Ref re Remuneration of Judges of the Prov. Court of P.E.I.; Ref re Independence and Impartiality of Judges of the Prov. Court of P.E.I.

Ref re Remuneration of Judges of the Prov. Court of P.E.I.; Ref re Independence and Impartiality of Judges of the Prov. Court of P.E.I.
Collection
Supreme Court Judgments
Date
1997-09-18
Report
[1997] 3 SCR 3
Case number
24508, 24778
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; Iacobucci, Frank
On appeal from
Prince Edward Island
Subjects
Constitutional law
Courts
Criminal law
Notes
SCC Case Information: 24508, 24778
Decision Content
Reference re Remuneration of Judges of the Provincial Court (P.E.I.), [1997] 3 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.
1996: December 3, 4; 1997: September 18.*
Present: Lamer C.J. and La Forest, L’Heureux‑Dubé, Sopinka, Gonthier, Cory and Iacobucci JJ.
on appeal from the prince edward island supreme court, appeal division
on appeal from the court of appeal for alberta
on appeal from the court of appeal for manitoba
Constitutional law ‑‑ Judicial independence ‑‑ Whether express provisions in Constitution exhaustive written code for protection of judicial independence ‑‑ True source of judicial independence ‑‑ Whether judicial independence extends to Provincial Court judges ‑‑ Constitution Act, 1867, preamble, ss. 96 to 100 ‑‑ Canadian Charter of Rights and Freedoms, s. 11(d).
Constitutional law ‑‑ Judicial independence ‑‑ Components of institutional financial security ‑‑ Constitution Act, 1867, s. 100 ‑‑ Canadian Charter of Rights and Freedoms, s. 11(d).
Courts ‑‑ Judicial independence -- Provincial Courts ‑‑ Changes or freezes to judicial remuneration ‑‑ Provincial governments and legislatures reducing salaries of Provincial Court judges as part of overall economic measure ‑‑ Whether reduction constitutional ‑‑ Procedure to be followed to change or freeze judicial remuneration ‑‑ Canadian Charter of Rights and Freedoms, ss. 1, 11(d) ‑‑ Provincial Court Act, R.S.P.E.I. 1988, c. P‑25, s. 3(3) ‑‑ Provincial Court Judges Act, S.A. 1981, c. P‑20.1, s. 17(1) ‑‑ Payment to Provincial Judges Amendment Regulation, Alta. Reg. 116/94 ‑‑ Public Sector Reduced Work Week and Compensation Management Act, S.M. 1993, c. 21, s. 9(1).
Constitutional law ‑‑ Charter of Rights ‑‑ Independent and impartial tribunal ‑‑ Provincial Courts ‑‑ Institutional financial security ‑‑ Changes or freezes to judicial remuneration ‑‑ Provincial governments and legislatures reducing salaries of Provincial Court judges as part of overall economic measure ‑‑ Whether reduction infringed judicial independence ‑‑ If so, whether infringement justifiable ‑‑ Procedure to be followed to change or freeze judicial remuneration ‑‑ Canadian Charter of Rights and Freedoms, ss. 1, 11(d) ‑‑ Provincial Court Act, R.S.P.E.I. 1988, c. P‑25, s. 3(3) ‑‑ Provincial Court Judges Act, S.A. 1981, c. P‑20.1, s. 17(1) ‑‑ Payment to Provincial Judges Amendment Regulation, Alta. Reg. 116/94 ‑‑ Public Sector Reduced Work Week and Compensation Management Act, S.M. 1993, c. 21, s. 9(1).
Constitutional law ‑‑ Charter of Rights ‑‑ Independent and impartial tribunal ‑‑ Provincial Courts ‑‑ Individual financial security ‑‑ Provincial legislation providing that Lieutenant Governor in Council “may” set judicial salaries ‑‑ Whether legislation infringes judicial independence ‑‑ If so, whether infringement justifiable ‑‑ Canadian Charter of Rights and Freedoms, ss. 1, 11(d) ‑‑ Provincial Court Judges Act, S.A. 1981, c. P‑20.1, s. 17(1).
Constitutional law ‑‑ Charter of Rights ‑‑ Independent and impartial tribunal ‑‑ Provincial Courts ‑‑ Individual financial security ‑‑ Discretionary benefits ‑‑ Provincial legislation conferring on Lieutenant Governor in Council discretion to grant leaves of absence due to illness and sabbatical leaves ‑‑ Whether legislation infringes judicial independence ‑‑ Canadian Charter of Rights and Freedoms, s. 11(d) ‑‑ Provincial Court Act, R.S.P.E.I. 1988, c. P‑25, ss. 12(2), 13.
