language
Rights, [1985] 1 S.C.R. 721, this exception finds its source in the rule of
law. As observed by de Smith, Woolf and Jowell in Judicial Review of
Administrative Action (5th ed. 1995), at p. 544:
A person who is subject to disqualification [by
reason of bias] at common law may be required to decide the matter if there is
no other competent tribunal or if a quorum cannot be formed without him. Here
the doctrine of necessity is applied to prevent a failure of justice.
After an
exhaustive analysis of cases applying the necessity exception to judicial
disqualification, R. R. S. Tracey describes the scope of the rule as follows
(“Disqualified Adjudicators: The Doctrine of Necessity in Public Law”, [1982]
Public Law 628, at p. 641):
The doctrine will operate when the only adjudicator with jurisdiction
is disqualified or, in multi-member tribunals, where a quorum cannot be found
because of disqualification, provided that the cause of the disqualification is
involuntary. It will not operate when the cause is voluntary, except in the
rare case in which the disqualified adjudicator is the only person with power
to perform a formal act which must be performed if the course of justice is to
continue.
7
We would add to this definition the two provisos noted by the High Court
of Australia in Laws v. Australian Broadcasting Tribunal, supra,
at p. 454:
. . . the rule of necessity is, in an appropriate case, applicable to a
statutory administrative tribunal, as it is to a court, to prevent a failure of
justice or a frustration of statutory provisions. That rule operates to
qualify the effect of what would otherwise be actual or ostensible
disqualifying bias so as to enable the discharge of public functions in circumstances
where, but for its operation, the discharge of those functions would be
frustrated with consequent public or private detriment. There are, however,
two prima facie qualifications of the rule. First, the rule will not apply in
circumstances where its application would involve positive and substantial
injustice since it cannot be presumed that the policy of either the legislature
or the law is that the rule of necessity should represent an instrument of such
injustice. Secondly, when the rule does apply, it applies only to the extent
that necessity justifies. [Emphasis added.]
These two
limitations make clear that the doctrine should not be applied mechanically.
To do so would gravely undermine the guarantee of an impartial and independent
tribunal provided by s. 11 (d) of the Charter . The doctrine of
necessity is unfair in the same way that res judicata causes unfairness;
both doctrines preserve the effects of an unconstitutional law. While the Charter
has done much to improve the fairness of the administration of criminal law, it
cannot guarantee complete fairness in all matters at all costs. Like res
judicata, the doctrine of necessity recognizes the importance of finality
and continuity in the administration of justice and sanctions a limited degree
of unfairness toward the individual accused. Given this adverse effect, it
should be applied rarely, and with great circumspection.
8
As this rule applies to the situation at hand, absent a demonstration of
positive and substantial injustice in the circumstances of a particular case,
the doctrine of necessity will prevent the reopening of past decisions of the
Provincial Courts of Alberta, Manitoba and Prince Edward Island by reason only
of their lack of independence as found by this Court in our judgment of
September 18, 1997. The judges who heard those cases were obliged to do so,
either because the charge fell within the absolute jurisdiction of the
provincial court under s. 553 of the Criminal Code, R.S.C., 1985, c.
C-46 , or because the accused elected trial by provincial court judge under s.
554(1) , an election that belongs to the accused, not to the judge. All members
of the provincial courts, through no fault of their own, were found not to be
independent as a result of the actions of their governments. It would have
been contrary to public policy to refuse to hear criminal cases in these
circumstances. Therefore, the doctrine of necessity applies, rendering these
decisions valid, and there is no need to grant the declaratory relief sought by
the Attorneys General of Alberta, Manitoba and Prince Edward Island.
B. Prince
Edward Island: The Advisory Nature of Answers to Reference Questions
9
In the case of Prince Edward Island, there is an additional reason for
refusing this declaration and all other orders sought by the provincial
Attorney General on this rehearing. The issue of the independence of the judges
of the Provincial Court of Prince Edward Island came to this Court in the form
of two references. In this context the Court has no jurisdiction to make the
orders requested. My reasons of September 18, 1997, set out the answers of the
majority of this Court to the questions posed in two references made to the
Prince Edward Island Supreme Court, Appeal Division, and appealed to this
Court. Those answers constitute an advisory opinion and not a judgment. As I
said in Reference re Public Schools Act (Man.), S. 79(3), (4) and (7),
[1993] 1 S.C.R. 839, at p. 863:
Although all parties agree that The Public
Schools Act violates s. 23 of the Charter , this appeal came to this
Court by way of a constitutional reference. This Court, therefore, has
jurisdiction to answer the questions referred to it, but not to declare the
impugned statute of no force or effect under s. 52(1) of the Constitution
Act, 1982 .
