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Valente v. The Queen, [1985] 2 S.C.R. 673

 

Walter Valente     Appellant;

 

and

 

Her Majesty The Queen     Respondent;

 

and

 

Attorney General of Canada, Attorney General of Quebec, Attorney General for Saskatchewan, Provincial Court Judges Association (Criminal Division) and Ontario Family Court Judges Association     Interveners.

 

File No.: 17583.

 

1984: October 9, 10; 1985: December 19.

 

Present: Dickson C.J. and Beetz, Estey, McIntyre, Chouinard, Lamer and Le Dain JJ.

 

 

on appeal from the court of appeal for ontario

 

                   Courts ‑‑ Charter of Rights ‑‑ Independent tribunal ‑‑ Provincial Court judge declined jurisdiction on ground Provincial Court (Criminal Division) not an independent tribunal ‑‑ Whether or not judge of Provincial Court (Criminal Division) an independent tribunal.


 

                   Constitutional law ‑‑ Charter of Rights ‑‑ Courts ‑‑ Independent tribunal ‑‑ Jurisdiction declined on ground Provincial Court (Criminal Division) not an independent tribunal ‑‑ Whether or not judge of Provincial Court (Criminal Division) an independent tribunal ‑‑ Canadian Charter of Rights and Freedoms, s. 11(d) ‑‑ Constitution Act, 1982, s. 52(1) ‑‑ Provincial Courts Act, R.S.O. 1980, c. 398 ‑‑ Public Service Act, R.S.O. 1980, c. 418 ‑‑ Public Service Superannuation Act, R.S.O. 1980, c. 419 ‑‑ Provincial Courts Amendment Act, 1983, 1983 (Ont.), c. 18, s. 1 ‑‑ Provincial Judges and Masters Statute Law Amendment Act, 1983, 1983 (Ont.), c. 78, s. 2(2) ‑‑ Courts of Justice Act, 1984, 1984 (Ont.), c. 11.

 

                   A judge of the Provincial Court (Criminal Division), sitting on the Crown's appeal against the sentence imposed on the appellant following conviction for careless driving, declined to hear the appeal pending determination by a superior court as to whether the Provincial Court (Criminal Division) was an independent tribunal within the meaning of s. 11(d) of the Canadian Charter of Rights and Freedoms. Among the several reasons advanced by counsel in support of the contention that the Provincial Court (Criminal Division) was not an independent tribunal were the nature of the tenure of provincial court judges, particularly those holding office under a post‑retirement reappointment, the manner in which their salaries and pensions were fixed and provided for, and the extent to which they were dependent for certain advantages and benefits on the discretion of the executive government. The Ontario Court of Appeal proceeded on the basis that the provincial court judge had in effect decided that as a matter of law the Provincial Court (Criminal Division) as an institution was not independent. It allowed the appeal, holding that both the Provincial Court Judge and the Provincial Court (Criminal Division) were independent, and remitted the matter to the Provincial Court Judge to determine whether the sentence imposed was a fit and proper sentence.

 

                   Held: The appeal should be dismissed and the constitutional question answered as follows: A judge of the Provincial Court (Criminal Division) of Ontario is an independent tribunal within the meaning of s. 11(d) of the Canadian Charter of Rights and Freedoms.

 

                   The concepts of "independence" and "impartiality" found in s. 11(d) of the Charter, although obviously related, are separate and distinct values or requirements. Impartiality refers to a state of mind or attitude of the tribunal in relation to the issues and the parties in a particular case. "Independence" reflects or embodies the traditional constitutional value of judicial independence and connotes not only a state of mind but also a status or relationship to others‑‑particularly to the executive branch of government‑‑that rests on objective conditions or guarantees. Judicial independence involves both individual and institutional relationships: the individual independence of a judge as reflected in such matters as security of tenure and the institutional independence of the court as reflected in its institutional or administrative relationships to the executive and legislative branches of government.

 

                   The test for independence for purposes of s. 11(d) of the Charter should be, as for impartiality, whether the tribunal may be reasonably perceived as independent. This perception must be a perception of whether the tribunal enjoys the essential objective conditions or guarantees of judicial independence and not a perception of how it will in fact act regardless of whether it enjoys such conditions or guarantees.

 

                   It would not be feasible to apply the most rigorous and elaborate conditions of judicial independence to the constitutional requirement of independence in s. 11(d) of the Charter, which may have to be applied to a variety of tribunals. The essential conditions of judicial independence for purposes of s. 11(d) must bear some reasonable relationship to the variety of legislative and constitutional provisions in Canada governing matters which bear on the judicial independence of tribunals trying persons charged with an offence. It is the essence of the security afforded by the essential conditions of judicial independence that is appropriate for application under s. 11(d) of the Charter and not any particular legislative or constitutional formula by which it may be provided or guaranteed. Section 11(d) cannot be construed and applied so as to accord provincial court judges the same constitutional guarantees of security of tenure and security of salary and pension as superior court judges for that construction would, in effect, amend the judicature provisions of the Constitution. The standard of judicial independence cannot be a standard of uniform provisions but rather must reflect what is common to the various approaches to the essential conditions of judicial independence in Canada.

 

                   Security of tenure, because of the importance traditionally attached to it, is the first of the essential conditions of judicial independence for purposes of s. 11(d) of the Charter. The essentials of such security are that a judge be removable only for cause, and that cause be subject to independent review and determination by a process at which the judge affected is afforded a full opportunity to be heard. The essence of security of tenure for purposes of s. 11(d) is a tenure, whether until an age of retirement, for a fixed term, or for a specific adjudicative task, that is secure against interference by the Executive or other appointing authority in a discretionary or arbitrary manner.

 

                   Notwithstanding the importance of tradition as an objective condition tending to ensure the independence in fact of a tribunal, a provincial court judge who held office during pleasure under a post‑retirement reappointment prior to the amendment in 1983 to s. 5(4) of the Provincial Courts Act was not an independent tribunal. The reasonable perception was that by providing for two classes of tenure the Legislature had deliberately, in the case of one category of judges, reserved to the Executive the right to terminate the holding of office without the necessity of any particular jurisdiction and without any inhibition or restraint arising from perceived tradition.

 

                   The Provincial Court Judge who declined jurisdiction did not hold office under a post‑retirement reappointment. The fact that certain judges may have held office during pleasure at that time could not impair or destroy the independence of the Provincial Court (Criminal Division) as a whole. The objection would have to be taken to the status of the particular judge constituting the tribunal.

 

                   The second essential condition of judicial independ­ence for purposes of s. 11(d) of the Charter is financial security‑‑security of salary or other remuneration, and, where appropriate, security of pension. The essence of such security is that the right to salary and pension should be established by law and not be subject to arbitrary interference by the Executive in a manner that could affect judicial independence. In the case of pension, the essential distinction is between a right to pension and a pension that depends on the grace or favour of the Executive. Although it may be theoretically preferable that judicial salaries should be fixed by the legislature rather than the executive government and should be made a charge on the consolidated revenue fund rather than requiring annual appropriation, neither of these features should be regarded as essential to the financial security that may be reasonably perceived as sufficient for independence under s. 11(d) of the Char­ter. The right to salary of a provincial court judge is established by law, and there is no way in which the Executive could interfere with that right in a manner to affect the independence of the individual judge. It is impossible that the legislature would refuse to vote the annual appropriation in order to attempt to exercise some control or influence over a class of judges as a whole. The fact that the provisions respecting the pensions and other benefits of civil servants were made applicable to provincial court judges did not impair the independence of the latter. The provisions established a right to pension and other benefits which could not be interfered with by the Executive on a discretionary or arbitrary basis.

 

                   The third essential condition of judicial independence is the institutional independence of the tribunal with respect to matters of administration bearing directly on the exercise of its judicial function. Judicial control over such matters as assignment of judges, sittings of the court and court lists has been considered the essential or minimum requirement for institutional independence. Although an increased measure of administrative autonomy or independence for the courts may be desirable it cannot be regarded as essential for purposes of s. 11(d) of the Charter.

 

                   While it may be desirable that discretionary benefits or advantages such as leave of absence with pay and permission to engage in extra‑judicial employment, to the extent they should exist at all, should be under the control of the judiciary rather than the Executive, their control by the Executive does not touch one of the essential conditions of judicial independence for purposes of s. 11(d) of the Charter. It would not, moreover, be reasonable to apprehend that a provincial court judge would be influenced by the possible desire for one of these benefits or advantages to be less than independent in his or her adjudication.

 

Cases Cited

 

                   MacKay v. The Queen, [1980] 2 S.C.R. 370, considered; Re Evans and Milton (1979), 46 C.C.C. (2d) 129; Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, referred to.

 

Statutes and Regulations Cited

 

Act of Settlement, 12 & 13 Will. 3, c. 2.

 

Canadian Bill of Rights, R.S.C. 1970, App. III, s. 2(f).

 

Canadian Charter of Rights and Freedoms, s. 11(d).

 

Constitution Act, 1867, ss. 99(1), (2), 100.

 

Constitution Act, 1982, s. 52(1).

 

Courts of Justice Act, 1984, 1984 (Ont.), c. 11, ss. 53(1), (2), 54(4), 56(1), 87(1), 88.