Constitutional law ‑‑ Charter of Rights ‑‑ Independent and impartial tribunal ‑‑ Provincial Courts ‑‑ Salary negotiations ‑‑ Whether provincial government violated judicial independence of Provincial Court by attempting to engage in salary negotiations with Provincial Judges Association ‑‑ Canadian Charter of Rights and Freedoms, s. 11(d).
Courts -- Judicial independence -- Provincial Courts ‑‑ Salary negotiations ‑‑ Provincial legislation permitting negotiations “between a public sector employer and employees” ‑‑ Whether negotiation provisions applicable to Provincial Court judges -- Public Sector Pay Reduction Act, S.P.E.I. 1994, c. 51, s. 12(1).
Constitutional law ‑‑ Charter of Rights ‑‑ Independent and impartial tribunal ‑‑ Provincial Courts ‑‑ Administrative independence ‑‑ Closure of Provincial Court ‑‑ Whether closure of Provincial Court by provincial government for several days infringed judicial independence ‑‑ If so, whether infringement justifiable ‑‑ Canadian Charter of Rights and Freedoms, ss. 1, 11(d) ‑‑ Public Sector Reduced Work Week and Compensation Management Act, S.M. 1993, c. 21, s. 4.
Constitutional law ‑‑ Charter of Rights ‑‑ Independent and impartial tribunal ‑‑ Provincial Courts ‑‑ Administrative independence ‑‑ Provincial Court located in same building as certain departments which are part of executive ‑‑ Provincial Court judges not administering their own budget ‑‑ Designation of place of residence of Provincial Court judges ‑‑ Attorney General opposing funding for judges to intervene in court case ‑‑ Lieutenant Governor in Council having power to make regulations respecting duties and powers of Chief Judge and respecting rules of courts ‑‑ Whether these matters undermine administrative independence of Provincial Court ‑‑ Canadian Charter of Rights and Freedoms, s. 11(d) ‑‑ Provincial Court Act, R.S.P.E.I. 1988, c. P‑25, ss. 4, 17.
Constitutional law ‑‑ Charter of Rights ‑‑ Independent and impartial tribunal ‑‑ Provincial Courts ‑‑ Administrative independence ‑‑ Place of residence ‑‑ Sittings of court ‑‑ Provincial legislation authorizing Attorney General to designate judges’ place of residence and court’s sitting days ‑‑ Whether legislation infringes upon administrative independence of Provincial Court ‑‑ If so, whether infringement justifiable ‑‑ Canadian Charter of Rights and Freedoms, ss. 1, 11(d) ‑‑ Provincial Court Judges Act, S.A. 1981, c. P‑20.1, s. 13(1)(a), (b).
Courts -- Constitutionality of legislation ‑‑ Notice to Attorney General -- Constitutionality of provincial legislation not raised by counsel ‑‑ Superior court judge proceeding on his own initiative without giving required notice to Attorney General ‑‑ Whether superior court judge erred in considering constitutionality of legislation.
Criminal law ‑‑ Appeals ‑‑ Prohibition ‑‑ Three accused challenging constitutionality of their trials before Provincial Court arguing that court not an independent and impartial tribunal ‑‑ Accused seeking various remedies including prohibition in superior court ‑‑ Superior court judge making declarations striking down numerous provisions found in provincial legislation and regulations ‑‑ Superior court judge concluding that declarations removed source of unconstitutionality and ordering trials of accused to proceed or to continue ‑‑ Court of Appeal dismissing Crown’s appeals for want of jurisdiction ‑‑ Whether s. 784(1) of Criminal Code limited to appeals by unsuccessful parties ‑‑ Whether declarations prohibitory in nature and within scope of s. 784(1) ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 784(1).
These four appeals raise a range of issues relating to the independence of provincial courts, but are united by a single issue: whether and how the guarantee of judicial independence in s. 11(d) of the Canadian Charter of Rights and Freedoms restricts the manner by and the extent to which provincial governments and legislatures can reduce the salaries of provincial court judges. In these appeals, it is the content of the collective or institutional dimension of financial security for judges of Provincial Courts which is at issue.
