Peter McCormick, New Questions about an Old Concept: The Supreme Court of Canadas Judicial Independe

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Peter McCormick,New Questions about an Old
ConceptThe Supreme Court of CanadasJudicial
Independence Decisions

• 37(4) Canadian Journal of Political Science
  839-862

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Abstract

• In the age of the Charter, courts are an
  important part of the policy process, and
  judicial independence is the concept that
  structures the interactions between courts and
  other institutions.
• Historically, judicial independence in Canada was
  modelled on (and little different from) that of
  England but politically-led reforms in the
  1970s, and a string of more than a dozen Supreme
  Court decisions centred on the 1997 Remuneration
  Reference, are transforming the concept.
• At the same time, a parallel string of cases
  extends more limited but essentially similar
  guarantees to some other administrative bodies.
• Together, these developments represent an
  important and enduring change in the Canadian
  political landscape.

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Judicial Independence - English
StylePrototype Created by Act of Settlement
(1701)

• BASIC ELEMENTS
• First judges hold office on good behaviour and
  are (almost) impossible to remove, and then only
  for cause.
• Second salaries set by Parliament (for all
  judges on same bench, not for individual judges).
• Third judges not answerable to government or
  bureaucracy for judicial matters.
• Fourth judges drawn from/part of aggressively
  independent legal profession (implied).
• Fifth judicial discretion limited by formalism
  as guiding principle (implied) ? judges applied,
  but did not modify rules.

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Judicial Independence - Canadian Style Direct
Copy of English Experience

• Sections 96 100 of the Constitution Act, 1867
  closely parallel the relevant terms of the Act of
  Settlement.
• Judges of provincial superior courts appointed
  from provincial bars.
• Judges serve on good behaviour for life (or
  mandatory retirement age).
• Judges removable only for cause.
• Salaries established by Parliament.

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Judicial Independence - Canadian Style Omissions

• Judicial independence applies only to English
  superior courts and Canadas provincial superior
  courts (and SCC).
• Candidate for bench, must come from the bar, but
  ...
• other aspects informing the appointment decision?
• considerations re elevating judges to a higher
  court?
• No provision for disciplining judges except for
  dismissal.
• Nothing about managing judge-government
  judge-court staff relations.
• Nothing about setting or administration of the
  budget setting of judicial salaries.

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Judicial Independence - Canadian Style The
1970s 1980s

• Restructuring of SCC
• More experienced judges.
• More likely to have had judicial experience.
• Less likely to have been directly involved in
  politics.
• New style of judicial decision-making ? formalism
  ? contextualism ?
• Major changes to court system
• Judicialization of magistrate courts ? recognize
  of judicial independence.
• Judicial councils created ? screened judicial
  appointments, investigated complaints against
  judges.
• Chief Judge of Provincial Court ? institutional
  buffer between government judges.
• Changes
• Changes statutory not constitutionally
  entrenched.
• Politically driven (provincial federal).

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Impact of the Charter (1982)

• The Charter (s.11(d)) specifically guaranteed a
  persons right to an open and public trial
  before an independent and impartial tribunal.
• Valente (1985) identified 3 key elements of
  judicial independence
• Security of tenure.
• Financial security.
• Institutional independence on matters bearing
  directly on the exercise of the judicial
  function.
• Valente read the politically-driven reforms of
  the 1970s back into the Constitution itself
  (s.11(d) of the Charter).

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The Supreme Courts Judicial Independence
Cases

• The consolidation decision Valente (1985).
• The details decisions Beauregard (1986),
  MacKeigan (1989), Lippé (1991), Généreux (1992),
  Ruffo (1995).
• The blockbuster Remuneration Reference (1997).
• The follow-up decisions Tobiass (1997), 974649
  Ontario (2001), Therrien (2001), Mackin (2002),
  Moreau-Berube (2002), Ell (2003).
• The next wave? Bodner (2004).

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The Details Decisions
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Remuneration Reference 1997 Novel Elements

• First a new grounding an unwritten
  constitutional principle exterior to any
  specific section.
• Second a new location the preamble (similar in
  principle to that of the United Kingdom).
• Third a new judicial function protectors of
  the Constitution.
• Fourth a new dimension a constrained role for
  chief judges.
• Fifth a new basic principle no relationship
  between the government and the court, involving
  even the appearance of negotiation.
• Sixth new institutional structure Judicial
  Salary Commission.

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Judicial Independence New Style

• What are the new issues?
• First judicial salaries (settled in
  Remuneration)
• Second court facilities (the BC skirmish)
• Third court budgets and administration (Bodner)
• Fourth constraining chief judges (Tobiass)
• Fifth empowering judicial councils (Ell,
  Moreau-Berubé)
• Sixth the judicial career (appointments/promotion
  s)

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The Supreme Courts Cases Dealing with
Independence of Other Institutions

• Labour relations board Consolidated Bathurst
  (1990), Ellis-Don (2001)
• Social affairs commission Tremblay (1992)
• Administrative tribunal Domtar (1993)
• Liquor licensing board 2747-3174 Quebec
  Inc.(1996), Ocean Port (2001)
• Public utilities board Wells (1999)
• Ad hoc arbitrations board C.U.P.E. v. Ontario
  (2003)
• Human rights tribunal Canadian Telephone
  Employees (2003)
• Forest appeals commission Paul (2003)
• Workers compensation appeals tribunal Martin
  (2003)

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Judicial Independence Judicial Career

• Independence of the judiciary clearly depends on
  the way judges are selected, but..
• Party political connections often play a part in
  selection of judges.
• Elevations (to chief justiceship, or to a higher
  court) are more problematic ? worry that
  particular decision(s) could affect prospects.
• Black v. Chretien (2001) ? Ont CA - Laskin,
  Goudge, Feldman.

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Black v. Chretien (2001)

• Tony Blair advised the Queen to elevate Conrad
  Black to the British Peerage.
• Chretien intervened and advised the Queen not to
  confer the peerage on Black.
• Queen, therefore, declined to ennoble Black.
• Black sued PM AG of Canada for abuse of power.
• Ont CA rejected Blacks case on the grounds that
  the advice tendered to the Queen by Chretien was
  non-justiciable.

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L. Sossin A Comment on Black v. Chretien(2002)
47 McGill L.J. 435

• Author is critical of courts use of doctrine of
  justiciability to shield executive officials from
  judicial review.
• Author maintains that justiciability should
  solely depend on legitimacy capacity of courts
  to adjudicate a matter. In his opinion, Blacks
  claim against the PM was justiciable.
• To allow such abuses of power to remain immune
  from judicial scrutiny appears on its face to
  eviscerate the supremacy of the rule of law.
• Can Roncarelli and Black be reconciled?
• Did the potential impact on the judges chances
  of being named to SCC if they found against PM
  Chretien, affect their decision?