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R. v. Lippé, [1991] 2 S.C.R. 114

 

The Attorney General of Quebec                                                     Appellant

 

v.

 

Linda Lippé, Jean‑Pierre Paradis, Serge Robitaille,

Yvon Deblois, Martin Lapierre, Gérard Gagnon,

Georges Malenfant, André Lessard, Karl Berger,

Antonio Lamonde and Éric Desbiens                                               Respondents

 

and

 

The Attorney General for Ontario,

the R.C.M. of Jacques‑Cartier and the

Municipality of Fossambault‑sur‑le‑Lac                                           Interveners

 

and

 

Mr. Gilles Charest, ès qualités et al.

(Municipal Court of Loretteville),

Mr. Alain Turgeon, ès qualités et al.

(Municipal Court of Beauport),

Mr. Jean‑Pierre Gignac, ès qualités et al.

(Municipal Court of Charlesbourg),

Mr. Pierre Nadeau, ès qualités et al.

(Municipal Court of Vanier),

Mr. Marc Jessop, ès qualités et al.

(Municipal Court of Ste‑Foy)                                                            Mis en cause

 

Indexed as:  R. v. Lippé

 

File No.:  22072.

 

1990:  December 5*.

 

Present:  Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory and McLachlin JJ.

 

on appeal from the court of appeal for quebec

 

                   Constitutional law ‑‑ Charter of Rights  ‑‑ Independent and impartial tribunal ‑‑ Municipal courts ‑‑ Institutional impartiality ‑‑ Scope of judicial independence -- Quebec municipal court system allowing part‑time judges to continue to practise law ‑‑ Whether municipal court system infringed s. 11 (d) of the Canadian Charter of Rights and Freedoms  ‑‑ Test for institutional impartiality -- Cities and Towns Act, R.S.Q., c. C‑19, ss. 608, 608.1.

 

                   Civil rights ‑‑ Provincial human rights legislation ‑‑ Independent and impartial tribunal ‑‑ Municipal courts ‑‑ Institutional impartiality ‑‑ Scope of judicial independence ‑‑ Quebec municipal court system allowing part‑time judges to continue to practise law ‑‑ Whether municipal court system infringed s. 23 of the Charter of Human Rights and Freedoms, R.S.Q., c. C‑12 ‑‑ Test for institutional impartiality -- Cities and Towns Act, R.S.Q., c. C‑19, ss. 608, 608.1.

 

                   The respondents were charged with various infractions of municipal regulations and of the Highway Safety Code. They brought motions for evocation, certiorari and prohibition before the Superior Court, alleging that certain provisions of the Cities and Towns Act and the Municipal Courts Act violated their right to a fair hearing before an independent and impartial tribunal guaranteed under s. 11 (d) of the Canadian Charter of Rights and Freedoms  and s. 23 of the Quebec Charter of Human Rights and Freedoms. The Superior Court found that the municipal court system failed to meet the standards of judicial independence and impartiality under both Charters and granted the motions. The majority of the Court of Appeal affirmed the judgment and, at the respondents' request, declared ss. 608 and 608.1 of the Cities and Towns Act inoperative, as violating s. 11 (d) of the Canadian Charter .  The majority decided that these provisions, which allowed part‑time municipal court judges to continue to practice as lawyers, could reasonably cause a well‑informed person to fear that his right under s. 11 (d) was not sufficiently guaranteed.  Sections 608 and 608.1 could not be saved under s. 1  of the Canadian Charter . The Court of Appeal did not address s. 23 of the Quebec Charter. This appeal is to determine whether, under the statutory scheme in place in the province of Quebec, a municipal court judge (with the exception of those presiding in Montréal, Laval and Québec) constitutes an "independent and impartial tribunal". The challenge is to the structure of the municipal court system which allows part‑time judges to continue to practise law.

 

                   Held:  The appeal should be allowed.

 

                   Per La Forest, L'Heureux-Dubé, Gonthier and McLachlin JJ.: The Quebec system of part‑time municipal court judges who are allowed to practise law does not infringe the guarantee of judicial impartiality under s. 11 (d) of the Canadian Charter  and s. 23 of the Quebec Charter. The aspects pertaining to the status of municipal judges as practising lawyers challenged in this case can be regarded as pertaining to institutional impartiality and the analysis made in this respect by Lamer C.J. is concurred with.

 

                   While the precise scope of "judicial independence" is not an issue in this appeal, understanding the scope of this principle is important to the full of protection of "judicial impartiality". An independent tribunal within the meaning of s. 11 (d) of the Canadian Charter  and s. 23 of the Quebec Charter must be both independent from government and independent from the parties to the litigation.

 

                   Per Lamer C.J. and Sopinka and Cory JJ.: The issue in this appeal is not one of "judicial independence". The content of judicial independence is to be determined with reference to our constitutional tradition and is limited to independence from the government.  The concept of "government" refers not only to the executive or legislative branches but also to any person or body which can exert pressure on the judiciary through authority under the state, including any person or body within the judiciary which has been granted some authority over other judges. Since the issue before this Court raises no allegations concerning the relationship of the state (including the Quebec Bar), with the municipal courts, it is assumed that the three criteria for judicial independence articulated by this Court in Valente are satisfied.

 

                   The issue in this appeal should be characterized as one of "institutional impartiality". Like the requirement of judicial independence, the requirement of judicial impartiality has both an individual and an institutional aspect and both aspects are encompassed by the constitutional guarantee of an "independent and impartial tribunal". Therefore, whether or not any particular judge harboured pre‑conceived ideas or biases, if the system is structured in such a way as to create a reasonable apprehension of bias on an institutional level, the requirement of impartiality is not met. The appearance of impartiality is important for public confidence in the system.

 

                   The fact that judges are part‑time does not in itself raise a reasonable apprehension of bias on an institutional level, but certain activities or professions in which they engage may be incompatible with their duties as judges and raise such a bias. Here, the Quebec municipal court system, which permits part‑time judges to continue to practise law, meets the requirements of institutional impartiality under s. 11 (d) of the Canadian Charter  and s. 23 of the Quebec Charter. Even though the occupation of practising law is per se incompatible with the functions of a judge because it gives rise to a reasonable apprehension of bias in the mind of a fully informed person in a substantial number of cases, a careful consideration of the legislative safeguards now in place, and in particular the safeguards against possible situations of conflicts of interest, shows that the risks of bias have been minimized. Judicial immunity, the oath sworn by the judges, the Code of ethics to which they are subject, and the restrictions set out in s. 608.1 of the Cities and Towns Act all combine to alleviate the apprehension of bias. It follows that, with full knowledge of the Quebec municipal court system, including all of its safeguards, a reasonably well‑informed person should not have an apprehension of bias in a substantial number of cases. While it may be true that a judge will not always be aware of a conflict, that possibility can be dealt with on a case‑by‑case basis.

 

Cases Cited

 

By Gonthier J.

 

                   Referred to: Valente v. The Queen, [1985] 2 S.C.R. 673;  Beauregard v. Canada, [1986] 2 S.C.R. 56; Sirros v. Moore, [1975] 1 Q.B. 118; Morier v. Rivard, [1985] 2 S.C.R. 716; Eur. Court H. R., Ringeisen case, judgment of 16 July 1971, Series A No. 13; Eur. Court H. R., case of Le Compte, Van Leuven and De Meyere, judgment of 23 June 1981, Series A No. 43; Eur. Court H. R., Piersack case, judgment of 1 October 1982, Series A No. 53; Eur. Court H. R., case of Campbell and Fell, judgment of 28 June 1984, Series A No. 80.

 

By Lamer C.J.

 

                   Referred to:  Valente v. The Queen, [1985] 2 S.C.R. 673; R. v. Braconnier, [1988] R.J.Q. 981; Tessier v. Paquet, [1988] R.J.Q. 2553; MacBain v. Lederman, [1985] 1 F.C. 856; Sethi v. Canada (Minister of Employment and Immigration), [1988] 2 F.C. 552; Beauregard v. Canada, [1986] 2 S.C.R. 56; Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369; MacKeigan v. Hickman, [1989] 2 S.C.R. 796.

 

Statutes and Regulations Cited

 

Act respecting certain aspects of the status of municipal judges, S.Q. 1988, c. 74.

 

Canadian Charter of Rights and Freedoms, ss. 1 , 11 (d), 32 .

 

Charter of Human Rights and Freedoms, R.S.Q., c. C‑12, s. 23 [am. 1982, c. 17, s. 42].

 

Cities and Towns Act, R.S.Q., c. C‑19, ss. 605, 606.1 [ad. 1988, c. 74, s. 2], 607 [repl. idem, s. 3], 607.1 [idem], 608 [idem], 608.1 [idem], 609.1 [idem], 615.1 [ad. idem, s. 5].

 

Code of Civil Procedure, R.S.Q., c. C‑25, s. 234.

 

Code of ethics for municipal judges of Québec, R.R.Q. 1981 ‑‑ Supplement, p. 1272.

 

Courts of Justice Act, R.S.Q., c. T‑16, ss. 261, 262 [am. 1980, c. 11, s. 99; am. 1988, c. 21, s. 57; am. c. 74, s. 8], 263 to 281.

