Supreme Court Judgments

Mackin v. New Brunswick (Minister of Finance); Rice v. New Brunswick, [2002] 1 S.C.R. 405, 2002 SCC 13

Her Majesty The Queen in Right of the Province of

New Brunswick as represented by the Minister of Finance                          Appellant

v.

Ian P. Mackin                                                                                                Respondent

and between

Her Majesty The Queen in Right of the Province of

New Brunswick as represented by the Minister of Finance                          Appellant

v.

Douglas E. Rice                                                                                             Respondent

and

The Attorney General of Canada,

the Attorney General for Ontario,

the Attorney General of Quebec,

the Attorney General of Manitoba,

the Attorney General of British Columbia,

the Attorney General for Saskatchewan,

the Attorney General for Alberta,

the Canadian Judges Conference and

the Canadian Association of Provincial Court Judges                                 Interveners

Indexed as:  Mackin v. New Brunswick (Minister of Finance); Rice v. New Brunswick

Neutral citation:  2002 SCC 13.

File No.:  27722.

2001:  May 23; 2002:  February 14.

Present:  L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Binnie, Arbour and LeBel JJ.

on appeal from the court of appeal for new brunswick

Constitutional law – Judicial independence – Provincial courts – Supernumerary judges – Provincial legislation eliminating system of supernumerary judges and replacing it with panel of retired judges paid per diem – Whether legislation violates guarantees of judicial independence – Canadian  Charter  of Rights and Freedoms ,  s.   11 (d)  –  Constitution Act, 1867 , Preamble – Act to Amend the Provincial Court Act, S.N.B. 1995, c. 6.

Constitutional law – Remedies – Damages – Provincial legislation eliminating system of supernumerary judges and replacing it with panel of retired judges paid per diem – Supernumerary judges successfully challenging constitutionality of legislation – Whether damages claim by supernumerary judges warranted – Constitution Act, 1982,  ss.   24(1) , 52 .

Costs – Solicitor‑client costs awarded on appeal – Whether solicitor‑client costs appropriate.

In 1995, the New Brunswick Act to Amend the Provincial Court Act (“Bill 7”) abolished the system of supernumerary judges and replaced it with a panel of retired judges paid on a per diem basis.  Supernumerary judges, who were judges under the Provincial Court Act, received a salary and fringe benefits equivalent to those given to judges sitting full time.  Although the Provincial Court Act was silent concerning the size of the reduction in workload, supernumerary judges were normally asked to take on only about 40 percent of the usual workload of a full‑time judge.  Supernumerary judges in office when Bill 7 came into force were required to choose between retiring or returning to sit full time before April 1, 1995.  The change was made in the interest of efficiency and flexibility, and for economic and financial reasons.  The respondent R began to sit as a supernumerary judge in 1993, but his workload was not significantly reduced between 1993 and his eventual retirement.  When Bill 7 became law, he had to return to full‑time judicial office.  He retired in 1997 and asked to be placed on the panel of retired judges.  Prior to the enactment of Bill 7, R had organized his financial and personal affairs in light of the conditions applying to supernumerary judges.  The respondent M began to sit as a supernumerary judge in 1988. Until 1990, his workload was not appreciably reduced, but thereafter, the reorganization of his judicial duties enabled him to spend several winters in Australia.  M did not express his intention to retire before April 1, 1995, and was deemed to have resumed his duties as a full‑time judge.  The respondents instituted separate proceedings, successfully challenging the constitutionality of Bill 7 at trial and on appeal, arguing that it unjustifiably affected the tenure and financial security that form part of judicial independence.  The respondents’ claim for damages was rejected at trial.  The Court of Appeal held that damages could be awarded and referred the question of the appropriate amount back to the trial judge.  The respondents were awarded solicitor‑client costs.

Held (Binnie and LeBel JJ. dissenting):  The appeal should be allowed in part. Bill 7 is unconstitutional.

Per L’Heureux‑Dubé, Gonthier, Iacobucci, Major and Arbour JJ.:  Judicial independence is essential to the achievement and proper functioning of a free, just and democratic society based on the principles of constitutionalism and the rule of law.  The general test for judicial independence is to ask whether a reasonable person fully informed of all the circumstances would consider that a particular court enjoyed the necessary independent status.  This requires independence in fact and a reasonable perception of independence.  Only objective legal guarantees are capable of meeting this double requirement.  Judicial independence has individual and institutional dimensions, and three essential characteristics:  financial security, security of tenure and administrative independence.  The constitutional protection of judicial independence requires the existence in fact of these essential characteristics and the maintenance of the perception that they exist.  Thus, each of them must be institutionalized through appropriate legal mechanisms.

The opportunity to sit as a supernumerary was not integral to the office of a judge and eliminating that opportunity was not a removal from office.  The ability to perform 40 percent of the usual duties but not to work full time should be classified as an inability to perform the duties of a judge.  The elimination of the duties of supernumerary judges should be treated as a question relating to financial security.  Individually, financial security requires that judges’ salaries be provided for by law and that neither the executive nor the legislative branch arbitrarily encroach upon this right in a manner that affects the independence of the courts.  Any measure taken by a government that affects any aspect of the remuneration conditions of judges will automatically trigger the application of the principles relating to the institutional dimension of financial security.  In particular, governments have a constitutional duty to use an independent, effective and objective body for recommendations on salary reductions, increases or freezes for judges.  If these recommendations are ignored, that decision must be justified, if necessary in a court of law, on the basis of a simple rationality test.

Bill 7 violates the institutional guarantees of judicial independence contained in s. 11( d )  of the Canadian Charter of Rights and Freedoms  and the Preamble to the Constitution Act, 1867  and is therefore declared unconstitutional.  The system of supernumerary judges constituted an undeniable economic benefit for judges of the Provincial Court appointed before Bill 7 came into force and for eventual candidates for the position of judge in the court.  There is no distinction in principle between a straight salary cut and the elimination of offices that offer a clear economic benefit since both raise controversial questions of public policy and resource allocation and raise the possibility of financial manipulation.  By failing to refer the question of the elimination of the office of supernumerary judge to an independent, effective and objective body, the New Brunswick government breached a fundamental duty.  The lack of a grandfather clause in favour of the supernumerary judges in office and the judges of the Provincial Court appointed before Bill 7 came into force aggravates the violation.

Since the appellant did not adduce any evidence tending to show that Bill 7’s constitutional shortcomings were justified under s. 1  of the Charter , Bill 7 must therefore be declared invalid even though the New Brunswick government was pursuing a perfectly legitimate purpose in trying to make certain changes to the organization of its judiciary.  The declaration of invalidity applies to both the elimination of the office of supernumerary judge and its replacement by the panel of judges.  Except with respect to the respondents, the declaration is suspended for six months from the date of judgment.  Although the directives issued by this Court in the Provincial Court Judges Reference did not acquire their full effect until September 18, 1998, the respondents instituted their proceedings before that decision was rendered. It would be unjust if they were not allowed to take advantage of the finding of unconstitutionality due to the sequence of events.

The respondents’ claim for damages is dismissed.  An action for damages brought under s. 24(1)  of the Charter  cannot normally be combined with an action for a declaration of invalidity based on s. 52  of the Constitution Act, 1982 .  In this case, the New Brunswick government did not display negligence, bad faith or wilful blindness with respect to its constitutional obligations.  Nor was the Minister of Justice’s failure to keep his promise to refer Bill 7 to the Law Amendments Committee an instance of bad faith that justified the damage awards.

The respondents are to have their costs throughout, on a party‑and‑party basis.  Solicitor‑client costs are not appropriate in this case.

Per Binnie and LeBel JJ. (dissenting):  The Provincial Court judges in New Brunswick who elected supernumerary status did not enjoy a constitutional right to work only 40 percent of the time in exchange for 100 percent of the salary of a full‑time judge.

The essential guarantees of judicial independence, including financial security, are intended for the benefit of the judged, not the judges.

Although the majority’s statement of the broad principles of judicial independence was agreed with, the respondents’ expectation of a reduced workload was neither spelled out in the Act nor otherwise put in a legally enforceable form.  The workload varied dramatically from region to region and the bare concept of a “reduced” workload is too elastic to provide a manageable constitutional standard.  The legislature was clearly not prepared to guarantee any fixed and defined benefit, or indeed any benefit at all.  The doctrine of judicial independence does not protect “understandings” about specific financial benefits that are pointedly not written into the governing legislation.  As the Provincial Court judges were given no guarantee in the Act, the anticipated reduced workload attaching to supernumerary status formed no part of the constitutional guarantee of judicial independence.  Supernumerary status was a wholly discretionary potential benefit voluntarily conferred on the judges by the legislature, and its repeal could not and did not undermine the Provincial Court’s institutional independence. 

Even if the respondents could establish all of the elements of the administrative law doctrine of legitimate expectation, it would not be of assistance since the doctrine does not apply to a body exercising purely legislative functions.  Nor can it operate to entitle the respondents to a substantive as opposed to procedural remedy.  Furthermore the constitutional requirement of an independent, effective and objective process mandated by the Provincial Court Judges Reference was not elaborated by this Court until two years after the amendments in issue here.

Cases Cited

By Gonthier J.

Applied:  Valente v. The Queen, [1985] 2 S.C.R. 673; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3; referred to:  Guimond v. Quebec (Attorney General), [1996] 3 S.C.R. 347; Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369; Beauregard v. Canada, [1986] 2 S.C.R. 56; British Columbia (Provincial Court Judge) v. British Columbia (1997), 40 B.C.L.R. (3d) 289; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1998] 1 S.C.R. 3; Newfoundland Assn. of Provincial Court Judges v. Newfoundland (2000), 191 D.L.R. (4th) 225; Schachter v. Canada, [1992] 2 S.C.R. 679; Attorney‑General for Alberta v. Attorney‑General for Canada, [1947] A.C. 503; Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721; Welbridge Holdings Ltd. v. Greater Winnipeg, [1971] S.C.R. 957; Central Canada Potash Co. v. Government of Saskatchewan, [1979] 1 S.C.R. 42; Crown Trust Co. v. The Queen in Right of Ontario (1986), 26 D.L.R. (4th) 41; Young v. Young, [1993] 4 S.C.R. 3; Friends of the Oldman River Society v. Canada (Minister of  Transport), [1992] 1 S.C.R. 3.

By Binnie J. (dissenting)

Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3; R. v. McCully, N.B. Prov. Ct. (Moncton), February 13, 1996; R. v. Woods (1996), 179 N.B.R. (2d) 153; R. v. Lapointe, [1997] N.B.J. No. 57 (QL); R. v. Leblanc (1997), 190 N.B.R. (2d) 70; Valente v. The Queen, [1985] 2 S.C.R. 673; R. v. Lippé, [1991] 2 S.C.R. 114; Beauregard v. Canada, [1986] 2 S.C.R. 56; Ridge v. Baldwin, [1964] A.C. 40; Nicholson v. Haldimand‑Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311; Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 S.C.R. 1170; Reference re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.

Statutes and Regulations Cited

Act to Amend the Provincial Court Act, S.N.B. 1995, c. 6, ss. 1, 2, 3, 9.

Canadian Charter of Rights and Freedoms , ss. 1 , 2 , 7  to 14 , 11( d ) , 24 .

Constitution Act, 1867 , Preamble, ss. 91, 92, 92(14).

Constitution Act, 1982 , ss. 35(1) , 52 .

Provincial Court Act, R.S.N.B. 1973, c. P‑21 [am. 1987, c. 45], ss. 1 “judge”, 2(1), 3.1 [ad. 1996, c. 54, s. 1], 4.1 [am. 1988, c. 37, s. 1], 4.2, 6, 6.1 to 6.13, 8(1), 14(2), 22.01 et seq.

Young Offenders Act , R.S.C. 1985, c. Y‑1 .

Authors Cited

Davis, Kenneth Culp.  Administrative Law Treatise, vol. 3.  St. Paul, Minn.: West Publishing Co., 1958.

Dussault, René, and Louis Borgeat.  Administrative Law: A Treatise, 2nd ed., vol. 5. Toronto:  Carswell, 1990.

Friedland, Martin Lawrence.  A Place Apart: Judicial Independence and Accountability in Canada.  Ottawa: Canadian Judicial Council, 1995.

Hogg, Peter W.  Constitutional Law of Canada.  Toronto:  Carswell, 1977.

Shetreet, Shimon.  “Judicial Independence:  New Conceptual Dimensions and Contemporary Challenges”, in Shimon Shetreet and Jules Deschênes, eds.,  Judicial Independence:  The Contemporary Debate.  Boston: Martinus Nijhoff Publishers, 1985, 590.

Universal Declaration on the Independence of Justice, in Shimon Shetreet and Jules Deschênes, eds., Judicial Independence:  The Contemporary Debate.  Boston: Martinus Nijhoff Publishers, 1985, 447.

APPEAL from a judgment of the New Brunswick Court of Appeal (1999), 40 C.P.C. (4th) 107, 23 C.C.P.B. 1, [1999] N.B.J. No. 544 (QL), allowing the respondent Mackin’s appeal and dismissing the province’s cross‑appeal from a judgment of the Court of Queen’s Bench (1998), 202 N.B.R. (2d) 324, 516 A.P.R. 324, 18 C.C.P.B. 30, 21 C.P.C. (4th) 29, [1998] N.B.J. No. 267 (QL).  Appeal allowed in part, Binnie and LeBel JJ. dissenting.

