Provincial Judges Reference
Encyclopedia : P : PR : PRO : Provincial Judges Reference
| Provincial Judges Reference | ||||||
|---|---|---|---|---|---|---|
 Supreme Court of Canada | ||||||
| Argued December 3 - 4, 1996 Decided September 18, 1997 | ||||||
| ||||||
| Holding | ||||||
| There is a constitutional norm that protects the judicial independence of all judges. | ||||||
| Court membership | ||||||
| ||||||
| Case opinions | ||||||
|
Background
The reference was the amalgamation of three different sets of challenges to the impartiality and independence of provincial court judges in Manitoba, Prince Edward Island, and Alberta. The powers of the provincial legislatures to reduce the salaries of the provincial court judges was challenged as a violation of section 11(d) of the Canadian Charter of Rights and Freedoms, which gives an accused the right to be presumed innocent until proven guilty "in a fair and public hearing by an independent and impartial tribunal".Opinion of the Court
Lamer C.J. with L'Heureux-Dubé, Sopinka, Gonthier, Cory and Iacobucci JJ, allowed the appeals in part, stating that there was constitutional protection of judicial independence and impartiality for all judges.One problem identified was that the independence of provincial judges were not protected as extensively as the federal judges were under sections 96 to 100 of the Constitution Act, 1867. The majority read section 11(d) as only protecting independence in the exercise of jurisdiction in relation to offence (i.e., it would not protect provincial judges specializing in civil law), but section 11(d) is not a broad or exhaustive code. Instead, the Court looked to constitutional norms and found that "judicial independence" was one such norm implied by the preamble to the Constitution which provides the "organizing princples of the Constitution...and invites the courts to turn those princples into ... a constitutional argument". The implication came from the preamble's statement that Canada's constitution should be similar to the United Kingdom's, and the UK has a tradition of judicial independence. The Supreme Court of Canada then notes that judicial independence has become a fundamental issue that should not just be reserved for the superior courts. (This interpretation of the British Constitution has inspired criticism, however. The British form of judicial independence was more limited in 1867, neither extending to inferior courts nor limiting government power to lower the judges' remuneration, and at any rate, no act of Parliament can be declared ultra vires by a court in British law. This is why academic Jeffrey Goldsworthy attacked the decision as "a self-contradiction, a vague reference to 'evolution' combined with a plainly false analogy, and an evasion."[#endnote_criticism])
The Court turns back to examine section 11(d) and from it identifies three core characteristics of judicial independence: 1) security of tenure, 2) financial security, and 3) administrative independence. As well, judicial independence can be divided into two types of indepedence: 1) the individual independence of a judge and 2) the institutional or collective independence of the court of which that judge is a member. The Court emphasized that the role of institutional independence has become expected of provincial courts due to their increased role in dispute resolution in the country. For this reason, it was strongly suggested that the government establish judicial salary commissions, thus overruling obiter dicta in the previous landmark judicial independence case, Valente v. The Queen, which had found such commissions were desirable but not necessary. Since judicial independence is guaranteed by the preamble, civil law judges have a right to these salary commissions, even though they have no rights under section 11(d).
Dissent
La Forest J., alone in dissent, rejected the majority's finding of an unwritten constitutional principle that protects a right to judicial salary commissions. He was very wary of the "discovery" of such new prinicples, especially when the protection of judges can already be found elsewhere in the text of the Constitution.Notes
- ↑ the three formal titles of the decision are Manitoba Provincial Judges Assn. v. Manitoba (Minister of Justice) from the Manitoba appeal, R. v. Campbell; R. v. Ekmecic; R. v. Wickman from the Alberta appeal, and 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 from the PEI appeal.
- ↑ Goldsworthy, Jeffrey. "The Preamble, Judicial Independence and Judicial Integrity." FORUM Constitutionnel (2000) 11:2.
External links
From Wikipedia, the Free Encyclopedia. Original article here. Support Wikipedia by contributing or donating.
All text is available under the terms of the GNU Free Documentation License See Wikipedia Copyrights for details.