Unofficial English Translation
Paquet c. Québec (Procureure générale)
2010 QCCS 3185
SUPERIOR COURT
CANADA
PROVINCE OF QUEBEC
DISTRICT OF QUEBEC
No.:
200-17-010811-099
DATE:
July 12, 2010
______________________________________________________________________
THE HONOURABLE YVES ALAIN, J.C.S.
(JA 0593)
______________________________________________________________________
RENÉ PAQUET
Plaintiff
v.
ATTORNEY GENERAL OF QUEBEC
and
THE HONOURABLE GILLES CHAREST
Defendants
______________________________________________________________________
JUDGMENT ON A MOTIONFOR DECLARATORY JUDGMENT
(Article 453 C.C.P.)
______________________________________________________________________
200-17-010811-099
PAGE: 2
[1]
On March 27, 2009, Mtre René Paquet was required to cease to hold office as a
judge of the Municipal Court of Quebec because he had reached 70 years of age,
pursuant to section 39 of the Act respecting municipal courts (R.S.Q., c. C-72.01) (the
"Act). According to Mtre Paquet, this legislative provision is discriminatory.
[2]
He therefore brings a motion for declaratory judgment, seeking the following:
(a) a declaration that section 39 of the Act respecting municipal courts1 is
contrary to the provisions of section 15 of the Canadian Charter2 and section
10 of the Quebec Charter;3
(b) a declaration that section 39 of the Act is invalid, inapplicable, and inoperable
against him;
(c) a safeguard order for the duration of the proceeding.
[3]
The Attorney General of Quebec (the "AGQ") contests the order. The AGQ
argues that section 10 of the Quebec Charter is of no help to Mtre Paquet because the
protection it offers is expressly excluded where the alleged discrimination is based on
an individual's age and provided by law, as it is in this case. She also argues that
section 10 of the Quebec Charter does not create an autonomous equality right but that,
to have effect, it must be joined with another guaranteed right or freedom, which is not
the case here.
[4]
The AGQ adds that even though section 39 of the Act does make a distinction
(exclusion) based on age, it does not violate section 15 of the Canadian Charter
because it does not create a disadvantage by perpetuating prejudice or stereotyping
older persons. Generally, requiring a person holding judicial office to retire at a
predetermined age does not infringe on that person's independence as guaranteed in
the Charters.
[5]
Alternatively, she adds that even if the Court were to find that section 39 of the
Act violates the equality right protected by section 15 of the Canadian Charter, such
violation would be justifiable in a free and democratic society. Indeed, it would serve a
pressing and substantial objective: the need to guarantee to litigants access to courts
presided by independent judges.
1
2
3
In the original French, the name of the statute was erroneously transcribed as Loi sur les tribunaux
judiciaries (Courts of Justice Act), whereas the correct statute is the Loi sur les cours municipales
(Act respecting municipal courts), as rendered in the English translation.
Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to
the Canada Act 1982 (U.K.), 1982, c. 11, s. 15.
Charter of human rights and freedoms, R.S.Q., c. C-12.
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CHRONOLOGY
[6]
Mtre Paquet trained as a lawyer and was admitted to the Bar in 1963. He has
been practicing law for forty-six years. At the time of the hearing, he was still a member
of the Barreau du Québec.
[7]
In 1973, he was appointed as a judge of the Municipal Court of Sillery. Until
2002, he presided over one session a month, usually in the evening.
[8]
During the municipal mergers in the greater Quebec City region, the Municipal
Court of Sillery was abolished. The abolition was effective as of December 31, 2001.
[9]
On January 2, 2002, the Honourable Gilles Charest, Chief Judge of the Municipal
Courts of Quebec, appointed Mtre Paquet as one of the temporary (ad hoc) judges of
the new Municipal Court of the City of Quebec, pursuant to subsection 12 of Order
14942001 of the Government of Quebec, dated December 12, 2001. The said order
was adopted pursuant to paragraph 241, subparagraph 2, of the Act to reform the
municipal territorial organization of the metropolitan regions of Montréal, Québec and
the Outaouais (S.Q. 2000, c. 56).
[10] This appointment came into effect on January 2, 2002, and remained so until the
Government of Quebec appointed new judges to this Court (R-2 en liasse).
[11] On January 2, 2003, the Honourable Gilles Charest appointed Mtre Paquet for a
second time as a temporary (ad hoc) judge for the new City of Quebec Municipal Court,
pursuant to the new section 46.1 of the Act respecting municipal courts (R.S.Q., c. C72.1), as per section 17 of Chapter 21 of the statutes of 2002. This appointment came
into effect on January 2, 2003, and remained so until June 23, 2003 (R-2 en liasse).
His appointment as a temporary (ad hoc) judge for the Municipal Court of the City of
Quebec was renewed a subsequent twelve times at approximately six-month intervals
(R-2 en liasse). It was renewed one last time on December 20, 2008, for the period of
January 1 to March 26, 2009, the eve of Mtre Paquet's seventieth birthday (R.1).
[12] On January 22, 2009, Mtre Paquet had the present motion for declaratory
judgment stamped. On January 26, 2009, it was served on the Attorney General of
Quebec and the Honourable Gilles Charest.
[13] On March 9, 2009, he filed a motion for safeguard order, which was rejected by
the Honourable Judge Jean Lemelin in a very detailed judgment dated March 23, 2009,
which concludes as follows:
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[TRANSLATION]
[35] The Court finds that the balance of convenience favours the judicial system
as a whole, represented by the Attorney General of Quebec.
[36] There is a concern that an order suspending the effect of section 39 of the
Act would create an undesirable disturbance in the administration of the
municipal courts of Quebec.
[14] On May 1, 2009, Mtre Paquet obtained leave to appeal this judgment from a
judge of the Court of Appeal. The case was then entered on the roll of September 4,
2009, to be pleaded without factum.