APPEAL from a judgment of the New Brunswick Court of Appeal (1999), 235 N.B.R. (2d) 1, 607 A.P.R. 1, 181 D.L.R. (4th) 643, 39 C.P.C. (4th) 195, 22 C.C.P.B. 249, [1999] N.B.J. No. 543 (QL), allowing the respondent Rice’s appeal and dismissing the province’s cross‑appeal from a judgment of the Court of Queen’s Bench, [1998] N.B.J. No. 266 (QL).  Appeal allowed in part, Binnie and LeBel JJ. dissenting.

Brian A. Crane, Q.C., Bruce Judah, Q.C., and Ritu Gambhir, for the appellant.

J. Brent Melanson, for the respondent Mackin.

J. Gordon Petrie, Q.C., and James M. Petrie, for the respondent Rice.

Graham R. Garton, Q.C., and Karen Cuddy, for the intervener the Attorney General of Canada.

Lori Sterling and Sean Hanley, for the intervener the Attorney General for Ontario.

Monique Rousseau, for the intervener the Attorney General of Quebec.

Deborah Carlson, for the intervener the Attorney General of Manitoba.

George H. Copley, Q.C., for the intervener the Attorney General of British Columbia.

Graeme G. Mitchell, Q.C., for the intervener the Attorney General for Saskatchewan.

Robert C. Maybank, for the intervener the Attorney General for Alberta.

Leigh D. Crestohl, for the intervener the Canadian Judges Conference.

Robert D. Tonn, for the intervener the Canadian Association of Provincial  Court Judges.

The judgment of L’Heureux‑Dubé, Gonthier, Iacobucci, Major and Arbour JJ. was delivered by

Gonthier J. —

I.  Introduction

1                                   This appeal primarily raises the issue of whether the abolition by the legislature of the position of supernumerary judge of the Provincial Court of New Brunswick contravenes the constitutional guarantees of judicial independence in s. 11( d )  of the Canadian Charter of Rights and Freedoms  and in the Preamble to the Constitution Act, 1867 .  The incidental issues that arise are whether the respondent judges should be awarded damages and whether costs should be ordered on a solicitor- client basis.

II.  Facts

2                                   The Provincial Court of New Brunswick was established in 1973 by the Provincial Court Act, R.S.N.B. 1973, c. P-21.  Section 8(1) of the Act provides that “[e]ach judge is hereby constituted a court of record and, throughout the Province, has all the powers, authority, criminal jurisdiction and quasi‑criminal jurisdiction vested in a police magistrate or in two or more justices of the peace sitting and acting together, under any law or statute in force in the Province”.  It accordingly has substantial criminal jurisdiction.  The court is also the youth court designated by the province for the purposes of the Young Offenders Act , R.S.C. 1985, c. Y‑1 .  Section 6 of the Provincial Court Act provides that a “judge holds office during good behaviour and may be removed from office only for misconduct, neglect of duty or inability to perform his duties”.  Section 4.2 provides that a “judge shall retire at the age of 75 years”.  Finally, s. 3.1 states that “[a] judge shall have the same protection and privileges as are conferred upon judges of The Court of Queen’s Bench of New Brunswick, for any act done or omitted in the execution of his or her duty”.

3                                   On January 1, 1988, the Act to Amend the Provincial Court Act, S.N.B. 1987, c. 45, the purpose of which was to create the office of supernumerary judge and to eliminate that of deputy judge, came into force.  A judge of the Provincial Court could thereby elect to sit as a supernumerary judge if he or she met the following conditions:  (i) he or she had reached the age of 65 years and had accumulated 15 years of service; or (ii) he or she had reached the age of 60 years and had accumulated 25 years of service; or, finally, (iii) he or she had reached the age of 70 years and had accumulated 10 years of service.  Thus, as the conditions of eligibility for the office of supernumerary judge fully reflected the conditions of eligibility for payment of a retirement pension equivalent to 60 percent of the full salary, an additional choice was given to the judges of the Provincial Court who satisfied these conditions.  They could then: retire and receive their pension; continue to sit as a full-time judge; or sit as a supernumerary judge.  Section  4.1(5) of the Provincial Court Act provided that a supernumerary judge was to remain available in order to perform the duties assigned to him or her “from time to time” by the Chief Judge.  It was understood by everyone, however, that while a supernumerary judge of the Provincial Court received a salary and fringe benefits equivalent to those given to judges sitting full time, he or she was in practice asked to take on only about 40 percent of the usual workload of a full-time judge.

4                                   On April 1, 1995, ss. 1 through 8 of the Act to Amend the Provincial Court Act, S.N.B. 1995, c. 6 (also called “Bill 7”), came into force.  Section 2 provided for the straight abolition of the system of supernumerary judges and s. 3 provided for its replacement by a panel of retired judges sitting at the request of the Chief Judge or the Associate Chief Judge and paid on a per diem basis.  Also, the supernumerary judges then in office were faced with a choice of retiring or beginning to sit full time again (s. 9(1)).  They were required to give notice to the government of their decision before April 1, 1995.  The legislation did not contain a so-called “grandfather” clause that would have allowed the supernumerary judges in office at that time as well as the other judges of the Provincial Court appointed before Bill 7 came into force to retain the privileges conferred upon them by law.  According to the appellant, the government’s decision to abolish the position of supernumerary judge was made for reasons of efficiency and flexibility as well as for economic and financial reasons.  Thus, in its plea, it stated that “[t]he repeal of the supernumerary provisions by Bill 7 was a legislative initiative undertaken in the context of overall public fiscal restraint and a reasonable attempt to improve the utilization of resources and cost effectiveness in the administration of the Provincial Court”.

5                                   The respondent Judge Douglas E. Rice joined the provincial judiciary on August 16, 1971.  On July 2, 1992, upon reaching the age of 65 years and after sitting for more than 15 years, he was entitled to retire and to receive his pension.  Rather than doing so, he decided to exercise his right to sit as a supernumerary judge, which he did starting on April 30, 1993.  On April 2, 1995, after Bill 7 became law, he was forced, against his will, to return to a full-time judicial office.  He finally retired on October 15, 1997 and asked to be placed on the new panel of judges paid on a per diem basis starting on December 4 of that year.  In his written submissions, Judge Rice mentioned that he had organized his financial and personal affairs in light of the conditions applying to his duties as a supernumerary judge.

6                                   The respondent Judge Ian P. Mackin joined the provincial judiciary on October 17, 1962.  On October 17, 1987, upon reaching the age of 60 years and after accumulating more than 25 years of service, he acquired the right to receive his pension.  Nevertheless, on August 15, 1988, he decided, like Judge Rice, to sit as a supernumerary judge.  It appears that this reorganization of his judicial duties enabled him to plan the use of his time in such a way that he was able to spend several winters in Australia.  Since he did not express his intentions following the enactment of Bill 7, Judge Mackin was deemed, in accordance with s. 9(1) of the Act, to have resumed his duties as a full-time judge.  He still held this office as at the date of the hearing before this Court.

7                                   Following the coming into force of Bill 7, the two respondents instituted separate proceedings in the New Brunswick courts.  Judge Mackin officially informed the government of his intention to bring legal proceedings on April 25, 1995, while Judge Rice submitted his written pleadings on June 24, 1997.  The respondents challenged the constitutionality of the legislation abolishing the position of supernumerary judge, arguing that it affected the components of tenure and financial security that form part of judicial independence.  Damages and payment of solicitor-client costs were also claimed.  In this Court, both cases were joined and argued at the same time.

III.  Judgments Under Appeal

A.  New Brunswick Court of Queen’s Bench

(1)   Mackin v. New Brunswick (Minister of Finance) (1998), 202 N.B.R. (2d) 324

8                                   Deschênes J. began by noting the three essential conditions (financial security, security of tenure and administrative independence) and the two dimensions (individual and institutional) of judicial independence as set out by this Court in  Valente v. The Queen, [1985] 2 S.C.R. 673, and in Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3 (“Provincial Court Judges Reference”), in particular.  He also mentioned that the judges, whether appointed before or after the creation of the position of supernumerary judge, had definitely developed certain expectations because of the existence of the position.  Thus, they were able to plan their professional and financial future accordingly and the facts show that some of them acted in this way.  He therefore concluded that, like their pension plan, the existence of the position of supernumerary judge constituted a genuine financial benefit for the judges of the Provincial Court.

9                                   On the other hand, he was of the opinion that the office of supernumerary judge also had elements that related to the condition of security of tenure, especially in the sense that a supernumerary judge continued to enjoy the same financial benefits as a full-time judge and was forced to take mandatory retirement at the age of 75.  On the basis of the test developed in Valente, supra, at p. 698 — namely, that security of tenure requires “tenure . . . that is secure against interference by the Executive or other appointing authority in a discretionary or arbitrary manner” —, Deschênes J. considered, however, that the legislative abolition of the position of supernumerary judge was not equivalent, strictly speaking, to a dismissal of the supernumerary judges then in office.  Consequently, the individual dimension of the condition of security of tenure had not been infringed.  However, he added that in terms of both security of tenure and financial security, the issue was institutional in nature rather than individual.  Thus, it is not so much the content of the impugned legislation as the process surrounding its enactment that was constitutionally dubious.

10                               Starting with the finding that the office of supernumerary judge constituted a financial benefit for the judges of the Provincial Court, Deschênes J. was of the view that the Legislative Assembly of New Brunswick should have submitted its decision to abolish this position to an independent, effective and objective commission in accordance with what was prescribed in the Provincial Court Judges Reference.  In fact, the decision was political in nature in two respects.  First, it was informed by classic objectives of general public policy: spending cuts and a more efficient administration of justice.  It also raised the spectre of interference by the legislative branch in the independence of the judiciary by means of financial manipulation.  As a result, approval by a commission became necessary in order to ensure that the judiciary would not let itself — or appear to let itself — be dragged onto the political stage and at the same time jeopardize its independence.  In fact, if the situation were otherwise, a reasonable person informed of all the circumstances would conclude that there was an insufficient degree of independence.

11                               Moreover, Deschênes J. was of the opinion that this violation of the constitutional guarantees of independence could not be justified under s. 1  of the Charter .  Because the violation consisted of a failure to refer the matter to an independent, effective and objective commission, this failure itself must be demonstrably justified.  The government merely raised a defence of the reasonably justified nature of the legislation.  Whether the legislation was justified or not, Deschênes J. felt that the amendment had been made arbitrarily without any real consultation with the judges affected.  Finally, he mentioned that the lack of a grandfather clause was unfair to the judges of the Provincial Court generally, on the one hand, and even more unfair to those judges who sat as supernumeraries, on the other.

12                               Consequently, Deschênes J. declared that s. 2 of the Act to Amend the Provincial Court Act was unconstitutional, ordered that the question of the abolition of the office of supernumerary judge be referred immediately to the existing salary commission and suspended the declaration of unconstitutionality until the commission had issued a report on the question.

13                               On the other hand, Deschênes J. refused to award damages to Judge Mackin for the violation of judicial independence by the provincial legislature.  First, he noted that s. 24(1)  of the Charter  did not apply because Judge Mackin had not been the victim of a violation or infringement of his rights or freedoms protected by the Charter .  Second, the general rule of public law, as set out in Guimond v. Quebec (Attorney General), [1996] 3 S.C.R. 347, states that damages will not be awarded for the enactment of legislation that is subsequently declared to be unconstitutional, except in the event of bad faith or other wrongful conduct on the part of government institutions.

14                               Finally, on the question of costs, Deschênes J. stated that notwithstanding the use of disputed means, Judge Mackin was advancing the legitimate cause of protecting the  independence of the judiciary and that he had been partially vindicated in this regard.  He accordingly ordered that he be reimbursed for his costs on a party-and-party basis.

(2)   Rice v. New Brunswick, [1998] N.B.J. No. 226 (QL)

15                               Deschênes J. applied the same reasoning to the situation of Judge Rice.  He also rejected Judge Rice’s argument to the effect that the legislation abolishing the office of supernumerary had been enacted for ulterior or wrongful reasons.

B.  New Brunswick Court of Appeal

(1)  Rice v. New Brunswick (1999), 235 N.B.R. (2d) 1

(a)   Ryan J.A.

16                               Ryan J.A. viewed the actions of the provincial government as a violation of the concept of judicial independence.  He began by finding that the office of supernumerary judge was a genuinely separate judicial office as opposed to a mere status or position.  He then expressed the view that the elimination of the position of supernumerary judge had violated both the condition of financial security and that of security of tenure.

17                               According to Ryan J.A., financial security was violated in both its individual and institutional dimensions.  With respect to judges who were performing supernumerary duties at the time, their financial security was affected in its individual dimension whereas in respect of the other judges of the Provincial Court, it was affected in its institutional dimension.  He also concluded that there was in fact political interference as a result of financial manipulation.  By contrast, he asserted that the guarantee of security of tenure was affected only in its individual dimension because, for the supernumerary judges in office at that time, the abolition of their positions was equivalent to an arbitrary and premature removal.

18                               Since there was a violation of financial security, Ryan J.A. agreed with the trial judge in stating that the case should at the very least have been submitted to an independent, effective and objective commission.  However, given his further findings concerning the violation of the condition of security of tenure, he felt that a referral to the existing commission would not be sufficient and that the Act quite simply had to be declared invalid.  In any event, he added that the jurisdiction of this commission —  which was limited to examining salaries, pension, vacation and sick leave benefits (s. 22.03(1) of the Provincial Court Act) — did not extend to the question of the abolition of the position of supernumerary judge.

19                               Moreover, Ryan J.A. felt that the legislation could not be justified under s. 1.  First, he maintained that judicial independence went beyond the provisions of the Charter  and that an attack on an institution that was so fundamental to the Canadian constitutional system was well and truly unjustifiable.  He then referred to the arbitrary and unfair nature of the government’s actions.  Finally, he noted that the lack of a grandfather clause for the benefit of the supernumerary judges and the other judges of the Provincial Court precluded any claim that the violation of judicial independence was minimal.