 

Criminal Code, R.S.C., 1985, c. C‑46 , Part XXVII.

 

European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 222, Art. 6(1).

 

Highway Safety Code, R.S.Q., c. C‑24.2.

 

Magistrate's Privileges Act, R.S.Q., c. P‑24, s. 1 [am. 1982, c. 32, s. 117; am. 1988, c. 21, s. 116].

 

Municipal Courts Act, R.S.Q., c. C‑72, ss. 2 [am. 1982, c. 32, s. 78], 7.1 [ad. 1982, c. 2, s. 40; am. c. 32, s. 80], 7.3 [ad. 1982, c. 2, s. 40].

 

Authors Cited

 

Atkinson, William J.  "L'indépendance et l'impartialité des tribunaux administratifs sous la Charte des droits et libertés".  Dans Tribunaux administratifs à la lumière des Chartes.  Formation permanente du Barreau du Québec. Cowansville, Qué.:  Éditions Yvon Blais Inc., 1989, 149.

 

Blache, Pierre.  "L'impartialité et l'indépendance selon les articles 7  et 11d  de la Charte canadienne ".  Dans Développements récents en droit administratif, vol. 2. Formation permanente du Barreau du Québec. Cowansville, Qué.:  Éditions Yvon Blais Inc., 1989, 55.

 

Garant, Patrice. "La justice municipale au regard des chartes:  quelques observations au lendemain de la grande réforme" (1991), 36 McGill L.J. 39.

 

Greene, Ian. "The Doctrine of Judicial Independence Developed by the Supreme Court of Canada" (1988), 26 Osgoode Hall L.J. 177.

 

Keable, Jean F. "Les tribunaux administratifs et organismes de régulation et les exigences de la Charte en matière d'indépendance et d'impartialité (art. 23, 56.1 de la Charte québécoise)".  Dans Application des Chartes des droits et libertés en matière civile.  Formation permanente du Barreau du Québec. Cowansville, Qué.:  Éditions Yvon Blais Inc., 1988, 251.

 

Pépin, Gilles.  "L'indépendance des tribunaux administratifs et l'article 23 de la Charte des droits et libertés de la personne" (1990), 50 R. du B. 766.

 

Québec.  Ministre de la Justice.  Rapport du Groupe de travail sur les Cours municipales.  Les cours municipales au Québec:  un projet de réforme. Québec, 1988.

 

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

 

Shetreet, Shimon. "Judicial Independence: New Conceptual Dimensions and Contemporary Challenges". In  Shimon Shetreet and Jules Deschênes, eds., Judicial Independence: The Contemporary Debate, Dordrecht, The Netherlands, Martinus Nijhoff Publishers, 1985.

 

Singhvi, L. M. "Independence of Justice in the World".  Keynote Address Delivered at the Inaugural Session of the National Seminar on Justice:  Independence and Accountability.  Canadian Institute for the Administration of Justice.  Montréal, October 15‑17, 1987.

 

Universal Declaration on the Independence of Justice, adopted by the First World Conference on the Independence of Justice, Montréal, June 10, 1983, in Shimon Shetreet and Jules Deschênes, eds., Judicial Independence: The Contemporary Debate, Dordrecht, The Netherlands, Martinus Nijhoff Publishers, 1985.

 

                   APPEAL from a judgment of the Quebec Court of Appeal, [1990] R.J.Q. 2200, 60 C.C.C. (3d) 34, 80 C.R. (3d) 1, 31 Q.A.C. 161, affirming a judgment of the Superior Court, [1989] R.J.Q. 2372, 48 M.P.L.R. 123. Appeal allowed.

 

                   Jean‑Yves Bernard, Claude Bouchard and Marise Visocchi, for the appellant.

 

                   Paul Larochelle, Pierre Béliveau and Maurice Dussault, for the respondent Lippé.

 

                   Herman Bédard, for the other respondents.

 

                   W. J. Blacklock and Rebecca Regenstreif, for the intervener the Attorney General for Ontario.

 

                   Claude Jean, for the interveners the R.C.M. of Jacques‑Cartier and the Municipality of Fossambault‑sur‑le‑Lac.

 

//Lamer C.J.//

 

                   The reasons of Lamer C.J. and Sopinka and Cory were delivered by

 

                   Lamer C.J. -- This appeal focuses on the content that is to be given to the concept of "independent and impartial tribunal" in s. 11 (d) of the Canadian Charter of Rights and Freedoms  and s. 23 of the Charter of Human Rights and Freedoms, R.S.Q., c. C-12.  Specifically, this Court was asked to decide whether, under the statutory scheme in place in the province of Quebec, a municipal court judge (with the exception of those presiding in Montréal, Laval and Québec) constitutes an "independent and impartial tribunal".  No one is alleging that any particular municipal court judge is lacking the judicial requirements of independence and impartiality, but rather the challenge is to the structure of the municipal court system which allows  part-time judges to continue to practise law.

 

                   This appeal was heard on December 5, 1990.  Due to the urgent nature of the situation, judgment was rendered at that time, with reasons to follow.  This Court unanimously allowed the appeal and upheld the Quebec system of municipal courts, finding no infringement of s. 11 (d) of the Canadian Charter  or of s. 23 of the Quebec Charter.

 

The Facts

 

                   On April 20, 1989, the respondents brought motions for evocation and certiorari and prohibition before Viens J. of the Quebec Superior Court.  The respondents submitted that certain provisions of the Cities and Towns Act, R.S.Q., c. C-19, and the Municipal Courts Act, R.S.Q., c. C-72, violated their right to a fair hearing before an independent and impartial tribunal guaranteed under s. 11 (d) of the Canadian Charter  and s. 23 of the Quebec Charter.

 

                   Viens J. chose to deal specifically with the motion of Linda Lippé and then apply his conclusions in that case to the other cases.  Lippé was charged with contravening municipal regulations by doing construction work without a permit in Fossambault-sur-le-Lac, a municipality which came under the jurisdiction of the Municipal Court of Loretteville.  The other respondents were charged with various infractions of municipal regulations and of the Highway Safety Code, R.S.Q., c. C-24.2.

 

                   On June 29, 1989, Viens J. granted the 12 motions, declaring that judges of the municipal courts (of Loretteville, Beauport, Charlesbourg, Vanier and Ste-Foy) had no jurisdiction to rule on the infractions.  In his opinion, the municipal court system failed to meet the standards of judicial independence and impartiality required by s. 11 (d) of the Canadian Charter  and s. 23 of the Quebec Charter: [1989] R.J.Q. 2372. The Attorney General of Quebec appealed this decision.

 

                   Viens J. did not declare the legislative provisions regarding municipal court judges inoperative, as this remedy was not requested by the respondents.  The Court of Appeal allowed the respondents to add this request before it dealt with the merits of the appeal of the decision of Viens J.

 

                   On September 13, 1990  the majority of the Court of Appeal declared ss. 608 and 608.1 of the Cities and Towns Act inoperative, as violating s. 11 (d) of the Canadian Charter : [1990] R.J.Q. 2200, 60 C.C.C. (3d) 34, 80 C.R. (3d) 1, 31 Q.A.C. 161 (hereinafter cited to C.C.C.).  The majority decided that these provisions, which allowed part-time municipal court judges to continue to practise as lawyers, could reasonably cause a well-informed person to fear that his or her right under s. 11 (d) to a hearing before an independent and impartial tribunal was not sufficiently guaranteed.  The provisions could not be saved under s. 1.   The Court of Appeal did not address s. 23 of the Quebec Charter.

 

                   Tourigny J.A. dissented, taking the position that the independence of the municipal court judges would cause a reasonable, well-informed person to perceive them to be impartial.

 

The Legislation in Issue

 

                   Although several aspects of the municipal court system were challenged before the Quebec Superior Court, there is only one in issue before this Court.  The legislative provisions in issue in this appeal allow part-time municipal court judges to continue practising law, subject to certain safeguards:

 

Cities and Towns Act, R.S.Q., c. C-19

 

608. Notwithstanding any provision to the contrary, neither the acceptance of the office of municipal judge nor the performance of the duties of such office shall prevent an advocate from practising as an advocate before a court of justice, but he shall thereby be prevented from practising as an advocate before any municipal court other than those of Laval, Montréal and Québec.

 

608.1  A municipal judge shall, in addition to complying with the standards of conduct and fulfilling the duties imposed by the code of ethics adopted pursuant to section 261 of the Courts of Justice Act (chapter T-16), observe the following rules:

 

                   (1)  He shall not, even indirectly, enter into a contract with a municipality in the territory in which the municipal court has jurisdiction, except in the cases provided in section 305 of the Act respecting elections and referendums in municipalities (chapter E-2.2), adapted as required, nor shall he advise any person negotiating such a contract;

 

                   (2)  He shall not, even indirectly, agree to represent or act against a municipality, a member of the municipal council, an employee other than an employee within the meaning of the Labour Code (chapter C-27) or a police officer of a municipality within the territory in which the municipal court has jurisdiction;

 

                   (3)  He shall not hear a case pertaining to a contract described in paragraph 1 to which an advocate with whom he practises as an advocate is a party or a case in which such an advocate is representing or acting against a municipality or person contemplated in paragraph 2;

 

                   (4)  He shall not hear a case involving a question similar to one involved in another case in which he represents one of the parties;

 

                   (5)  He shall, with respect to every case referred to him, make and file in the record a declaration stating not only the grounds of recusation to which he is aware he is liable and which are set out in article 234 of the Code of Civil Procedure (chapter C-25), but also any grounds indirectly connected with him and arising from the fact that he is representing one of the parties or from the activities of a person with whom he practises as an advocate.