 

European Convention for the Protection of Human Rights and Fundamental Freedoms, art. 6.

 

Highway Traffic Act, R.S.O. 1970, c. 202, s. 83.

 

Judges Act, R.S.C. 1970, c. J‑1, ss. 33(1), 40, 41.

 

Provincial Courts Act, R.S.O. 1980, c. 398, ss. 2, 5(4), 12(1), (2), 34(1).

 

Provincial Courts Amendment Act, 1983, 1983 (Ont.), c. 18, s. 1.

 

Provincial Judges and Masters Statute Law Amendment Act, 1983, 1983 (Ont.), c. 78, s. 2(2).

 

Provincial Offences Act, R.S.O. 1980, c. 400, ss. 99, 114.

 

Public Service Act, R.S.O. 1980, c. 418.

 

Public Service Superannuation Act, R.S.O. 1980, c. 419, s. 26.

 

O. Reg. 332/84, s. 32(3).

 

R.R.O. 1980, Reg. 811, ss. 2, 4, 5, 7.

 

R.R.O. 1980, Reg. 881, ss. 7, 75, 76.

 

Authors Cited

 

Canadian Bar Association. Special Committee on the Independence of the Judiciary in Canada. Report. The Independence of the Judiciary in Canada, Ottawa, Canadian Bar Foundation, 1985.

 

Denning, Sir Alfred. The Road to Justice, London, Stevens & Sons Ltd., 1955.

 

Deschênes, Jules, in collaboration with Carl Baar. Masters in their own house, Ottawa, Canadian Judicial Council, 1981.

 

Dickson, Brian. "The Rule of Law: Judicial Independence and the Separation of Powers," Address to the Canadian Bar Association, Halifax, August 21, 1985, unpublished manuscript, The Library, Supreme Court of Canada, Ottawa.

 

Fawcett, J. E. S. The Application of the European Convention on Human Rights, Oxford, Clarendon Press, 1969.

 

Green, Sir Guy. "The Rationale and Some Aspects of Judicial Independence" (1985), 59 A.L.J. 135, 135‑150.

 

Laskin, Bora. "Some Observations on Judicial Independence," Address to the Canadian Association of Provincial Court Judges, New Judges Programme, Ottawa, November 1, 1980, unpublished manuscript, The Library, Supreme Court of Canada, Ottawa.

 

Lederman, W. R. "The Independence of the Judiciary" (1956), 34 Can. Bar Rev. 769, 769‑809, 1139‑1179.

 

Lederman, W. R. "The Independence of the Judiciary" in The Canadian Judiciary, ed. A. M. Linden, Toronto, Osgoode Hall Law School, York University, 1976.

 

Shetreet, S. Judges on Trial: A Study of the Appointment and Accountability of the English Judiciary, Amsterdam, North‑Holland Publishing Co., 1976.

 

Shetreet, S. "Judicial Independence: New Conceptual Dimensions and Contemporary Challenges" in Judicial Independence: The Contemporary Debate, eds. S. Shetreet and J. Deschênes, Dordrecht, The Netherlands, Martinus Nijhoff Publishers, 1985.

 

Shetreet, S. and J. Deschênes, eds. Judicial Independence: The Contemporary Debate, Dordrecht, The Netherlands, Martinus Nijhoff Publishers, 1985.

 

Universal Declaration on the Independence of Justice, adopted by the First World Conference on the Independence of Justice, Montreal, June 1983, in S. Shetreet and J. Deschênes, eds., Judicial Independ­ence: The Contemporary Debate, Dordrecht, The Netherlands, Martinus Nijhoff Publishers, 1985.

 

 

                   APPEAL from a judgment of the Ontario Court of Appeal (1983), 2 C.C.C. (3d) 417, allowing an appeal from a judgment of Sharpe Prov. Ct. J. declining jurisdiction to hear the Crown's appeal as to sentence on appellant's conviction. Appeal dismissed.

 

                   B. A. Crane, Q.C., and R. Noel Bates, for the appellant.

 

                   W. G. Blacklock, for the respondent.

 

                   Derek Aylen, Q.C., and Graham Garton, for the intervener the Attorney General of Canada.

 

                   Réal A. Forest and Angeline Thibault, for the intervener the Attorney General of Quebec.

 

                   James C. MacPherson, for the intervener the Attorney General for Saskatchewan.

 

                   Morris Manning, Q.C., for the interveners the Provincial Court Judges Association (Criminal Division) and Ontario Family Court Judges Association.

 

                   The judgment of the Court was delivered by

 

1.                Le Dain J.‑‑The general question raised by this appeal is what is meant by an independent tribunal in s. 11(d) of the Canadian Charter of Rights and Freedoms, which provides:

 

                   11. Any person charged with an offence has the right

 

                                                                    ...

 

(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

 

2.                The specific issue in the appeal is whether a provincial judge sitting as the Provincial Court (Criminal Division) in Ontario in December 1982 was an independent tribunal within the meaning of s. 11(d).

 

                                                                     I

 

3.                The appeal is by leave of this Court from the judgment of the Ontario Court of Appeal on February 15, 1983, allowing an appeal from the judgment on December 16, 1982 of Sharpe J. of the Provincial Court (Criminal Division) for the Judicial District of Halton, who, sitting on the Crown's appeal, pursuant to s. 99 of the Provincial Offences Act, R.S.O. 1980, c. 400, against the sentence imposed on the appellant following his conviction of the offence of careless driving contrary to s. 83 of The Highway Traffic Act, R.S.O. 1970, c. 202, declined jurisdiction to hear the appeal pending determination by a superior court whether the Provincial Court (Criminal Division) was an independent tribunal.

 

4.                On the challenge before Sharpe J. to the independence of the Provincial Court (Criminal Division) counsel for the appellant advanced a number of reasons why in his submission the Court, because of the status of its judges as reflected in the provisions of the Provincial Courts Act, R.S.O. 1980, c. 398, the Public Service Act, R.S.O. 1980, c. 418, and the Public Service Superannuation Act, R.S.O. 1980, c. 419, as well as regulations made thereunder, was not one which satisfied the requirement of s. 11(d) of the Charter. These reasons, as summarized by Sharpe J. under the heading "Perceptions of Dependence" and set out in the reasons for judgment of the Ontario Court of Appeal, are as follows:

 

                   1. In that the salaries of the provincial judges are determined by the executive branch of the government without the benefit of the scrutiny of the legislature.

 

                   2. The judicial salaries are not a charge on the consolidated revenue fund, but are subject to annual appropriation.

 

                   3. Neither is there a pension charged on the consolidated revenue fund.

 

                   4. Nor is there any judicial pension other than one provided for under the Public Service Superannuation Act, and this notwithstanding s. 34 of the Provincial Courts Act.

 

                   5. Both the Act and the regulations provide for control of the judge and could be used to influence a judge or to apply real or perceived pressure to judges generally. Some of the sections that are capable of destroying the appearance of independence are as follows:

 

                   6. A judge may be appointed to sit during pleasure ‑‑ s. 5(4) of the Provincial Courts Act. Moreover, any provincial court judge appointed after attaining the age of fifty‑five years cannot receive any pension under the Public Service Superannuation Act unless the Cabinet reappoints him during pleasure after he reaches retirement age for a sufficient duration that he attains his minimum years of service to qualify for pension. Under the Judges Act, it is the Judge who chooses whether to retire. Can a provincial court judge under such a disability be seen to be independent in a cause involving the Attorney General?

 

                   7. The Attorney General can appoint senior judges at greater pay than ordinary judges.

 

                   8. The executive branch can authorize judges to engage in any business, trade or occupation.

 

                   9. The Attorney General may authorize certain judges to do arbitrations, be conciliators, be a member of a police commission for which additional remuneration is received.

 

                   10. The executive branch purports to be able to appoint a rules committee composed of persons not necessarily judges for rules under the Criminal Code.

 

                   11. The executive branch has the power to make regulations for the inspection and destruction of judges' books, documents and papers (s. 34(1)(b) of the Provincial Courts Act).

 

                   12. In the regulations, the Attorney General can grant leave of absence for up to three years and the executive branch can grant it with pay.

 

                   13. This last mentioned regulation incorporates regulation 881 wherein judges are referred to as civil servants.

 

                   14. The judge has the same sick leave as a civil servant and his salary is reduced in the same manner as a civil servant when sick.

 

                   15. The Deputy Attorney General can require the judge to attend for medical examinations and to supply doctors' certificates.

 

                   16. A Deputy Attorney General can grant a judge a leave of absence for up to a year for employment with the Government of Canada or other public agency. A provincial judge in Ontario has been made a Deputy Minister while retaining his position as a judge, a matter deplored by Chief Justice Bora Laskin of the Supreme Court of Canada.

 

                   17. The judge receives the same financial benefits as the other civil servants as set out in s. 77, namely: (a) a basic life insurance plan, (b) a dependent's life insurance plan, (c) a long‑term income protection plan, (d) a supplementary insurance plan, (e) a dental insurance plan. Some of these plans are paid for by the Government and all affect the financial status of the judge.