[15] In a unanimous judgment, the Honourable André Brossard, Benoît Morin, and
Jacques A. Léger JJ.A. dismissed the appeal without costs after finding that
[TRANSLATION] "the Court finds no error in the judgment [Lemelin] that would justify its
intervention".
[16] The hearing on the merits took place before the undersigned judge on January
21, 2010.
[17] At the end of the hearing, the Court addressed the attorney representing the
AGQ and asked him to verify [TRANSLATION] "whether requests have been made by the
chief judges or judges' associations of the Court of Quebec or the municipal courts
regarding an amendment to the mandatory retirement age set out in the governing
statutes that were debated before the Court". The time period allotted was two weeks.
[18] On February 4, 2010, the undersigned judge received a copy of the factum filed
by the Conférence des juges du Québec before the Commission permanente des
affaires sociales concerning Bill 15 on the abolition of mandatory retirement (An Act
respecting labour standards). A copy of this factum is filed as Exhibit I-45 and the bill as
Exhibit 1-46.
[19] On February 5, 2010, Mtre Sébastien Rochette mailed the undersigned judge
[TRANSLATION] "an excerpt from the debates of the National Assembly of Quebec
demonstrating that the Conférence des juges du Québec has made representations
before the Commission permanente des affaires sociales concerning Bill 15" (1-47).
THE EVIDENCE
[20] At the hearing on January 21, 2010, Mtre Paquet was the only witness heard.
The attorneys then filed copies of their exhibits in the record. Counsel for Mtre Paquet
filed exhibits R-1 to R-25, and counsel for the AGQ filed exhibits I-1 to I-44, followed
later by exhibits I-45, I-46, and I-47, by consent.
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[21] Essentially, Mtre Paquet gave an account of his career since 1963, his affiliations
with various law firms until 2009, and his activities as municipal judge in the town of
Sillery from 1973 to 2002 and as a temporary (ad hoc) judge for the City of Quebec from
2002 to 2009.
[22] From 2002 to 2009, the Quebec Municipal Court had three full-time judges and
two part-time, temporary judges. Mtre Paquet presided over two or three sessions a
week, for a total of approximately one hundred sessions a year.
[23] According to Mtre Paquet, the only reason he is leaving and ceasing to hold
office is the fact that, under section 39 of the Act, municipal court judges must retire
once they reach the age of 70.
[24] Mtre Paquet informs the Court that his retirement makes him feel excluded and
causes a loss of self-respect and pride.
[25]
He says that he has lost self-esteem and feels unable to serve the public.
[26] Acting as a municipal judge gave him a feeling of self-respect, and he was proud
to hold a position that he liked. He now feels excluded from the active population.
[27] He emphasizes that his motion has no monetary basis whatsoever and that he
simply seeks to continue holding judicial office. To him, it is an issue of dignity and
pride. This is the content of his testimony.
[28]
He was not cross-examined by counsel for the AGQ.
[29] The plaintiff's evidence filed as exhibits R-1 and R-2 (en liasse) concern Order
537-2008, dated May 28, 2008 (R-3), which authorized twenty-four retired Court of
Quebec judges to hold the office the Chief Judge of Quebec assigned to them, in
accordance with section 93 of the Courts of Justice Act (R.S.Q., c. T-16).
[30] It should be pointed out immediately that these appointments under the Courts of
Justice Act grant retired Court of Quebec judges no right of their own to elect. Two
court decisions have clearly stated that [TRANSLATION] "a request for granting or
prolonging an appointment is up to the chief judge and not the retired judge".4
[31] Exhibits R-5 to R-12 contain various commentaries on legislative provisions
relating to the abolition of mandatory retirement in certain Canadian provinces in recent
years.
[32] Exhibits R-13 to R-21 are articles by economists, professors, accredited human
resource consultants, working groups for the Department of Health and Seniors, the
4
Thérien v. Pellerin, [1997] R.J.Q. 816 at 825 (C.A.), Jean-Louis Baudoin J.A.; Alain Williamson v.
Juge Yvon Mercier (23 June 2004) 200-01-086000-035, Robert Pidgeon Assoc. C.J. (Que. Sup. Ct.).
200-17-010811-099
PAGE: 6
Department of the Status of Women, the Seniors Council, and excerpts from speeches
by Minister Marguerite Blais referring to mandatory retirement, general labour problems,
pension programs, the participation of seniors in social development, and ageing
policies within some OECD administrations. These exhibits refer to the positive effect
of allowing people over the age of 65 to continue to be part of the workforce as a way of
countering the lack of manpower expected in the coming years, among other things.
[33] Finally, exhibits R-22 to R-25 are socio-economic documents concerning seniors
today and tomorrow, prepared by the Institut de la statistique du Québec, the Régie des
Rentes du Québec (R-22) and CIRANO (Centre interuniversitaire de recherche en
analyse des organisations) (R-23 to R-25). Exhibit R-25 in particular is a report dated
January 2010, written by Claude Castonguay and Mathieu Laberge and entitled "La
longévité: une richesse" ([TRANSLATION] "Longevity: A Source of Wealth").
[34] As for the evidence filed by the AGQ, exhibits I-1 to I-13 contain excerpts from
provincial legislation defining the age of retirement for provincial judges and justices of
the peace in Prince Edward Island, Saskatchewan, Nova Scotia, Alberta, British
Columbia, Ontario, and New Brunswick. For the most part, these statutes set the age of
mandatory retirement between 65 and 70 years old, with the exception of the provincial
judges of British Columbia and New Brunswick, for whom the mandatory age of
retirement is 75 years old.
[35] In some jurisdictions (such as Ontario), judges may sit until the age of 75, with
the assent of the Chief Judge. In addition, retired judges of the Provincial Court of Nova
Scotia, like those of Quebec, may be appointed for additional terms with the assent of
the Chief Judge, if in the public interest.