 

Charter of Human Rights and Freedoms, R.S.Q., c. C-12

 

23. Every person has a right to a full and equal, public and fair hearing by an independent and impartial tribunal, for the determination of his rights and obligations or of the merits of any charge brought against him.

 

Canadian Charter of Rights and Freedoms 

 

                   11.  Any person charged with an offence has the right

 

                                                                    ...

 

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

 

Lower Court Judgments

 

Quebec Superior Court

 

                   Various aspects of the legislative scheme establishing the municipal court system were challenged at the Quebec Superior Court, which extend beyond the constitutional questions in this current appeal.  Having regard for the entire structure, Viens J. found that the municipal court system lacked the objective guarantees of judicial independence required by this Court in Valente v. The Queen, [1985] 2 S.C.R. 673:  security of tenure, financial security and institutional independence.

 

                   He recognized that changes had been effected since the decisions in R. v. Braconnier, [1988] R.J.Q. 981 (Sup. Ct.), and Tessier v. Paquet, [1988] R.J.Q. 2553 (Sup. Ct.), two cases in which the municipal courts were found to be lacking the guarantees of judicial independence required by s. 11 (d) of the Canadian Charter .  As a result of the adoption of An Act respecting certain aspects of the status of municipal judges, S.Q. 1988, c. 74, s. 606.1 of the Cities and Towns Act now provides that a "municipal judge shall be appointed to hold office during good behaviour" and that "[t]he rules provided in the Courts of Justice Act (chapter T-16) with respect to the removal of judges apply to municipal judges".

 

                   Because of these two changes, Viens J. conceded that the judges may be perceived as having security of tenure and in that sense meet the first requirement in Valente, supra.  However, closer examination of the relevant legislation, such as s. 609.1 of the Cities and Towns Act (which allows a municipality to abolish a municipal court), reveals that municipal court judges are far from being  [translation] " ... sheltered from any discretionary or arbitrary intervention on the part of the executive or the authority responsible for such appointments" (p. 2375).

 

                   Although s. 605 of the Cities and Towns Act states that a municipal council could not abolish a municipal court without the approval of the Minister of Municipal Affairs and the Minister of Justice, there are no statutory criteria limiting the exercise of this power.  The legislation thus makes it possible for the executive to abolish municipal courts, and thereby interfere with judges, in a purely discretionary or arbitrary manner.  The municipal judges do not truly have "tenure".  Therefore, despite the recent improvements in the legislation, the municipal courts are still not "independent tribunals" as required by s. 11 (d) of the Canadian Charter  or s. 23 of the Quebec Charter.

 

                   Viens J. went on to give further examples of legislative provisions which, by giving the executive discretionary and arbitrary power, in effect, to remove judges, also raise doubts as to the independence of the municipal courts:  division II of the Municipal Courts Act, ss. 2, 7.1 and 7.3.  Because a municipality dissatisfied with the decisions of a particular municipal court could withdraw its territory from the jurisdiction of that court, they also thereby have the power to affect the salary and tenure of municipal judges.

 

                   With respect to the specific issue raised by this appeal, Viens J. agreed with the respondents that because ss. 608 and 608.1 of the Cities and Towns Act permitted municipal court judges to continue to be members of the Quebec Bar and allowed them to continue their private practices while serving as judges, the judges were not perceived to be impartial.

 

                   Although legislative improvements had been effected through s. 608.1 since the decisions of Braconnier, supra, and Tessier, supra (which held that the part-time structure did not guarantee impartiality), Viens J. found that a reasonable person could still doubt the impartiality of a judge who continued practising as a lawyer during a part-time judicial appointment.  A person appearing before a municipal court has a right to the same guarantee of impartiality as a person before any other court.

 

                   Because the municipal courts did not meet the standards of independence and impartiality required by s. 11 (d) of the Canadian Charter  and s. 23 of the Quebec Charter, Viens J. ruled that they did not have jurisdiction over the charges against the respondents and granted all of the motions for evocation, certiorari and prohibition.

 

Quebec Court of Appeal

 

                   Proulx J.A.

 

                   For procedural reasons, Proulx J.A. rejected the respondents' submissions that ss. 605 and 609.1 of the Cities and Towns Act (allowing a municipality to abolish a municipal court) failed to meet the "independence" requirement in s. 11 (d).  Although Lippé and the other respondents were granted permission to amend their pleadings, they did not add a request that these provisions be declared inoperative.  Therefore, the issue could not be dealt with as a constitutional question.  Because of this procedural difficulty and because there had been no evidence that the s. 11 (d) rights of Lippé et al. had been violated through the actual abolition of any municipal court, Proulx J.A. found that the trial judge's conclusion on this point could not be supported.

 

                   Likewise, with respect to the issue of ss. 2 through 7.3 of the Municipal Courts Act (allowing municipalities to withdraw their territory from the jurisdiction of a particular municipal court) Lippé et al. did not request the remedy of having the provisions declared inoperative.  Instead they argued that, according to municipal law, the municipality of Jacques-Cartier did not have the authority to submit its territory to the jurisdiction of another municipal court.  Because the constitutional argument was not raised, Proulx J.A. declined to deal with it although he did state, in passing, that he would have found no constitutional violation if the issue had been before him.  In light of his conclusion on the third issue, he did not find it necessary to deal with the municipal law argument of the respondents.

 

                   With respect to the issue of the part-time status of the municipal court judges (provided for in ss. 607, 607.1, 608, 608.1 of the Cities and Towns Act), the respondents did request that the provisions be declared inoperative as violating the guarantees of judicial independence and impartiality under the Canadian Charter  and the Quebec Charter.  Proulx J.A. found that the structure of the municipal courts allowing for part-time judges met the three criteria in Valente, supra.  However, he went on to say that the fact that the system guarantees collective or administrative independence does not mean that it guarantees individual "independence" in the sense of [translation] "state of mind".  He also found that while no one was raising the issue of individual bias, there may exist a perception of structural, built-in bias.  The critical perception is that of a well-informed reasonable person (at p. 76):

 

                   [translation]  Good faith is presumed and I am convinced that a Municipal Court judge who takes an oath to fulfil "impartially and honestly" his duties and who is subject to a Code of ethics would not violate this oath and that he would disqualify himself in those situations which appear to him to give rise to a reasonable apprehension of bias.  But is that the standard?  I do not believe so.  The reasonable person cannot be reassured on the sole basis that the judge may disqualify himself when it seems to him proper to do so; numerous conflicts may escape a judge who is of good faith just as they would escape an uninformed citizen.

 

                   The presence of a potential conflict of interest is far from lacking in realism or in practicality.

 

                   There is also s. 608.1 which provides specific and general causes for disqualification (recusation).

 

                   But can that assure a reasonable person that the judge, advocate yesterday and advocate tomorrow and judge the following day, can do complete justice, in short the same justice that a judge who dedicates himself exclusively to judicial matters could do?

 

                   In his opinion, the constitutional requirements should not be softened for municipal courts simply because their decisions are appealable.  Individuals have the right to a decision before an impartial tribunal at first instance.  Remarking on the broad jurisdiction of municipal courts, extending even to criminal matters, he was careful to distinguish his decision in this case from situations where lawyers preside over other bodies making judicial or quasi-judicial decisions.  The standards for impartiality may differ between administrative versus judicial tribunals.

 

                   Finding that the part-time judge/lawyer structure constituted a violation of s. 11 (d) he concluded (at p. 80):

 

[translation]  Also applying in this case the test of the perception of a reasonable, informed person, I am of the view that the status of lawyer‑judge of the Municipal Court judge will always give rise to a reasonable apprehension that he may not always act with the liberty and detachment required.

 

                   How would the reasonable, informed person perceive the more litigious or more difficult situations where the judge must answer for his decision before public opinion which is often insatiable, where judicial independence must be manifested more through courage to resist public opinion and thereby ensure the rule of law and the interests of the parties in issue?

 

                   In these situations, an informed public could believe that, quite unconsciously, the lawyer‑judge would worry about his practice if his decision were to go one way rather than the other. [Emphasis in original.]

 

                   Although Proulx J.A. found that the objectives of [translation] "access to justice and efficient management of the judicial system" were pressing and substantial and therefore met the first step of the Oakes test, he concluded that the legislation failed the proportionality test.