20                               Concerning the awarding of damages, Ryan J.A. noted that the case related to an exceptional situation involving a veritable attack by the legislative and executive branches against the judiciary.  The government of the time could not have been oblivious to what it was doing and must have been aware of the effects its decision would have on the independence of the judiciary.  He concluded accordingly that it was necessary to set aside the principle of qualified government immunity referred to in Guimond, supra.  Consequently, neither negligence nor bad faith necessarily had to be established.  Furthermore, there was a direct causal link between the violation of the rights of judges and the harm sustained.  Thus, damages could be awarded under s. 24(1)  of the Charter , or because of the duty of mutual respect owed by the different branches of government to one another.  In the alternative, Ryan J.A. considered that the failure of the then-Minister of Justice to keep the promise made to the provincial judges to refer the legislation eliminating the office of supernumerary judge to the Law Amendments Committee constituted sufficient evidence of bad faith justifying the award of damages.  However, he decided to refer the question of determining the appropriate amount back to the trial judge.

21                               Finally, Ryan J.A. ordered that Judge Rice be paid his legal costs on a solicitor-client basis.

(b)   Drapeau J.A.

22                               Drapeau J.A. concurred with Ryan J.A.  He nevertheless made a number of comments of his own on the question of damages.  He began by expressing his agreement with Ryan J.A. that evidence of bad faith was not required in order for damages to be awarded in this case.  The individual dimension of judicial independence was at issue and both the public and the supernumerary judges personally bore the cost of the provincial government’s decision unilaterally to abolish the office of supernumerary judge.  He added that the legislation was enacted despite a clear awareness of its effects on the independence of the judiciary and on the supernumerary judges.  He accordingly concurred with Ryan J.A. in finding that the traditional rules concerning the award of damages in constitutional proceedings should be set aside.  Damages should be awarded not only to compensate the supernumerary judges but also to discourage any other attempt at legislative interference with judicial independence.

(c)   Daigle C.J.N.B., dissenting

23                               Daigle C.J.N.B. examined each of the first two conditions of judicial independence in order to determine whether they were violated by the enactment of Bill 7.  His analysis focused first on the question of financial security.  In his opinion, it was compromised in that the abolition of the office of supernumerary judge was likely to affect the judges’ planning of the conditions for their retirement.  Thus, although the situation did not involve a reduction as such in their net salary — since they retained the possibility of earning the equivalent of a full-time salary — the fact remained that the judges of the Provincial Court could legitimately rely on the existence of such a position in order to make certain plans of an economic and financial nature.

24                               According to Daigle C.J.N.B., however, the guarantee of financial security was affected only in its institutional dimension.  According to the principles set out in Provincial Court Judges Reference, supra, the Legislative Assembly of New Bunswick had a duty to refer the question of the elimination of the office of supernumerary judge to an independent, effective and objective commission.  However, he noted that there was no evidence in the case to suggest that there might have been any attempt at economic interference on the part of the legislature at the expense of the judges of the Provincial Court.

25                               Daigle C.J.N.B. was, moreover, of the view that the constitutional guarantees of security of tenure were not infringed since it was possible for the supernumerary judges to resume their duties full time.  An analysis of the Provincial Court Act supported him in this conclusion.  First, he noted that s. 1 of the Act defined “judge” as including both a judge and a supernumerary judge.  He added that s. 6 provided that a judge should hold office during good behaviour and could be removed from office only for misconduct, neglect of duty or inability to perform his duties.  He also noted that a judge did not have to retire in order to become supernumerary.  Rather, a supernumerary judge continued to exercise his duties as a judge of the Provincial Court until retiring.  In short, Daigle C.J.N.B. found that there was no separate judicial office relating to the office of supernumerary judge.  Consequently, the abolition of this position was of no consequence in terms of the security of tenure of the judges of the Provincial Court.

26                               He was of the opinion, moreover, that the violation of the institutional guarantees of financial security was not justified under s. 1  of the Charter , since the government did not direct its argument to the legitimacy of its decision to ignore its duty to refer the question to an independent, effective and objective commission.

27                               On the subject of damages, Daigle C.J.N.B. proceeded to apply the general rules governing the liability in tort of government institutions for enacting legislation that is subsequently declared unconstitutional.  Thus, he was of the view that in such cases, damages would be awarded only in very rare instances, including where an act was passed in bad faith or for unworthy reasons.  A bare allegation of unconstitutionality could not, on the other hand, justify an award of damages.  In this case, not only was the refusal of the Minister of Justice to honour his promise to submit the legislative amendments to the Law Amendments Committee not alleged in the pleadings but, moreover, it does not support a finding of bad faith.

28                               Daigle C.J.N.B. added that any relief under s. 24(1)  of the Charter  constituted a personal right that could be exercised only by a person whose fundamental rights had been violated.  In this situation, only the institutional dimension of judicial independence was at issue.  Furthermore, judicial independence exists for the benefit of the litigants and not for that of the judges.  Finally, and in any event, he was of the opinion that a claim for damages could not succeed because the province enacted the legislation in good faith and in accordance with the constitutional teachings of the time.  In fact, when Bill 7 came into force, the decision in Provincial Court Judges Reference, supra, had not yet been rendered.

29                               Because of the infringement of the institutional dimension of financial security, Daigle C.J.N.B. declared Bill 7 to be unconstitutional.  However, he ordered a suspension of this declaration for a period of six months to allow the province to correct its approach.  He refrained from referring the matter to the existing salary commission since the province could rectify the problem by other means.

30                               Finally, he agreed with the trial judge’s opinion that the award of costs as between solicitor and client was quite simply not appropriate in this case.  As far as the appeal proceedings were concerned, since each party should, in his view, be successful in part, he would have ordered that they pay their own costs.

(2)   Mackin v. New Brunswick (Minister of Justice) (1999), 40 C.P.C. (4th) 107

31                               All three judges in the Court of Appeal adopted their reasoning in Rice for the decision in Mackin.

IV.  Relevant Statutory Provisions

32                               Provincial Court Act, R.S.N.B. 1973, c. P-21 (as of March 30, 1995)

4.1(1)  A judge appointed under subsection 2(1) may elect to become a supernumerary judge upon meeting the requirements under this Act.

4.1(2)  Where a judge appointed under subsection 2(1) intends to become supernumerary, the judge shall give notice to the Minister of election two months prior to the effective date specified in the notice, being a day on which the judge will be eligible to so elect, and the judge shall, effective on that day, be deemed to have elected and given notice on that day.

4.1(3)  Where a judge appointed under subsection 2(1) has notified the Minister of the judge’s election to give up regular judicial duties and hold office only as a supernumerary judge, the judge shall upon the effective date hold the office of supernumerary judge and shall be paid the salary annexed to that office until the judge ceases to hold office.

4.1(4)  A judge appointed under subsection 2(1) may elect to hold office as a supernumerary judge upon

(a)  attaining the age of sixty-five years and having continued in judicial office for at least fifteen years,

(a.1)  attaining the age of sixty years and having continued in judicial office for at least twenty-five years, or

(b)  attaining the age of seventy years and having continued in judicial office for at least ten years.

4.1(5)  A judge appointed under subsection 2(1) who has elected to hold the office of supernumerary judge shall be available to perform such judicial duties as may be assigned to the judge from time to time by the chief judge or associate chief judge.

6.  Subject to this Act, a judge holds office during good behaviour and may be removed from office only for misconduct, neglect of duty or inability to perform his duties.

An Act to Amend the Provincial Court Act, S.N.B. 1995, c. 6

1  Subsection 1(1) of the Provincial Court Act, chapter P-21 of the Revised Statutes, 1973, is amended in the definition “judge” by striking out “and a supernumerary judge”.

2  Section 4.1 of the Act is repealed.

9(1)  A judge who is a supernumerary judge under the Provincial Court Act immediately before the commencement of this section shall elect, before April 1, 1995, whether to resume the duties of judicial office on a full-time basis or to retire.

9(2)  An election by a judge under subsection (1) shall be in writing to the Minister of Justice and shall be effective as of April 1, 1995, if no date is specified in the election, or upon the date specified in the election, whichever is the earlier.

9(3)  If a judge fails to make an election under subsection (1) or if the Minister of Justice fails to receive a notice in writing before April 1, 1995, from a judge pursuant to subsection (2), the judge shall be deemed to have resumed the duties of judicial office on a full-time basis in accordance with the Provincial Court Act, effective April 1, 1995.

V.  Issues

33                               On December 12, 2000, the following constitutional questions were stated:

1.                Does An Act to Amend the Provincial Court Act, S.N.B. 1995, c. 6, which repealed the supernumerary scheme for Provincial Court judges in New Brunswick, interfere with the judicial tenure and financial security of members of the Provincial Court and thereby violate in whole or in part the principle of judicial independence as guaranteed by:

(a)  the Preamble of the Constitution Act, 1867 , or

(b)  s. 11( d )  of the Canadian Charter of Rights and Freedoms ?

2.                Does An Act to Amend the Provincial Court Act, S.N.B. 1995, c. 6, which repealed the supernumerary scheme for Provincial Court judges in New Brunswick, and which was enacted without reference to an independent remuneration commission, thereby violate in whole or in part the principle of judicial independence as guaranteed by:

(a)  the Preamble of the Constitution Act, 1867 , or

(b)  s. 11( d )  of the Canadian Charter of Rights and Freedoms ?

3.                If the answer to question 1(b) or question 2(b) is yes, is the Act demonstrably justified as a reasonable limit prescribed by law under s. 1  of the Charter ?

VI.  Analysis

A.  Constitutional Questions

(1)   Introduction: Judicial Independence

34                               Judicial independence is essential to the achievement and proper functioning of a free, just and democratic society based on the principles of constitutionalism and the rule of law.  Within the Canadian Constitution, this fundamental value has its source in s. 11( d )  of the Charter  and in the Preamble to the Constitution Act, 1867 , which states that the Constitution of Canada shall be “similar in Principle to that of the United Kingdom”.  It was in Provincial Court Judges Reference, supra, at paras. 82 et seq., that this Court explained in detail the constitutional foundations and scope of judicial independence.

35                               Generally speaking, the expanded role of the judge as an adjudicator of disputes, interpreter of the law and guardian of the Constitution requires that he or she be completely independent of any other entity in the performance of his or her judicial functions.  Such a view of the concept of independence may be found in art. 2.02 of the Universal Declaration on the Independence of Justice (reproduced in S. Shetreet and J. Deschênes, eds., Judicial Independence:  The Contemporary Debate (1985), 447, at p. 450), which states:

Judges individually shall be free, and it shall be their duty, to decide matters before them impartially, in accordance with their assessment of the facts and their understanding of the law without any restrictions, influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason. [Emphasis added.]

The adoption of a broad definition of judicial independence by this Court was confirmed, moreover, in Provincial Court Judges Reference, supra, at para. 130, where Lamer C.J., for the majority, stated the following:

Finally, although I have chosen to emphasize that judicial independence flows as a consequence of the separation of powers, because these appeals concern the proper constitutional relationship among the three branches of government in the context of judicial remuneration, I do not wish to overlook the fact that judicial independence also operates to insulate the courts from interference by parties to litigation and the public generally: Lippé, supra, at pp. 152 et seq., per Gonthier J. [Emphasis added.]

36                               On the other hand, in order for a judge to remain as far as possible sheltered from pressure and interference from all sources, he or she “should be removed from financial or business entanglement likely to affect or rather to seem to affect him in the exercise of his judicial functions” (S. Shetreet, “Judicial Independence:  New Conceptual Dimensions and Contemporary Challenges”, in Shetreet and Deschênes, op. cit., 590, at p. 599).

37                               The concept of independence accordingly refers essentially to the nature of the relationship between a court and others.  This relationship must be marked by a form of intellectual separation that allows the judge to render decisions based solely on the requirements of the law and justice.  The legal standards governing judicial independence, which are the sources governing the creation and protection of the independent status of judges and the courts, serve to institutionalize this separation.  Moreover, the Preamble to the Constitution Act, 1867  and s. 11( d )  of the Charter  give them a fundamental status by placing them at the highest level of the legal hierarchy.

38                               The general test for the presence or absence of independence consists in asking whether a reasonable person who is fully informed of all the circumstances would consider that a particular court enjoyed the necessary independent status (Valente, supra, at p. 689; Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369).  Emphasis is placed on the existence of an independent status, because not only does a court have to be truly independent but it must also be reasonably seen to be independent.  The independence of the judiciary is essential in maintaining the confidence of litigants in the administration of justice.  Without this confidence, the Canadian judicial system cannot truly claim any legitimacy or command the respect and acceptance that are essential to it.  In order for such confidence to be established and maintained, it is important that the independence of the court be openly “communicated” to the public.  Consequently, in order for independence in the constitutional sense to exist, a reasonable and well-informed person should not only conclude that there is independence in fact, but also find that the conditions are present to provide a reasonable perception of independence.  Only objective legal guarantees are capable of meeting this double requirement.

39                               As was explained in Valente, supra, at p. 687, and in the Provincial Court Judges Reference, supra, at paras. 118 et seq., the independence of a particular court includes an individual dimension and an institutional dimension.  The former relates especially to the person of the judge and involves his or her independence from any other entity, whereas the latter relates to the court to which the judge belongs and involves its independence from the executive and legislative branches of the government.  The rules relating to these dimensions result from somewhat different imperatives.  Individual independence relates to the purely adjudicative functions of judges — the independence of a court is necessary for a given dispute to be decided in a manner that is just and equitable — whereas institutional independence relates more to the status of the judiciary as an institution that is the guardian of the Constitution and thereby reflects a profound commitment to the constitutional theory of the separation of powers.  Nevertheless, in each of its dimensions, independence is designed to prevent any undue interference in the judicial decision-making process, which must be based solely on the requirements of law and justice.