In P.E.I., the province, as part of its budget deficit reduction plan, enacted the Public Sector Pay Reduction Act and reduced the salaries of Provincial Court judges and others paid from the public purse in the province. Following the pay reduction, numerous accused challenged the constitutionality of their proceedings in the Provincial Court, alleging that as a result of the salary reductions, the court had lost its status as an independent and impartial tribunal under s. 11(d) of the Charter. The Lieutenant Governor in Council referred to the Appeal Division of the Supreme Court two constitutional questions to determine whether the Provincial Court judges still enjoyed a sufficient degree of financial security for the purposes of s. 11(d). The Appeal Division found the Provincial Court judges to be independent, concluding that the legislature has the power to reduce their salary as part of an “overall public economic measure” designed to meet a legitimate government objective. Despite this decision, accused persons continued to raise challenges based on s. 11(d) to the constitutionality of the Provincial Court. The Lieutenant Governor in Council referred a series of questions to the Appeal Division concerning all three elements of the judicial independence of the Provincial Court: financial security, security of tenure, and administrative independence. The Appeal Division answered most of the questions to the effect that the Provincial Court was independent and impartial but held that Provincial Court judges lacked a sufficient degree of security of tenure to meet the standard set by s. 11(d) of the Charter because s. 10 of the Provincial Court Act (as it read at the time) made it possible for the executive to remove a judge without probable cause and without a prior inquiry.
In Alberta, three accused in separate and unrelated criminal proceedings in Provincial Court challenged the constitutionality of their trials. They each brought a motion before the Court of Queen’s Bench, arguing that, as a result of the salary reduction of the Provincial Court judges pursuant to the Payment to Provincial Judges Amendment Regulation and s. 17(1) of the Provincial Court Judges Act, the Provincial Court was not an independent and impartial tribunal for the purposes of s. 11(d). The accused also challenged the constitutionality of the Attorney General’s power to designate the court’s sitting days and judges’ place of residence. The accused requested various remedies, including prohibition and declaratory orders. The superior court judge found that the salary reduction of the Provincial Court judges was unconstitutional because it was not part of an overall economic measure ‑‑ an exception he narrowly defined. He did not find s. 17 of the Provincial Court Judges Act, however, to be unconstitutional. On his own initiative, the superior court judge considered the constitutionality of the process for disciplining Provincial Court judges and the grounds for their removal and concluded that ss. 11(1)(b), 11(1)(c) and 11(2) of the Provincial Court Judges Act violated s. 11(d) because they failed to adequately protect security of tenure. The superior court judge also found that ss. 13(1)(a) and 13(1)(b) of that Act, which permit the Attorney General to designate the judges’ place of residence and the court’s sitting days, violated s. 11(d). In the end, the superior court judge declared the provincial legislation and regulations which were the source of the s. 11(d) violations to be of no force or effect, thus rendering the Provincial Court independent. As a result, although the Crown lost on the constitutional issue, it was successful in its efforts to commence or continue the trials of the accused. The Court of Appeal dismissed the Crown’s appeals, holding that it did not have jurisdiction under s. 784(1) of the Criminal Code to hear them because the Crown was “successful” at trial and therefore could not rely on s. 784(1), and because declaratory relief is non‑prohibitory and is therefore beyond the ambit of s. 784(1).
In Manitoba, the enactment of The Public Sector Reduced Work Week and Compensation Management Act (“Bill 22”), as part of a plan to reduce the province’s deficit, led to the reduction of the salary of Provincial Court judges and of a large number of public sector employees. The Provincial Court judges through their Association launched a constitutional challenge to the salary cut, alleging that it infringed their judicial independence as protected by s. 11(d) of the Charter. They also argued that the salary reduction was unconstitutional because it effectively suspended the operation of the Judicial Compensation Committee (“JCC”), a body created by The Provincial Court Act whose task it is to issue reports on judges’ salaries to the legislature. Furthermore, they alleged that the government had interfered with judicial independence by ordering the withdrawal of court staff and personnel on unpaid days of leave, which in effect shut down the Provincial Court on those days. Finally, they claimed that the government had exerted improper pressure on the Association in the course of salary discussions to desist from launching this constitutional challenge, which also allegedly infringed their judicial independence. The trial judge held that the salary reduction was unconstitutional because it was not part of an overall economic measure which affects all citizens. The reduction was part of a plan to reduce the provincial deficit solely through a reduction in government expenditures. He found, however, that a temporary reduction in judicial salaries is permitted under s. 11(d) in case of economic emergency and since this was such a case, he read down Bill 22 so that it only provided for a temporary suspension in compensation, with retroactive payment due after the Bill expired. The Court of Appeal rejected all the constitutional challenges.
