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
•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.
Judicial Independence - English Style:
Prototype Created by Act of Settlement (1701)
BASIC ELEMENTS:
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.
Judicial Independence - Canadian Style:
Direct Copy of English Experience
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 - Canadian Style:
Omissions
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.
Judicial Independence - Canadian Style:
The 1970s & 1980s
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
Changes statutory & not constitutionally entrenched.
Politically driven (provincial & federal).
Impact of the Charter (1982)
 The Charter (s.11(d)) specifically guaranteed a person’s right
to “an open and public trial before an independent and
impartial tribunal.”
 Valente (1985) identified 3 key elements of judicial
independence:
 Security of tenure.
 Financial security.
 Institutional independence on matters bearing directly on
the exercise of the judicial function.
 Valente read the politically-driven reforms of the 1970s back
into the Constitution itself (s.11(d) of the Charter).
The Supreme Court’s Judicial
Independence Cases
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).
The “Details” Decisions
Beauregard
(1986)
▪judicial pensions addressed
MackKeigan
(1989)
▪Donald Marshall inquiry
▪judges do not have to give any account to government other
than their written reasons for judgment
▪judges are accountable only to judicial councils
Lippe (1991)
▪part-time judges approved
Genereux (1992) ▪military officer-judges accepted
▪not all tribunals have to be independent to same extent
Ruffo (1995)
▪existing interactions between chief judges and judicial
councils validated
Remuneration Reference 1997:
Novel Elements
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.
Judicial Independence: New Style
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)
The Supreme Court’s Cases Dealing with Independence
of Other Institutions
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)
Judicial Independence & Judicial Career
 Independence of the judiciary clearly depends on the way
judges are selected, but…..
 Party political connections often play a part in selection of
judges.
 Elevations (to chief justiceship, or to a higher court) are more
problematic  worry that particular decision(s) could affect
prospects.
 Black v. Chretien (2001)  Ont CA - Laskin, Goudge, Feldman.
Black v. Chretien (2001)
 Tony Blair advised the Queen to elevate Conrad Black to the
British Peerage.
 Chretien intervened and advised the Queen not to confer the
peerage on Black.
 Queen, therefore, declined to ennoble Black.
 Black sued PM & AG of Canada for abuse of power.
 Ont CA rejected Black’s case on the grounds that the advice
tendered to the Queen by Chretien was non-justiciable.
L. Sossin – A Comment on Black v. Chretien
(2002) 47 McGill L.J. 435
 Author is critical of court’s use of doctrine of justiciability to
shield executive officials from judicial review.
 Author maintains that justiciability should solely depend on
legitimacy & capacity of courts to adjudicate a matter. In his
opinion, Black’s claim against the PM was justiciable.
 To allow such abuses of power to remain immune from judicial
scrutiny appears on its face to eviscerate the supremacy of the
rule of law.
 Can Roncarelli and Black be reconciled?
 Did the potential impact on the judges’ chances of being
named to SCC if they found against PM Chretien, affect their
decision?