40                               Within these two dimensions will be found the three essential characteristics of judicial independence set out in Valente, supra, namely financial security, security of tenure and administrative independence.  Together, these characteristics create the relationship of independence that must exist between a court and any other entity.  Their maintenance also contributes to the general perception of the court’s independence.  Moreover, these three characteristics must also be seen to be protected.  In short, the constitutional protection of judicial independence requires both the existence in fact of these essential characteristics and the maintenance of the perception that they exist.  Thus, each of them must be institutionalized through appropriate legal mechanisms.

41                               This being the case, it remains for me to determine whether the elimination of the office of supernumerary judge in the Provincial Court of New Brunswick violates judicial independence by breaching one or more of its essential characteristics in either of its dimensions.

(2)   Elimination of the Office of Supernumerary Judge and Judicial Independence

(a)  Security of Tenure

42                               In Valente, supra, at p. 695-96, it was found that in its individual dimension, the security of tenure provided for provincial court judges in Canada generally required that they may not be dismissed by the executive before the age of retirement except for misconduct or disability, following a judicial inquiry.  Similarly, in New Brunswick, s. 4.2 of the Provincial Court Act provides that a judge shall retire at the age of 75 and ss. 6.1 to 6.13 provide that a judicial inquiry shall be held in order to adjudicate on the merits of a recommendation that a judge be removed from office.

43                               It was stated further that, in order for the individual dimension of security of tenure to be constitutionally protected, it was sufficient that a judge could be removed from office only for a reason relating to his or her capacity to perform his or her judicial duties (Valente, supra, at p. 697).  Any arbitrary removal is accordingly prohibited.  In this context, s. 6 of the Provincial Court Act seems to create adequate protection for judges of the Provincial Court of New Brunswick by indicating that “a judge holds office during good behaviour and may be removed from office only for misconduct, neglect of duty or inability to perform his duties”.

44                               In the first place, therefore, it is necessary to determine whether the elimination of the office of supernumerary judge constituted an arbitrary removal of the respondent judges from office.  To this end, the nature of their office must be examined and defined on the basis of the relevant legislation.

45                               In order to find that there was a removal from office, the judges in the majority in the Court of Appeal relied first on the proposition that the functions of the supernumerary judge constituted a genuine separate judicial office, as opposed to a mere status.  Therefore, according to Ryan J.A., the characteristic of security of tenure would apply separately to this office and consequently, a supernumerary judge could not be removed from office otherwise than for a reason linked to his or her ability to perform the duties of that office and following a judicial inquiry.  Since the respondents had their offices as supernumerary judges abolished by legislation with no reason given that related to their ability to perform their duties and without any form of inquiry, not only was there a removal from office but this removal was arbitrary and unconstitutional in nature.

46                               With the greatest respect, it is my opinion that this reasoning is ill-founded to the extent that the interpretation of the relevant legislation as a whole does not support its essential premise.  In my judgment, there was simply no removal from the judicial office held by the respondent judges in this case.

47                               First, s. 1 of the Provincial Court Act defined “judge” as including both a judge and a supernumerary judge.  This means that, in electing to become a supernumerary, a judge nevertheless remained a judge of the Provincial Court.  This finding is supported by the fact that a judge did not previously have to retire in order to become supernumerary.  Rather, the judge decided to exercise his or her duties as a judge of the Provincial Court under different terms until he or she retired.  Finally, it must be borne in mind that s. 9(1) of Bill 7 gave the supernumerary judges the possibility of resuming their duties full time.  Obviously, therefore, there simply was no separate office linked to the position of supernumerary judge.  Essentially, this position merely involved a reorganization of the workload of a judge of the Provincial Court.  Consequently, there never was a real removal from office in this case and Judges Mackin and Rice at all times retained their security of tenure as judges of the Provincial Court.

48                               Moreover, it was suggested that the possibility of sitting as a supernumerary judge was an integral part of the office of Provincial Court judge so that the elimination of this position could affect its integrity.  The security of tenure of all provincial judges appointed before Bill 7 came into force would therefore have been infringed since the conditions applying to their office would have been fundamentally altered.  Here again, I cannot accept such an argument.  It seems to me to be a clear exaggeration to suggest that the possibility that a judge of the Provincial Court can sit as a supernumerary is an integral part of his main office and that the elimination of this possibility is therefore equivalent to removal from office.  As I noted earlier, I view the definition of the duties of a supernumerary judge as pertaining to the office of a judge of the Provincial Court and not to a separate judicial office.  The question as to whether, in certain circumstances, the conditions applying to a particular judicial office can be changed to the point where they are equivalent to a removal from office does not therefore arise in this case.

49                               Finally, it was argued that the elimination of the position of supernumerary judge was contrary to security of tenure in that a judge able to perform 40 percent of the usual duties but unable to work full time could be forced to take early retirement.  In my opinion, such a possibility should be classified as an inability to perform the duties of a Provincial Court judge rather than as a removal of that judge from office.  Security of tenure within the meaning of the Constitution is therefore not affected.  In short, the elimination of the duties of supernumerary judges affects first and foremost the definition of the duties of Provincial Court judges and must accordingly be treated as a question relating to the protection of financial security rather than security of tenure.

(b)  Financial Security

(i)  Overview

50                               In Valente, supra, only the individual dimension of financial security was considered in connection with the determination of salaries by the executive branch.  It was determined at that time that the constitutional requirements in this regard were limited to ensuring that the judges’ salaries were provided for by law and that the executive could not arbitrarily encroach upon this right in a manner that affected the independence of the courts.  In Beauregard v. Canada, [1986] 2 S.C.R. 56, it was confirmed that this obligation also applied to the legislative branch.

51                               In the Provincial Court Judges Reference, supra, at para. 121, it was clearly indicated that the financial security of provincial court judges also had an institutional dimension, shaping the relationships between the judiciary, on the one hand, and the executive and legislative branches, on the other.

52                               Although it is a creation of the legislature, the provincial judiciary has important constitutional functions to perform, especially in terms of what it may do:  ensure respect for the primacy of the Constitution under s. 52  of the Constitution Act, 1982 ; provide relief for violations of the Charter  under s. 24; apply ss. 2  and 7  to 14  of the Charter ; ensure compliance with the division of powers within Confederation under ss. 91  and 92  of the Constitution Act, 1867 ; and render decisions concerning the rights of the aboriginal peoples protected by s. 35(1)  of the Constitution Act, 1982 .  In short, given the position occupied by the provincial courts within the Canadian legal system, the Constitution requires them to remain financially independent of the other political branches (Provincial Court Judges Reference, supra, at paras. 124-30).

53                               We are here dealing with a situation in which the New Brunswick legislature decided to make changes in the organization of its judiciary by means of a statute applying to all the judges of the Provincial Court.  Such an exercise of power affects interactions of a purely institutional nature between the legislative and judicial branches and is accordingly likely to be subject to the requirements of the institutional dimension of financial security.  A violation of the institutional aspect of financial security will, furthermore, have a concrete impact on the financial security of all judges of the Provincial Court.

54                               As was stated in Provincial Court Judges Reference, supra, at para. 131, each of the elements of financial independence at the institutional level results from the constitutional imperative that, as far as possible, the relationship between the judiciary and the other two branches of government should be depoliticized.  This imperative makes it necessary for the judiciary to be protected against political interference from the other branches through financial manipulation and for it to be seen to be so protected.  Furthermore, one must ensure that it does not become involved in political debates concerning the remuneration of persons paid out of public funds.  In fact, the judge’s role as a constitutional adjudicator requires that it be isolated therefrom and be seen to be so.

55                               On the other hand, one must seek to enhance the impartiality of judges as well as the perception of such impartiality by minimizing their involvement in questions concerning their own remuneration while preventing the other branches of government from using their control of public funds in order to interfere with their adjudicative independence.

56                               In the Provincial Court Judges Reference, supra, at paras. 133-35, three elements or principles were found to be essential to the institutional dimension of financial security.

57                               First, the salaries of provincial court judges may generally be reduced, increased or frozen but in order to do this, governments must resort to a body (usually called a “salary commission”) that is independent, effective and objective, and that will make recommendations.  The provincial governments have a constitutional duty to make use of this process.  The existence of such a body makes it possible for the legislative or executive branch to determine the level of remuneration while allaying the possibility of interference by way of financial manipulation or the perception that such a possibility of interference exists.  The recommendations of this commission are not binding on the executive or the legislature.  However, they may not be ignored lightly.  If a decision is made to ignore them, the decision must be justified, if necessary, in a court of law on the basis of a simple rationality test.  Such a process accordingly promotes the impartiality of the judiciary and its appearance by ensuring that the financial security of judges will not be at the mercy of political meddling.

58                               Further, any negotiation — in the sense of trade-offs — concerning the salaries of the judges between a member or representative of the judiciary, on the one hand, and a member or representative of the executive or legislative branch, on the other hand, is prohibited.  Such negotiations are fundamentally inconsistent with the independence of the judiciary.  First, they are inevitably political as a result of the intrinsic nature of the question of salaries paid from the public purse.  Second, the holding of such negotiations would undermine the perception of the independence of the judiciary since the jurisdiction of the provincial courts entails that the government is frequently a party to disputes before those courts and salary negotiations are likely to give rise to certain obvious fears concerning the independence of the judiciary arising from the attitude of the parties to these negotiations.

59                               Finally, reductions in the salaries of judges must not result in lowering these below the minimum required by the office of judge.  Public trust in the independence of the judiciary would be weakened if the salaries paid to judges were so low that they led people to think that the judges were vulnerable to political or other pressures through financial manipulation.  In order to counter the possibility that government inaction could function as a means of financial manipulation because the salaries of judges in constant dollars would be allowed to decline as a result of inflation and also to counter the possibility that these salaries would fall below the minimum required to ensure the independence of the judiciary, the salary commission must convene when a specified period has passed since its last report was submitted in order to examine the adequacy of the judges’ salaries in light of the cost of living and other relevant factors.

60                               Thus, the need to ensure that the process is depoliticized imposes negative and positive obligations on the legislative and executive branches because not only must they refrain from using their financial powers to influence judges in the performance of their duties, but they must also actively protect the independence of the judiciary by enacting appropriate legislative and institutional instruments.

61                               The Provincial Court Judges Reference, supra, at para. 136, also indicates that these principles apply to the pensions and other benefits given to judges.  Hence, any measure taken by government that affects any aspect of the remuneration conditions of judges will automatically trigger the application of the principles relating to the institutional dimension of financial security.

62                               It is now necessary to examine whether the functions of supernumerary judges and their abolition have an impact on the financial security of judges of the Provincial Court.

(ii)  Application to the Instant Case

1.    Does the Elimination of the Office of Supernumerary Judge Violate the Financial Security of the Judges of the Provincial Court?

63                               It appears that when it was created, the office of supernumerary judge was thought to provide a certain flexibility within the organization of the provincial judicial system.  On the other hand, it enabled the government to benefit from the expertise of experienced judges while paying only the difference between a full salary and the pension that would in any event have been paid to a judge who had elected to retire.  Hence, the conditions of eligibility for the office of supernumerary judge have always accurately reflected those of eligibility for a retirement pension.  Moreover, these duties have already been described as creating a “useful bridge towards retirement” (M. L. Friedland, A Place Apart:  Judicial Independence and Accountability in Canada (1995), at p. 46 (emphasis added)).

64                               For a judge of the Provincial Court of New Brunswick who had met certain conditions of age and seniority, the possibility of becoming a supernumerary judge was added to those of retiring and receiving a pension, on the one hand, and continuing to sit full time, on the other hand.  Clearly, the only way to make such a position attractive was to offer conditions that were more advantageous than those linked to retirement or full-time duties.

65                               Normally, a judge of the Provincial Court of New Brunswick who became a supernumerary judge enjoyed a substantial reduction in his or her workload while receiving a full salary.  However, the Provincial Court Act was silent concerning the relative size of this reduction and, in s. 4.1(5), merely left this decision to the Chief Judge of the Court.  In theory, therefore, this reduction could have been minimal or even non-existent.  That was, in fact, what happened in the case of Judge Rice, who had to sit full time despite his supernumerary status because of the shortage of judges.  However, if such a practice had been widespread, it would almost certainly have eliminated access to the office of supernumerary judge as a reasonable choice for a judge who met the conditions of eligibility.  The government of New Brunswick would then have been deprived of the benefits of flexibility and expertise contemplated when it created this office.  Consequently, I do not believe that it is possible to examine the nature of the office of supernumerary judge on the basis of such an abstract reading of s. 4.1(5) of the Act that we end up completely ignoring the factual and legal contexts in which this provision was enacted.  Moreover, by its very wording, which indicates that a supernumerary judge “shall be available to perform such judicial duties as may be assigned to the judge from time to time by the chief judge or associate chief judge” (emphasis added), the Act appears to suggest a reduced workload.

66                               In my opinion, therefore, it is necessary to take into account the uncontradicted evidence showing that it was understood by everyone that a supernumerary judge had to perform approximately 40 percent of the usual workload of a judge of the Provincial Court.  The retirement pension received by a judge of the Provincial Court was equivalent to 60 percent of the full salary.  The reasoning behind this understanding was accordingly that it was logical for a judge who was eligible for a pension equivalent to 60 percent of his or her full salary to be given an opportunity to perform 40 percent of his or her former duties in return for a full salary.