Held (La Forest J. dissenting): The appeal from the Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island should be allowed in part.
Held (La Forest J. dissenting on the appeal): The appeal and cross‑appeal from the Reference re Independence and Impartiality of Judges of the Provincial Court of Prince Edward Island should be allowed in part.
Held: The appeal in the Alberta cases from the Court of Appeal’s judgment on jurisdiction should be allowed.
Held (La Forest J. dissenting in part): The appeal in the Alberta cases on the constitutional issues should be allowed in part.
Held (La Forest J. dissenting in part): The appeal in the Manitoba case should be allowed.
Per Lamer C.J. and L’Heureux‑Dubé, Sopinka, Gonthier, Cory and Iacobucci JJ.: Sections 96 to 100 of the Constitution Act, 1867, which only protect the independence of judges of the superior, district and county courts, and s. 11(d) of the Charter, which protects the independence of a wide range of courts and tribunals, including provincial courts, but only when they exercise jurisdiction in relation to offences, are not an exhaustive and definitive written code for the protection of judicial independence in Canada. Judicial independence is an unwritten norm, recognized and affirmed by the preamble to the Constitution Act, 1867 ‑‑ in particular its reference to “a Constitution similar in Principle to that of the United Kingdom” ‑‑ which is the true source of our commitment to this foundational principle. The preamble identifies the organizing principles of the Constitution Act, 1867 and invites the courts to turn those principles into the premises of a constitutional argument that culminates in the filling of gaps in the express terms of the constitutional text. The same approach applies to the protection of judicial independence. Judicial independence has now grown into a principle that extends to all courts, not just the superior courts of this country.
Since these appeals were argued on the basis of s. 11(d) of the Charter, they should be resolved by reference to that provision. The independence protected by s. 11(d) is the independence of the judiciary from the other branches of government, and bodies which can exercise pressure on the judiciary through power conferred on them by the state. The three core characteristics of judicial independence are security of tenure, financial security, and administrative independence. Judicial independence has also two dimensions: the individual independence of a judge and the institutional or collective independence of the court of which that judge is a member. The institutional role demanded of the judiciary under our Constitution is a role which is now expected of provincial courts. Notwithstanding that they are statutory bodies, in light of their increased role in enforcing the provisions and in protecting the values of the Constitution, provincial courts must enjoy a certain level of institutional independence.
While s. 11(d) of the Charter does not, as a matter of principle, automatically provide the same level of protection to provincial courts as s. 100 and the other judicature provisions of the Constitution Act, 1867 do to superior court judges, the constitutional parameters of the power to change or freeze superior court judges’ salaries under s. 100 are equally applicable to the guarantee of financial security provided by s. 11(d) to provincial court judges.
Financial security has both an individual and an institutional dimension. The institutional dimension of financial security has three components. First, as a general constitutional principle, the salaries of provincial court judges can be reduced, increased, or frozen, either as part of an overall economic measure which affects the salaries of all or some persons who are remunerated from public funds, or as part of a measure which is directed at provincial court judges as a class. However, to avoid the possibility of, or the appearance of, political interference through economic manipulation, a body, such as a commission, must be interposed between the judiciary and the other branches of government. The constitutional function of this body would be to depoliticize the process of determining changes to or freezes in judicial remuneration. This objective would be achieved by setting that body the specific task of issuing a report on the salaries and benefits of judges to the executive and the legislature. Provinces are thus under a constitutional obligation to establish bodies which are independent, effective and objective. Any changes to or freezes in judicial remuneration made without prior recourse to the body are unconstitutional. Although the recommendations of the body are non‑binding they should not be set aside lightly. If the executive or legislature chooses to depart from them, it has to justify its decision according to a standard of simple rationality -- if need be, in a court of law. Across‑the‑board measures which affect substantially every person who is paid from the public purse are prima facie rational, whereas a measure directed at judges alone may require a somewhat fuller explanation. Second, under no circumstances is it permissible for the judiciary ‑‑ not only collectively through representative organizations, but also as individuals ‑‑ to engage in negotiations over remuneration with the executive or representatives of the legislature. Any such negotiations would be fundamentally at odds with judicial independence. That does not preclude chief justices or judges, or bodies representing judges, however, from expressing concerns or making representations to governments regarding judicial remuneration. Third, any reductions to judicial remuneration cannot take those salaries below a basic minimum level of remuneration which is required for the office of a judge. Public confidence in the independence of the judiciary would be undermined if judges were paid at such a low rate that they could be perceived as susceptible to political pressure through economic manipulation. In order to guard against the possibility that government inaction could be used as a means of economic manipulation, by allowing judges’ real salaries to fall because of inflation, and in order to protect against the possibility that judicial salaries will fall below the adequate minimum guaranteed by judicial independence, the body must convene if a fixed period of time has elapsed since its last report, in order to consider the adequacy of judges’ salaries in light of the cost of living and other relevant factors. The components of the institutional dimension of financial security need not be adhered to in cases of dire and exceptional financial emergency precipitated by unusual circumstances.