[36] Exhibits I-14 to I-38 are statements of fundamental principles, universal charters,
charters of European countries, China, the United Nations, as well as the constitutions
of American states, Australia, Northern Ireland, New Zealand, the Netherlands, Poland,
the Czech Republic, Israel, and Spain, who, for the most part, set the mandatory age of
retirement of judges at 70, with the exception of Poland where it is 65.
[37] Exhibit I-39 is the decision of the United States Supreme Court in Gregory v.
Ashcroft, 501 U.S. 452 (1991). In that decision, the majority of the Supreme Court
confirmed the constitutionality of article V, §26 of the Constitution of Missouri, which set
the mandatory retirement age of judges appointed by the state at 70.
[38] Exhibit I-40 is the decision of the United States Appeal Court (third circuit)
inMalmed et al v. Thornburg, 621 F. 2d, p. 565 et ss., which confirms the validity of
article V, §16(b) of the Constitution of Pennsylvania, which sets the mandatory age of
retirement of judges appointed by the state at 70.
[39] Exhibit I-41 is the official minutes of the debates of the 1960 House of Commons,
which led to the presentation of a bill before the British Parliament to amend the
200-17-010811-099
PAGE: 7
Canadian constitution to reduce the mandatory age of retirement of provincial superior
courts to 75.5
[40] Exhibit I-42 is an excerpt from a report prepared for the Canadian Judicial
Council by Martin L. Friedland, professor of law at the University of Toronto, entitled "A
Place Apart: Judicial Independence and Accountability in Canada".
[41] Exhibit I-43 is an excerpt from an article published by Shimon Shetreet of the
Hebrew University in Jerusalem, entitled "Judges on Trial – A Study of the Appointment
and Accountability of the English Judiciary (1976)".
[42] Exhibit I-44 is a report by an English justice subcommittee presided by Peter
Webster Q.C., recommending that the mandatory retirement age for British judges be
set between 60 and 65 years of age. The report advises, however, that there should be
no limit for judges in the House of Lords.
[43] Exhibits I-45, I-46, and I-47, filed subsequently by letter on February 4 and 5,
2010, concern the submissions made during the study of the bill to amend the Act
respecting labour standards as regards the abolition of the mandatory retirement age for
persons contemplated in that Act.
ANALYSIS AND DECISION
[44] In his motion, Mtre Paquet asks the Court to declare section 39 of the Act
respecting municipal courts to be invalid, inapplicable, and inoperable against him to the
extent that it requires him to cease holding office at the age of 70, that is, on March 27,
2009.
[45] In response to the argument of the AGQ, however, his counsel admits that there
must be a retirement age for the judiciary, which is, in his opinion, necessary to
preserve judicial independence. He adds, however, that it should no longer be
acceptable in 2010 to set the age of retirement for municipal court judges at 70 years
old. He argues that it is up to the government to set the age of retirement for judges, but
that the Court in this case should set the mandatory age of retirement at 75, which
would be reasonable.
[46] Counsel no doubt bases his argument on both the mandatory age of retirement
determined by federally appointed judges and the recommendations in the CIRANO
report by Claude Castonguay and Mathieu Laberge entitled "La longévité: une richesse"
([TRANSLATION] "Longevity: A Source of Wealth") (R-25), certain excerpts of which
warrant reproduction here.
5
Sections 96 and 99(2) of the Constitution Act, 1867, 30 and 31 Vict., c. 3 (U.K.).
200-17-010811-099
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[47] In the introduction, the authors state that one of the objectives of the report is to
increase productivity in light of the ageing of the population and to create conditions
favourable for people reaching normal retirement age to remain on the labour market.
[48]
On page 15, they state the following:
[TRANSLATION]
In the early 1950s, the life expectancy of men was 66 years old, and 71 for
women. Since the 1950s, the accepted normal retirement age has been 65, in
order to allow workers to have a few years of rest and relaxation after their life of
labour.
[49] Later, on page 23, they make an interesting comment on the age limit they
recommend to allow people to remain productive:
[TRANSLATION]
We therefore recommend 75 as the age limit before which people may engage in
remunerated and volunteer activity.
[50] Finally, the Court will reproduce a few comments from page 52, which suggest
that adjustments may be required in the workplace to enable people older than the
normal retirement age of 65 to be able to continue to fulfil their duties.
[TRANSLATION]
The real challenge is to ensure that increased longevity becomes an opportunity
for older people to have more satisfying years both at work and in retirement.
Positive factors must be emphasized. First, many older people wish to continue
working [TRANSLATION] "if appropriate incentives and policies adapted to the
workplace are put in place". Second, according to contributors, the time has
come to implement new strategies to enable growth, increase employment, and
create more solid foundations for our pension systems.
[51] The Court considers that the recommendations in this report, drafted in January
2010, are based primarily on sociological and demographic considerations.
[52] The same can be said of the documents filed by counsel for Mtre Paquet, who
relies on humanitarian, sociological, and demographic considerations, while taking into
account the ageing of the population, higher quality health care, and perceived
problems on the job market given the significant number of people planning to retire in
coming years, potentially leading to a chronic shortage of active workers.
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 STATUS OF RENÉ PAQUET AS JUDGE OF THE MUNICIPAL COURT OF QUEBEC CITY
[53] Mtre Paquet's testimony shows clearly that his application has no monetary basis
whatsoever. He is a dignified, healthy, very active man, who finds it difficult to accept
that he must abandon a prestigious position that he values, that provides him
satisfaction as well as a certain influence on his community and his circle. In his opinion,
therefore, it is unfair that section 39 of the Act obliges him to cease holding office as a
municipal judge, a position he has held since 1973. As noted above, from 1973 to 2002,
he sat as a judge at the Municipal Court of Sillery for one session per month.