67                               In light of what has been said above, it is my view that the system of supernumerary judges constituted an undeniable economic benefit for all the judges of the Provincial Court appointed before Bill 7 came into force and for eventual  candidates for the position of judge in the court.  In other words, this type of benefit was certainly taken into consideration both by sitting judges and by candidates for the office of judge in planning their economic and financial affairs.  Thus, it seems to me to be wrong to suggest that the abolition of the office of supernumerary judge did not violate the collective dimension of the financial security of the Provincial Court of New Brunswick.  At the very least, this office provided a right to a potential benefit of a reduced workload, the extent of which was established by the Chief Judge, that is by judicial authority independent of the Executive or other government authority.  Its abolition constituted a change in the conditions of office which were advantageous to the judges by denying them the option of being eligible for a less demanding workload to be determined in a manner respectful of the institutional independence of the court.  This benefit was likely to be substantial, impacting the quality and style of life of judges in their latter years.  The issue here is not whether this benefit is a sufficient guarantee of financial security or judicial independence, as was the issue in Valente to which my colleague Binnie J. refers, but whether the supernumerary status provided a substantial benefit pertaining to financial security likely to give rise to negotiation and politicization. 

68                               In my opinion, there is no distinction in principle between a straight salary cut and the elimination of offices that offer a clear economic benefit.  Both give rise to the political aspects mentioned in the Provincial Court Judges Reference, supra, that is to say they raise controversial questions of public policy and resource allocation and raise the possibility of interference by the other branches of government in the independence of the judiciary by means of financial manipulation.  Indeed, as my colleague Binnie J. states, supernumerary status was adopted in New Brunswick after lengthy discussions between the government and the Provincial Court judges.  Thus, the elimination of the office of supernumerary judge violates the institutional dimension of the financial security of judges of the Provincial Court of New Brunswick.  A similar conclusion was drawn, moreover, by Parrett J. in British Columbia (Provincial Court Judge) v. British Columbia (1997), 40 B.C.L.R. (3d) 289 (S.C.), at pp. 314-15.

69                               In short, I consider that the opinion stated by this Court in the Provincial Court Judges Reference, supra, requires that any change made to the remuneration conditions of judges at any given time must necessarily pass through the institutional filter of an independent, effective and objective body so that the relationship between the judiciary, on the one hand, and the executive and legislative branches, on the other, remain depoliticized as far as possible.  That is a structural requirement of the Canadian Constitution resulting from the separation of powers and the rule of law.  By failing to refer the question of the elimination of the office of supernumerary judge to such a body, the government of New Brunswick breached this fundamental duty.  The lack of a grandfather clause in favour of the supernumerary judges in office and the judges of the Provincial Court appointed before Bill 7 came into force also aggravates this initial violation.  Consequently, Bill 7 must be declared invalid.

70                               However, the foregoing reasoning must not be interpreted as negating or ossifying the exercise by the provinces of their legislative jurisdiction under s. 92(14)  of the Constitution Act, 1867 .  While the provincial legislative assemblies have exclusive jurisdiction over “[t]he Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction”, that jurisdiction must nevertheless be exercised in accordance with the structural principles of the Canadian Constitution, including the independence of the judiciary.  In other words, the New Brunswick government was pursuing a perfectly legitimate purpose in trying to make certain changes to the organization of its judiciary for reasons of efficiency, flexibility and cost savings.  In light of the impact of the elimination of the position of supernumerary judge on the financial security of Provincial Court judges, it should however have exercised its legislative jurisdiction while complying with the process of review by an independent, effective and objective body prescribed by the Constitution.

2.    Justification and Section 1  of the Charter 

71                               As I indicated at the beginning of my analysis, judicial independence is protected by both the Preamble to the Constitution Act, 1867  and s. 11( d )  of the Charter .  Thus, not only is it a right enjoyed by a party subject to the threat of criminal proceedings but it is also a fundamental element underlying the very operations of the administration of justice.  In other words, judicial independence functions as a prerequisite for giving effect to a litigant’s rights including the fundamental rights guaranteed in the Charter .

72                               Given the vital role played by judicial independence within the Canadian constitutional structure, the standard application of s. 1  of the Charter  could not alone justify an infringement of that independence.  A more demanding onus lies on the government.  Thus, in the Provincial Court Judges Reference, supra, at para. 137, it was indicated that the elements of the institutional dimension of financial security did not have to be followed in cases of dire and exceptional financial emergencies caused by extraordinary circumstances such as the outbreak of war or imminent bankruptcy.  In this case, it is clear that such circumstances did not exist in New Brunswick at the time when Bill 7 was passed.  Moreover, no arguments were made by the appellant in this regard.

73                               Since it had been decided in the Provincial Court Judges Reference, supra,  to resolve the questions in dispute solely on the basis of s. 11( d )  of the Charter , the question as to whether the violation of this provision could be justified under s. 1 was examined (paras. 277 et seq.).  In this process, it was stated:  (i) that the government had to adduce evidence to justify the violation; and (ii) that it was the fact that the independent, effective and objective process had been circumvented that had to be justified and not the content of the government measures.  Although in my opinion a s. 1 analysis alone is not adequate to resolve the question as to whether the violation is justified, these principles remain applicable to the more demanding analysis required by the fundamental nature of judicial independence.  In this case, the appellant did not adduce any evidence tending to show that its constitutional shortcomings were justified.  Furthermore, in my judgment, the lack of a grandfather clause in Bill 7 aggravates the violation of judicial independence.

3.  Appropriate Relief

74                               Some of the interveners suggested that the appellant did not breach its constitutional obligations set out in the Provincial Court Judges Reference, supra, simply because under the directives issued by this Court on the rehearing in Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1998] 1 S.C.R. 3, these obligations did not acquire their full effect until September 18, 1998 while Bill 7 came into force on April 1, 1995.

75                               It is true that in order to ensure continuity in the proper administration of justice, the Court decided in the rehearing of the Provincial Court Judges Reference, to suspend all aspects of the requirement relating to the judges’ salary commission, including any reimbursement for past salary reductions for one year following the date of the judgment in the first reference (para. 18).  This order was designed to permit the courts whose independence was at issue to function nevertheless, while the governments proceeded to establish and implement the process of review by a commission required by the first Provincial Court Judges Reference.  According to the order, the requirement relating to the judges’ salary commission applied for the future, effective September 18, 1998.  Lamer C.J. added at para. 20:

I note that the prospectiveness of the judicial compensation requirement does not change the retroactivity of the declarations of invalidity made in this case. . . .  In the rare cases in which this Court makes a prospective ruling, it has always allowed the party bringing the case to take advantage of the finding of unconstitutionality. [Emphasis added.]

76                               A similar solution is appropriate in this case.  The respondents instituted their legal proceedings before the Provincial Court of Judges Reference, supra, was rendered.  An injustice would be perpetuated if they were not allowed to take advantage of the finding of unconstitutionality in the same way as the parties to the  Provincial Court Judges Reference, supra, solely on the basis of this sequence of events.  As I indicated in the preceding paragraph, the suspension of the requirement for a commission was ordered solely on the basis of necessity, in order to permit the provincial courts to operate in the meantime in the absence of the required level of independence.  However, it was certainly not a case of a blanket suspension of the constitutional obligations explained in the Provincial Court Judges Reference, supra (see Newfoundland Assn. of Provincial Court Judges v. Newfoundland (2000), 191 D.L.R. (4th) 225 (Nfld. C.A.), at pp. 266-80 (per Green J.A.)).  Also, in all fairness, I consider that the declaration of invalidity must benefit the respondents who are, for all practical purposes, in the same position as the successful parties in the Provincial Court Judges Reference, supra.

77                               Moreover, this declaration applies to both the elimination of the office of supernumerary judge and its replacement by a new panel of part-time judges paid on a per diem basis since it is impossible for all practical purposes to dissociate both these aspects of Bill 7 (Schachter v. Canada, [1992] 2 S.C.R. 679, at pp. 710-11; Attorney‑General for Alberta v. Attorney-General for Canada, [1947] A.C. 503 (P.C.), at p. 518).  However, in order to fill the legal vacuum that would be created by a simple declaration of invalidity, the declaration will initially be suspended erga omnes for a period of six months to allow the government of New Brunswick to provide a solution that meets its constitutional obligations (Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721).  However, it is not appropriate for this Court to dictate the approach that should be taken in order to rectify the situation.  Since there is more than one way to do so, it is the government’s task to determine which approach it prefers.  It is also the responsibility of the government to decide whether the existing judges’ salary commission established by ss. 22.01 et seq. of the Provincial Court Act may validly consider the question of the abolition of the office of supernumerary judge.

B.  Other Questions

(1)   Damages

78                               According to a general rule of public law, absent conduct that is clearly wrong, in bad faith or an abuse of power, the courts will not award damages for the harm suffered as a result of the mere enactment or application of a law that is subsequently declared to be unconstitutional (Welbridge Holdings Ltd. v. Greater Winnipeg, [1971] S.C.R. 957; Central Canada Potash Co. v. Government of Saskatchewan, [1979] 1 S.C.R. 42).  In other words “[i]nvalidity of governmental action, without more, clearly should not be a basis for liability for harm caused by the action” (K. C. Davis, Administrative Law Treatise (1958), vol. 3, at p. 487).  In the legal sense, therefore, both public officials and legislative bodies enjoy limited immunity against actions in civil liability based on the fact that a legislative instrument is invalid.  With respect to the possibility that a legislative assembly will be held liable for enacting a statute that is subsequently declared unconstitutional, R. Dussault and L. Borgeat confirmed in their Administrative Law:  A Treatise (2nd ed. 1990), vol. 5, at p. 177, that:

In our parliamentary system of government, Parliament or a legislature of a province cannot be held liable for anything it does in exercising its legislative powers.  The law is the source of duty, as much for citizens as for the Administration, and while a wrong and damaging failure to respect the law may for anyone raise a liability, it is hard to imagine that either Parliament or a legislature can as the lawmaker be held accountable for harm caused to an individual following the enactment of legislation.  [Footnotes omitted.]

79                               However, as I stated in Guimond v. Quebec (Attorney General), supra,  since the adoption of the Charter , a plaintiff is no longer restricted to an action in damages based on the general law of civil liability.  In theory, a plaintiff could seek compensatory and punitive damages by way of “appropriate and just” remedy under s. 24(1)  of the Charter .  The limited immunity given to government is specifically a means of creating a balance between the protection of constitutional rights and the need for effective government.  In other words, this doctrine makes it possible to determine whether a remedy is appropriate and just in the circumstances.  Consequently, the reasons that inform the general principle of public law are also relevant in a Charter  context.  Thus, the government and its representatives are required to exercise their powers in good faith and to respect the “established and indisputable” laws that define the constitutional rights of individuals.  However, if they act in good faith and without abusing their power under prevailing law and only subsequently are their acts found to be unconstitutional, they will not be liable.  Otherwise, the effectiveness and efficiency of government action would be excessively constrained.  Laws must be given their full force and effect as long as they are not declared invalid.  Thus it is only in the event of conduct that is clearly wrong, in bad faith or an abuse of power that damages may be awarded (Crown Trust Co. v. The Queen in Right of Ontario (1986), 26 D.L.R. (4th) 41 (Ont. Div. Ct.)).

80                               Thus, it is against this backdrop that we must read the following comments made by Lamer C.J. in Schachter, supra, at p. 720:

An individual remedy under s. 24(1)  of the Charter  will rarely be available in conjunction with an action under s. 52  of the Constitution Act, 1982 .  Ordinarily, where a provision is declared unconstitutional and immediately struck down pursuant to s. 52, that will be the end of the matter.  No retroactive s. 24 remedy will be available.  [Emphasis added.]

81                               In short, although it cannot be asserted that damages may never be obtained following a declaration of unconstitutionality, it is true that, as a rule, an action for damages brought under s. 24(1)  of the Charter  cannot be combined with an action for a declaration of invalidity based on s. 52  of the Constitution Act, 1982 .

82                               Applying these principles to the situation before us, it is clear that the respondents are not entitled to damages merely because the enactment of Bill 7 was unconstitutional.  On the other hand, I do not find any evidence that might suggest that the government of New Brunswick acted negligently, in bad faith or by abusing its powers.  Its knowledge of the unconstitutionality of eliminating the office of supernumerary judge has never been established.  On the contrary, Bill 7 came into force on April 1, 1995, more than two years before this Court expressed its opinion in the Provincial Court Judges Reference, supra, which, it must be recognized, substantially altered the situation in terms of the institutional independence of the judiciary.  Consequently, it may not reasonably be suggested that the government of New Brunswick displayed negligence, bad faith or wilful blindness with respect to its constitutional obligations at that time.

83                               Furthermore, I cannot accept the statement of Ryan J.A. of the Court of Appeal that the failure of the Minister of Justice to keep his promise to refer Bill 7 to the Law Amendments Committee was an instance of bad faith that justified the awards of damages.  Even if admitted to be true, such evidence is far from establishing a negligent or unreasonable attitude on the part of government.  In fact, it has no probative value as to whether, in the circumstances, the legislation was enacted wrongly, for ulterior motives or with knowledge of its unconstitutionality.

84                               The claim of the respondent judges for damages is accordingly dismissed.

(2)  Costs

85                               Although the appeal is allowed in part, the fact remains that the respondents are successful on the principal issue, namely the constitutional invalidity of the legislation in question.  I would accordingly award their costs throughout.