 

                   18. The Provincial Courts Act provides for a procedure to remove a judge after an inquiry but it does not require a vote in the legislature as there is with a supreme court judge. The Public Service Act has a regulation under section [sic] 12 and 13 which includes a provincial court judge. The significance of this is that a provincial judge can be classified as a Crown employee and therefore under some direction by the executive branch of the government and there may be other Acts which have regulations that affect the provincial judges.

 

5.                Counsel for the appellant submitted before Sharpe J. that since the Provincial Court (Criminal Division) was not an independent tribunal within the meaning of s. 11(d) of the Charter, s. 99 of the Provincial Offences Act, which conferred the right of appeal to the Court from the sentence imposed on the appellant, was of no force or effect by operation of s. 52(1) of the Constitution Act, 1982, which provides:

 

                   52. (1) The Constitution of Canada is the supreme law of Canada and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

 

6.                After consideration of the submissions in support of the contention that the Provincial Court (Criminal Division) was not an independent tribunal, Sharpe J. took the position that he was disqualified by interest from determining the question of independence, and he declined jurisdiction in order that the question be determined by a superior court.

 

7.                Leave to appeal to the Ontario Court of Appeal was granted on the basis that Sharpe J.'s decision that he was disqualified from determining the question of jurisdiction was a judgment from which an appeal lay under s. 114 of the Provincial Offences Act. At the hearing of the appeal the Court of Appeal ruled that the appeal should proceed on the basis that Sharpe J. had in effect decided that as a matter of law the Provincial Court (Criminal Division) as an institution was not independent.

 

8.                The unanimous judgment of the five‑member Court of Appeal (Howland C.J.O., MacKinnon A.C.J.O., Dubin, Martin and Weatherston JJ.A.), reported at R. v. Valente (No. 2) (1983), 2 C.C.C. (3d) 417, was delivered by Howland C.J.O., who, after a comprehensive consideration of the issues, concluded at p. 444 as follows:

 

                   I have reached the conclusion that the concerns raised by the counsel for the respondent neither singly nor collectively would result in a reasonable apprehension that they would impair the ability of Judge Sharpe to make an independent and impartial adjudication. In my opinion, the provincial court in this province is as a matter of law an independent tribunal. Judge Sharpe sitting as a member of the court was independent, and as has been noted earlier, he was impartial. Therefore, the respondent appeared before an independent and impartial tribunal within the Charter.

 

                   Accordingly, the appeal is allowed. The purported judgment of Judge Sharpe that the provincial court (criminal division) as an institution is not an independent tribunal is set aside and the matter is remitted to Judge Sharpe to determine whether the sentence imposed was a fit and proper sentence.

 

9.                On the appeal to this Court the constitutional question was framed as follows:

 

                   Is a judge of the Provincial Court (Criminal Division) of Ontario, appointed pursuant to the provisions of the Provincial Courts Act, R.S.O. 1980, c. 398, an independent and impartial tribunal within the meaning of the Constitution Act, 1982?

 

10.              Although the decision of Sharpe J. was treated as a judgment that the Provincial Court (Criminal Division) as an institution was not an independent tribunal and it was that judgment that was found by the Court of Appeal to be in error and was set aside, the Court of Appeal, as the conclusions in its reasons for judgment indicate, necessarily had to consider the independence of Sharpe J. The tribunal, for purposes of s. 11(d) of the Charter, was Sharpe J. sitting as the Provincial Court (Criminal Division) for the Judicial District of Halton. The independence of Sharpe J. for purposes of the issue in the appeal is to be determined with reference to the relevant statutory provisions and regulations that were in force at the time he declined jurisdiction on December 16, 1982. Subsequent changes in the law governing the Provincial Court (Criminal Division) and its judges are relevant to the question of the continuing independence of the tribunal to which the matter must be remitted for determination of this Court agrees with the Court of Appeal that Sharpe J. sitting as the Provincial Court (Criminal Division) was an independent tribunal when he declined jurisdiction.

 

                                                                    II

 

11.              The first question in the appeal is whether the Court of Appeal adopted the proper test for determining whether a tribunal is independent within the meaning of s. 11(d) of the Charter. The test applied was the one for reasonable apprehension of bias, adapted to the requirement of independence. Noting that in Re Evans and Milton (1979), 46 C.C.C. (2d) 129, a case involving a question of bias, the Ontario Court of Appeal has adopted the test for reasonable apprehension of bias expressed by de Grandpré J. in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, Howland C.J.O. held that this was the proper test to be applied in determining whether a tribunal is an independent tribunal.

 

12.              The test for reasonable apprehension of bias was put by de Grandpré J. at p. 394 as follows:

 

. . . the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is "what would an informed person, viewing the matter realistically and practically ‑‑ and having thought the matter through ‑‑ concluded . . . ."

 

13.              As adapted to the requirement of an independent tribunal and to the issues in the appeal the test was stated by Howland C.J.O., at pp. 439‑40 as follows:

 

The question that now has to be determined is whether a reasonable person, who was informed of the relevant statutory provisions, their historical background and the traditions surrounding them, after viewing the matter realistically and practically would conclude that a provincial court judge sitting as Judge Sharpe was to hear the appeal in this case was a tribunal which could make an independent and impartial adjudication. In answering this question it is necessary to review once again the specific concerns which were raised before Judge Sharpe and then conclude whether singly or collectively they would raise a reasonable apprehension that the tribunal was not independent and impartial so far as its adjudication was concerned.

 

 

14.              In his reasons for judgment, Howland C.J.O. generally referred, as does the constitutional question, to the double requirement of an "independent and impartial tribunal". He made it clear, however, at one point in his reasons that there was no question of Sharpe J.'s impartiality, and that the sole issue was whether he, as a judge of the Provincial Court (Criminal Division), was an independent tribunal within the meaning of s. 11(d) of the Charter. On this point he said at p. 423:

 

It will be noted that both the Charter and the Bill of Rights refer to an "independent and impartial tribunal". In this appeal the Court is only concerned with the independence of the tribunal and not with its impartiality or freedom from bias except in so far as it affects that independence. There was no suggestion that Judge Sharpe was in any way biased, and therefore not impartial. A judge may be impartial in the sense that he has no preconceived ideas or bias, actual or perceived, without necessarily being independent.

 

15.              The issue is whether the test applied by the Court of Appeal, clearly appropriate, because of its derivation, to the requirement of impartiality, is an appropriate and sufficient test for the requirement of independence. Although there is obviously a close relationship between independence and impartiality, they are nevertheless separate and distinct values or requirements. Impartiality refers to a state of mind or attitude of the tribunal in relation to the issues and the parties in a particular case. The word "impartial" as Howland C.J.O. noted, connotes absence of bias, actual or perceived. The word "independent" in s. 11(d) reflects or embodies the traditional constitutional value of judicial independence. As such, it connotes not merely a state of mind or attitude in the actual exercise of judicial functions, but a status or relationship to others, particularly to the executive branch of government, that rests on objective conditions or guarantees.

 

16.              Fawcett, in The Application of the European Convention on Human Rights (1969), p. 156, commenting on the requirement of an "independent and impartial tribunal established by law" in article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, puts the distinction between independence and impartiality as follows:

 

                   The often fine distinction between independence and impartiality turns mainly, it seems, on that between the status of the tribunal determinable largely by objective tests and the subjective attitudes of its members, lay or legal. Independence is primarily freedom from control by, or subordination to, the executive power in the State; impartiality is rather absence in the members of the tribunal of personal interest in the issues to be determined by it, or some form of prejudice.

 

17.              The scope of the necessary status or relationship of independence has been variously defined. For example, Shetreet, in Judges on Trial: A Study of the Appointment and Accountability of the English Judiciary (1976), emphasizes in the following passage at pp. 17‑18 the importance of freedom from the influence of certain powerful non‑governmental interests:

 

                   Independence of the judiciary has normally been thought of as freedom from interference by the Executive or Legislature in the exercise of the judicial fonction. This, for example, was the conception expressed by the International Congress of Jurists at New Delhi in 1959 (The Rule of Law in a Free Society, 11 (Report of the International Congress of Jurists, New Delhi, 1959, prepared by N. S. Marsh)) and arises from the fact that historically the independence of the judiciary was endangered by parliaments and monarchs. In modern times, with the steady growth of the corporate giants, it is of utmost importance that the independence of the judiciary from business or corporate interests should also be secured (Accord G. Borrie, Judicial Conflicts of Interest in Britain, 18 Am. J. Comp. L. 697 (1970)). In short, independence of the judiciary implies not only that a judge should be free from governmental and political pressure and political entanglements but also that he should be removed from financial or business entanglements likely to affect, or rather to seem to affect, him in the exercise of his judicial functions.

 

18.              The scope of the status or relationship of judicial independence was defined in a very comprehensive manner by Sir Guy Green, Chief Justice of the State of Tasmania, in "The Rationale and Some Aspects of Judicial Independence," (1985), 59 A.L.J. 135, at p. 135 as follows:

 

                   I thus define judicial independence as the capacity of the courts to perform their constitutional function free from actual or apparent interference by, and to the extend that it is constitutionally possible, free from actual or apparent dependence upon, any persons or institutions, including, in particular, the executive arm of government, over which they do not exercise direct control.