 

                   While he doubted that there was even a rational connection between the legislation and its objective, he decided the issue of proportionality on the second and third parts of the test:  minimal impairment and the balancing of the objective against the means chosen.  Given the importance of the constitutional right at stake, Proulx J.A. could not understand how a free and democratic society could possibly accept a tribunal lacking independence and impartiality as a "reasonable limit".  Only if part-time judges were absolutely necessary could the legislation meet the proportionality test.  Therefore, this aspect of the appeal was dismissed and ss. 608 and 608.1 of the Cities and Towns Act were declared inoperative as they violated s. 11 (d) of the Canadian Charter .

 

                   Tourigny J.A.  (dissenting)

 

                   Tourigny J.A. found that the requirements of "independence" and "impartiality" were met by this legislation and, therefore, there was no violation of s. 11 (d).   First, she agreed with Proulx J.A. that the provisions met the three requirements in Valente, supra, for judicial "independence".  However, she rejected his notion of "individual independence" which extended beyond the criteria of Valente, supra.  In her opinion, a member of a tribunal which was collectively or institutionally independent was necessarily "independent" on an individual level (at p. 43):

 

                   [translation]  I cannot convince myself that a member of a tribunal which is collectively independent is not individually independent.

 

                   She preferred to deal with the concern that a part-time judge practising as a lawyer may be perceived as lacking the [translation] "detachment required" as an issue of impartiality.  While acknowledging the difficulty of differentiating between the two concepts of independence and impartiality, she concluded that judicial independence was one factor involved in guaranteeing judicial impartiality (at p. 43):

 

[translation]  Basically . . . one must guarantee to litigants that judges enjoy complete detachment from all forms of influence, direct or indirect, which may taint their decisions.  That is the objective pursued and, . . . judicial independence, as defined in Valente is the sine qua non for attaining this objective, which is finally the objective of complete and total impartiality.  Viewed from this perspective, judicial independence would be the first level or line of impartiality in that it ensures the collective impartiality of judges vis‑à‑vis the executive and legislature.

 

                   With respect to the issue of impartiality, she emphasized again that in this case there were no allegations of actual bias on the part of any judge.  Instead, the issue was whether the system itself gave rise to a reasonable apprehension of bias (at p. 45):

 

[translation]  As I mentioned previously, in the present case it is an absence of impartiality which results not from given facts or circumstances, in a given case, but rather from the structure itself.

 

                   If, having regard to the distinction which Le Dain J. seems to make and that I quoted above, bias seems to be something which cannot be evaluated in the abstract, without taking into consideration a given person, a given context and a given case, it remains, none the less, that the Canadian case‑law has already had the opportunity of considering the possible application of a form of apprehension of collective or institutional bias.

 

                   Giving the examples of MacBain v. Lederman, [1985] 1 F.C. 856 (C.A.), and Sethi v. Canada (Minister of Employment and Immigration), [1988] 2 F.C. 552 (C.A.), recent cases in which (according to the interpretation of Tourigny J.A.) tribunals were found to lack the requirement of "impartiality" basically because they lacked independence, she concluded (at pp. 48-49):

 

                   [translation]  With respect, it seems clear that when it is a question of apprehension of bias on the part of the entire body or tribunal, it is the very components of judicial independence which must be examined.  The independence in issue is, in my view, essentially that defined by Le Dain J. in Valente and it negatively affects all the members of a court because they are members of this court;  the very structure of the court, the method of appointment of its members or some defect in the procedure found in its enabling legislation, are such that they generate the apprehension of bias.

 

                   Applying the principles that I have attempted to draw from the Canadian case‑law in this area to our present case.  I cannot convince myself that the system of Quebec Municipal Court judges suffers such lack of independence that a reasonably informed person would have an apprehension of bias.

 

                   She also noted that the municipal court judges have taken an oath and are bound by rules and guidelines.  For these reasons, she believed the system was adequate to ensure respect and to appear to be independent and impartial.

 

                   Rothman J.A.  (concurring with Proulx J.A.)

 

                   Rothman J.A. rejected the historical argument that the administration of justice has been served by part-time judges for years and that, therefore, it is adequate.  Since the advent of the Canadian Charter , standards of justice, impartiality and independence have changed.  He also stressed the broad jurisdiction of the municipal courts, concluding (at p. 39):

 

                   Municipal court judges have jurisdiction to hear and determine numerous penal and some criminal cases which can seriously affect the rights and even the freedom of those compelled to appear before them.  Society has the right to expect that they be free from any appearance of partiality or conflict.  In today's world, I think this is a difficult standard for a judge to meet if he or she is practising law, serving the interests of clients, winning cases and losing cases, and making the compromises necessary to settle cases with other members of the Bar, by day, while exercising judicial functions at night.  It is particularly difficult, in my view, in smaller communities.

 

Issues

 

                   The following constitutional questions were stated by the Chief Justice on October 1, 1990:

 

1.Are ss. 608 and 608.1 of the Cities and Towns Act, R.S.Q., c. C-19, which provide that neither the acceptance of the office of municipal judge nor the performance of the duties of such office shall prevent an advocate from practising as an advocate before a court of justice, except any municipal court other than those of Laval, Montréal and Québec, and set out standards and duties respecting his conduct, inconsistent with s. 11 (d) of the Canadian Charter of Rights and Freedoms ?

 

2.If the answer to question 1 is in the affirmative, are ss. 608 and 608.1 of the Cities and Towns Act justified pursuant to s. 1  of the Canadian Charter of Rights and Freedoms ?

 

The Municipal Court System

 

                   The municipal courts in Quebec have jurisdiction in both civil and penal matters.  Their civil jurisdiction involves mainly municipal tax collection and recovering other sums of money owed to the municipality.  Their penal jurisdiction is, in practice, exercised with respect to violations of municipal regulations, the Highway Safety Code, most provincial summary conviction offences (save a few exceptions) and Part XXVII of the Criminal Code, R.S.C., 1985, c. C-46 .

 

                   The municipal courts have been part of the Quebec judicial system since the mid-19th century.  In 1987, the Minister of Justice requested that a study be undertaken of the municipal court system in Quebec.  As a result of the Rapport du Groupe de travail sur les Cours municipales, Les cours municipales au Québec: un projet de réforme, changes were made to the system in 1988.  These changes included the legislative safeguards added in s. 608.1 of the Cities and Towns Act.

 

Scope of the Appeal

 

                   In Valente, supra, this Court per Le Dain J. articulated three "essential conditions" for judicial independence:  (1) security of tenure; (2) financial security, and (3) the institutional independence of judicial tribunals regarding matters affecting adjudication.  The Quebec Court of Appeal considered many aspects of the municipal court system which extend beyond the scope of this appeal and unanimously concluded that the Quebec municipal court system satisfied these conditions.  Since the issue before this Court raises no allegations concerning the relationship of the state with the municipal courts, I will assume -- without expressing an opinion on aspects of the system not properly before this Court -- that the three criteria from Valente, supra, are satisfied.

 

                   The scope of the appeal before this Court is considerably narrower than when this case was before the Quebec Superior Court and the Quebec Court of Appeal.  Limited by the constitutional questions, the only issue before this Court is the legislation which provides that the municipal courts be presided over by part-time judges who are permitted to simultaneously remain active in private practice.  In their factum, the respondents submit that these two occupations are incompatible in that judges and lawyers are expected to play very different roles in our judicial system:

 

[translation] ... judges must develop a state of mind marked by serenity, detachment, levelheadedness and moderation.  Without cutting themselves off from human reality and society, they must remain on the sidelines to some extent.

 

                   Lawyers must have a fundamentally different approach.  Within the limits of legality and ethics, they must dedicate and devote themselves unreservedly to the partisan interests of those who become their clients.  Their role in court is one of confrontation.  Their state of mind must therefore be marked by a healthy aggressiveness, commitment and combativeness.

 

                   They also submit that the structure of the system will give rise to many conflicts of interest.  The part-time municipal court judges could be pressured by a variety of parties.  Clients could pressure them to make decisions favouring or prejudicing a particular individual or position.  A conflict of interest could arise if a lawyer involved in a negotiation with the judge's firm had to appear before the judge.  Finally, pressure could be exerted on the judge by government.  If the judge's firm was pursuing a particular government contract, the judge may feel pressured to decide a constitutional issue a certain way.  The respondents submit that no code of ethics can ensure that such pressures and conflicts will be avoided short of forbidding judges to practise law.  The part-time structure of the municipal courts makes it nearly impossible for a judge to appear independent and free from the influence of other participants in the judicial system:

 

                   [translation] How can a lawyer who spends the day representing numerous interests, supporting various legal positions, confronting or dealing or negotiating with a host of people involved in the judicial system such as judges, court officers, fellow lawyers, police officers, officials and clients project this independence in the evening vis-à-vis all those involved when those he has dealt with during the day will be transformed before him into lawyers, whether friends or adversaries, whose arguments he will have to accept or reject, into police officers testifying for the prosecution whose credibility he will have to assess in a complaint where reasonable doubt will be particularly important?  No reasonable and well-informed citizen will see this as judicial independence and even less as justice being seen to be done. [Emphasis in original.]