86                               At trial, the respondents were awarded party-and-party costs.  In the Court of Appeal, this decision was reversed and it was decided that the government’s conduct justified the award of solicitor-client costs.  It is established that the question of costs is left to the discretion of the trial judge.  The general rule in this regard is that solicitor-client costs are awarded only on very rare occasions, for example when a party has displayed reprehensible, scandalous or outrageous conduct (Young v. Young, [1993] 4 S.C.R. 3, at p. 134).  Reasons of public interest may also justify the making of such an order (Friends of the Oldman River Society v. Canada (Minister of  Transport), [1992] 1 S.C.R. 3, at p. 80).

87                               Although judicial independence is a noble cause that deserves to be firmly defended, it is not appropriate in my opinion to grant such a form of costs to the respondents in this case.  I would accordingly award them their costs on a party-and-party basis.

VII.  Disposition

88                               The appeal is allowed in part.  The Act to Amend the Provincial Court Act (Bill 7) is declared unconstitutional because it violates the institutional guarantees of judicial independence contained in s. 11( d )  of the Charter  and the Preamble to the Constitution Act, 1867 .  Except with respect to the respondents, however, this declaration of unconstitutionality is suspended for a period of six months from the date of this judgment^* to allow the government of New Brunswick to rectify the situation in accordance with its constitutional obligations as described in this decision and in the  Provincial Court Judges Reference, supra.  Accordingly, the constitutional questions are answered as follows:

Answer to question 1: Yes, with respect to financial security.

Answer to question 2: Yes.

Answer to question 3: No.

89                               The respondents’ claim for damages is dismissed.

90                               However, since the respondents were successful on the main issue, they are entitled to their costs throughout.

The reasons of Binnie and LeBel JJ. were delivered by

91                               Binnie J. (dissenting) — I have had the benefit of reading the reasons of my colleague Gonthier J.  I agree with his statement of the broad principles of judicial independence but, with respect, I do not agree that supernumerary status as defined in the New Brunswick Provincial Court Act, R.S.N.B. 1973, c. P-21, constituted an economic benefit protected by the Constitution.  The respondents’ expectation that they would work only 40 percent of the time for 100 percent of the pay of a full-time judge was neither spelled out in the Act nor otherwise put in a legally enforceable form.

92                               My colleague notes “the uncontradicted evidence showing that it was understood by everyone that a supernumerary judge had to perform approximately 40 percent of the usual workload of a judge of the Provincial Court” (para. 66 (emphasis added)).  I do not doubt it.  It seems clear that it was thus understood by both judges and government officials.  The question, however, is whether the doctrine of judicial independence protects “understandings” about specific financial benefits that are pointedly not written into the governing legislation.

93                               My colleague says that judicial independence must be protected by “objective legal guarantees” (para. 38).  I agree.  What we have here, however, is neither objective nor a guarantee.  As my colleague notes (para. 65) the repealed provision of the New Brunswick Provincial Court Act defined the workload of a supernumerary judge only in terms of being “available to perform such judicial duties as may be assigned to the judge from time to time by the chief judge or associate chief judge” (s. 4.1(5)).  The problem is not simply that the extent of the discretionary benefit was not specified in the Act.  The more fundamental problem is that, as I read it, the legislation guaranteed no benefit at all.

94                               We are not dealing here with the broad unwritten principles of the Constitution.  There is no general constitutional entitlement for judges to work 40 percent of the time for a 100 percent salary.  What is at issue is the claim to a particular supernumerary benefit said to be voluntarily conferred by the legislature in the 1988 Act, and thereafter unconstitutionally withdrawn in 1995.  The argument is that once conferred, a benefit becomes wrapped in constitutional protection and beyond legislative recall except in accordance with the independent, objective and effective procedure mandated by the Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3 (“Provincial Court Judges Reference”).

95                               In this case, however, the New Brunswick legislature refused to make a reduced workload commitment in framing the supernumerary provisions of the 1988 amendments.  (No one argues that such refusal was itself contrary to unwritten constitutional guarantees.)  The omission of any guarantee of a reduced workload in the original 1988 amendments was plain for all to see from the outset.  The legislature thereafter refused to make sufficient funds available to fund a number of new judicial appointments to permit the supernumerary scheme to work as the judges had anticipated.  The budget allocation fell well short of the earlier expectations raised by government officials, but it was consistent with the legislature’s refusal throughout to provide any sort of a legislated guarantee of a reduced workload.  The result was that, while a judge on supernumerary status was required by law to do whatever judicial duties were assigned by the Chief Judge, the Chief Judge was prevented by a shortage of judges from giving effect in most cases to the expectations of the judges who elected supernumerary status.

96                               As the Provincial Court judges were given no guarantee in the Act, it follows that the anticipated reduced workload attaching to supernumerary status contended for by the respondents formed no part of the constitutional guarantee of judicial independence of the court of which they were members.  The repeal of a potential benefit voluntarily conferred by the legislature, that was wholly discretionary as to whether in practice it produced any benefit at all, could not and in my view did not undermine their institutional independence.  I would therefore allow the appeal.

Facts

97                               Supernumerary status was introduced in New Brunswick by the 1987 amendments to the Act, which came into force January 1, 1988.  From then until its repeal seven years later, six Provincial Court judges elected supernumerary status.  Their varied work histories illustrate the basic flaw in the respondents’ legal argument, namely the absence of any guaranteed benefit — let alone a 40 percent workload benefit — attaching to supernumerary status under the legislative scheme.

98                               The respondent, Judge Douglas Rice, elected supernumerary status on April 30, 1993 after more than 21 years on the bench.  His workload was not reduced to 40 percent of what it had been.  It seems not to have been reduced significantly between 1993 and his eventual retirement.

99                               In the companion case the respondent, Judge Ian Mackin elected to become supernumerary on August 15, 1988 after 25 years on the bench.  In the initial period his workload did not reduce appreciably either but thereafter he eased off, travelled extensively, and for at least five years prior to 1995 was able to winter for six months or so in Australia while drawing 100 percent of the salary of a Provincial Court judge on regular status.

100                           Judge James D. Harper, one of the other judges who elected supernumerary status continued, like Judge Rice, more or less at full throttle.  Some of the supernumerary judges he thought did “little or no work”, i.e., much less than a 40 percent workload.  Others he thought worked “very hard indeed”.  On November 7, 1994 Judge Harper wrote to Chief Judge Hazen Strange:

Naturally, I have been well aware that many of the supernumeraries had not been pulling their weight and were receiving full pay for little or no work.  As you well know, however, there are at least two such Judges who work very hard indeed. 

101                           The uneven workload was caused by many factors, including both the receptiveness and/or professionalism of supernumerary judges and, more importantly, the severe resource constraints confronting the Provincial Court as a whole.  There were only six supernumerary judges and, as stated, the government failed  to appoint judges to replace at least two of them, namely Judge Rice and Judge Harper.  As the Chief Judge explained in his testimony:

A.   The most difficult administrative responsibility and the one that took the most time was assigning judges around the Province.  At some stages we had more courts sitting on a given day, almost, than we had judges, and we had a number of satellite courts — I think at one stage 21 — I think we had at one stage 24 permanent courts and we only had something like 23 judges.  So the most difficult part of my job, really, was to assign judges to courts so that they wouldn’t go empty.

Q.   Okay.

A.   And that was true for ten years.

102                           The administrative troubles of the Chief Judge did not end on March 3, 1995, when royal assent was given to An Act to Amend the Provincial Court Act, S.N.B. 1995, c. 6 repealing the provisions permitting supernumerary status.  By law, each of the six incumbent judges on supernumerary status was required to elect by April 1, 1995 whether to retire or to work full-time as a member of the court.  Each of them did so except the respondent Judge Mackin who refused to elect one way or the other, apparently taking the view that to make an election would be to give the 1995 repeal undeserved credibility.  In his view the repeal was unlawful, and on April 25, 1995, he gave notice to the Crown of his intention to challenge in court its constitutionality.

103                           The following day, April 26, 1995, without waiting for his constitutional challenge to proceed, Judge Mackin entered a courtroom that was not in session in the provincial courthouse at Moncton and in the presence of a couple of Crown attorneys and other members of the bar declared that he would no longer “sit, hear and decide cases under the duress of these amendments”.

104                           By letter dated May 17, 1995 he was ordered back to work by his Chief Judge.  Judge Mackin declined to comply.  In his view he could no longer be considered “independent” within the meaning of s. 11( d )  of the Canadian Charter of Rights and Freedoms . 

105                           On June 16, 1995 Judge Mackin’s application for an injunction to restrain the Chief Judge from “assigning, designating or otherwise requiring [him] to perform Judicial . . . duties” was dismissed by Russell J. of the Court of Queen’s Bench.

106                           The Chief Judge took the view that Judge Mackin’s constitutional objection had been overruled by a superior court, and that public confidence in the judiciary would suffer unless Judge Mackin accepted that legal result unless and until it was overturned by a higher court.  Thus, on July 19, 1995, although he appeared to share Judge Mackin’s view of the invalidity of the legislation repealing supernumerary status, the Chief Judge wrote to Judge Mackin to say “I believe you have had sufficient time to study the decision by Justice RUSSELL”.  He then reiterated his insistence that Judge Mackin return to work.  Judge Mackin’s response was to declare himself on sick leave.  This was eventually supported by a one-sentence “report” from a Dr. Paul Doucet dated August 2, 1995 advising that Judge Mackin would not be returning to work  for “an undetermined period of time because of medical reasons”.  When asked by the Chief Judge for an explanation from Dr. Doucet of the “medical reasons”, Judge Mackin had his lawyers respond that it was “entirely possible” that the Chief Judge’s request for an explanation was in contravention of the provincial Human Rights Act.  The legal basis for such a curious suggestion was not disclosed.

107                           Eventually a pattern developed whereby Judge Mackin, when he worked at all, would go into court and frequently either adjourn matters for lengthy periods of time or enter a stay of proceedings.  As Chief Judge Strange testified:

What was happening — there was one case, particularly — it was a rather terrible one where the alleged victim was a young person, a sexual assault — that was just put over for a month or two or three or four.  Witnesses were showing up; the Crown was bringing witnesses in, sometimes from far away, sometimes from right there.  It would just be adjourned, adjourned, adjourned, and it was making a farce of the situation; it wasn’t fair to the accused; it wasn’t fair to the prosecutors; it wasn’t fair to the witnesses, and simply nothing was going ahead in his court . . . .

108                           On November 14, 1995, the Chief Judge obtained from the Court of Queen’s Bench a mandamus order requiring Judge Mackin “to hold sittings at the places and on the days designated by the Chief Judge of the Provincial Court of New Brunswick and to hear and determine cases properly brought before him during such sittings”.  Judge Mackin’s appeal from this order was dismissed (with a variation in costs) on April 12, 1996.

109                           In the meantime Judge Mackin had continued with his policy of granting a stay of proceedings to any accused who requested it.  This had the effect of preventing the further prosecution of some quite serious criminal charges.  In R. v. McCully on February 13, 1996, for example, the following exchange took place in Judge Mackin’s court:

[Crown Attorney]:  . . . I wish the record to indicate clearly that the Crown was prepared to proceed.  Our witnesses, who are present, we had nothing to give notice of any motion [i.e. for a stay of proceedings].

Court:  Yeah, so the — this case is stayed due to the non-structural independence of the Provincial Court.

[Crown Attorney]:  Might I presume, Your Honour, that in all cases in which you’re going to be sitting, you’ll be staying proceedings?

Court:  If anybody requests it.

[Crown Attorney]:  As long as someone makes the request?

Court:  Yeah.

[Crown Attorney]:  Okay.

Court:  Well, that’s my decision. 

110                           As regularly as Judge Mackin granted a stay of proceedings in these cases his decision was reversed by the New Brunswick Court of Appeal.  On June 26, 1996 it reversed Judge Mackin in R. v. Woods (1996), 179 N.B.R. (2d) 153.  On February 12, 1997 he was again corrected in R. v. Lapointe, [1997] N.B.J. No. 57 (QL) (C.A.).  On June 23, 1997 the Court of Appeal had to repeat again its disapproval of the entry of a stay of proceedings in similar circumstances in R. v. Leblanc (1997), 190 N.B.R. (2d) 70.

111                           On April 10, 1996, the New Brunswick Minister of Justice complained about Judge Mackin’s conduct to the Judicial Council of New Brunswick.  About a week later, on April 19, 1996, Judge Mackin retaliated with a letter to the provincial Solicitor General requesting that contempt proceedings be brought against the provincial Minister of Justice.  The province eventually rejected Judge Mackin’s demand based on an opinion from the Deputy Attorney General of Alberta.

112                           On June 5, 1996 the Judicial Council took the view that it ought not to take action in Judge Mackin’s case until the various court proceedings had been “finally dealt with” and concluded that “the present complaint is premature”.

113                           Those who were required to appear in Judge Mackin’s court bore the brunt of the difficulties.  A number of extracts from the testimony of Chief Judge Strange (who, as stated, continued to express support for the constitutional challenge itself) gives the flavour of the situation in which members of the public found themselves:

This was causing a terrible situation.  We had witnesses showing up, sometimes on relatively serious matters, sometimes from a great distance, and lawyers showing up, prosecutors showing up and so on, and matters were simply being stayed or more likely adjourned over to a lengthy date.  And it was reaching the stage where it was simply upsetting the whole court system down there.

                                                                   . . .

[Judge Mackin’s] going to the courtroom and he’s adjourning cases in 90 percent of the time.  I was getting calls constantly that he wouldn’t do any cases.  He would adjourn them, adjourn them, and this has continued right up until – well, as recently I know is last December [1997] when there were 112 charges adjourned to one afternoon on December 15th.  I mean that was not conducive to putting cases properly through the court and it was not conducive to treating people properly. 