 

19.              The focus in the appeal, as indicated by the nature of the various objections to the status of provincial court judges, is on the relationship of the judges and the Provincial Court (Criminal Division) to the executive government of Ontario, and in particular to the Ministry of the Attorney General.

 

20.              It is generally agreed that judicial independence involves both individual and institutional relationships: the individual independence of a judge, as reflected in such matters as security of tenure, and the institutional independence of the court or tribunal over which he or she presides, as reflected in its institutional or administrative relationships to the executive and legislative branches of government. See Lederman, "The Independence of the Judiciary" in The Canadian Judiciary (1976, ed. A. M. Linden), p. 7; and Deschênes, Masters in their own house (1981), passim, where the notion of institutional independence is referred to as "collective" independence. The objections in the present case to the status of provincial court judges under the legislation and regulations that prevailed at the time Sharpe J. declined jurisdiction raise issues of both individual and institutional independence. The relationship between these two aspects of judicial independence is that an individual judge may enjoy the essential conditions of judicial independence but if the court or tribunal over which he or she presides is not independent of the other branches of government, in what is essential to its function, he or she cannot be said to be an independent tribunal.

 

21.              In his reasons for judgment Howland C.J.O. referred in various ways to the independence required by s. 11(d) of the Charter. In some expressions of the issue he suggested that the question was whether the objections to the status of a provincial court judge gave rise to a reasonable apprehension that the tribunal would not act in an independent manner in the particular adjudication. This is suggested by the words "it could not be reasonably apprehended that the tribunal would not be independent and impartial in its adjudication". This view of the issue would give the word "independent" essentially the same kind of meaning and effect as the word "impartial", as referring to the state of mind or attitude of the tribunal in the actual exercise of its judicial function. In other expressions of the issue, however, Howland C.J.O. referred to the question as being whether the various objections to the status of a provincial court judge gave rise to a reasonable apprehension that the tribunal lacked the capacity to adjudicate in an independent manner. This is suggested by the words "a tribunal which could make an independent and impartial adjudication" in the statement of the test for independence which has been quoted above and by the words "a reasonable apprehension that they would impair the ability of Judge Sharpe to make an independent and impartial adjudication". This I take to be more clearly a reference to the objective status or relationship of judicial independence, which in my opinion is the primary meaning to be given to the word "independent" in s. 11(d). Of course, the concern is ultimately with how a tribunal will actually act in a particular adjudication, and a tribunal that does not act in an independent manner cannot be held to be independent within the meaning of s. 11(d) of the Charter, regardless of its objective status. But a tribunal which lacks the objective status or relationship of independence cannot be held to be independent within the meaning of s. 11(d), regardless of how it may appear to have acted in the particular adjudication. It is the objective status or relationship of judicial independence that is to provide the assurance that the tribunal has the capacity to act in an independent manner and will in fact act in such a manner. It is, therefore, necessary to consider what should be regarded, with reference to the various objections to the status of provincial court judges, as the essential conditions of judicial independence for purposes of s. 11(d). Before doing that, however, it is necessary to consider the requirement in the test applied by the Court of Appeal that the status or relationship of judicial independence for purposes of s. 11(d) be one which a reasonable, well informed person would perceive as sufficient.

 

22.              Although judicial independence is a status or relationship resting on objective conditions or guarantees, as well as a state of mind or attitude in the actual exercise of judicial functions, it is sound, I think, that the test for independence for purposes of s. 11(d) of the Charter should be, as for impartiality, whether the tribunal may be reasonably perceived as independent. Both independence and impartiality are fundamental not only to the capacity to do justice in a particular case but also to individual and public confidence in the administration of justice. Without that confidence the system cannot command the respect and acceptance that are essential to its effective operation. It is, therefore, important that a tribunal should be perceived as independent, as well as impartial, and that the test for independence should include that perception. The perception must, however, as I have suggested, be a perception of whether the tribunal enjoys the essential objective conditions or guarantees of judicial independence, and not a perception of how it will in fact act, regardless of whether it enjoys such conditions or guarantees.

 

23.              This view of the test for independence is somewhat different from, but not in my opinion necessarily in conflict with, that suggested by the majority of this Court in MacKay v. The Queen, [1980] 2 S.C.R. 370, which was relied on to some extent by Howland C.J.O. in his reasons for judgment. In that case the relevant issue, for purposes of this appeal, was whether a Standing Court Martial trying a member of the armed forces for an offence under the criminal law and composed of an officer of the armed forces in the Judge Advocate General's branch was an independent tribunal within the meaning of s. 2(f) of the Canadian Bill of Rights, which provides:

 

                   2. Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to

 

                                                                    ...

 

(f) deprive a person charged with a criminal offence of the right to be presumed innocent until proved guilty according to law in a fair and public hearing by an independent and impartial tribunal, or of the right to reasonable bail without just cause; ...

 

The majority held that the fact the president of the Standing Court Martial was an officer of the armed forces did not prevent the tribunal from being an independent tribunal within the meaning of s. 2(f). In the reasons for judgment of Ritchie J., with whom Martland, Pigeon, Beetz and Chouinard JJ. concurred, there is a suggestion that the issue of independence was viewed as being whether the tribunal had in fact acted in an idependent manner. Ritchie J. referred to the evidence and said at p. 395:

 

There is no evidence whatever in the record of the trial to suggest that the president acted in anything but an independent and impartial manner or that he was otherwise unfitted for the task to which he was appointed.

 

                                                                    ...

 

                   I can find no support in the evidence for the contention that the appointment of the president of the Court resulted or was calculated to result in the appellant being deprived of a trial before an independent and impartial tribunal.

 

While the emphasis in these observations would appear to be on how the tribunal acted, it is my impression that both Ritchie J. and McIntyre J., who wrote separate reasons concurring in the result, and with whom Dickson J. (as he then was) concurred, both looked at the status or relationship to the armed forces of the president of the Standing Court Martial Appeal as an objective matter to be considered in determining whether the tribunal could be regarded as independent. Both emphasized the long‑established tradition of a separate system of military law applied by tribunals presided over by military officers. Both also emphasized the status of the Court Martial Appeal Court and its independence of the armed forces as ensuring that the person charged would be presumed innocent until proved guilty by an independent tribunal. I am, therefore, of the respectful opinion that the reasoning of this Court in MacKay does not preclude the view that the word "independent" in s. 11(d) of the Charter is to be understood as referring to the status or relationship of judicial independence as well as to the state of mind or attitude of the tribunal in the actual exercise of its judicial function.

 

                                                                   III

 

24.              What should be considered as the essential conditions of judicial independence for purposes of s. 11(d) of the Charter‑‑that is, those which may be reasonably perceived as such‑‑is a difficult question. The concept of judicial independence has been an evolving one. See Shetreet, op. cit., pp. 383‑84. The history of judicial independence in Great Britain and Canada is analyzed by Professor Lederman in his classic and frequently cited essay on the subject, "The Independence of the Judiciary" (1956), 34 Can. Bar Rev. 769, 769‑809 and 1139‑1179. The reasons of Howland C.J.O. in the case at bar contain a succinct and helpful review of the main features of the development of judicial independence in England and Canada, with particular reference to the status of provincial magistrates and courts. Modern views on the subject of judicial independence are reflected in the Deschênes report to which reference has been made, and in the recent report of the Canadian Bar Association's Committee on The Independence of the Judiciary in Canada. There have also been a number of international declarations of principle on judicial independence, of which the Universal Declaration on the Independence of Justice produced by the First World Conference on the Independence of Justice held in Montreal in June, 1983 is perhaps the most important. The recently published collection of papers and addresses, Judicial Independence: The Contemporary Debate (1985), edited by Shetreet and Deschênes, reflects the most up‑to‑date thinking on the subject. The concluding paper by Shetreet, entitled "Judicial Independence: New Conceptual Dimensions and Contemporary Challenges", provides a valuable overview of the conceptual development in this area.

 

25.              Conceptions have changed over the years as to what ideally may be required in the way of substance and procedure for securing judicial independence in as ample a measure as possible. Opinions differ on what is necessary or desirable, or feasible. This is particularly true, for example, of the degree of administrative independence or autonomy it is thought the courts should have. It is also true of the extent to which certain extra‑judicial activity of judges may be perceived as impairing the reality or perception of judicial independence. There is renewed concern about the procedure and criteria for the appointment of judges as that may bear on the perception of judicial independence. Professional and lay concern about judicial independence has increased with the new power and responsibility given to the courts by the Charter. Reports and speeches on the subject of judicial independence in recent years have urged the general adoption of the highest standards or safeguards, not only with respect to the traditional elements of judicial independence, but also with respect to other aspects now seen as having an important bearing on the reality and perception of judicial independence. These efforts, particularly by the legal profession and the judiciary, to strengthen the conditions of judicial independence in Canada may be expected to continue as a movement towards the ideal. It would not be feasible, however, to apply the most rigorous and elaborate conditions of judicial independence to the constitutional requirement of independence in s. 11(d) of the Charter, which may have to be applied to a variety of tribunals. The legislative and constitutional provisions in Canada governing matters which bear on the judicial independence of tribunals trying persons charged with an offence exhibit a great range and variety. The essential conditions of judicial independence for purposes of s. 11(d) must bear some reasonable relationship to that variety. Moreover, it is the essence of the security afforded by the essential conditions of judicial independence that is appropriate for application under s. 11(d) and not any particular legislative or constitutional formula by which it may be provided or guaranteed.