[54] That said, it must be noted that the Act to reform the municipal territorial
organization of the metropolotain regions of Montréal, Québec and the Outaouais (S. Q.
2000, c. 56, enacted December 20, 2000) modified his status. Sections 234 and 235 of
this Act read as follows:
234. A municipal court is hereby established, effective 1 January 2002, in each
new city to which this Act applies, having jurisdiction within the whole territory of
the city.
The new municipal court is to integrate the municipal courts which, on 31
December 2001, are established in the municipalities forming the new city,and
the old courts are abolished.
235. The new municipal court of each of the cities shall continue to have
jurisdiction in the municipalities whose territories, on 31 December 2001,
areunder the jurisdiction of a municipal court integrated into the new court, unless
those municipalities become part of a new municipality, or an order to the
contrary is made at the request of one or the other of the municipalities.
[55] The Act respecting municipal courts (R.S.Q., c.-C72.01) applies to municipal
courts thus established, subject to sections 235 to 246.
[56] In the Plan d'intégration et d'organisation des nouvelles cours municipales des
régions métropolitaines de Montréal, de Québec et de l'Outaouais (integration and
organizational plan for the new municipal courts of the metropolitan regions of Montreal,
Quebec City, and Outaouais, a report dated May 31, 2001) 6, the following comments
can be found in paragraph 5.3:
[TRANSLATION]
The Quebec region is divided into two territories for the purpose of municipal
reform: the agglomeration of Quebec and the South Shore. There are six
municipal courts of the agglomeration of Quebec, although the court of the city of
L'Ancienne-Lorette has been in the process of abolition in recent months
because that city has entered into an agreement with the City of Sainte-Foy to be
6
http: //www.justice.gouv.qc.ca/français/publications/rapports/cours-munic.htm
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served by both its police force and its municipal courts. In addition to the courts
of these two cities, there are also the courts of Loretteville, whose municipal court
serves all of the municipalities of the regional county municipality (MRC) of
Jacques-Cartier, Quebec, Sillery, and Val-Bélair.
These courts serve a population of 504,235 inhabitants, plus the 24,819 persons
living in the regional county municipality of Jacques-Cartier. The area of the
future city of Quebec is vast, although the population is largely concentrated in
the central neighbourhoods of the City of Quebec, in the south part of the cities of
Charlesbourg and Beauport, and in Sillery and the plateau of Sainte-Foy.
Workplaces are also concentrated in the central areas of the city of Quebec.
[57] The second paragraph of paragraph 234 makes it clear that the municipal court
of Sillery has been abolished. Therefore, it can be found that, under section 39 in fine of
the Act respecting municipal courts, Mtre Paquet was required to cease to hold office as
a municipal judge as soon as the Municipal Court of Sillery was abolished.
[58] This argument alone would be sufficient to reject his motion. Indeed, Mtre Paquet
was appointed as a temporary (ad hoc) judge of the Municipal Court of Quebec as of
January 2, 2002, to remain so until the Quebec government appointed new judges to
this Court. As appears in the appointment dated January 2, 2002, the Chief Judge of the
Municipal Courts of Quebec, the Honourable Gilles Charest, acts pursuant to paragraph
12 of order number 1494-2001 of the Government of Quebec, dated December 12,
2001,7 which reads as follows:
[TRANSLATION]
12.
For the proper dispatch of the business of the municipal courts of the City
of Montreal and the City of Quebec, the chief judge of the municipal courts may,
as needed and until the government appoints new judges to the new court,
in accordance with the second paragraph of section 240 of the Act to reform the
municipal territorial organization of the metropolotain regions of Montréal,
Québec and the Outaouais, appoint ad hoc judges to the Court. Ad hoc judges
are appointed from amongst the other municipal judges holding office on June 1,
2001, in the municipal courts integrated into the new court. He has the powers
and duties of the judges of the municipal court to which he is assigned.
[59] The evidence does not reveal whether one or more new judges have been
appointed to the municipal court of Quebec since 2002.
[60] The fourteen other appointment documents, which are spread out between
January 2, 2003, and March 26, 2009, all refer to Mtre Paquet as one of the temporary
judges of the municipal court of Quebec, appointed pursuant to section 46.1 of the Act
respecting municipal courts (c. C-72.01), which reads as follows:
7
(2001) 133 G.O. 11 at 8898-8899.
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46.1. For the proper dispatch of the business of a municipal court that is under
the authority of a president judge and on the recommendation of the latter, the
chief judge may temporarily assign a municipal judge to that court, for the period
determined by the chief judge, in order to meet a temporary need. The judge has
the powers of the judges of the court to which he or she is assigned.
In making a temporary assignment, the chief judge shall have regard to the
requirements of the proper administration of justice and the efficient management
of the public funds allocated therefor.
Notwithstanding section 45.1, a judge not required to exercise his or her
functions on an exclusive basis before the temporary assignment does not
become subject to that requirement during the assignment.
The remuneration and employment benefits of a temporarily assigned judge shall
be borne by the municipality responsible for the administration of the municipal
court to which the judge is so assigned.
[61] Thus, the assignments made by the chief judge are always temporary, "for the
period determined...in order to meet a temporary need".
[62] Nothing in the evidence shows that, after March 27, 2009, there was still a
"temporary need".
[63] The Court is of the view that, as of December 31, 2001, the date on which the
municipal court of Sillery was abolished, Mtre Paquet could not demand to sit on the
Municipal Court of Quebec other than in a temporary capacity, in order to fill a
temporary need, and for a period to be determined by the chief judge, who was free to
decide not to appoint him any longer.