Prince Edward Island
The salary reduction imposed by s. 3(3) of the Provincial Court Act, as amended by s. 10 of the Public Sector Pay Reduction Act, was unconstitutional since it was made by the legislature without recourse to an independent, objective and effective process for determining judicial remuneration. In fact, no such body exists in P.E.I. However, if in the future, after P.E.I. establishes a salary commission, that commission were to issue a report with recommendations which the legislature declined to follow, a salary reduction such as the impugned one would probably be prima facie rational, and hence justified, because it would be part of an overall economic measure which reduces the salaries of all persons who are remunerated by public funds. Since the province has made no submissions on the absence of an independent, effective and objective process to determine judicial salaries, the violation of s. 11(d) is not justified under s. 1 of the Charter.
Section 12(1) of the Public Sector Pay Reduction Act, which permits negotiations “between a public sector employer and employees” to find alternatives to pay reductions, does not contravene the principle of judicial independence since the plain meaning of a public sector employee does not include members of the judiciary.
Sections 12(2) and 13 of the Provincial Court Act, which confer a discretion on the Lieutenant Governor in Council to grant leaves of absence due to illness and sabbatical leaves, do not affect the individual financial security of a judge. Discretionary benefits do not undermine judicial independence.
The question concerning the lack of security of tenure created by s. 10 of the Provincial Court Act has been rendered moot by the adoption in 1995 of a new s. 10 which meets the requirements of s. 11(d) of the Charter.
The location of the Provincial Court’s offices in the same building as certain departments which are part of the executive, including the Crown Attorneys’ offices, does not infringe the administrative independence of the Provincial Court because, despite the physical proximity, the court’s offices are separate and apart from the other offices in the building. As well, the fact that the Provincial Court judges do not administer their own budget does not violate s. 11(d). This matter does not fall within the scope of administrative independence, because it does not bear directly and immediately on the exercise of the judicial function. For the same reason, the Attorney General’s decision both to decline to fund and to oppose an application to fund legal counsel for the Chief Judge and judges of the Provincial Court as interveners in a court case did not violate the administrative independence of the court. The designation of a place of residence of a particular Provincial Court judge, pursuant to s. 4 of the Provincial Court Act, does not undermine the administrative independence of the judiciary. Upon the appointment of a judge to the Provincial Court, it is necessary that he or she be assigned to a particular area. Furthermore, the stipulation that the residence of a sitting judge only be changed with that judge’s consent is a sufficient protection against executive interference. Finally, s. 17 of the Provincial Court Act, which authorizes the Lieutenant Governor in Council to make regulations respecting the duties and powers of the Chief Judge (s. 17(b)) and respecting rules of court (s. 17(c)), must be read subject to s. 4(1) of that Act, which confers broad administrative powers on the Chief Judge, including the assignment of judges, sittings of the court and court lists, the allocation of courtrooms, and the direction of administrative staff carrying out these functions. Section 4(1) therefore vests with the Provincial Court, in the person of the Chief Judge, control over decisions which touch on its administrative independence. In light of the broad provisions of s. 4(1), s. 17 does not undermine the administrative independence of the court.
Alberta
The Court of Appeal had jurisdiction to hear the Crown’s appeals under s. 784(1) of the Criminal Code. First, it is unclear that only unsuccessful parties can avail themselves of s. 784(1). In any event, even if this limitation applies, the Court of Appeal had jurisdiction. Although the Crown may have been successful in its efforts to commence and continue the trials against the accused, it lost on the underlying findings of unconstitutionality. Second, this is a case where the declaratory relief was essentially prohibitory in nature, and so came within the scope of s. 784(1), because the trial judgment granted relief sought in proceedings by way of prohibition. This Court can thus exercise the Court of Appeal’s jurisdiction and consider the present appeal.