 

26.              Counsel for the Provincial Court Judges Association submitted that there should be a uniform standard of judicial independence under s. 11(d) and that it should be essentially the one embodied by ss. 99 and 100 of the Constitution Act, 1867, which provide:

 

                   99. (1) Subject to subsection two of this section, the Judges of the Superior Courts shall hold office during good behaviour, but shall be removable by the Governor General on Address of the Senate and House of Commons.

 

                   (2) A Judge of a Superior Court, whether appointed before or after the coming into force of this section, shall cease to hold office upon attaining the age of seventy‑five years, or upon the coming into force of this section if at that time he has already attained that age.

 

                   100. The Salaries, Allowances, and Pensions of the Judges of the Superior, District, and County Courts (except the Courts of Probate in Nova Scotia and New Brunswick), and of the Admiralty Courts in Cases where the Judges thereof are for the Time being paid by Salary, shall be fixed and provided by the Parliament of Canada.

 

These provisions are generally regarded as representing the highest degree of constitutional guarantee of security of tenure and security of salary and pension. They find their historical inspiration in the provisions of the Act of Settlement of 1701 [12 & 13 Will. 3, c. 2], which provided that judges should hold office during good behaviour, subject to removal on an address of both Houses of Parliament, and that their salaries should be "ascertained and established". Provincial court judges contend that they should have the same constitutional guarantees of security of tenure and security of salary and pension as superior court judges. Whatever may be the merits of this contention from the point of view of legislative or constitutional policy, I do not think that it can be given effect to in the construction and application of s. 11(d). To do so would be, in effect, to amend the judicature provisions of the Constitution. The standard of judicial independence for purposes of s. 11(d) cannot be a standard of uniform provisions. It must necessarily be a standard that reflects what is common to, or at the heart of, the various approaches to the essential conditions of judicial independence in Canada.

 

                                                                   IV

 

27.              It is necessary then to consider the essential conditions of judicial independence for purposes of s. 11(d) of the Charter, as they relate to the various objections to the status of provincial court judges raised before Sharpe J. Certain of these objections touch on the question of security of tenure. Security of tenure, because of the importance that has traditionally been attached to it, must be regarded as the first of the essential conditions of judicial independence for purposes of s. 11(d) of the Charter.

 

28.              The provisions in Ontario governing the security of tenure of provincial court judges up to the age of retirement at the time Sharpe J. declined jurisdiction were contained in s. 4 of the Provincial Courts Act. Section 4 provided that a provincial court judge could be removed from office only "for misbehaviour or for inability to perform his duties properly" and only after an inquiry by a superior court judge at which the Provincial Court judge affected had been given a full opportunity to be heard. The report of the inquiry had to be laid before the Legislative Assembly, but the Lieutenant Governor in Council was not bound to act in accordance with its findings or recommendations. Under the provision for removal before retirement which now applies to provincial court judges‑‑s. 56(1) of the Courts of Justice Act, 1984, 1984 (Ont.), c. 11, which came into force on January 1, 1985‑‑a judge may be removed from office before the age of retirement only if a complaint has been made to the Judicial Council for Provincial Judges and if the removal is recommended by a judicial inquiry on the ground that the judge has become incapacitated or disabled from the due execution of the office by reason of infirmity, by conduct that is incompatible with the execution of the office, or by having failed to perform the duties of the office. The judge may be removed by the Lieutenant Governor in Council only on an address of the Legislative Assembly.

 

29.              There are, of course, a variety of ways in which the essentials of security of tenure may be provided by constitutional or legislative provision. As I have indicated, superior court judges in Canada enjoy what is generally regarded as the highest degree of security of tenure in the constitutional guarantee of s. 99 of the Constitution Act, 1867 that they shall hold office during good behaviour until the age of seventy‑five, subject to removal by the Governor General on address of the Senate and House of Commons. The judges of this Court, the Federal Court of Canada and the Tax Court of Canada also enjoy, under their respective governing statutes, a tenure during good behaviour until a specified age of retirement, subject to removal only on address of the Senate and House of Commons. The judges of the county courts hold office during good behaviour but are removable by the Governor in Council, on the recommendation of the Minister of Justice, following an inquiry or investigation and report by the Canadian Judicial Council, pursuant to ss. 40 and 41 of the Judges Act, R.S.C. 1970, c. J‑1. Under these sections, which provide for an inquiry or investigation by the Council into the conduct or capacity of a judge of a superior, district or county court or of the Tax Court of Canada, the Council is empowered to recommend the removal of a judge. The grounds on which it may do so, as set out in s. 41, are that the judge has become incapacitated or disabled from the due execution of office by age or infirmity, by having been guilty of misconduct, by having failed in the due execution of office, or by having been placed by misconduct or otherwise in a position incompatible with the due execution of office. The judge must be given an opportunity to be heard, in person or by counsel, and to cross‑examine witnesses and adduce evidence. Where a judge may be removed by the Governor in Council following a report of the Council, as in the case of a county court judge, the Governor in Council is not bound by the report. The security of tenure provided for provincial court judges in Canada is, generally speaking, that they may be removed by the executive government before the age of retirement only for misbehaviour or disability following a judicial inquiry. There is considerable variation in the relevant provisions of the provincial legislation. In some cases it is expressly provided that they shall hold office during good behaviour; in others, the specific grounds for removal are spelled out and may, as I have indicated, be generally summarized as misbehaviour or misconduct rendering the judge unfit for office or incapacity by reason of infirmity. The essence of these provisions is that a provincial judge may be removed before the age of retirement only for cause. There is also provision for a judicial inquiry into whether there is cause at which the judge affected is afforded a full opportunity to be heard. In some cases the executive government is bound by the report of the inquiry; in most cases the government is not bound by it.

 

30.              The Deschênes report recommended that all judges should enjoy a tenure expressly defined as being "during good behaviour" and that they should be removable only upon an address of the legislature. Alternatively, the report recommended that if the power of removal by the executive without an address of the legislature were retained, the executive should be bound by the report of the judicial inquiry. The report of the Canadian Bar Association Committee on judicial independence recommended that "All judges of Canadian Courts be guaranteed tenure during good behav­iour". There is also an implication at p. 16 of the report that the committee was of the view that a judge should be removable only on an address of the legislature. After referring to s. 99 of the Constitution Act, 1867 respecting the tenure of superior court judges, the committee said: "Since the independence of the judiciary depends to a significant extent on the judges' security of tenure it is appropriate that their removal be a major undertaking, bringing the politicians who must accomplish it under close scrutiny. The removal of a judge is not to be undertaken lightly." It may be desirable that the tenure of judges should be expressed as being during good behaviour, which leaves cause for removal to be determined according to the common law meaning of those words (see Shetreet, op. cit., pp. 89ff for the meaning of "during good behaviour" at common law) rather than have the grounds for removal specified in legislation, but I do not think it is reasonable to require that as an essential condition of judicial independence for purposes of s. 11(d) of the Charter. It is sufficient if a judge may be removed only for cause related to the capacity to perform judicial functions. It may be, as suggested by the Deschênes report, that the specified grounds for removal to be found in some of the provincial legislation are too broad, but this would not appear to be true of the grounds for removal specified in s. 4 of the Provincial Courts Act and s. 56(1) of the Courts of Justice Act, 1984. Similarly, it may be desirable, as now provided for in s. 56(1), that a judge should be removable from office only on an address of the legislature, but again I do not think it is reasonable to require this as essential for security of tenure for purposes of s. 11(d) of the Charter. It may be that the requirement of an address of the legislature makes removal of a judge more difficult in practice because of the solemn, cumbersome and publicly visible nature of the process, but the requirement of cause, as defined by statute, together with a provision for judicial inquiry at which the judge affected is given a full opportunity to be heard, is in my opinion a sufficient restraint upon the power of removal for purposes of s. 11(d). Whether or not the Executive should be bound by the report of the judicial inquiry‑‑that is, whether the power to remove should be conditional upon a finding of cause by the judicial inquiry, as is now provided by s. 56(1) of the Courts of Justice Act, 1984‑‑I find more difficult. Certainly, it is preferable, but I do not think it can be required as essential to security of tenure for purposes of s. 11(d). The existence of the report of the judicial inquiry is a sufficient restraint upon the power of removal, particularly where, as provided by s. 4 of the Provincial Courts Act, the report is required to be laid before the legislature.

 

31.              In sum, I am of the opinion that while the provision concerning security of tenure up to the age of retirement which applied to provincial court judges when Sharpe J. declined jurisdiction falls short of the ideal or highest degree of security, it reflects what may be reasonably perceived as the essentials of security of tenure for purposes of s. 11(d) of the Charter: that the judge be removable only for cause, and that cause be subject to independent review and determination by a process at which the judge affected is afforded a full opportunity to be heard. The essence of security of tenure for purposes of s. 11(d) is a tenure, whether until an age of retirement, for a fixed term, or for a specific adjudicative task, that is secure against interference by the Executive or other appointing authority in a discretionary or arbitrary manner.