 CONSTITUTIONAL ASPECTS
[64] The Court must now consider whether section 39 of the Act contravenes the
provisions of the Canadian Charter and the Quebec Charter which Mtre Paquet invokes
in his motion for declaratory judgment. The Court notes, however, that the importance of
this analysis is relative in this case, given the conclusion it has reached concerning the
precarious status of Mtre Paquet as a judge of the Municipal Court of Quebec.
(A)VIOLATION OF THE QUEBEC CHARTER
[65] Mtre Paquet alleges that section 39 of the Act violates certain provisions of the
Quebec Charter and the Canadian Charter.
39. A municipal judge shall cease to hold office when he reaches 70 years of
age or where the municipal court to which he is appointed is abolished.
Specifically, he argues that this provision violates section 10 of the Quebec Charter.
200-17-010811-099
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10. Every person has a right to full and equal recognition and exercise of his
human rights and freedoms, without distinction, exclusion or preference based on
race, colour, sex, pregnancy, sexual orientation, civil status, age except as
provided by law, religion, political convictions, language, ethnic or national origin,
social condition, a handicap or the use of any means to palliate a handicap.
Discrimination exists where such a distinction, exclusion or preference has the
effect of nullifying or impairing such right.
[66] In paragraph 16 of his response, Mtre Paquet states that [TRANSLATION] "the facts
of this mean that section 10 of the Quebec Charter must be read in conjunction with
section 16 of the same statute".
16. No one may practise discrimination in respect of the hiring, apprenticeship,
duration of the probationary period, vocational training, promotion, transfer,
displacement, laying-off, suspension, dismissal or conditions of employment of a
person or in the establishment of categories or classes of employment.
[67] The Court disagrees entirely with this submission. In its view, the argument that
there has been a violation of section 16 must be set aside immediately, as this provision
does not apply in this case. This provision simply does not cover the status of provincial
judges and has no effect whatsoever on any of the rights set out in section 10.
[68] At the conclusion of his argument, counsel for Mtre Paquet submitted that
section 39 of the Act violated section 10 of the Charter in reference to the third
WHEREAS clause in the preamble of the Charter and section 4, which read as follows:
WHEREAS respect for the dignity of human beings, equality of women and men,
and recognition of their rights and freedoms constitute the foundation of justice,
liberty and peace;
...
4. Every person has a right to the safeguard of his dignity, honour and
reputation.
[69] Counsel for the AGQ points out that section 10 of the Quebec Charter essentially
protects the right to the full and equal recognition of one's other guaranteed rights and
freedoms.8 Consequently, it is clear to him that the violation of a right guaranteed by
section 10 of the Charter cannot be alleged without naming the human right or liberty
whose recognition or exercise was subject to discrimination, exclusion, or preference
based on a prohibited ground.
8
Commission scolaire St-Jean-sur-Richelieu v. Commission des droits de la personne du Québec,
[1994] R.J.Q. 1227, 1243 (C.A.) ; Desroches v. Commission des droits de la personne du Québec,
[1997] R.J.Q. 1540 at 1547 (C.A.).
200-17-010811-099
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[70] Here, Mtre Paquet invokes strictly age discrimination, without taking into account
the fact that the Charter provides that this type of discrimination is permitted by section
39 of the Act. Moreover, the excerpts from the debates in the House9 demonstrate that
the legislature included a mandatory age of retirement at the request of the judges of
Quebec themselves. Admittedly, municipal judges did not make this request;
nevertheless, the legislature chose to harmonize the mandatory age of retirement for all
judges in Quebec.10
[71] The brief filed at the time of the amendments to the Act respecting Labour
standards cannot provide the basis for an argument in this case, since this statute does
not apply to judges and, in the view of the Court, the legislature was correct in not
including the Courts of Justice Act in the exclusions in section 3 of the Act as enacted.
[72] Judges are not subject to any bureaucratic higher authority or party to any
relationship of subordination as is traditionally characteristic of the employer-employee
relationship.11
[73] While counsel for Mtre Paquet invokes the preamble and section 4 of the
Charter, he provides no explanation concerning the violation of the Quebec Charter.
[74] Finally, in Quebec (Commission des droits de la personne et des droits de la
jeunesse) v. Montréal (City),12 the Supreme Court indicates that the constitutional status
of section 15 of the Canadian Charter gives it paramountcy over any other statute,
including the Quebec Charter. Although the Quebec Charter may have a different legal
orientation and need not be an exact reflection of the Canadian Charter, the obligation
to comply with constitutional standards requires that the Quebec statute be interpreted
in light of constitutional equality rights.
(B)VIOLATION OF THE CANADIAN CHARTER
9
In the Journal des débats de l'Assemblée nationale du Québec of Friday, July 14, 1967, the Minister
of Justice Jean-Jacques Bertrand made the following comments:
[TRANSLATION]
In addition, we have noted, the bill reduces the age of retirement of judges from 75 to 70.
This is a first step in the program of the governing party, and this change is consistent
with the view of the Conférence des juges du Québec, who wrote the following on
February 8 of this year: "The Conférence is in agreement with the stated policy of
the government to reduce this age to 70 or even 65". For the moment, we believe that
we should move in stages in this area, and that is why the age limit will be 70 .
[Vol. 5, no. 92 at 4728.]
10 Journal des débats, Commission permanente de la justice, Fourth session, 31st leg., (17 June 1980)
at B-15 089 and B-15 090.
11 Therrien (Re), [2001] 2 S.C.R. 3 at paras. 94-95.
12 [2000] 1 S.C.R. 665 at para. 42.
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[75] If there has indeed been a violation of the Canadian Charter, the tests in sections
15 and 1 of the Canadian Charter must prevail.
1. The Canadian Charter of Rights and Freedoms guarantees the rights and
freedoms set out in it subject only to such reasonable limits prescribed by law as
can be demonstrably justified in a free and democratic society.