 

"Independence" or "Impartiality"

 

                   While identifying the potentially problematic aspect of the municipal court system, the parties disagree on the characterization of the issue in this appeal.  The appellant states clearly that he views the issue as being one of "impartiality" and not "independence".  Because the conclusions of Proulx J.A. rested primarily on the risk of conflicts of interest, the appellant submits that he actually did base his decision on a perception of lack of impartiality and not independence.  According to the appellant, the issue of "independence" is solely concerned with whether there is absence of interference with the courts by the state.  Because the Court of Appeal found no such interference and determined that the municipal court system met the three criteria in Valente, supra, its decision was based primarily on lack of "impartiality", not lack of "independence", and Proulx J.A. should not have referred to "independence" in stating his conclusion that the municipal courts lacked the [translation] "detachment required".

 

                   The respondents, on the other hand, submit that the lack of "independence" of municipal court judges, as well as their lack of "impartiality", is in issue in this appeal.  Although they take the position that the municipal court system does not meet the three criteria set out in Valente, supra, they submit that even if it did, it would not necessarily fulfil the "independence" requirement of s. 11 (d).  In addition to those three criteria, the system has to be sheltered from intervention of any kind, not just interference from the state.

 

                   There has been much debate concerning the precise relationship between judicial "independence" and "impartiality".   (See G. Pépin, "L'indépendance des tribunaux administratifs et l'article 23 de la Charte des droits et libertés de la personne" (1990), 50 R. du B. 766;  P. Garant, "La justice municipale au regard des chartes:  quelques observations au lendemain de la grande réforme" (1991), 36 McGill L.J. 39;  I. Greene, "The Doctrine of Judicial Independence Developed by the Supreme Court of Canada" (1988), 26 Osgoode Hall L.J. 177;  P. Blache, "L'impartialité et l'indépendance selon les articles 7  et 11d  de la Charte canadienne ", in Développements récents en droit administratif (1989), vol. 2, at p. 55;  J. F. Keable, "Les tribunaux administratifs et organismes de régulation et les exigences de la Charte en matière d'indépendance et d'impartialité (art. 23, 56.1 de la Charte québécoise)", in Application des Chartes des droits et libertés en matière civile (1988), at p. 251;  W. J. Atkinson, "L'indépendance et l'impartialité des tribunaux administratifs sous la Charte des droits et libertés" in Tribunaux administratifs à la lumière des Chartes (1989), at p. 149.)

 

                   The potential problem in this appeal is that, on an institutional level, municipal court judges could be perceived as being improperly influenced by various forces.  Since the respondents are alleging no state influence, the issue does not fit squarely within traditional judicial independence jurisprudence; since they are alleging no individual bias on the part of any particular judge, neither can the issue be dealt with as a problem of bias on a case-by-case basis.  As Professor Pépin observed in his recent article, this case therefore highlights the difficulties of distinguishing between impartiality and independence.  While the significance of such a distinction may not always be apparent, in a case such as this, involving allegations of partiality on an institutional level, it becomes particularly important:

 

                   [translation] The fact that both requirements are imposed in a single section [s. 23 of the Quebec Charter] is obviously likely to mitigate the importance of establishing a clear distinction between the two concepts.  In some circumstances, however, and the Lippé case is an example, the rigours of precision surface.  It becomes necessary to examine carefully this notion of structural impartiality which straddles the concepts of impartiality and independence, in order first to determine its relevance and then to ascertain whether it could not be presented as a minimum condition of the status of independence.

 

                   (Pépin, op. cit., at p. 781.)

 

                   As this Court has observed in Valente, supra, the concepts of "independence" and "impartiality" are very closely related yet are separate and distinct (at p. 685):

 

Although there is obviously a close relationship between independence and impartiality, they are nevertheless separate and distinct values or requirements.  Impartiality refers to a state of mind or attitude of the tribunal in relation to the issues and the parties in a particular case.  The word "impartial"... connotes absence of bias, actual or perceived.  The word "independent" in s. 11 (d) reflects or embodies the traditional constitutional value of judicial independence.  As such, it connotes not merely a state of mind or attitude in the actual exercise of judicial functions, but a status or relationship to others, particularly to the executive branch of government, that rests on objective conditions or guarantees.

 

                   In Beauregard v. Canada, [1986] 2 S.C.R. 56, Dickson C.J. outlined the constitutional foundations of judicial independence in Canada and identified three primary sources for the principle (at pp. 71-73):

 

First, Canada is a federal country with a constitutional distribution of powers between federal and provincial governments.  As in other federal countries, there is a need for an impartial umpire to resolve disputes between two levels of government as well as between governments and private individuals who rely on the distribution of powers.... In Canada, since Confederation, it has been assumed and agreed that the courts would play an important constitutional role as umpire of the federal system....

 

                   Secondly, the enactment of the Canadian Charter of Rights and Freedoms  ... conferred on the courts another truly crucial role:  the defense of basic individual liberties and human rights against intrusions by all levels and branches of government.  Once again, in order to play this deeply constitutional role, judicial independence is essential.

 

                   Beyond these two fundamental sources of, or reasons for, judicial independence there is also textual recognition of the principle in the Constitution Act, 1867 .  The preamble to the Constitution Act, 1867  states that Canada is to have a Constitution "similar in Principle to that of the United Kingdom".  Since judicial independence has been for centuries an important principle of the Constitution of the United Kingdom, it is fair to infer that it was transferred to Canada by the constitutional language of the preamble.  Furthermore, s. 129 of the Constitution Act, 1867  continued the courts previously in existence in the federating provinces into the new Dominion.  The fundamental traditions of those courts, including judicial independence, were also continued.  Additionally, the judicature provisions of the Constitution Act, 1867 , especially ss. 96 , 99  and 100 , support judicial authority and independence, at least at the level of superior, district and county courts.

 

                   It is clear, then, that the principle of judicial independence has traditionally required that the courts be independent of government.  The respondents characterize the principle in a broader fashion, submitting that it requires judicial independence from all influences, including in this case, the parties appearing before the municipal court judges.  For this proposition, they rely on language from Beauregard, supra (at pp. 69 and 73):

 

                   Historically, the generally accepted core of the principle of judicial independence has been the complete liberty of individual judges to hear and decide the cases that come before them:  no outsider -- be it government, pressure group, individual or even another judge -- should interfere in fact, or attempt to interfere, with the way in which a judge conducts his or her case and makes his or her decision.

 

                                                                    ...

 

The role of the courts as resolver of disputes, interpreter of the law and defender of the Constitution requires that they be completely separate in authority and function from all other participants in the justice system.  [Emphasis in original.]

 

                   I cannot agree with these submissions of the respondents.  The content of the principle of judicial independence is to be determined with reference to our constitutional tradition and is therefore limited to independence from the government.  Although the language in Beauregard, supra, may seem to have expanded the concept, it is to be remembered that the ratio of the case extended the requirement beyond the executive to the legislative branch of government.  This point is in fact emphasized in the paragraph subsequent to the one relied on by the respondents (at p. 73):

 

                   I emphasize the word "all" in the previous sentence because, although judicial independence is usually considered and discussed in terms of the relationship between the judiciary and the executive branch, in this appeal the relevant relationship is between the judiciary and Parliament.  Nothing turns on this contextual difference.

 

                   I do not intend, however, to limit this concept of "government" to simply the executive or legislative branches.  By "government", in this context, I am referring to any person or body, which can exert pressure on the judiciary through authority under the state.  This expansive definition encompasses, for example, the Canadian Judicial Council or any Bar Society. I would also include any person or body within the judiciary which has been granted some authority over other judges; for example, members of the Court must enjoy judicial independence and be able to exercise their judgment free from pressure or influence from the Chief Justice.  I emphasize that in expanding the word "government" for the purposes of defining "judicial independence", I in no way intend to set out a definition for the purposes of s. 32  of the Canadian Charter .

 

                   The facts of this case raise no "independence" problem because the Barreau du Québec has no authority over the municipal court judge in his or her capacity as a judge.  However, if legislation provided for the discipline of municipal court judges by the Barreau du Québec, such provisions would raise problems of judicial independence.

 

                   Giving "judicial independence" narrowed content does not result in a narrowed constitutional guaranteeSection 11 (d) of the Canadian Charter  and s. 23 of the Quebec Charter guarantee independence and impartiality.  As this Court stated in MacKeigan v. Hickman, [1989] 2 S.C.R. 796, at p. 826, judicial independence is an underlying condition which contributes to the guarantee of an impartial hearing:

 

                   It should be noted that the independence of the judiciary must not be confused with impartiality of the judiciary.  As Le Dain J. points out in Valente v. The Queen, impartiality relates to the mental state possessed by a judge; judicial independence, in contrast, denotes the underlying relationship between the judiciary and other branches of government which serves to ensure that the court will function and be perceived to function impartially.  Thus the question in a case such as this is not whether the government action in question would in fact affect a judge's impartiality, but rather whether it threatens the independence which is the underlying condition of judicial impartiality in the particular case.

 

                   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.

 

                   However, the facts of this case make it clear that in some situations, judicial independence may not be sufficient.  Judicial independence is only one component of judicial impartiality:

 

[A] lack of independence could be considered a good indicator of a lack of impartiality.  However, a lack of impartiality taken alone does not necessarily mean a lack of independence.  The absence of impartiality could be caused by a number of factors, of which lack of independence is only one.