See also Attorney-General
for Ontario v. Attorney-General for Canada, [1912] A.C. 571 (P.C.).
10
The only case in which this Court issued a binding declaration in
response to a reference was Reference re Manitoba Language Rights, supra.
The circumstances of that case were exceptional, and are not analogous to the
references at bar. In the Prince Edward Island references, the fact that this
Court’s opinion is only advisory does not leave the parties without a remedy.
They can seek a declaration from the Prince Edward Island Supreme Court, and
this Court’s opinion will be of highly persuasive weight. In contrast, in the Reference
re Manitoba Language Rights there was a risk that there would be no other
properly constituted court that could order a declaration of temporary
validity. This Court’s decision that all unilingual acts of the Legislature
of Manitoba, which encompassed virtually every statute passed since 1890, were
unconstitutional created a potential legal vacuum. Any court whose
constituting statute was passed in English only was abolished. The composition
of the Manitoba Legislature was also potentially invalid. The rule of law gave
this Court constitutional authority to provide a binding remedy in this unique
situation. There is nothing in this case that creates the same degree of
necessity.
11
Therefore, this Court cannot grant the specific relief requested.
However, this Court’s decision on the legal issues that arose in the original
hearing of the Manitoba and Alberta appeals and in this rehearing (e.g., the
application of the doctrine of necessity) is binding on the courts of Prince
Edward Island, and indeed, on all other courts in Canada. Moreover, as
explained below, the transition period ordered by this Court will apply
throughout Canada.
C. Request
by the Manitoba Appellants: Costs
12
The appellants requested that the order as to costs be varied, such that
costs be awarded to the appellants on a solicitor and client basis. This motion
is dismissed.
D. Additional
Orders Requested by Alberta
13
In addition to requesting a declaration validating past Provincial
Court decisions, the Attorney General for Alberta sought two additional
orders on this rehearing:
1. An order declaring that the
salary levels of judges of the Provincial Court of Alberta are as set out:
(a) in the Payment to Provincial Judges Amendment Regulation,
Alta. Reg. 171/91, or
(b) in the Payment to Provincial Judges Amendment Regulation,
Alta. Reg. 116/94.
2. (a) An order declaring that s.
17(1) of the Provincial Court Judges Act, S.A. 1981, c. P-20.1, and the
regulations made thereunder, namely:
(i) the Payment to Provincial Judges Regulation, Alta. Reg.
27/80, as amended up to and including either
(A) the Payment to Provincial Judges Amendment Regulation, Alta.
Reg. 171/91, or
(B) the Payment to Provincial Judges Amendment Regulation, Alta.
Reg. 116/94;
and
(ii) the Provincial Judges and Masters in Chambers Pension Plan
Regulation, Alta. Reg. 265/88, as amended up to and including Alta. Reg.
29/92,
which provision and regulations would currently be in force were it not
for constitutional defect, are deemed to have temporary validity and force and
effect for a period of one year following the date of the judgment.
OR
(b) An order
(i) suspending the declaration of invalidity of s. 17(1); or
(ii) deeming it temporarily valid
and
deeming the Provincial Court of Alberta and its members to be a
constitutionally independent tribunal despite the financial remuneration of the
members having been set without recourse to a judicial compensation committee,
for a period of one year.
14
It is unnecessary to grant the first order. The Court’s decision that
the Payment to Provincial Judges Amendment Regulation, Alta. Reg. 116/94,
is unconstitutional has the effect of reviving the prior salary regulation,
which was the Payment to Provincial Judges Amendment Regulation, Alta.
Reg. 171/91. However, this incidental reactivation of Alta. Reg. 171/91 should
not be taken as a decision by this Court that the earlier regulation was
valid. The constitutionality of that regulation was not in issue in the Provincial
Court Judges Case. Therefore, we prefer to deal with the question of which
regulation is currently in force in Alberta in our decision on the second order
requested.
15
The second order set out above was requested for two reasons. The first
was to clarify the orders made after the original hearing. There was some confusion
as to whether the suspension ordered in that judgment related to the
declaration of invalidity of s. 17(1) of the Provincial Court Judges Act
or the declaration of invalidity of Alta. Reg. 116/94. Our intention was to
suspend the declaration of invalidity relating to s. 17(1) of the statute, not
the declaration in respect of the unconstitutional regulation. Therefore, the
September 18, 1997 judgment is varied to reflect that intention. This Court
declares s. 17(1) of the Provincial Court Judges Act to be
unconstitutional; however, given the institutional burdens that must be met by
Alberta, we suspend this declaration of invalidity for a period of one year.