...
15. (1) Every individual is equal before and under the law and has the right to the
equal protection and equal benefit of the law without discrimination and, in
particular, without discrimination based on race, national or ethnic origin, colour,
religion, sex, age or mental or physical disability.
(2) Subsection (1) does not preclude any law, program or activity that has as
its object the amelioration of conditions of disadvantaged individuals or groups
including those that are disadvantaged because of race, national or ethnic origin,
colour, religion, sex, age or mental or physical disability.
[76] According to case law, to demonstrate a violation of section 15 of the Canadian
Charter, Mtre Paquet must prove the following:
(a)
that the law creates a distinction based on an enumerated or analogous ground;
(b)
that the distinction creates a disadvantage by perpetuating prejudice or
stereotyping.13
[77] The burden of proof, on a balance of probabilities, lies on the party claiming the
violation on each element.14
[78] A reading of section 15 of the Canadian Charter reveals that it "is not a general
guarantee of equality; it does not provide for equality between individuals or groups
within society in a general or abstract sense".15 Over the years, the Supreme Court of
Canada has modified its position on the interpretation to be given to section 15.
[79] In Law, it stated that the object of the provision was to prevent the violation of
essential human dignity and freedom through the imposition of disadvantage,
stereotyping, or political or social prejudice, and to promote a society in which all
persons enjoy equal recognition at law as human beings or as members of Canadian
society, equally capable and equally deserving of concern, respect and consideration.16
13
R. v. Kapp, [2008] 2 S.C.R. 483 at para. 17.
Law v. Canada (Minister of Employment and Immigration), [1999] 1 R.C.S. 497 at paras. 81-82;
Gosselin v. Québec (Attorney General), [2002] 4 R.C.S. 429 at paras. 17-18.
15 Andrews v. Law Society of British Colombia, [1989] 1 S.C.R. 143 at 163-164.
16 Law v. Canada (Minister of Citizenship and Immigration), supra at 51.
14
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[80] It is now established that the affirmation of human dignity is not really the central
object of the constitutional standard of equality. According to the Court, "Sections 15(1)
and 15(2) work together to promote the vision of substantive equality", 17 that is, "[to
prevent] governments from making distinctions based on enumerated or analogous
grounds that have the effect of perpetuating disadvantage or prejudice or imposing
disadvantage on the basis of stereotyping" 18
[81] In 1990, the Supreme Court recognized that a mandatory age of retirement for
doctors or university professors did not violate the Charter.19
[82] Any analysis based on constitutional equality rights rest on the following three
precepts:
I - Does the impugned statute draw a formal distinction between the
claimant and others on the basis of one or more personal
characteristics OR fail to take into account the claimant’s already
disadvantaged position within Canadian society, resulting in
substantively differential treatment between the claimant and
others on the basis of one or more personal characteristics? If so,
there is differential treatment for the purposes of subsection 15(1).
II - Has the claimant suffered differential treatment on the basis of one
of more of the enumerated or analogous grounds?
III- Does the differential treatment discriminate in a substantive sense,
bringing into play the purpose of subsection 15(1) of the Charter in
remedying such ills as prejudice, stereotyping, and historical
disadvantage?
[83] The second and third questions serve to determine whether the differential
treatment constitutes substantive discrimination within the meaning of subsection 15(1).
[84] The first question is whether there has been unfavourable differential treatment.
To answer it, the universe of people potentially entitled to equal treatment in relation to
the subject matter of the claim must be identified.20
[23] The appropriate comparator group is the one which mirrors the
characteristics of the claimant (or claimant group) relevant to the benefit or
advantage sought except that the statutory definition includes a personal
17
R. v. Kapp, supra at para. 16.
Ibid. at paras. 25 and 37.
19 McKinney v. University of Guelph , [1990] 3 S.C.R. 229; Stoffman v. Vancouver General Hospital,
[1990] 3 S.C.R. 483.
20 Hodge v. Canada (Minister of Human Resources and Development), [2004] 3 S.C.R. 357 at paras. 23
and 25.
18
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characteristic that is offensive to the Charter or omits a personal characteristic in
a way that is offensive to the Charter.
An example of the former is the
requirement that spouses be of the opposite sex; M. v. H., supra. An example
of the latter is the omission of sexual orientation from the Alberta Individual’s
Rights Protection Act; Vriend v. Alberta, 1998 CanLII 816 (S.C.C.), [1998] 1
S.C.R. 493. 493.
...
[25]
In either case, the universe of people potentially entitled to equal
treatment in relation to the subject matter of the claim must be identified.
I use
the phrase “potentially entitled” because the legislative definition, being the
subject matter of the equality rights challenge, is not the last word. Otherwise, a
survivor’s pension restricted to white protestant males could be defended on the
ground that all surviving white protestant males were being treated equally. The
objective of s. 15(1) is not just “formal” equality but substantive equality
(Andrews, supra, at p. 166).
[85] Thus, if the connection between the comparator group selected and the
advantage or obligation constituting the subject matter of the complaint, the Court must
identify the relevant comparator group itself.
[86] It is clear that section 39 of the Act creates a distinction between persons who
are 70 and older and those who are younger, since the former cannot hold office as
municipal judges. The differential treatment is based on an enumerated ground: age.
[87] The differential treatment is not discriminatory, however, since it does not create
a disadvantage by perpetuating prejudice or stereotyping. The comparator group to be
used is judges of all jurisdictions. According to the evidence, mandatory retirement is,
barring exception, the norm for persons holding judicial office. For federally appointed
judges, the age is 75. For provincially appointed judges in Canada, the normal
retirement age is 70.
[88] The evidence submitted by the AGQ also shows that, in a number of democratic
countries, the mandatory age of retirement for judges is, barring exception, 70 years
old.