 

(Greene, op. cit., at p. 194.)

 

                   Notwithstanding judicial independence, there may also exist a reasonable apprehension of bias on an institutional or structural level.  Although the concept of institutional impartiality has never before been recognized by this Court, the constitutional guarantee of an "independent and impartial tribunal" has to be broad enough to encompass this.  Just as the requirement of judicial independence has both an individual and institutional aspect (Valente, supra, at p. 687), so too must the requirement of judicial impartiality.  I cannot interpret the Canadian Charter  as guaranteeing one on an institutional level and the other only on a case-by-case basis.  On this point I must respectfully disagree with Tourigny J.A. and adopt the language of Proulx J.A. in the Court of Appeal (at p. 79):

 

                   [translation]  Since the problem concerns the impartiality of the tribunal as guaranteed by the Constitution, I believe that it would be useful to consider impartiality in fact or objectively, as Le Dain J. did in dealing with the notion of judicial independence . . . . This would permit emphasizing both impartiality as related to the status of the judge and to the manner in which he in fact acts.

 

                   In his factum, the Attorney‑General submitted that impartiality must be evaluated on the facts and not on the basis of speculation that the respondent must as a result prove a specific conflict of interest.  Accordingly, the appellant continues, to find bias solely on the basis of a legislative provision is to engage in pure speculation.

 

                   This approach empties the constitutional guarantee of all its meaning.  As I demonstrated above, the question is one of perception of the image of justice and it is as important for the maintenance of the public's confidence in the impartiality of the courts that the system or the legislative framework does not leave itself open to criticism and give rise to a reasonable apprehension of bias.  [Emphasis added.]

 

                   The objective status of the tribunal can be as relevant for the "impartiality" requirement as it is for "independence".  Therefore, whether or not any particular judge harboured pre-conceived ideas or biases, if the system is structured in such a way as to create a reasonable apprehension of bias on an institutional level, the requirement of impartiality is not met.  As this Court stated in Valente, supra, the appearance of impartiality is important for public confidence in the system (at p. 689):

 

Both independence and impartiality are fundamental not only to the capacity to do justice in a particular case but also to individual and public confidence in the administration of justice.  Without that confidence the system cannot command the respect and acceptance that are essential to its effective operation.  It is, therefore, important that a tribunal should be perceived as independent, as well as impartial, and that the test for independence should include that perception.  The perception must, however, as I have suggested, be a perception of whether the tribunal enjoys the essential objective conditions or guarantees of judicial independence, and not a perception of how it will in fact act, regardless of whether it enjoys such conditions or guarantees.

 

                   If a judicial system loses the respect of the public, it has lost its efficacy.  As Proulx J.A. expressed in his judgment below, public confidence in the system of justice is crucial to its continued existence and proper functioning (at pp. 61-62):

 

                   [translation]  Other values contribute to maintaining public confidence, such as the most democratic access to justice, equality before the law, the independence and professionalism of the Bar, a hearing within a reasonable time, to only name a few.  Throughout the course of a trial and at the time judgment is rendered, the parties to a case know that while the tribunal will have to decide in favour of one and to the disappointment of the other, they ultimately accept this because he or she who has the responsibility for deciding has nothing to gain by finding in favour of one party rather than the other and also because his decision is rendered freely and according to his conscience.

 

                   Therefore, I conclude that the issue in this appeal should be characterized as one of "institutional impartiality".

 

The Test for Institutional Impartiality

 

                   In struggling to identify the precise nature of the partiality problem in the municipal court system, the submissions of the respondents revolve around two issues:  the fact that the municipal court judges are part-time and the fact that the judges can continue to practise law.  Clearly, the respondents allege that the perception of bias is rooted in the fact that the judges are practising lawyers.  However, they also conceded, both in their factum and in oral argument, that conflicts of interest could arise simply from the fact that a judge is part-time, whatever his or her alternative profession might be.

 

                   I admit that a system which allows for part-time judges is not the ideal system.  However, the Constitution does not always guarantee the "ideal".  Perhaps the ideal system would be to have a panel of three or five judges hearing every case; that may be the ideal, but it certainly cannot be said to be constitutionally guaranteed.  Referring to recent reports and speeches on judicial independence, this Court per Le Dain J. in Valente, supra, clearly stated that s. 11 (d) did not guarantee the "ideal" in judicial independence (at p. 692):

 

These efforts, particularly by the legal profession and the judiciary, to strengthen the conditions of judicial independence in Canada may be expected to continue as a movement towards the ideal.  It would not be feasible, however, to apply the most rigorous and elaborate conditions of judicial independence to the constitutional requirement of independence in s. 11 (d) of the Charter , which may have to be applied to a variety of tribunals. 

 

                   When articulating the three "essential conditions" for judicial independence, Le Dain J. also distinguished between the "ideal" and the content of the constitutional guarantee (at pp. 698, 706 and 711-12):

 

                   In sum, I am of the opinion that while the provision concerning security of tenure... falls short of the ideal or highest degree of security, it reflects what may be reasonably perceived as the essentials of security of tenure for purposes of s. 11 (d)....

 

                                                                    ...

 

                   Although it may be theoretically preferable that judicial salaries should be fixed by the legislature rather than the executive government and should be made a charge on the Consolidated Revenue Fund rather than requiring annual appropriation, I do not think that either of these features should be regarded as essential to the financial security that may be reasonably perceived as sufficient for independence under s. 11 (d) of the Charter ....

 

                                                                    ...

 

                   Although the increased measure of administrative autonomy or independence that is being recommended for the courts, or some degree of it, may well be highly desirable, it cannot in my opinion be regarded as essential for purposes of s. 11 (d) of the Charter .

 

                   If the Canadian Charter  does not guarantee "ideal" institutional impartiality, what is the test for determining when there is an infringement?  The parties agree that the test for both "independence" and "impartiality" should be that set out by de Grandpré J. in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, at p. 394, a test adopted in Valente, supra, as applicable to both the issue of independence and impartiality (at p. 684, citing de Grandpré J. and at p. 689):

 

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

 

                                                                   . . .

 

It is, therefore, important that a tribunal should be perceived as independent, as well as impartial, and that the test for independence should include that perception.  The perception must, however, as I have suggested, be a perception of whether the tribunal enjoys the essential objective conditions or guarantees of judicial independence, and not a perception of how it will in fact act, regardless of whether it enjoys such conditions or guarantees. 

 

This is also the test that is to apply to institutional impartiality.

 

                   The fact that a judge is part-time does not in and of itself raise a reasonable apprehension of bias.  However, the activities in which a judge engages during his or her time off may well give rise to such an apprehension.  Indeed, there is nothing inherently wrong with a judge also being a lawyer.  In fact, legal education and certification are usually required and certainly desired for a judicial appointment.  The allegations stem more from the fact that a part-time judge practises law part-time as well.

 

                   While the Canadian Charter  does not prohibit part-time judges, it does guarantee that they will not engage in activities which are incompatible with their duties as a judge.  In other words, there are a few professions that, if engaged in by these part-time judges, may raise an apprehension of bias on an institutional level.

 

The test for determining which occupations will raise a reasonable apprehension of a bias on an institutional level is as follows:

 

                   Step One:   Having regard for a number of factors including, but not limited to, the nature of the occupation and the parties who appear before this type of judge, will there be a reasonable apprehension of bias in the mind of a fully informed person in a substantial number of cases?

 

                   Step Two:  If the answer to that question is no, allegations of an apprehension of bias cannot be brought on an institutional level, but must be dealt with on a case-by-case basis.

 

                   However, if the answer to that question is yes, this occupation is per se incompatible with the function of a judge.  At this point in the analysis, one must consider what safeguards are in place to minimize the prejudicial effects and whether they are sufficient to meet the guarantee of institutional impartiality under s. 11 (d) of the Canadian Charter .  Again, the test is whether the court system will give rise to a reasonable apprehension of bias in the mind of a fully informed person in a substantial number of cases.  It is important to remember that the fully informed person at this stage of the analysis must be presumed to have knowledge of any safeguards in place.  If these safeguards have rectified the partiality problems in the substantial number of cases, the tribunal meets the requirements of institutional impartiality under s. 11 (d) of the Canadian Charter .  Beyond that, if there is still a reasonable apprehension of bias in any given situation, that challenge must be brought on a case-by-case basis.

 

                   I find support for this position in the following passage found in the Rapport du Groupe de travail sur les Cours municipales:

 

The appointment of part-time judges, ad hoc judges, temporary and probationary judges ... justices of the peace and lay magistrates is wide-spread throughout the world.  Obviously, it cannot be changed overnight or even over a long period of time.  The system has its justification in practical viability and traditional acceptability.  What is necessary is to provide appropriate safeguards. [Emphasis added.]

 

(Citing L. M. Singhvi, "Independence of Justice in the World", Keynote Address Delivered at the Inaugural Session of the National Seminar on Justice:  Independence and Accountability, Canadian Institute for the Administration of Justice, Montréal, October 15-17, 1987, at pp. 41-42.)