The salary reduction imposed by the Payment to Provincial Judges Amendment Regulation for judges of the Provincial Court is unconstitutional because there is no independent, effective and objective commission in Alberta which recommends changes to judges’ salaries. However, if in the future, after Alberta establishes a salary commission, that commission were to issue a report with recommendations which the provincial legislature declined to follow, a salary reduction such as the impugned one would probably be prima facie rational because it would be part of an overall economic measure which reduces the salaries of all persons who are remunerated by public funds.
Section 17(1) of the Provincial Court Judges Act, which provides that the Lieutenant Governor in Council “may” set judicial salaries, violates s. 11(d) of the Charter. Section 17(1) does not comply with the requirements for individual financial security because it fails to lay down in mandatory terms that Provincial Court judges shall be provided with salaries.
Section 13(1)(a) of the Provincial Court Judges Act, which confers the power to “designate the place at which a judge shall have his residence”, and s. 13(1)(b), which confers the power to “designate the day or days on which the Court shall hold sittings”, are unconstitutional because both provisions confer powers on the Attorney General to make decisions which infringe upon the administrative independence of the Provincial Court. Section 13(1)(a)’s constitutional defect lies in the fact that it is not limited to the initial appointment of judges. Section 13(1)(b) violates s. 11(d) because the administrative independence of the judiciary encompasses, inter alia, “sittings of the court”.
The province having made no submissions on s. 1 of the Charter, the violations of s. 11(d) are not justified. The Payment to Provincial Judges Amendment Regulation is therefore of no force or effect. However, given the institutional burdens that must be met by Alberta, this declaration of invalidity is suspended for a period of one year.** Sections 13(1)(a) and (b) and 17(1) of the Provincial Court Judges Act are also declared to be of no force or effect.
Since the accused did not raise the constitutionality of s. 11(1)(b), (c) and (2) of the Provincial Court Judges Act, it was not appropriate for the superior court judge to proceed on his own initiative, without the benefit of submissions and without giving the required notice to the Attorney General of the province, to consider their constitutionality, let alone make declarations of invalidity.
Manitoba
The salary reduction imposed by s. 9(1) of Bill 22 violated s. 11(d) of the Charter, because the government failed to respect the independent, effective and objective process ‑‑ the JCC ‑‑ for setting judicial remuneration which was already operating in Manitoba. Moreover, at least for the 1994‑95 financial year, s. 9(1)(b) effectively precluded the future involvement of the JCC. Although Manitoba may have faced serious economic difficulties in the time period preceding the enactment of Bill 22, the evidence does not establish that it faced sufficiently dire and exceptional circumstances to warrant the suspension of the involvement of the JCC. Since Manitoba has offered no justification for the circumvention of the JCC before imposing the salary reduction on Provincial Court judges, the effective suspension of the operation of the JCC is not justified under s. 1 of the Charter. The phrase “as a judge of The Provincial Court or” should be severed from s. 9(1) of Bill 22 and the salary reduction imposed on the Provincial Court judges declared to be of no force or effect. Even though Bill 22 is no longer in force, that does not affect the fully retroactive nature of this declaration of invalidity. Mandamus should be issued directing the Manitoba government to perform its statutory duty, pursuant to s. 11.1(6) of The Provincial Court Act, to implement the report of the standing committee of the provincial legislature, which had been approved by the legislature. If the government persists in its decision to reduce the salaries of Provincial Court judges, it must remand the matter to the JCC. Only after the JCC has issued a report, and the statutory requirements laid down in s. 11.1 of The Provincial Court Act have been complied with, is it constitutionally permissible for the legislature to reduce the salaries of the Provincial Court judges.
The Manitoba government also violated the judicial independence of the Provincial Court by attempting to engage in salary negotiations with the Provincial Judges Association. The purpose of these negotiations was to set salaries without recourse to the JCC. Moreover, when the judges would not grant the government an assurance that they would not launch a constitutional challenge to Bill 22, the government threatened to abandon a joint recommendation. The surrounding circumstances indicate that the Association was not a willing participant and was effectively coerced into these negotiations. No matter how one‑sided, however, it was improper for government and the judiciary to engage in salary negotiations. The expectations of give and take, and of threat and counter‑threat, are fundamentally at odds with judicial independence. It raises the prospect that the courts will be perceived as having altered the manner in which they adjudicate cases, and the extent to which they will protect and enforce the Constitution, as part of the process of securing the level of remuneration they consider appropriate. The attempted negotiations between the government and the judiciary were not authorized by a legal rule and thus are incapable of being justified under s. 1 of the Charter because they are not prescribed by law.