[89] The objective of such a provision is to promote judicial independence by setting a
term to holding judicial office. Mandatory retirement ensures security of tenure until they
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reach a predetermined age.21 Mandatory retirement of judges is therefore not based on
a stereotype or prejudice.22
[90] Provisions concerning the mandatory age of judicial retirement have never been
challenged before the Supreme Court of Canada. A few decisions have been rendered
by Ontario courts and by the Federal Court, however.
[91] In addition to the cases already cited, the Court refers to a judgment rendered by
Ground J. of the Ontario Supreme Court on November 1, 1995, in Charles v. Canada
(Attorney General).23 That case involved a challenge concerning the mandatory
retirement age of 75 for a judge of the Ontario Provincial Court. The decision was
appealed24 and affirmed in a single paragraph, which the Court reproduces here:
Nothing we have heard and read in the submissions of the appellant causes us
to doubt the correctness of the decision of Ground J. Accordingly, the appeal is
dismissed. No order as to costs.
[92] Ground J. refers to the Supreme Court decisions in McKinney and Stoffman and
declares them to be applicable. He also refers to the various statutes produced in this
case that confirm the mandatory retirement age of judges, as well as the affirmations
contained in a sworn statement by Professor Carl Baar and the report filed by Professor
Martin L. Friedland.25
[93] In paragraphs 37 and following, Ground J. made certain statements the Court
considers appropriate to reproduce here:
[37]
As stated above, in my view, the reasoning of the Supreme Court of
Canada in concluding that the objective of legislation of permitting mandatory
retirement is a pressing and substantial objective looking at factors of general
application such as youth unemployment, certainty of retirement plans, permitting
advancement of younger persons within a trade or profession, the link between
aging and declining energy and ability as set out in McKinney, supra, and
Stoffman, supra, are determinative of the constitutional validity of mandatory
retirement. There is no evidence before this court, nor any submission of Judge
Charles, persuasive as to why such determination should not be equally
applicable to provisions for the mandatory retirement of judges. Security of
21
22
23
24
25
Valente v. The Queen, [1985] 2 R.C.S. 673 at 695 and 698; Mackin v. New Brunswick, [2002] 1
S.C.R. 405 at para. 42.; Association of Justices of the Peace of Ontario v. Ontario (Attorney General),
2008 CanLII 26258 (ON S.C.) at paras. 48–72; Martin L. Friedland, "A Place Apart: Judicial
Independence and Accountability in Canada" (Ottawa: Canadian Judicial Council, 1995) at 47–50 (I42).
This ensures true judicial independence, thereby ensuring that the judicial system is not subject to
political or administrative supervision.
1995 CanLII 7301 (ON S.C.).
Charles v. Canada (Attorney General), 158 D.L.R. (4th) 192 (C.A. Ont.)
Paragraph 14.
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tenure for judges is established by other provisions of the C.J.A. and, as noted
above, the removal of a provincially appointed judge can only be effected in
extraordinary circumstances so that such judges do have security of tenure until
they reach retirement age. The provision for retirement at a certain age does not
adversely affect security of tenure but rather accomplishes the usual objective of
mandatory retirement legislation in ensuring a competent, energetic and effective
judiciary.
[39]
I also have some difficulty with the submission of Judge Charles that
mandatory retirement in some way otherwise detracts from the independence of
the judiciary. The independence of the judiciary relates to the freedom of judges
to conduct proceedings and arrive at their decisions without interference or
influence from any quarter. The fact that a judge may be required to retire at a
certain age has, in my view, no connection with the freedom of that judge to
conduct proceedings and make decisions as he or she may see fit during his or
her tenure of office.
....
[40]
The bulk of the evidence looked at McKinney, supra, and Stoffman,
supra, was in support of the justification for mandatory retirement in society
generally and not with respect to any particular trade or profession. In addition,
evidence has been provided to this court as to numerous pieces of legislation
requiring the mandatory retirement of judges at various ages, both in Canadian
jurisdictions and elsewhere, and the affidavit of Professor Carl Baar and the
report of Professor Martin Friedland referred to above are supportive of the
principle of mandatory retirement in the context of the administration of justice.
[94] In Association of Justices of the Peace of Ontario v. Attorney General of
Ontario,26 a judgment rendered on June 2, 2008, Strathy J. of the Ontario Superior
Court of Justice carried out an exhaustive review of the constitutional provisions relating
to the mandatory age of retirement for justices of the peace in Ontario.
[95] This is a well-structured decision with respect to the analysis of legislative and
Charter provisions, but the Court does not agree with Strathy J.'s conclusion.
[96] First, once he has completed the constitutional analysis, he seeks to give equal
status to the mandatory retirement age of all provincially appointed judges in Ontario,
including justices of the peace. Consequently, justices of the peace lost certain rights.
While their mandatory age of retirement had been 70 years old, in that judgment it
became the same as judges of the provincial court, namely, 65 years old with a
possibility of sitting until the age of 75 with the authorization of the Chief Judge, failing
which, the right to seek review. Such cases present a risk of a dispute leading to an
analysis of the the capacity of the judge or justice of the peace to hold office.
26
2008 CanLII 26258 (ON S.C.).
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[97] The second reason seems to address the provincial legislature's refusal to adopt
the solution proposed by former Chief Judge Lennox, who had recommended that the
age of retirement be the same for all provincially appointed judges. In the view of the
Court, this second reason goes far beyond the powers of a judge to remedy a situation
that appears to be discriminatory by imposing a solution that should be up to the
legislature. It must be noted, however, that in that case, the Attorney General of Ontario
seemed to agree with the proposal to impose a uniform age of retirement on all
provincial judges.
[98] That said, in the Court's opinion, certain comments by Strathy J. are worth
reproducing here:
[72]
The following principles emerge from this review.