114                           In these circumstances, the Chief Judge and his colleagues ultimately decided not to ask Judge Mackin to take on cases of any importance, as the Chief Judge explained in evidence:

I didn’t want, as Chief Judge, any big cases where victims would be humbled or hurt or witnesses would show up and be sent home.  I didn’t want anything like that going in there.  We’d had enough of that and it was wrong.

115                           The respondent Judge Douglas Rice carried his full work load through to the date of his retirement on October 15, 1997.  No replacement judge was named until after his departure.  Judge Harper died in office.  No replacement judge was named until after his death.  The respondent Judge Ian Mackin reached mandatory retirement age on April 7, 2000.

Analysis

116                           Judicial independence is a cornerstone of constitutional government.  Financial security is one of the essential conditions of judicial independence.  Yet, unless these principles are interpreted in light of the public interests they were intended to serve, there is a danger that their application will wind up hurting rather than enhancing public confidence in the courts.

117                           In Valente v. The Queen, [1985] 2 S.C.R. 673, this Court made the fundamental point that the guarantee of judicial independence was for the benefit of the judged, not the judges.  Its purpose was not only to ensure that justice is done in individual cases, but to ensure public confidence in the court system as a whole.  Le Dain J. stated at p. 689:

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.

118                           A similar note was struck by Lamer C.J. in R. v. Lippé, [1991] 2 S.C.R. 114, at p. 139:

The overall objective of guaranteeing judicial independence is to ensure a reasonable perception of impartiality; judicial independence is but a “means” to this “end”.  If judges could be perceived as “impartial” without judicial “independence”, the requirement of “independence” would be unnecessary.  However, judicial independence is critical to the public’s perception of impartiality.  Independence is the cornerstone, a necessary prerequisite, for judicial impartiality.

It should be stated that neither Judge Rice nor Judge Mackin suggest that the 1995 repeal affected in any way their impartiality.  Nor, I think can the repeal be said to have undermined their individual independence because their full salary and security of tenure were not affected.  Their argument is that it undermined the institutional independence of the court of which they were members.

119                           In the Provincial Court Judges Reference, supra, Lamer C.J. returned to the need for a purposive interpretation of the guarantee of judicial independence at para. 156 where he adopted this proposition:

Financial security is an essential condition of judicial independence.  It must not, however, be considered abstractly.  It must be considered in relation to its purpose, which is, ultimately, to protect the judiciary from economic manipulation by the legislature or executive.

120                           Lamer C.J. emphasized the point again at para. 193:

I want to make it very clear that the guarantee of a minimum salary is not meant for the benefit of the judiciary.  Rather, financial security is a means to the end of judicial independence, and is therefore for the benefit of the public.  As Professor Friedland has put it, speaking as a concerned citizen, it is “for our sake, not for theirs”. . . .

121                           The solution mandated in the Provincial Court Judges Reference, supra, was to erect an institutional barrier (an “independent, effective and objective process”) between the legislature and executive on the one hand and the judiciary on the other to deal with matters related to the judges’ financial security.  The constitutional requirement was to “depoliticize” the relationship.  This appeal does not put in issue the merits of the solution.  It does put in issue the boundaries of what may fairly be described as matters related to the guarantee of financial security.

122                           The need for a purposive approach was acknowledged by the New Brunswick Court of Appeal in these cases, per Ryan J.A.:

The Re Provincial Court Judges case focused on the independence of the judiciary, a concept frequently misunderstood because its purpose is a protection to the public, not a benefit to judges.  [Emphasis added.]

((1999), 235 N.B.R. (2d) 1, at para. 25)

In light of the history of this litigation it would not be surprising if the witnesses and parties and members of the public in Judge Mackin’s court from 1995 onwards “misunderstood” the concept of judicial independence in so far as it is said to be for their benefit, and not for the benefit of the judges. 

123                           The legislature could have provided (but did not) that a supernumerary judge was obliged to work no more than 100 of the 251 court sitting days per year.  In that event, I would have agreed with my colleague Gonthier J. that legislative repeal of such a significant fixed benefit without a prior review by an independent, effective and objective process (such as a remuneration commission) would be unconstitutional.  Nothing in these reasons should be read as dissenting in any way from the process mandated in the Provincial Court Judges Reference to depoliticize the adjustment of judicial compensation.

124                           My disagreement with my colleague is therefore quite narrow, and proceeds in the following steps:

(i)                the essentials of judicial independence, including financial security, necessarily reside in objective and enforceable guarantees established in the governing law;

(ii)               Provincial Court judges on supernumerary status in New Brunswick were guaranteed a full-time salary.   The guarantee was honoured;

(iii)               Provincial Court judges on supernumerary status were guaranteed security of tenure.  The guarantee was honoured;

(iv)              Provincial Court judges on supernumerary status were not guaranteed a 40 percent workload in exchange for full pay, or indeed any reduction in workload of an enforceable nature;

(v)               a constitutional rule that provided that any decrease or increase in an undefined judicial workload could only be initiated through a remuneration commission would be unworkable;

(vi)              the existence (or repeal) of discretionary benefits does not threaten judicial independence;

(vii)              the disappointed expectations of the Provincial Court judges, however understandable, do not justify a finding of unconstitutionality.

I propose to deal with each of these points in turn.

(i)    The essentials of judicial independence, including financial security, necessarily reside in objective and enforceable guarantees established in the governing law.

125                           The bedrock of judicial independence, whether in relation to the individual judge or to the court of which he or she is a member, is the requirement of objective non-discretionary  guarantees.  Thus in Valente, Le Dain J. referred at p. 688 to the test adopted in that case by the Ontario Court of Appeal, namely whether the alleged deficiencies in “the status of [the judges of the Ontario Provincial Court] gave rise to a reasonable apprehension that the tribunal lacked the capacity to adjudicate in an independent manner”.  Le Dain J. added, “[t]his 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)” (emphasis added).  Thus, he concluded, “judicial independence is a status or relationship resting on objective conditions or guarantees” (p. 689). 

126                           The essential guarantees of judicial independence (both individual and constitutional) are security of tenure, financial security and administrative independence in relation to adjudicative matters.

127                           For present purposes, the discussion in Valente of financial security is instructive.  According to Le Dain J., the salaries of superior court judges, “fixed” in a federal statute pursuant to s. 100  of the Constitution Act, 1867 , represent “the highest degree of constitutional guarantee of security of tenure and security of salary and pension” (p. 693), but this is not essential.  While Ontario Provincial Court judges’ salaries were not “fixed” by legislation, they were guaranteed by regulation.  “The essential point”, Le Dain J. said, “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” (p. 706).

128                           The situation here is very different.  There were no guarantees of reduced workload in the Act.  As the respondent Judge Rice testified, “If the Chief Judge asked me to do something, I did it”.  The rule that security of tenure, financial security and administrative independence in relation to adjudicative matters must be guaranteed in the law in explicit non-discretionary terms, was endorsed in Beauregard v. Canada, [1986] 2 S.C.R. 56, at p. 75, and Lippé, at p. 143.  Thus, if a measure is essential to judicial independence it cannot be left up in the air as a matter of discretion. 

129                           In the Provincial Court Judges Reference, Lamer C.J. pointed out at para. 112 that “the objective guarantees define th[e] status” of independence (emphasis in original).  In that case statutory provisions that lacked concrete guarantees were held insufficient to ensure judicial independence.  Thus an Alberta statutory provision that said the government may set judicial salaries for provincial judges was declared unconstitutional even though a regulation subsequently made under the same Act made it mandatory (paras. 221-22).  A Manitoba statutory provision withdrawing provincial court staff as a cost cutting measure on specific days (“Filmon Fridays”) was declared unconstitutional because the Court refused to “read down” the legislation to eliminate the objection.  Lamer C.J. stated that “to read down the legislation to its proper [i.e. constitutional] scope would amount to reading in those objective conditions and guarantees” (para. 276).  This, he said, was not permissible.

130                           In this case we are asked to read specific guarantees of workload reduction into the Provincial Court Act in order that we can declare their repeal to be unconstitutional.

131                           It is only by reading in such guarantees that repeal of the statutory provisions could be said to require recourse to a remuneration commission.  If, as I believe, there is no guarantee in the legislation of workload reduction, there is nothing to repeal that could be said to entail one of the objective guarantees that “define” the status of judicial independence (Provincial Court Judges Reference, supra, at para. 112). 

132                           Perhaps the closest analogy to the case now before us is provided by one of the provisions struck down in Valente, supra.  It authorized the reappointment of retired Ontario Provincial Court judges to sit “at pleasure” (p. 699).  The evidence accepted by the Court was that by tradition these appointments were as secure as the tenure of regular Provincial Court judges who held office during good behaviour.  The existence and strength of this tradition was accepted by the Ontario Court of Appeal as sufficient to guarantee judicial independence.  Le Dain J. noted that “Howland C.J.O. placed considerable emphasis on the role of tradition as an objective condition or safeguard of judicial independence” (p. 699).  Howland C.J.O. had cited, inter alia, P. W. Hogg, Constitutional Law of Canada (1977), at 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.

133                           This Court disagreed.  The “fine analysis of the language of the provisions” was thought to be very important indeed.  Le Dain J., speaking for a unanimous Court, ruled that traditions and expectations, however strongly observed, “cannot supply essential conditions of independence for which specific provision of law is necessary” (p. 702 (emphasis added)).  This is particularly the case where the terms of the law are at odds with the alleged expectation.  The Ontario law provided, contrary to the alleged tradition, that retired judges would on reappointment hold office “at pleasure” (p. 699).  Here the law simply provided that the judge on supernumerary status would be available to perform whatever judicial duties were assigned.  To read a specific workload limitation into such a provision would be to amend the legislation.

134                           In my view, with respect, there must be a specific provision of law to guarantee a judge full-time pay for part-time work if it is sought (as here) to make that guarantee part of the bulwark of judicial independence. 

135                           The lesson from these cases is that traditions and expectations, however widely shared, do not constitute “objective conditions” for the purposes of defining the judicial independence required by s. 11( d )  of the Charter .  The Court cannot amend the legislation by reading in expectations, however widely shared (as in the  anticipation of a 40 percent workload of supernumerary judges in New Brunswick) or expectation based on longstanding tradition (as in the tenure of post-retirement appointees to the Ontario provincial bench).

136                           I do not underestimate the importance of the unwritten customs and traditions that support the institutional independence of the courts.  I say only that a particular workload benefit, which never rose to the level of being specified let alone guaranteed in law, does not constitute part of the “objective  guarantees” that define the status of judicial independence and which thereby attract constitutional protection.

137                           If the legislative provision is so imprecise as not to be capable of constituting part of the guarantee of financial security (or, more broadly, of judicial independence), its existence is not essential to the constitutionality of the court, and its repeal is not therefore constitutionally prohibited. 

(ii)   Provincial Court judges on supernumerary status in New Brunswick were guaranteed a full-time salary.  The guarantee was honoured.

138                           In Valente, Beauregard, Lippé, and the Provincial Court Judges Reference, the Court established “the essential” guarantees of judicial independence.  One of these is financial security.  No objection is taken to the statutory guarantee of a fixed salary to Provincial Court judges on regular status (s. 14(2)).  The judges on supernumerary status were guaranteed the same salary by their inclusion in the definition of “judge” in s. 2(1) of the Act.  When the respondents returned to regular status on April 1, 1995, there was no change in either the amount of their pay or its protected status.

(iii)  Provincial Court judges on supernumerary status were guaranteed security of tenure.  The guarantee was honoured.

139                           The respondents Mackin and Rice continued to enjoy the same security of tenure as Provincial Court judges on regular status.  As mentioned, they were included in the definition of “judge”.  I agree with my colleague Gonthier J. (at para. 47) that their supernumerary status did not give rise to any special tenure.  Those who elected to become supernumerary were not “appointed” or “re-appointed”.  The original appointment continued in effect with the potential of a reduction in workload of an indeterminate amount at an indeterminate time.  As the respondent Judge Rice wrote in his letter of February 17, 1993 to the Minister of Justice electing supernumerary status:

This election is not, in any way, to be considered as my resignation from my appointment as a Judge of the Provincial Court.

140                           In the New Brunswick Court of Appeal, Ryan J.A. argued that the use of the word “office” in s. 4.1(3) implied a separate and distinct tenure that was wiped out by the 1995 amendments.  It is true that the word “office” has a special connotation in law, but it is not associated with any particular security of tenure:  Ridge v. Baldwin, [1964] A.C. 40 (H.L.), per Lord Reid, at p. 65.  In Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311, the “office” holder was a probationary police constable whose tenure was at pleasure.  If Ryan J.A. were correct that use of the word “office” connoted a distinct and separate tenure from that of the Provincial Court judges on regular status, the result would have been an office without clear legislative definition.  The holders of the allegedly distinct office of supernumerary judge would have lacked from the outset the objective guarantees of judicial independence.  Such a judicial “office” would have been unconstitutional.  As pointed out by Lamer C.J. in the extract from the Provincial Court Judges Reference previously cited at para. 39, it would not be for the Court to read into the word “office” the necessary guarantees of tenure to make up for the legislative deficiency.

(iv)  Provincial Court judges on supernumerary status were not guaranteed a 40 percent workload or any other reduction.

141                           Supernumerary status was adopted in New Brunswick in 1988 after lengthy discussions between the government and the Provincial Court judges which had commenced in about 1981.

