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Peter McCormick, “New Questions about an Old Concept: The Supreme Court of Canada’s Judicial Independence Decisions”. 37(4): Canadian Journal of Political Science 839-862. Abstract.
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37(4): Canadian Journal of Political Science 839-862
In the age of the Charter, courts are an important part of the policy process, and judicial independence is the concept that structures the interactions between courts and other institutions.
Historically, judicial independence in Canada was modelled on (and little different from) that of England; but politically-led reforms in the 1970s, and a string of more than a dozen Supreme Court decisions centred on the 1997 Remuneration Reference, are transforming the concept.
At the same time, a parallel string of cases extends more limited but essentially similar guarantees to some other administrative bodies.
Together, these developments represent an important and enduring change in the Canadian political landscape.
First: judges hold office on good behaviour and are (almost) impossible to remove, and then only for cause.
Second: salaries set by Parliament (for all judges on same bench, not for individual judges).
Third: judges not answerable to government or bureaucracy for judicial matters.
Fourth: judges drawn from/part of aggressively independent legal profession (implied).
Fifth: judicial discretion limited by “formalism” as guiding principle (implied) judges applied, but did not modify rules.
Sections 96 – 100 of the Constitution Act, 1867 closely parallel the relevant terms of the Act of Settlement.
Judges of provincial superior courts appointed from provincial bars.
Judges serve on good behaviour for life (or mandatory retirement age).
Judges removable only for cause.
Salaries established by Parliament.
Judicial independence applies only to English superior courts and Canada’s provincial superior courts (and SCC).
Candidate for bench, must come from the bar, but ...
other aspects informing the appointment decision?
considerations re elevating judges to a higher court?
No provision for disciplining judges except for dismissal.
Nothing about managing judge-government & judge-court staff relations.
Nothing about setting or administration of the budget & setting of judicial salaries.
Restructuring of SCC
More experienced judges.
More likely to have had judicial experience.
Less likely to have been directly involved in politics.
New style of judicial decision-making formalism ; contextualism
Major changes to court system
Judicialization of magistrate courts recognize of judicial independence.
Judicial councils created screened judicial appointments, investigated complaints against judges.
Chief Judge of Provincial Court institutional buffer between government & judges.
Changes statutory & not constitutionally entrenched.
Politically driven (provincial & federal).
The consolidation decision: Valente (1985).
The “details” decisions: Beauregard (1986), MacKeigan (1989), Lippé (1991), Généreux (1992), Ruffo (1995).
The “blockbuster”: Remuneration Reference (1997).
The follow-up decisions:Tobiass (1997), 974649 Ontario (2001), Therrien (2001), Mackin (2002), Moreau-Berube (2002), Ell (2003).
The next wave?: Bodner (2004).
First: a new grounding: “an unwritten constitutional principle” exterior to any specific section.
Second: a new location: the preamble (“similar in principle to that of the United Kingdom”).
Third: a new judicial function: “protectors of the Constitution.”
Fourth: a new dimension: a constrained role for chief judges.
Fifth: a new basic principle: no relationship between the government and the court, involving even the appearance of negotiation.
Sixth: new institutional structure: Judicial Salary Commission.
What are the new issues?
First: judicial salaries (settled in Remuneration)
Second: court facilities (the BC skirmish)
Third: court budgets and administration (Bodner)
Fourth: constraining chief judges (Tobiass)
Fifth: empowering judicial councils (Ell, Moreau-Berubé)
Sixth: the judicial career (appointments/promotions)
Labour relations board: Consolidated Bathurst (1990), Ellis-Don (2001)
Social affairs commission: Tremblay (1992)
Administrative tribunal: Domtar (1993)
Liquor licensing board:2747-3174 Quebec Inc.(1996), Ocean Port (2001)
Public utilities board: Wells (1999)
Ad hoc arbitrations board: C.U.P.E. v. Ontario (2003)
Human rights tribunal:Canadian Telephone Employees (2003)
Forest appeals commission: Paul (2003)
Workers compensation appeals tribunal: Martin (2003)
Residential tenancy tribunal: McKenzie (2006)