The Payment to Provincial Judges Amendment Regulation, Alta. Reg.
116/94, is also of no force or effect; that declaration takes effect
retroactively as of September 18, 1997.
16
The second reason given by Alberta for requesting the second order set
out above was to ensure that the Provincial Court can continue to function
while the government is going through the judicial remuneration review process
required by the original judgment. The suspension of the requirement for an
independent, objective and effective process where judicial remuneration is
changed or frozen, which is described below, will ensure that this concern is
met. It is therefore unnecessary to grant the relief requested.
E. Transition
Period
17
The Attorneys General of Alberta and Prince Edward Island, as well as
several of the interveners, have asked for a further remedy to ensure that
courts that are not currently independent can continue to function while
governments are going through the judicial remuneration review process required
by this Court’s September 18, 1997 judgment. That process, by its very nature,
will require a considerable amount of time to complete. Some provinces, such as
Alberta and Prince Edward Island, have never had a judicial compensation
commission, so they need time to establish one. In addition, although not
required by s. 11 (d), we recommended that the independent body charged
with setting or recommending the level of judicial remuneration ensure that it
is fully informed before deliberating and making its recommendations (Provincial
Court Judges Case, supra, at para. 173). Time is also needed to permit
the legislature to respond to the commission’s recommendations.
18
Therefore, to allow governments time to comply with the constitutional
requirements mandated by our September 18, 1997 decision, and to ensure that
the orderly administration of justice is not disrupted in the interim, the
Court has decided to suspend all aspects of the requirement for an independent,
objective and effective process for setting judicial remuneration, including
any reimbursement for past salary reductions, for one year from the date of the
original judgment. That is, there will be a transition period of one year
before that requirement takes effect. As of September 18, 1998, the judicial
compensation commission requirement will apply prospectively.
19
In provinces where less than a year is needed to go through the judicial
remuneration review process mandated by s. 11 (d), this suspension should
not be viewed as a license to delay compliance with the constitutional
imperatives set out in the Provincial Court Judges Case. The suspension
is for the benefit of those jurisdictions that have not yet had sufficient time
to remedy constitutional defects in legislation affecting judicial
independence. Those provinces that were already honouring the guarantee of an
independent tribunal provided by s. 11 (d) of the Charter , and
those that acted promptly to correct any deficiencies revealed by this Court’s
clarification of the content of the s. 11 (d) guarantee, are to be
commended.
20
I note that the prospectiveness of the judicial compensation requirement
does not change the retroactivity of the declarations of invalidity made in
this case (e.g., the declarations respecting Alta. Reg. 116/94 and Manitoba’s
Bill 22 (Public Sector Reduced Work Week and Compensation Management Act,
S.M. 1993, c. 21)). In the rare cases in which this Court makes a prospective
ruling, it has always allowed the party bringing the case to take advantage of
the finding of unconstitutionality: see, e.g., R. v. Brydges, [1990] 1
S.C.R. 190; R. v. Feeney, [1997] 2 S.C.R. 117.
21
The Court will remain seized of this matter until the end of the
suspension period, and the parties or any intervener may apply to the Court for
further directions as needed during the suspension.
Judgment accordingly.
Solicitor for the appellants in the P.E.I. references: Peter C.
Ghiz, Charlottetown.
Solicitors for the respondent in the P.E.I. references: Stewart
McKelvey Stirling, Charlottetown.
Solicitor for the appellant Her Majesty the Queen: The Department
of Justice, Edmonton.
Solicitors for the respondents Campbell and Ekmecic: Legge &
Muszynski, Calgary.
Solicitors for the respondent Wickman: Gunn & Prithipaul,
Edmonton.
Solicitors for the appellants the Judges of the Provincial Court of
Manitoba: Myers Weinberg Kussin Weinstein Bryk, Winnipeg.
Solicitors for the respondent Her Majesty the Queen in right of
Manitoba: Thompson Dorfman Sweatman, Winnipeg.
Solicitor for the intervener the Attorney General of Canada: George
Thomson, Ottawa.
Solicitors for the intervener the Canadian Association of Provincial
Court Judges: Myers Weinberg Kussin Weinstein Bryk, Winnipeg.
Solicitors for the intervener the Canadian Judges Conference:
Ogilvy Renault, Montréal.
Solicitors for the intervener the Conférence des juges du Québec:
Langlois Gaudreau, Montréal.
Solicitors for the intervener the Alberta Provincial Judges’
Association: Bennett Jones Verchere, Calgary.
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