142                           The theory underlying the 40 percent workload expectation was that to be eligible for supernumerary status a Provincial Court judge must meet all the conditions for retirement except the desire to retire.  If he or she elected to retire, the state would be required to pay a pension equivalent to 60 percent of the average of specified years of judicial earnings.  There would be no further judicial work.  If he or she elected supernumerary status, however, the judge could make up the 40 percent loss of income occasioned by retirement by continuing to work 40 percent of the time.  This expectation of a greatly reduced workload was widely shared by Ministers, judges, civil servants and others in New Brunswick.  But it was not written into the Provincial Court Act.

143                           To be clear, the respondent Rice, as a Provincial Court judge with supernumerary status, was not a retired person with a part-time job.  He was eligible to retire but he had elected not to.  He was not drawing a pension “topped up” by 40 percent pay for 40 percent workload.  He was receiving a full-time salary and all the benefits of a judge on regular status.  He continued to receive medical coverage.  His life insurance continued to be subsidized to the extent (at the date of his retirement) of over $2,000 per month.  Any increase in annual salary would translate into a higher base on which his pension would eventually be calculated (albeit, as with judges on regular status, he was required to continue pension contributions in the interim).  The respondent Mackin was in a similar position.  In exchange for these benefits they continued to hold themselves available for work as assigned by the Chief Judge.  In a province short on judicial resources, the assignments in some cases amounted more or less to full-time employment.  If the assignments proved unexpectedly onerous, either one of them could have elected to retire on full pension at any time.

144                           The key provision, as stated, is s. 4.1(5) of the Provincial Court Act, which said:

4.1(5)  A judge appointed under subsection 2(1) who has elected to hold the office of supernumerary judge shall be available to perform such judicial duties as may be assigned to the judge from time to time by the chief judge or associate chief judge.

145                           If “full” workload for a Provincial Court judge is taken to be plus or minus 251 court days a year (which is the assumption on which the repealing legislation is based), 40 percent of that is plus or minus 100 days a year.  The legislation establishing supernumerary status obviously could have specified a precise figure but just as obviously it did not do so.  Instead the obligation was to do the judicial work assigned by the Chief Judge, whatever and whenever it might be.

146                           My colleague Gonthier J., in para. 65, places emphasis on the words “time to time” in s. 4.1(5).  It was not, of course, contemplated that the first assignment by the Chief Judge would necessarily be the last.  It was to be expected that from “time to time” the assignments would change.  In my view that phrase indicates a multiplicity of assignments, not a reduction in workload.  With respect, an increase in overall workload would be equally consistent with the statutory language (such as, for example, a transfer to a busier court).  

147                           When the respondent, Judge Rice, who at the time was a judge of over 20 years’ experience, was considering whether to elect supernumerary status in 1992, he sought a number of clarifications from the Minister of Justice.  He asked for information as follows:

(3)  WORK ASSIGNMENTS.  Supernumerary Judges are required to sit a minimum of 40% of working days each year, as assigned by the Chief Judge, the Associate Chief Judge, or a Judge designated for the purpose of assigning Judges in a Judicial District.  [Emphasis in original.]

This was confirmed by the Minister in writing on March 16, 1992:

A supernumerary judge is required to sit the equivalent of a minimum of 40% of a full-time judge’s work year.  The Chief Judge, or the Associate Chief Judge, is responsible to assign sittings.  [Emphasis added.]

148                           Neither the respondent, Judge Rice, nor the Minister suggested that there existed a maximum workload short of 100 percent of the workload of a judge on regular status.  Having regard to the varied work experiences of Judge Rice, Judge Harper and Judge Mackin, I do not think, with respect, that the evidence supports my colleague’s conclusion, at para. 65, that “[n]ormally” a judge on supernumerary status “enjoyed a substantial reduction in his or her workload”.  The experience was too mixed to permit any generalization in that regard, in my opinion.

149                           The assignment responsibility rested with the Chief Judge, but the reality was that he could only work within the resources the province provided.  The respondents’ position is, in truth, not only that the 40 percent workload should be read into the Act, but that the province had a constitutional responsibility to provide enough judges to make the 40 percent workload achievable.  This, with respect, is too much to “read into” a statute that simply says a judge is to do the work assigned by the Chief Judge.

(v)   A constitutional rule that provided that any decrease or increase in an undefined judicial workload could only be initiated through a remuneration commission would be unworkable.

150                           The judgments on appeal state that the 1995 repeal of supernumerary status was unconstitutional because it did not receive prior review by an independent, effective and objective process (e.g. a remuneration commission).  Quite apart from the fact the constitutional requirement of an independent, effective and objective process was not elaborated by this Court until the Provincial Court Judges Reference in 1997, two years after the amendments in issue here, I cannot accept this argument.

151                           It is useful to reiterate that the respondents received the same salary after the repeal of the supernumerary status as they did beforehand. 

152                           In oral argument it was suggested that if a supernumerary judge were required to do more work for the same amount of money, his hourly rate, if it may be so conceived, was reduced.  Instead of earning a full salary for a 40 percent workload he had to work a full year for the same amount of money.  However, once the debate is  properly focused on workload, and the so-called workload guarantee is related to the process mandated by the Provincial Court Judges Reference, the question arises as to how a remuneration commission would be supposed to give prior effective review to increases or decreases in judicial workload across the province.

153                           The evidence shows that in 1990-91 each judge in the Provincial Court at Fredericton disposed of 2,714 cases a year.  In Campbellton the equivalent per year was 1,775 cases and in St. John it was 2,729 cases.  The busiest Provincial Court was Moncton where each of the judges disposed of about 5,335 cases per year.  In each instance the Provincial Court judge on regular status received the same salary.  If the statistics are to be believed, judges in different regions therefore had a very different workload and, because each earned the same salary, a very different “hourly” rate.

154                           The Chief Judge testified that the statistics were simplistic and failed to take into account many factors, including the nature of the cases.  I agree with his criticism, but even making a generous allowance for the crudity of the statistics, the workload variation is impressive.  In these circumstances how many hours a year constitutes a 100 percent workload on which the 40 percent workload is to be calculated?  Are we to take a provincial average or is a judge entitled to look at the historical average for his or her region?  Or his or her personal history?  This again provides unevenly moving targets.  The statistics show that whereas the workload  in Moncton was expected to grow by 17 percent in 1991-92, the increase in St. John was only 2 percent.  In Campbellton the expected growth was 66 percent.

155                           The constitutional requirement is for prior reference of a change in benefits to the remuneration commission.  Unless the Legislature was prepared to fix a specific number of work days per year (and, as stated, 100 days would be 40 percent of a notional 251 days a year sat by Provincial Court judges on regular status), I do not understand how “workload” as an abstract statistic can be fixed in advance.  The bare concept of a reduced workload is too elastic to provide a manageable standard.  The legislature, as stated, was clearly not prepared to guarantee any fixed and defined benefit, or indeed any benefit at all.

156                           The bottom line is that the 1995 New Brunswick legislation established a potential benefit of wholly indeterminate value.  It offered the possibility of less work for the same amount of pay, but the possibility of achieving this expectation was always subject to the exigencies of each court location and the resources available to the Chief Judge to get done the judicial work that had to be done.  The Provincial Court Judges Reference established the requirement of an independent, effective and objective process to deal with financial security.  The salary of supernumerary judges was secure.  Each supernumerary judge received full pay.  An extension of the remuneration commission process to an undefined “reduced” workload is neither sensible nor required.  Yet it is the repeal of the workload benefit supposedly guaranteed by supernumerary status that is said to be unconstitutional because the province did not first go through a remuneration commission process. 

(vi)  The existence (or repeal) of discretionary benefits does not threaten judicial independence.

157                           The potential advantages of supernumerary status lay either in the discretion of the Chief Judge or his delegate who was responsible for assigning the work (or assigning a specific courtroom) to the supernumerary judge or, alternatively in the discretion of the provincial government in its overall budgetary allocation for the Provincial Court and its willingness to appoint new judges to replace supernumerary judges to help to deal with the expanding workload.

158                           In my view the culprit here, if culprit there be, is the provincial government’s refusal to allocate adequate resources to the court.  Chief Judge Strange was clearly willing to exercise his discretion to allow very significant workload reductions to supernumerary judges, but his priority was to staff the courts on a week-to-week basis, and the lack of adequate resources left him unable to accomplish both objectives.  As between the public interest in seeing the courts operate on a full-time basis and the private interest of some of the judges on supernumerary status in realizing their expected benefits, he chose correctly, and inevitably, the public interest.  The issue, therefore, is really about the government’s exercise of its discretion over the Provincial Court budget.

159                           In Valente it was contended that government control over such discretionary matters as post-retirement reappointment, or leaves of absence with or without pay, or permission to engage in extra-judicial employment, violated judicial independence.  This argument was rejected.  Le Dain J. stated at p. 714:

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.

160                           When a similar objection was raised in the Provincial Court Judges Reference in relation to the discretion of the Government of Prince Edward Island over judges' sabbatical leave, Lamer C.J. simply cited the above passage from Valente and added, “To my mind, the same reasoning applies here” (para. 207).

161                           Even if one were to assume (as I do) that the variable benefits of supernumerary status were a function of the government’s budget control rather than within the gift of the Chief Judge, I do not think either the existence of these benefits or their ultimate repeal in 1995 violated the “objective guarantees” of judicial independence.  As noted by Lamer C.J. in the Provincial Court Judges Reference at para. 113, the question is whether a reasonable person, who was informed of the relevant statutory provisions, their historical background and other relevant facts, after viewing the matter realistically and practically, would conclude that the tribunal or court was independent.  In my view such persons would not regard the creation, continuation or ultimate repeal of the discretionary workload benefit associated with supernumerary status as compromising judicial independence.  They would hold, I believe, a loftier view of their judges.

(vii) The disappointed expectations of the Provincial Court judges, however understandable, do not justify a finding of unconstitutionality.

162                           In the end this appeal comes down to the fact that the respondents formed a quite legitimate expectation of a substantially reduced workload if they elected supernumerary status and their expectation was not honoured.  A reduction to roughly 40 percent of a notional workload was permitted, but not required, by the Provincial Court Act.  The evidence does not clearly source this expectation in the Minister’s office (i.e., the Minister’s letter talked about a minimum of 40 percent), but even if the respondents could establish all of the elements of the administrative law doctrine of legitimate expectation as set out in Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 S.C.R. 1170; Reference re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525, and Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, it would not assist the respondents’ attack on the repealing legislation.  As Sopinka J. pointed out in Canada Assistance Plan, at p. 558, the doctrine does not apply “to a body exercising purely legislative functions”.  Nor can it operate to entitle the respondents to a substantive as opposed to procedural remedy.  In some ways the respondents’ effort to use their disappointed expectations to attack the validity of the legislative amendments in this case parallels the unsuccessful effort of the Government of British Columbia to use expectations created by federal-provincial funding arrangements to attack the validity of amendments to the Canada Assistance Plan in that case.  The attempt was rejected there and it should be rejected here as well.

163                           In summary, the 1988 amendments to the Provincial Court Act enacted a form of supernumerary status that created expectations but not guarantees.  Its repeal, as high-handed and offensive as it may have appeared to the respondents, did not undermine the judicial independence of the Provincial Court judges or the court of which they were members.  The repeal was undertaken in a period of budgetary cuts which impacted all the residents of New Brunswick.  Supernumerary benefits for judges competed with the closure of hospital beds and the reduction or elimination of crucial public expenditures in other areas.  The New Brunswick legislature sought to change a system (which had so unevenly benefited Judge Rice, Judge Harper and Judge Mackin) to a pay-for-work system in which a retired judge who in fact works about 100 days a year (i.e., 40 percent of a notional 251 court days) while drawing a full pension (i.e., equivalent to 60 percent of a full salary) would receive “top up” per diem payments equivalent to the remaining 40 percent of the full salary.  The new system, according to the evidence, was designed to allow judges on supernumerary status to get the same financial benefits as under the 1988-95 scheme but by means of a method of payment that tied rewards to actual work.  It appears that all retired Provincial Court judges are eligible for per diem work if they want it.  Work assignments are still made by the Chief Judge within an overall budget.  Whether the new system is better or fairer than the old system is not for us to judge.  The only question before us is whether the change is unconstitutional.  In my view, for the reasons discussed, the repeal of the former system of supernumerary status, as much as the original enactment, was within the legislative competence of the Province of New Brunswick in relation to “[t]he Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts” under s. 92(14)  of the Constitution Act, 1867 .

Conclusion

164                           I would allow the appeal with costs.  I would therefore answer the first two constitutional questions in the negative and, in light of that conclusion, the third constitutional question does not arise.

Appeal allowed in part with costs, Binnie and LeBel JJ. dissenting.

Solicitor for the appellant:  The Attorney General for New Brunswick, Fredericton.

Solicitors for the respondent Mackin:  Wood Melanson, Fredericton.

Solicitors for the respondent Rice:  Stewart McKelvey Stirling Scales, Fredericton.

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

Solicitor for the intervener the Attorney General for Ontario:  The Attorney General for Ontario, Toronto.

Solicitor for the intervener the Attorney General of Quebec:  The Department of Justice, Sainte‑Foy.

Solicitor for the intervener the Attorney General of Manitoba:  The Department of Justice, Winnipeg.

Solicitor for the intervener the Attorney General of British Columbia:  The Ministry of the Attorney General, Victoria.

Solicitor for the intervener the Attorney General for Saskatchewan:  The Attorney General for Saskatchewan, Regina.

Solicitor for the intervener the Attorney General for Alberta:  The Attorney General for Alberta, Edmonton.

Solicitors for the intervener the Canadian Judges Conference:  Ogilvy Renault, Montréal.

Solicitors for the intervener the Canadian Association of Provincial Court Judges:  Myers Weinberg, Winnipeg.