 

Application of Test to Facts

 

                   Applying this test to the facts of this case, the first step is to determine whether the fact that a part-time judge is permitted to continue to practise law gives rise to a reasonable apprehension of bias in the mind of a fully informed person in a substantial number of cases.  The respondents have given cogent reasons why this situation would give rise to such an apprehension:

 

                   A judge is expected to remain somewhat detached and objectively adjudicate each case on its merits.  A lawyer, on the other hand, plays a more active, aggressive role, one which appears incompatible with the impartial state of mind required of a judge.  To illustrate this general incompatibility, the respondents give a number of examples of conflicts of interest which could arise:

 

                   (a)  Part-time judges who are also practising law could be pressured by clients to make a particular decision on an issue.

 

                   (b)  An appearance of a conflict of interest could arise if a lawyer of the judge's firm or a lawyer involved in a deal with the judge's firm appeared before the judge.

 

                   (c)  If the judge's firm was pursuing a particular government contract, the judge may feel pressured to favour the government position in a decision.

                   (d)  Clients of the judge could be called to testify in a case before the judge.

 

                   Based on such considerations, I find that the occupation of practising law gives rise to a reasonable apprehension of bias in a substantial number of cases and is therefore per se incompatible with the functions of a judge.

 

                   Emphasizing the importance of the appearance of impartiality, the respondents pointed out that groups, including the Commission des services juridiques du Québec; the Corporation des officiers municipaux agréés du Québec; the comité de liaison de la Cour des sessions de la paix du district de Montréal [translation] ("this committee was composed in the spring of 1988 of the chief judge of the Court of Sessions of the Peace for the district of Montréal, the director of court services, the chief counsel of the office of Crown prosecutors of the Attorney General of Quebec for the district of Montréal, the director of legal services of the M.U.C. police force and other persons") have perceived partiality problems with the municipal court system for years.  This opposition is recorded in the Rapport  du Groupe de travail sur les Cours municipales.

 

                   The Barreau du Québec also reported their opposition to the system of part-time judges because of its effect on the appearance of justice and on public confidence in the system.

 

                   In fact, in 1975 the Attorney General of Quebec and the Minister of Justice were proposing the abolition of the system as it did not meet the same standards as courts elsewhere in Quebec.  They were proposing a transfer of jurisdiction from the municipal courts to other courts which could offer [translation] "better guarantees of impartiality".  The respondents found it remarkable that the Attorney General of Quebec is now taking the position that the status of the municipal court judges now meets the constitutional requirements of impartiality.

 

                   It is necessary to point out that these objections, made by various groups to the municipal court system were made prior to a number of legislative changes, including the enactment of s. 608.1 of the Cities and Towns Act.  While I have found that the occupation of practising law is per se incompatible with the function of a judge, the next step in the analysis is to consider any safeguards which may now be in place or any other considerations of which a fully informed person would be aware which may alleviate the risks of bias.

 

The Oath

 

                   One of the complaints made to the Groupe de Travail sur les Cours municipales by the Commission des services juridiques du Québec was that the legislation did not require that the municipal court judges swear an oath upon appointment to the bench.  This concern has since been addressed.  Section 5 of An Act respecting certain aspects of the status of municipal judges, which came into force on January 1, 1989, added s. 615.1 to the Cities and Towns Act which provides for the following:

 

615.1   Before entering upon his duties of office, every municipal judge shall make the following oath or solemn affirmation:  "I swear (or solemnly affirm) that I will faithfully, impartially and honestly, and to the best of my knowledge and abilities, fulfil all the duties and exercise all the powers of a judge of a municipal court."

 

Judicial Immunity

 

                   Section 1 of the Magistrate's Privileges Act, R.S.Q., c. P-24, extends the same immunity enjoyed by judges of the Superior Court to all municipal court judges.  As noted by the Groupe de travail sur les Cours municipales, this immunity contributes to judicial independence and impartiality in that the municipal court judges are protected from actions arising out of a particular judicial decision.

 

Code of ethics

 

                   Municipal Court judges are all subject to the Code of ethics for municipal judges of Québec, O.C. 644-82, Supplement -- R.R.Q. 1981, pursuant to Courts of Justice Act, R.S.Q., c. T-16, ss. 261 and 262:

 

1.  The judge should render justice within the framework of the law.

 

2.  The judge should perform the duties of his office with integrity, dignity and honour.

 

3.  The judge has a duty to foster his professional competence.

 

4.  The judge should avoid any conflict of interest and refrain from placing himself in a position where he cannot faithfully carry out his functions.

 

5.  The judge should be, and be seen to be, impartial and objective.

 

6.  The judge should perform the duties of his office diligently.

 

7.  The judge should refrain from any activity which is not compatible with his functions of municipal judge.

 

8.  In public, the judge should act in a reserved, serene and courteous manner.

 

9.  The judge should uphold the integrity and defend the independence of the judiciary, in the best interest of justice and society.

 

                   In particular, ss. 4 and 5 of this Code would require the municipal court judge to avoid many of the examples of potential conflicts of interest given by the respondents.  If a lawyer from the municipal court judge's firm were to appear before the municipal court, the judge would not be able to hear the case, as s. 4 of the Code of ethics to which he or she is subject clearly prohibits such a situation.  Similarly, if a client of the municipal court judge was called to testify in a particular case before him or her, the Code would prohibit the judge from sitting on the case.  If a judge's firm were bidding on a government contract, the Code would also seem to require that the judge refrain from hearing a case in which the government was a party.

 

                   To enforce the Code of ethics, ss. 263 to 281 of the Courts of Justice Act establish a whole procedure to hear complaints, which can eventually result in the judge's removal:

 

                   263.   The council receives and examines a complaint lodged by any person against a judge alleging that he has failed to comply with the code of ethics.

 

                   In addition to the Code of ethics, s. 608.1 of the Cities and Towns Act,  which came into effect on January 1, 1989 (enacted pursuant to s. 3 of An Act respecting certain aspects of the status of municipal judges), imposes further obligations on municipal court judges in order to avoid conflicts of interest:

 

                   Section 608.1(1) prohibits municipal court judges from directly or indirectly entering into most contracts with a municipality within their geographical jurisdiction, or even from advising someone negotiating such a contract.

 

                   Section 608.1(2) prohibits municipal court judges from directly or indirectly representing or acting against a municipality, a member of the municipal council, certain municipal employees, and police officers within their geographical jurisdiction.

 

                   Section 608.1(3) prohibits municipal court judges from hearing certain cases in which an advocate with whom the judge practises is involved, including cases in which the advocate represents or acts against a municipality or a person listed in s. 608.1(2).

 

                   Section 608.1(4) prohibits municipal court judges from hearing a case involving an issue which is similar to one in a case in which he represents one of the parties.  This provision thus specifically addresses the respondents' submission that judges could feel pressured to decide certain issues in order to favour a client's case.

 

                   Section 608.1(5) makes reference to the grounds of recusation set out in s. 234 of the Code of Civil Procedure, R.S.Q., c. C-25, which states:

 

                   234.   A judge may be recused:

 

 

                   (1)  If he is related or allied to one of the parties within the degree of cousin-german inclusively;

 

                   (2)  If he is himself a party to an action involving a question similar to the one in dispute;

 

                   (3)  If he has given advice upon the matter in dispute, or has previously taken cognizance of it as an arbitrator, if he has acted as attorney for any of the parties, or if he has made known his opinion extra-judicially;

 

                   (4)  If he is directly interested in an action pending before a court in which any of the parties will be called to sit as judge;

 

                   (5)  If there is mortal enmity between him and any of the parties, or if he has made threats against any of the parties, since the institution of the action or within six months previous to the proposed recusation;

 

                   (6)  If he is tutor, subrogate-tutor or curator, presumptive heir or donee of any of the parties;

 

                   (7)  If he is a member of a group or corporation, or is manager or patron of some order or community which is a party to the suit;

 

                   (8)  If he has any interest in favouring any of the parties;

 

                   (9)  If he is related or allied to the attorney or counsel or the partner of any of them, either in the direct line, or in the collateral line in the second degree.

 

                   Section 608.1(5) requires that, for each case, the municipal court judge include in the record a declaration stating the grounds of recusation to which he or she is liable under s. 234 of the Code of Civil Procedure and other "grounds indirectly connected with him and arising from the fact that he is representing one of the parties or from the activities of a person with whom he practises as an advocate".  The combination of all of these legislative provisions regarding recusation require, then, that the municipal court judge turn his or her mind to the possible conflicts of interest and indicate them in the record of any case heard.  At this point, he or she must recuse him or herself if to hear the case would violate the duty to remain impartial and avoid conflicts of interest which is imposed by the oath, s. 608.1 of the Cities and Towns Act, and the Code of ethics.  While I trust that the municipal court judges take their oath of office solemnly and seriously, the duty is also enforceable through the procedure provided for in ss. 263 to 281 of the Courts of Justice Act.

