Peter McCormick, “New Questions about an Old Concept: The Supreme Court of Canada’s Judicial Independence Decisions”

1. Peter McCormick,“New Questions about an Old Concept:The Supreme Court of Canada’sJudicial Independence Decisions” 37(4): Canadian Journal of Political Science 839-862

2. 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.

3. Judicial Independence - English Style:Prototype 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.

4. 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.

5. Judicial Independence - Canadian Style: Omissions Judicial independence applies only to English superior courts and Canada’s 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.

6. 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).

7. Impact of the Charter (1982) • The Charter (s.11(d)) specifically guaranteed a person’s 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).

8. The Supreme Court’s 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).

9. The “Details” Decisions

10. 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.

11. 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/promotions)

12. The Supreme Court’s 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) Residential tenancy tribunal: McKenzie (2006)

13. 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.

14. 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 Black’s case on the grounds that the advice tendered to the Queen by Chretien was non-justiciable.

15. L. Sossin – A Comment on Black v. Chretien(2002) 47 McGill L.J. 435 • Author is critical of court’s 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, Black’s 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?