 

32.              The most serious issue with respect to the security of tenure of provincial court judges under the statutory provisions that applied when Sharpe J. declined jurisdiction is the provision in s. 5(4) of the Provincial Courts Act for the reappointment of a judge, upon attaining the age of retirement, to hold office during pleasure. Such reappointment, to be made by the Lieutenant Governor in Council upon the recommendation of the Attorney General, was the subject of two objections: first, that an appointment to hold office during the pleasure of the Executive was incompatible with the requirement of judicial independence; and second, that the need in some cases of such a reappointment to complete entitlement to pension could give rise to a reasonable perception of dependence upon the Executive. Under the pension provisions which applied when Sharpe J. declined jurisdiction, a provincial court judge was entitled to a pension upon attaining the age of sixty‑five if he or she had served ten or more years. A judge who had been appointed after the age of fifty‑five might be perceived as dependent upon the favour of the Executive for a post‑retirement reappointment to complete pension entitlement. The first objection to the provision for post‑retirement reappointment in s. 5(4) of the Provincial Courts Act relates to the question of security of tenure, which is the issue presently being considered. The second objection falls into the general category of objections to the status of provincial court judges based upon alleged dependence on the Executive for discretionary benefits or advantages. I propose to address that issue later.

 

33.              Howland C.J.O. disposed of the objections to the provision for post‑retirement reappointment which applied when Sharpe J. declined jurisdiction mainly on the ground that the incumbent Attorney General had, during his seven years in office, always acted with respect to such reappointments on the recommendation of the chief judge of the provincial court in question. That practice or "tradition", as it was referred to, was perhaps more relevant to the second objection to the provision for post‑retirement appointment at pleasure‑‑the dependence of provincial court judges on such reappointment to complete pension entitlement‑‑than to the first objection‑‑the lack of security of tenure under such a reappointment‑‑but it may have been assumed that if the Attorney General made a post‑retirement reappointment only on the recommendation of a chief judge he could be expected to act only on such recommendation with respect to the termination of such a reappointment. In any event, Howland C.J.O. placed considerable emphasis on the role of tradition as an objective condition or safeguard of judicial independence. Since tradition has most often been invoked in connection with the issue of security of tenure it is convenient to consider its general role here.

 

34.              I quote a passage on this subject from the reasons of Howland C.J.O., which refers to the opinions of several learned commentators on the importance of tradition. He said at pp. 431‑32:

 

                   Having considered the historical development of judicial independence in England and in Canada, it is necessary to refer to the importance of traditions. Quite apart from the Constitution or any statutory provisions, tradition has been an important factor in preserving judicial independence both in England and in Canada. In England a majority of the judges can be removed by the Lord Chancellor, who is an active member of the Government. However, the high tradition of the office of Lord Chancellor has resulted in very few abuses of this power. As Hogg states in his text Constitutional Law of Canada (1977), p. 120:

 

                   The independence of the judiciary has since become such a powerful tradition in the United Kingdom and Canada that there may be little point in a fine analysis of the language of the provisions by which it is formally guaranteed.

 

                   Shetreet's text Judges on Trial, a Study of the Appointment and Accountability of the English Judiciary (1976), emphasized the importance of tradition so far as judicial independence is concerned. At pp. 392‑3 he stated:

 

. . . no executive or legislature can interfere with judicial independence contrary to popular opinion, and survive. "In Britain" wrote Professor de Smith, "the independence of the Judiciary rests not on formal constitutional guarantees and prohibitions but on an admixture of statutory and common‑law rules, constitutional conventions and parliamentary practice, fortified by professional tradition and public opinion." (S.A. de Smith Constitutional and Administrative Law (1st ed. 1971), pp. 365‑366 n. 35) Lord Sankey, L.C., said in Parliament:

 

"The independence and prestige which our judges have enjoyed in their position have rested far more upon the great tradition and long usage with which they have always been surrounded, than upon any Statute. The greatest safeguard of all may be found along these lines for traditions cannot be repealed, but an Act of Parliament can be."

 

The strength of tradition is measured not only by its observance but also by the intensity of the reaction to its violation.... Strong public reaction to a breach of tradition demonstrates that the violation will not pass unnoticed.

 

35.              To these opinions on the importance of tradition as a safeguard of judicial independence may be added the following statement by Lord Denning in The Road to Justice (1955), at pp. 16‑17:

 

The County Court judges have some measure of protection but the stipendiary magistrates and the justices of the peace have no security of tenure at all. They hold office during pleasure....

 

                   Nevertheless, although these lesser judges can theoretically be dismissed at pleasure, the great principle that judges should be independent has become so ingrained in us that it extends in practice to them also. They do in fact hold office during good behaviour and they are in fact only dismissed for misconduct. If any Minister or Government Department should attempt to influence the decision of any one of them, there would be such an outcry that no Government could stand against it.

 

 

36.              Tradition, reinforced by public opinion, operating as an effective restraint upon executive or legislative action, is undoubtedly a very important objective condition tending to ensure the independence in fact of a tribunal. That it is not, however, regarded by itself as a sufficient safeguard of judicial independence is indicated by the many calls for specific legislative provisions or constitutional guarantees to ensure that independence in a more ample and secure measure. Shetreet himself makes this point later on in the discussion of the role of tradition from which Howland C.J.O. quoted, where he says at pp. 392‑93:

 

                   Others, however, do not entertain this unreserved trust in tradition and popular opinion. A growing number of legal scholars, lawyers and even judges are advocating a written and entrenched constitution to protect civil liberties and other important parts of constitutional law against alteration by a small temporary majority in Parliament. Significant support for this view came from Lord Justice Scarman, who in his Hamlyn Lectures 1974 proposed a written Bill of Rights and judicial review of statutes. Individual rights, judicial independence and other parts of a democratic system of government can be better safeguarded by a written constitution supported by tradition and public opinion than by the latter alone.

 

Reports and addresses on judicial independence in recent years have indicated that the nature and importance of this constitutional value are not so well and widely understood as to give grounds for confidence that its protection can be safely left to the operation of tradition alone. This is clear, for example, from the observations and recommendations of the Deschênes report and from the recent report of the Canadian Bar Association committee on judicial independence. Indeed, a constitutional requirement of judicial independence such as that in s. 11(d) of the Charter presupposes that it does not automatically exist by reason of tradition alone. Important as tradition is as a support of judicial independence, I do not think that reliance on it should go so far as to treat other conditions or guarantees of independence as unnecessary or of no practical importance. I do not read the reasons of the Court of Appeal as suggesting that. It is a question of the relative importance that one is going to attach to tradition in a particular context as ensuring respect for judicial independence despite an apparent or potential power to interfere with it. Moreover, while tradition reinforced by public opinion may operate as a restraint upon the exercise of power in a manner that interferes with judicial independence, it cannot supply essential conditions of independence for which specific provision of law is necessary.

 

37.              With the greatest respect for the contrary view, where, as in the case of provincial court judges at the time Sharpe J. declined jurisdiction, the legislature has expressly provided for two kinds of tenure‑‑one under which a judge may be removed from office only for cause and the other under which a judge of the same court holds office during pleasure‑‑I am of the opinion that the second class of tenure cannot reasonably be perceived as meeting the essential requirement of security of tenure for purposes of s. 11(d) of the Charter. The reasonable perception is that the legislature has deliberately, in the case of one category of judges, reserved to the Executive the right to terminate the holding of office without the necessity of any particular justification and without any inhibition or restraint arising from perceived tradition. I am thus of the view that a judge of the Provincial Court (Criminal Division) who held office during pleasure at the time Sharpe J. declined jurisdiction could not be an independent tribunal within the meaning of s. 11(d) of the Charter.

 

38.              This conclusion could not, however, affect the independence of Sharpe J. personally because, as noted by the Court of Appeal, he did not hold office under a post‑retirement reappointment. It was, nevertheless, contended that the provision for post‑retirement reappointment at pleasure prevented the Provincial Court (Criminal Division) as a whole from being an independent tribunal within the meaning of s. 11(d) of the Charter. In my opinion, the fact that certain judges of the Court may have held office during pleasure at the time Sharpe J. declined jurisdiction could not impair or destroy the independence of the Court as a whole. The objection would have to be taken to the status of the particular judge constituting the tribunal.

 

39.              As a further reason for rejecting the objections to the provision for post‑retirement reappointment Howland C.J.O. referred to the declared intention of the Attorney General to introduce legislation at the next session of the legislature to make post‑retirement reappointment subject to the approval of the Chief Judge of the Provincial Court. Such legislation was in fact introduced by s. 1 of the Provincial Courts Amendment Act, 1983, 1983 (Ont.) c. 18, which came into force on May 26, 1983 and amended s. 5(4) of the Provincial Courts Act to permit a provincial court judge who has attained the age of retirement to continue in office, with the annual approval of the chief judge of the court, until the age of seventy, and to continue in office thereafter until the age of seventy‑five, with the annual approval of the Judicial Council for Provincial Judges, a body composed of the Chief Justice of Ontario, the Chief Justice of the High Court, the Chief Justice of the District Court, the Chief Judges of the various divisions of the Provincial Court, the Treasurer of the Law Society of Upper Canada, and not more than two other persons appointed by the Lieutenant Governor in Council. The same provision is now found in s. 54(4) of the Courts of Justice Act, 1984, which came into force on January 1, 1985. This change in the law, while creating a post‑retirement status that is by no means ideal from the point of view of security of tenure, may be said to have removed the principal objection to the provision which applied when Sharpe J. declined jurisdiction since it replaces the discretion of the Executive by the judgment and approval of senior judicial officers who may be reasonably perceived as likely to act exclusively out of consideration for the interests of the Court and the administration of justice generally.