 

                   The steps which the municipal court judges have taken to make themselves more independent and impartial illustrate the fact that they do indeed take their duties seriously.  Sixty-five per cent of them live in a municipality other than the one in which they serve as a judge.  Seventy per cent of them have their law offices in different municipalities than that in which they serve as a judge.  Ten per cent of them do not even have a private office.  Some only practise law in specialized areas of expertise.

 

                   In light of all of the legislative safeguards, including the oath and enforceable duties imposed on municipal court judges, I respectfully disagree with Proulx J.A. that the system would give rise to a reasonable apprehension of bias in the mind of a reasonable, well-informed person.

 

                   In his judgment, Proulx J.A. accepted the submission of the respondents that a conflict could exist without a municipal court judge even being aware of it.  For example, if a judge practises in a large firm, he or she will not know all of his colleagues' clients, cases, etc.  However, a reasonable, well-informed observer may well be aware of the existence of such conflicts and fear that the judge will not be impartial.  The requirement of "impartiality" goes beyond any intentional actions of a judge and includes the absence of [translation] "bias [whether] involuntary or unconscious".  In his opinion, the legislative reforms have not cured all of the impartiality problems.

 

                   While it may be true that a judge will not always be aware of a conflict, that possibility can be dealt with on a case-by-case basis.  The oath sworn by the judges, the Code of ethics to which they are subject, and the restrictions set out in s. 608.1 of the Cities and Towns Act all combine to alleviate the apprehension of bias.  A reasonably well-informed person -- with full knowledge of the Quebec municipal court system, including all of its safeguards -- should not have an apprehension of bias in a substantial number of cases.  Therefore, I conclude that the system of part-time municipal court judges permitted to practise law in Quebec does not infringe the guarantee of judicial impartiality encompassed in s. 11 (d) of the Canadian Charter  and s. 23 of the Quebec Charter.  Because I have found no infringement of s. 11 (d), there is no need to proceed to a s. 1 analysis.

 

//Gonthier J.//

 

                   The judgment of La Forest, L'Heureux-Dubé, Gonthier and McLachlin was delivered by

 

                   Gonthier J. -- I have had the benefit of the reasons for judgment of the Chief Justice.  I agree with his conclusions and agree substantially with the reasons upon which they rest.

 

                   However, I wish to indicate that while the precise scope of "judicial independence" need not be in issue here, I respectfully disagree with the restrictive definition which he adopts for "judicial independence" as related solely to independence from government.  At the same time, I agree with the Chief Justice that "[g]iving `judicial independence' narrowed content does not result in a narrowed constitutional guarantee" since s. 11 (d) of the Canadian Charter of Rights and Freedoms  guarantees both independence and impartiality as does s. 23 of the Quebec Charter of Human Rights and Freedoms, R.S.Q., c. C-12.

 

                   The broader understanding of "judicial independence" expressed in the following terms in Beauregard v. Canada, [1986] 2 S.C.R. 56, at p. 69, is in my view both appropriate and important:

 

                   Historically, the generally accepted core of the principle of judicial independence has been the complete liberty of individual judges to hear and decide the cases that come before them:  no outsider -- be it government, pressure group, individual or even another judge -- should interfere in fact, or attempt to interfere, with the way in which a judge conducts his or her case and makes his or her decision.

 

This was consistent with the thinking expressed previously by Le Dain J. in Valente v. The Queen, [1985] 2 S.C.R. 673, at p. 685:

 

As such, it connotes not merely a state of mind or attitude in the actual exercise of judicial functions, but a status or relationship to others, particularly to the executive branch of government, that rests on objective conditions or guarantees.  [Emphasis added.]

 

                   Similar expressions may be found, as follows:

 

Independence

 

2.02Judges 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.

 

(Universal Declaration on the Independence of Justice, First World Conference on the Independence of Justice, Montréal, June 10, 1983, in S. Shetreet and J. Deschênes, eds., Judicial Independence:  The Contemporary Debate (1985), 447, at p. 450.)

 

The independence of the individual judge is comprised of two essential elements:  substantive independence and personal independence.  Substantive independence means that in the making of judicial decisions and exercising other official duties, individual judges are subject to no other authority but the law.

 

                                                                    ...

 

                   Independence of the judiciary implies not only that a judge should be free from executive or legislative encroachment and from political pressures and entanglements but also that he 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., at pp. 598‑99.)

 

One method of promoting impartiality is to attempt to ensure that the judge is free from outside interference by the litigants or other interested parties, interference which is intended to bias the judge.  In other words, the purpose of judicial independence, which is the freedom from relationships which could reasonably induce bias, is to promote judicial impartiality.

 

(I. Greene, "The Doctrine of Judicial Independence Developed by the Supreme Court of Canada" (1988), 26 Osgoode Hall L.J. 177, at pp. 191-92.)

 

                   As stated above by this Court, while independence from government is a most important aspect of "judicial independence" and in recent years has been the focus of several decisions before this Court and of a number of legal studies, it does not encompass the full scope of "judicial independence".  The same position has been taken by the European Court of Human Rights which has repeatedly decided that an independent tribunal within the meaning of s. 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 222, which reads as follows:

 

                                                              Article 6

                   (1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

 

includes both independence from government and independence from the parties to the litigation (see Eur. Court H. R.,  Ringeisen case, judgment of 16 July 1971, Series A No. 13; Eur. Court H. R., case of Le Compte, Van Leuven and De Meyere, judgment of 23 June 1981, Series A No. 43; Eur. Court. H. R., Piersack case, judgment of 1 October 1982, Series A No. 53; Eur. Court H. R., case of Campbell and Fell, judgment of 28 June 1984, Series A No. 80).

 

                   Professor Shetreet writes to the same effect, underlining the importance of safeguarding independence of the judiciary vis-à-vis the parties:

 

                   Independence of the judiciary has normally been thought of as freedom from interference by the Executive or Legislature in the exercise of the judicial function.  This, for example, was the conception expressed by the International Congress of Jurists at New Delhi in 1959 and arises from the fact that historically the independence of the judiciary was endangered by parliaments and monarchs.  In modern times, with the steady growth of the corporate giants, it is of utmost importance that the independence of the judiciary from business or corporate interests should also be secured.  In short, independence of the judiciary implies not only that a judge should be free from governmental and political pressure and political entanglements but also that he should be removed from financial or business entanglements likely to affect, or rather to seem to affect, him in the exercise of his judicial functions.  [Emphasis added.]

 

(S. Shetreet, Judges on Trial (1976), at pp. 17-18.)

 

                   The protection of personal independence is not confined to the concern over potential pressures on judges as a result of undue executive control.  Personal independence is also protected against potential pressures from the parties to the case.  This is the rationale behind the doctrine of judicial immunity which shields the judge against actions for words, acts, or omissions in the discharge of his judicial function.

 

(Shetreet, "Judicial Independence:  New Conceptual Dimensions and Contemporary Challenges", op. cit., at p. 623.)

 

                   The doctrine of judicial immunity as a protection of the independence of judges vis-à-vis the parties was expressed in colorful terms by Lord Denning, M.R., in the case of Sirros v. Moore, [1975] 1 Q.B. 118, quoted in the case of Morier v. Rivard, [1985] 2 S.C.R. 716, at p. 739:

 

If the reason underlying this immunity is to ensure "that they may be free in thought and independent in judgment," it applies to every judge, whatever his rank.  Each should be protected from liability to damages when he is acting judicially.  Each should be able to do his work in complete independence and free from fear.  He should not have to turn the pages of his books with trembling fingers, asking himself:  "If I do this, shall I be liable in damages?"

 

                   As judicial independence is a safeguard for judicial impartiality, understanding of its full scope is important to the fullness of protection of judicial impartiality.  This is particularly so as breaches of independence are generally more easily identifiable to factual circumstances and hence easier to prove than bias itself which is essentially a state of mind.

 

                   In the present appeal, the respondents raise a number of aspects pertaining to the status of municipal judges as practising lawyers.  Some of these may be viewed as relating to a possible lack of independence from the parties while others pertain directly to the thinking processes of the judge.  All of them can be considered as affecting the appearance of impartiality as well as being linked to this combined status of lawyer and part-time judge.  I accept that they may be considered as pertaining to institutional impartiality and concur in the analysis made in this respect by the Chief Justice and in his reasons for concluding that the system of part‑time municipal court judges who are allowed to practise law in Quebec does not infringe the guarantee of judicial impartiality under s. 11 (d) of the Canadian Charter  and s. 23 of the Quebec Charter.

 

                   I would therefore likewise allow the appeal and answer the first constitutional question in the negative, no answer being therefore required to the second constitutional question.

 

                   Appeal allowed.

 

                   Solicitors for the appellant:  Marise Visocchi, Jean‑Yves Bernard and Claude Bouchard, Ste‑Foy.

 

                   Solicitors for the respondent Lippé:  Brochet, Dussault & Associés, Ste‑Foy; Pierre Béliveau, Montréal.

 

                   Solicitor for the other respondents:  Herman Bédard, Québec.

 

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

 

                   Solicitors for the interveners the R.C.M. of Jacques‑Cartier and the Municipality of Fossambault‑sur‑le‑Lac:  Flynn, Rivard, Québec.



     *Reasons delivered on June 6, 1991.

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