First, judicial
independence is a fundamental principle of Canadian constitutional law,
enshrined in the Charter and the Constitution Act and supported by our common
law tradition. It is not an end in itself but rather is designed to safeguard the
constitutional order and to preserve the rule of law, so as to ensure public
confidence in the administration of justice. It exists not for the benefit of the
judiciary, but for the benefit of the public. Second, there are three essential
elements of judicial independence: security of tenure, financial security and
institutional independence. Third, the principle of judicial independence applies
fully to justices of the peace who perform an essential role in the administration
of justice in Ontario. Fourth, judicial independence does not require that all
judges of all courts be treated in identical fashion or that the provisions in respect
of their tenure be the same. Variations are appropriate to reflect differences in
their functions and responsibilities. Fifth, for the reasons expressed by Professor
Baar, and by Justice Ground in Charles, mandatory retirement is a necessary
consequence of judicial security of tenure.
[73]
Although the parties agree that the principle of mandatory retirement is
applicable to justices of the peace in Ontario, they do not agree on the
appropriate retirement age. I now turn to this issue.
…
[186] …The suggested remedy has been used in the Courts of Justice Act in
the case of provincial court judges. There is no reason to think that reading in
would cause any significant fiscal consequences. There is some suggestion in
the documentation produced by the Respondent that the increase in retirement
age may have pension and remuneration implications, but there is no convincing
evidence before me in this regard and there is some evidence to the contrary.
[187] While their agreement is not binding on me, I take some comfort from the
fact that the language to be read in has been endorsed by both parties. It is
similar to the solution proposed by former Chief Justice Lennox and it is a
solution in the range proposed by Professor Baar, who noted that a common
retirement age for justices of the peace and judges of the Ontario Court of
Justice could be a sensible policy objective.
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[Emphasis added.]
[99] The Court adds that, even if it had found that section 39 of the Act violates the
equality right in section 15 of the Canadian Charter, such violation would be justified
under section 1.
[100] Section 1 of the Canadian Charter does not require that the limitation on rights
be perfectly balanced but merely that they be reasonable and demonstrably justifiable.
[101] The standard of constitutional review need not be rigorous to the point of
preventing a responsible and creative solution to complex problems from being applied.
Therefore, a certain deference is in order. Indeed, this is what is apparent in decisions
rendered by Ontario Courts and the Federal Court dealing with the question of the
mandatory age of retirement for judges.
[102] The evidence demonstrates clearly that both Parliament and provincial
legislatures have had to decide the issue of the mandatory age of retirement of judges.
The age was determined by taking into account the organization of the Court, the
number of judges required, the needs as determined by the chief judges or justices, the
workload, the need to renew the members of the Court, the protection of the public, and
the interests of justice. These principles are very well accepted and unchallenged in our
society.
[103] The Court refers once again to the report prepared by Professor Martin L.
Friedland for the Canadian Judicial Council which, on page 41, made the following
statement after having considered all of the applicable statutes in the provinces of
Canada.
In some provinces, for example, it is 65, in others, 70, and in some, there is no
retirement age at all. Many jurisdictions permit various forms of extension of the
retirement age in individual cases.
[104] Later, on pages 47 and 48, he adds:
Why do we care about a specific age of retirement? It is—to repeat the point
made earlier—because we want judges to act independently, without worrying
about whether their decisions will find favour with the government. If a judge’s
future term of office were dependent on the government’s approval, there would
be a danger that decisions would improperly be made to favour the government.
Whether or not such decisions would actually be made, there would be a
perception of partiality. Thus, the public would tend to lose confidence in the
administration of justice. The ability of the government to extend a term is not
significantly different from the ability of the government to curtail a term. Both put
pressure on the judge to favour the government.
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[105] Finally, on page 50, he recommends setting the normal retirement age at 70 for
all judges, justifying this choice as follows:
Seventy seems to me to be a desirable retirement age for the judiciary. Some
might suggest that it be lower, but this would cut off a group that possesses
experience, maturity, and judgment, without in most cases significant physical
deterioration. Capable judges who retire at the age of 70 will have increasing
opportunities—at least in the larger centres—to contribute to society through the
emerging and growing dispute resolution area; but it will be the parties who will
choose the judge. In my view, Canada should follow England’s lead and pass a
constitutional amendment reducing the retirement age for all future appointments
to age 70.
[106] In conclusion, the Court finds that the motion is without merit, first because of the
precarious status of Mtre Paquet as a municipal judge. He should be considered an ad
hoc judge, as defined in section 46.1 of the Act, and his tenure as a municipal judge
could have ended at any time between 2003 and 2009.
[107] The Court also finds that section 30 of the Act concerning the mandatory age of
retirement of 70 for municipal court judges is valid. Even if it did create some form of
discrimination, such discrimination would be justified by the type of position occupied
and is perfectly acceptable in a free and democratic society.
[108] Moreover, the suggestion made near the end of the hearing to set Mtre Paquet's
retirement age at 75 would be just as discriminatory as setting it for 70. It is not up to the
Court to arbitrarily set an age different from that determined by the legislature.
[109] In the view of the Court, a judicial intervention in a problem as complex as the
determination of the mandatory age of retirement for judges appears to be an unjustified
incursion into the domain of the legislature.
[110] Mtre Paquet's motion for declaratory judgment is therefore rejected.
FOR THESE REASONS, THE COURT:
[111] REJECTS Mtre René Paquet's motion;
[112] THE WHOLE with costs.
__________________________________
YVES ALAIN, J.C.S.
200-17-010811-099
Mtre Louis Masson
Joli-Coeur Lacasse (Box 6)
For the petitioner
Mtre Sébastien Rochette
Chamberland Gagnon (Box 134)
For the defendant
Date of hearing:
Nature:
January 21, 2010
Declaratory judgment
PAGE: 22