 

                                                                    V

 

40.              The second essential condition of judicial independence for purposes of s. 11(d) of the Charter is, in my opinion, what may be referred to as financial security. That means security of salary or other remuneration, and, where appropriate, security of pension. The essence of such security is that the right to salary and pension should be established by law and not be subject to arbitrary interference by the Executive in a manner that could affect judicial independence. In the case of pension, the essential distinction is between a right to a pension and a pension that depends on the grace or favour of the Executive.

 

41.              The salaries of provincial court judges were at the time Sharpe J. declined jurisdiction, and still are, fixed by regulation made by the Lieutenant Governor in Council pursuant to the authority formerly conferred by s. 34(1) of the Provincial Courts Act and now conferred by s. 87(1) of the Courts of Justice Act, 1984, which came into force on January 1, 1985. The amount of the salary has been fixed by s. 2 of Regulation 811 of the Revised Regulations of Ontario, 1980, as amended from time to time. The government receives recommendations concerning the salaries of provincial court judges from the Ontario Provincial Courts Committee, which was first established by Order in Council 643/80 dated March 5, 1980 and was later given statutory recognition by s. 2(2) of the Provincial Judges and Masters Statute Law Amendment Act, 1983, 1983 (Ont.), c. 78, which added a new s. 35 to the Provincial Courts Act, establishing the Committee with three members: one appointed by provincial court and family court judges' associations; one appointed by the government; and the third, the chairman, appointed jointly by the associations and the government. Section 35 provided that the annual report and recommendations of the Committee be laid before the Legislative Assembly. The same provision is now made for the Committee and its role in relation to the remuneration, allowances and benefits of provincial court judges in s. 88 of the Courts of Justice Act, 1984, which came into force on January 1, 1985.

 

42.              The principal objections to the manner in which the salaries of provincial court judges are provided for is that they are not fixed by the legislature and they are not made a charge on the Consolidated Revenue Fund. These two requirements have traditionally been regarded as affording the highest degree of security in respect of judicial salaries. Section 100 of the Constitution Act, 1867 requires that the salaries of superior, district and county court judges be fixed by Parliament. The salaries of these and other federally‑appointed judges are fixed by Parliament in the Judges Act, which provides in s. 33(1) that the salaries payable under the Act shall be paid out of the Consolidated Revenue Fund. In all of the other provinces the salaries of provincial judges are, as in Ontario, fixed by the executive government by regulation. In some, but not all provinces, they are paid out of the Consolidated Revenue Fund.

 

43.              Although it may be theoretically preferable that judicial salaries should be fixed by the legislature rather than the executive government and should be made a charge on the Consolidated Revenue Fund rather than requiring annual appropriation, I do not think that either of these features should be regarded as essential to the financial security that may be reasonably perceived as sufficient for independence under s. 11(d) of the Charter. At the present time in Canada the amount of judges' salaries is a matter for the initiative of the Executive, whether they are fixed by act of the legislature or by regulation. Moreover, it is far from clear that having to bring proposed increases to judges' salaries before the legislature is more desirable from the point of view of judicial independ­ence, and indeed adequate salaries, than having the question determined by the Executive alone, pursuant to a general legislative authority. In the case of the salaries of provincial court judges in Ontario, assurance that proper consideration will be given to the adequacy of judicial salaries is provided by the role assigned to the Ontario Provincial Courts Committee, although I do not consider the existence of such a committee to be essential to security of salary for purposes of s. 11(d). The essential point, in my opinion, is that the right to salary of a provincial court judge is established by law, and there is no way in which the Executive could interfere with that right in a manner to affect the independence of the individual judge. Making judicial salaries a charge on the Consolidated Revenue Fund instead of having to include them in annual appropriations is, I suppose, theoretically a measure of greater security, but practically it is impossible that the legislature would refuse to vote the annual appropriation in order to attempt to exercise some control or influence over a class of judges as a whole. For these reasons I am of the opinion that under the provisions of law which applied when Sharpe J. declined jurisdiction and which now apply, provincial court judges may be reasonably perceived to have the essential security of salary required for independence within the meaning of s. 11(d).

 

44.              Although at the time Sharpe J. declined jurisdiction s. 34(1) of the Provincial Courts Act empowered the Lieutenant Governor in Council to make provision by regulation for the pensions of provincial court judges, no such regulation had been adopted. The right to pension enjoyed by provincial court judges was that provided for members of the public service by the Public Service Superannuation Act, R.S.O. 1980, c. 419, which was made applicable by s. 26 to every full time provincial judge. It was not until May 25, 1984 that Ontario Regulation 332/84 under the Provincial Courts Act was adopted making special provision for the pensions of provincial court judges.

 

45.              The chief objection to the provision for pension which applied when Sharpe J. declined jurisdiction was, as I understood the argument, that it treated provincial court judges in the same way as civil servants. Indeed, the same objection was made to the provision for other benefits of a financial nature, such as sick leave with pay and group insurance benefits of various kinds. The provisions which governed these benefits in Ontario Regulation 881, under the Public Service Act were made applicable to provincial court judges by s. 7 of Ontario Regulation 811, under the Provincial Courts Act. It was not until May 25, 1984 that Ontario Regulation 332/84, to which reference has been made, made special provision for such bene‑ fits in the case of provincial court judges, although some of the provisions in Ontario Regulation 881, that had been made applicable to provincial court judges continued to apply to them.

 

46.              In my opinion this objection to the provisions for pension and other financial benefits which were applicable to provincial court judges at the time Sharpe J. declined jurisdiction does not touch an essential condition of the independence required by s. 11(d). The provisions established a right to pension and other benefits which could not be interfered with by the Executive on a discretionary or arbitrary basis. That, as I have indicated, is the essential requirement for purposes of s. 11(d). Making the provisions governing civil servants applicable to the provincial court judges did not purport to characterize provincial judges as civil servants or increase the discretionary control of the Executive over the judges. It may well be preferable that the pensions and other financial benefits of judges should be given special and separate treatment in the law, as they now are, because of the special position and requirements of judges in this respect, but the application of the civil standards to provincial court judges at the time Sharpe J. declined jurisdiction did not, for the reasons I have indicated, affect their essential security in respect of pensions and benefits.

 

                                                                   VI

 

47.              The third essential condition of judicial independence for purposes of s. 11(d) is in my opinion the institutional independence of the tribunal with respect to matters of administration bearing directly on the exercise of its judicial function. The degree to which the judiciary should ideally have control over the administration of the courts is a major issue with respect to judicial independence today. Howland C.J.O. drew a distinction, for purposes of the issues in the appeal, between adjudicative independence and administrative independence, which is reflected in the following passages from his reasons for judgment at pp. 432‑33:

 

                   When considering the independence of the judiciary, it is necessary to draw a careful distinction between independent adjudication and independent administration. It is independent adjudication about which the Court is concerned in this appeal. The position of the judiciary under the English and Canadian Constitutions is quite different from that under the American Constitution. In the United States the federal judiciary is a separate branch which includes judicial administration. While the report of Chief Justice Jules Deschênes, "Masters in their Own House", September, 1981, recommended the independent judicial administration of the courts, the Canadian Judicial Council, in September, 1982, only approved of the first two stages of consultation and decision sharing between the Executive and the Judiciary and was not prepared to approve at that time of the third stage of independent judicial administration.

 

                   In Ontario, the primary role of the judiciary is adjudication. The Executive on the other hand is responsible for providing the court rooms and the court staff. The assignment of judges, the sittings of the court, and the court lists are all matters for the judiciary. The Executive must not interfere with, or attempt to influence the adjudicative function of the judiciary. However, there must necessarily be reasonable management constraints. At times there may be a fine line between interference with adjudication and proper management controls. The heads of the judiciary have to work closely with the representatives of the Executive unless the judiciary is given full responsibility for judicial administration.

 

48.              In his conclusions Howland C.J.O. observed at p. 443:

 

                   On the hearing of this appeal, no submission was made that the Attorney General in his role as prosecutor interfered in any way with the sittings of the court, its lists, or the process of adjudication.

 

 

49.              Judicial control over the matters referred to by Howland C.J.O.‑‑assignment of judges, sittings of the court, and court lists‑‑as well as the related matters of allocation of court rooms and direction of the administrative staff engaged in carrying out these functions, has generally been considered the essential or minimum requirement for institutional or "collective" independence. See Lederman, "The Independence of the Judiciary" in The Canadian Judiciary (1976, ed. A. M. Linden), pp. 9‑10; Deschênes, Masters in their own house, pp. 81 and 124.