Finally, the Manitoba government infringed the administrative independence of the Provincial Court by closing it on a number of days. It was the executive, in ordering the withdrawal of court staff, pursuant to s. 4 of Bill 22, several days before the Chief Judge announced the closing of the Provincial Court, that shut down the court. Section 4 is therefore unconstitutional. Even if the trial judge had been right to conclude that the Chief Judge retained control over the decision to close the Provincial Court throughout, there would nevertheless have been a violation of s. 11(d), because the Chief Judge would have exceeded her constitutional authority when she made that decision. Control over the sittings of the court falls within the administrative independence of the judiciary. Administrative independence is a characteristic of judicial independence which generally has a collective or institutional dimension. Although certain decisions may be exercised on behalf of the judiciary by the Chief Judge, important decisions regarding administrative independence cannot be made by the Chief Judge alone. The decision to close the Provincial Court was precisely this kind of decision. Manitoba has attempted to justify the closure of the Provincial Court solely on the basis of financial considerations, and for that reason, the closure of the court cannot be justified under s. 1. Although reading down s. 4 of Bill 22 to the extent strictly necessary would be the normal solution in a case like this, this is difficult in relation to violations of s. 11(d) because, unlike other Charter provisions, s. 11(d) requires that judicial independence be secured by “objective conditions or guarantees”. To read down s. 4 to its proper scope would in effect amount to reading in those objective conditions and guarantees. This would result in a fundamental rewriting of the legislation. If the Court, however, were to strike down s. 4 in its entirety, the effect would be to prevent its application to all those employees of the Government of Manitoba who were required to take leave without pay. The best solution in the circumstances is to read s. 4(1) as exempting provincial court staff from it. This is the remedy that best upholds the Charter values involved and will occasion the lesser intrusion on the role of the legislature.
Per La Forest J. (dissenting in part): There is agreement with substantial portions of the majority’s reasons but not with the conclusions that s. 11(d) of the Charter prohibits salary discussions between governments and judges, and forbids governments from changing judges’ salaries without first having recourse to “judicial compensation commissions”. There is also disagreement with the assertion concerning the protection that provincially appointed judges, exercising functions other than criminal jurisdiction, are afforded by virtue of the preamble to the Constitution Act, 1867. Only minimal reference was made to this issue by counsel and, in such circumstances, the Court should avoid making far-reaching conclusions that are not necessary to the case before it. Nevertheless, in light of the importance that will be attached to the majority’s views, the following comments are made. At the time of Confederation, there were no enforceable limits on the power of the British Parliament to interfere with the judiciary. By expressing, by way of preamble, a desire to have “a Constitution similar in Principle to that of the United Kingdom”, the framers of the Constitution Act, 1867 did not give courts the power to strike down legislation violating the principle of judicial independence. The framers did, however, by virtue of ss. 99-100 of the Constitution Act, 1867, entrench the fundamental components of judicial independence set out in the Act of Settlement of 1701. Because only superior courts fell within the ambit of the Act of Settlement and under “constitutional” protection in the British sense, the protection sought to be created for inferior courts in the present appeals is in no way similar to anything found in the United Kingdom. Implying protection for judicial independence from the preambular commitment to a British-style constitution, therefore, entirely misapprehends the fundamental nature of that constitution. To the extent that courts in Canada have the power to enforce the principle of judicial independence, this power derives from the structure of Canadian, and not British, constitutionalism. Our Constitution expressly contemplates both the power of judicial review (in s. 52 of the Constitution Act, 1982) and guarantees of judicial independence (in ss. 96-100 of the Constitution Act, 1867 and s. 11(d) of the Charter). Given that the express provisions dealing with constitutional protection for judicial independence have specifically spelled out their application, it seems strained to extend the ambit of this protection by reference to a general preambular statement. It is emphasized that these express protections for judicial independence are broad and powerful. They apply to all superior court and other judges specified in s. 96 of the Constitution Act, 1867 as well as to