 

50.              As the reasons of Howland C.J.O. indicate, however, the claim for greater administrative autonomy or independence for the courts goes considerably beyond these matters. The insistence is chiefly on a stronger or more independent role in the financial aspects of court administration‑‑budgetary preparation and presentation and allocation of expenditure‑‑and in the personnel aspects of administration‑‑the recruitment, classification, promotion, remuneration, and supervision of the necessary support staff. Probably the fullest exposition of the recommended enlargement of administrative autonomy or independence for the courts is to be found in the Deschênes report, with its three stage proposal for realization referred to by Howland C.J.O. consisting of consultation, decision sharing and independence. Strong support for the Deschênes recommendations in this area was recently expressed in the report of the Canadian Bar Association's Committee on judicial independence, which, while noting the reservations referred to by Howland C.J.O. concerning the third stage of full administrative autonomy or independence, recommended that the first two stages of consultation and decision sharing be implemented as soon as possible. The desirability of greater administrative independence, particularly with respect to financial and personnel matters, has also been the subject of important public addresses by leaders of the judiciary. In an address entitled "Some Observations on Judicial Independence" in 1980 the late Chief Justice Laskin had this to say on the subject:

 

                   Coming now to other elements which I regard as desirable supports for judicial independence, I count among them independence in budgeting and in expenditure of an approved budget, and independence in administration, covering not only the operation of the Courts but also the appointment and supervision of the supporting staff. Budget independence does not mean that Judges should be allowed to fix their own salaries; it means simply that the budget should not be part of any departmental budget but should be separately presented and dealt with. I do not, of course, preclude its presentation by a responsible Minister, but he should do this as a conduit, and yet as one able to support the budget after its preparation under the direction of the Chief Justice or Chief Judge and the chief administrative officer of the Court. So, too, should the Court, through its Chief Justice or Chief Judge and chief administrative officer, have supervision and direction of the staff of the Court and of the various supporting services such as the library and the Court's law reports.

 

 

The present Chief Justice of Canada, in his recent address to the annual meeting of the Canadian Bar Association, referred with approval to this statement of Laskin C.J. and said that "Preparation of judicial budgets and distribution of allocated resources should be under the control of the Chief Justices of the various courts, not the Ministers of Justice" and "Control over finance and administration must be accompanied by control over the adequacy and direction of support staff".

 

51.              It is not entirely clear as to the extent to which the issue of institutional independence is actually raised by the various objections to the status of provincial court judges at the time Sharpe J. declined jurisdiction. As I understood the argument, the chief objection which could be said to relate to institutional independence was the extent to which the judges were treated as civil servants for purposes of pension and other financial bene‑ fits, such as group insurance and sick leave, and the control exercised by the Executive over such discretionary benefits or advantages as post‑retirement reappointment, leave of absence with or without pay and the right to engage in extra‑ judicial employment. The contention was that the treatment of these matters and the executive control over them were calculated to make the Court appear as a branch of the Executive and the judges as civil servants. This impression, it was said, was reinforced by the manner in which the Court and its judges were associated with the Ministry of the Attorney General in printed material intended for public information. Dependence on the Executive for discretionary benefits or advantages was also said to affect the reality and the perception of the individual independence of the judges, an issue which must be considered separately from the question of institutional independence.

 

52.              Although the increased measure of administrative autonomy or independence that is being recommended for the courts, or some degree of it, may well be highly desirable, it cannot in my opinion be regarded as essential for purposes of s. 11(d) of the Charter. The essentials of institutional independence which may be reasonably perceived as sufficient for purposes of s. 11(d) must, I think, be those referred to by Howland C.J.O. They may be summed up as judicial control over the administrative decisions that bear directly and immediately on the exercise of the judicial function. To the extent that the distinction between administrative independence and adjudicative independence is intended to reflect that limitation, I can see no objection to it. It may be open to objection, however, in so far as the desirable or recommended degree of administrative autonomy or independence of the courts is concerned. In my opinion, the fact that certain financial benefits applicable to civil servants were also made applicable to provincial court judges, that the Provincial Court (Criminal Division) and its judges were shown in printed material as associated with the Ministry of the Attorney General and that the Executive exercised administrative control over certain discretionary benefits or advantages affecting the judges did not prevent the Provincial Court (Criminal Division) at the time Sharpe J. declined jurisdiction from being reasonably perceived as possessing the essential institutional independence required for purposes of s. 11(d).

 

                                                                   VII

 

53.              It is necessary now to consider the effect on the individual independence of provincial court judges of the control exercised by the Executive over certain discretionary benefits or advantages. I have referred to the provisions of the Provincial Courts Act and the Courts of Justice Act, 1984 concerning post‑retirement reappointment or continuation in office, which may be necessary to permit a judge to complete entitlement to pension. Objection was also taken to the provisions for leave of absence with or without pay and for permission to engage in extra‑judicial employment. The provisions for leave of absence that were applicable to provincial court judges at the time Sharpe J. declined jurisdiction were found in ss. 4 and 5 of Regulation 811 of the Revised Regulations of Ontario, 1980, made under the Provincial Courts Act, and in ss. 75 and 76 of Regulation 881 of the Revised Regulations of Ontario, 1980, made under the Public Service Act. Sections 4 and 5 of Regulation 811 provide that the Attorney General, upon the recommendation of the chief judge of the provincial courts, may grant to a judge leave of absence without pay and without the accumulation of sick leave credits for a period up to three years, and that the Lieutenant Governor in Council, upon the recommendation of the Attorney General, may grant special leave of absence with pay to a judge for special or compassionate purposes for a period not exceeding one year. Sections 75(1) and 76(1) of Regulation 881, which were made applicable to provincial court judges by s. 7 of Regulation 811, provided that a deputy minister could grant to an employee in his ministry leave of absence with pay for a period of not more than one year for the purpose of undertaking employment under the auspices of the Government of Canada or other public agency and leave of absence without pay and without accumulation of credits for a period of not more than one year for the purpose of undertaking employment under the auspices of the Government of Canada or other public agency, or by a public or private corporation. A leave of absence granted under s. 75 or s. 76 of Regulation 881 could be renewed from year to year. By s. 32(3) of Ontario Regulation 332/84, made on May 25, 1984, the Chief Judge of the Provincial Court (Criminal Division) was given the authority, in place of the deputy minister, to grant leave of absence to provincial court judges under ss. 75 and 76 of Regulation 881. The provision concerning permission to engage in extra‑judicial employment at the time Sharpe J. declined jurisdiction was s. 12 of the Provincial Courts Act, which read as follows:

 

                   12.‑‑(1) Subject to subsection (2), unless authorized by the Lieutenant Governor in Council, a judge shall not practise or actively engage in any business, trade or occupation but shall devote his whole time to the performance of his duties as a judge.

 

 

                   (2) A judge, with the previous consent of the Minister, may act as arbitrator, conciliator or member of a police commission.

 

The provision with respect to extra‑judicial employment of provincial judges in the Courts of Justice Act, 1984 is s. 53, which came into force on January 1, 1985 and reads as follows:

 

                   53.‑‑(1) A provincial judge shall devote his or her whole time to the performance of his or her duties as a judge, except as authorized by the Lieutenant Governor in Council.

 

                   (2) Notwithstanding subsection (1), a provincial judge who, before the coming into force of this Part, had the consent of the Attorney General to act as an arbitrator or conciliator may continue to so act.

 

There are similar provisions respecting extra‑judicial employment in the provincial courts legislation of the other provinces. In some cases it is specified that a judge shall not receive any additional remuneration for such employment.

 

54.              While it may well be desirable that such discretionary benefits of advantages, to the extent that they should exist at all, should be under the control of the judiciary rather than the Executive, as recommended by the Deschênes report and others, I do not think that their control by the Executive touches what must be considered to be one of the essential conditions of judicial independence for purposes of s. 11(d) of the Charter. In so far as the subjective aspect is concerned, I agree with the Court of Appeal that it would not be reasonable to apprehend that a provincial court judge would be influenced by the possible desire for one of these benefits or advantages to be less than independent in his or her adjudication.

 

55.              For the foregoing reasons I am of the opinion that at the time he declined jurisdiction on December 16, 1982 Sharpe J. sitting as the Provincial Court (Criminal Division) was an independent tribunal within the meaning of s. 11(d) of the Charter. The same is true in my opinion of all the judges of the Court since the amendment in 1983 to s. 5(4) of the Provincial Courts Act removed the objection to the nature of the tenure under a post‑retirement appointment or continuation in office. Accordingly I would dismiss the appeal and answer the constitutional question as follows: A judge of the Provincial Court (Criminal Division) of Ontario is an independent tribunal within the meaning of s. 11(d) of the Canadian Charter of Rights and Freedoms.

 

                   Appeal dismissed.

 

                   Solicitor for the appellant: Noel Bates, Bur­lington.

 

                   Solicitor for the respondent: Attorney General for Ontario, Toronto.

 

                   Solicitor for the intervener the Attorney General of Canada: R. Tassé, Ottawa.

 

                   Solicitors for the intervener the Attorney General of Quebec: Réal A. Forest and Angeline Thibault, Ste‑Foy.

 

                   Solicitor for the intervener the Attorney General for Saskatchewan: Richard Gosse, Regina.

 

                   Solicitor for the interveners The Provincial Court Judges Association (Criminal Division) and Ontario Family Court Judges Association: Morris Manning, Toronto.

 

 

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