This guest post was contributed by Madeleine Chin-Yee and Danika So. Madeleine is a JD Candidate (2019) at Osgoode Hall Law School. She completed a double major in History, and Ethics, Society & Law at the University of Toronto. Danika is a JD Candidate (2019) at Osgoode Hall Law School. She holds a dual degree in Political Science and Business from Western University and the Ivey Business School.
In October of last year, the Supreme Court of Canada (SCC) rendered judgment in Conferénce des juges de paix magistrats du Québec v Québec (Attorney General)
, 2016 SCC 39
], on the question of whether prior committee review of the remuneration of a new judicial office is necessary to satisfy the guarantee of financial security. It decided that, while a committee must review the initial remuneration, this review can take place after the appointment of judges into the new office so long as it is held within a reasonable time period. The SCC provides four main reasons in support of this new requirement: 1) it ensures that any deficiencies will be corrected in a timely fashion; 2) it allows the government the necessary flexibility to exercise its role effectively; 3) it enables the entire cohort of judges to fully participate in the review process; and 4) it avoids unnecessary delays in rolling out reforms. In rendering this judgment, the SCC is seeking to uphold the fundamental principle of judicial independence in an ultimate effort to preserve the public’s confidence in the judicial system.
The primary strength of the decision is the Supreme Court’s adherence to an instrumental view of the principle of judicial independence. As Adam Dodek explains in his article, “Judicial Independence as a Public Policy Instrument” (available here
), this principle is widely recognized in the literature as a “second order value” used as a means to serve “first order values” (5). Among these first order values is the important one that public confidence in the judicial system should be maintained. Dodek warns that the notion “that judicial independence is not an end in itself and [that] its purpose is not to protect judicial privileges” is often overlooked and ignored (5). According to him, judicial independence is still “regularly invoked as a shield against changes to judicial structure or benefits” (5). One of the strengths of the Conferénce
decision lies in the SCC’s constant awareness that judicial independence exists for the public. The first order value of public trust is indeed the driving force behind the Supreme Court’s decision.
The SCC repeatedly underscores that the purpose of judicial independence is to foster public confidence in the administration of justice: “judicial independence exists for the benefit of the public” (para 59). The SCC’s constant harkening back to this notion¾that judicial independence is not an end in itself¾allows it to concentrate on how it can better serve the higher goal of public confidence. The Supreme Court’s instrumental view of judicial independence allows it to come to a balanced decision: review by an independent committee is necessary; however, a strict view of committee procedures that would require prior review may in fact do more to erode public trust.
This balanced reasoning is justified by a context-sensitive approach to the idea of public perception. In response to the first issue of whether committee review is necessary during the creation of a new judicial office, the Supreme Court makes it clear that public perception requires a committee review process to be in place: “The public needs assurance that changes to a judicial office that could result in financial consequences for judges cannot by-pass the constitutional assurance of review by an arm’s-length committee” (para 45). However, in their evaluation of when review should take place, the SCC reasons that committee review should not operate at the expense of other important public interests. For example, when prior review delays judicial reforms that benefit the public, prior review “may actually undermine judicial independence and negatively affect public perception” (para 59). Thus, it was certainly with a keen eye to public perception that the Supreme Court was guided to its decision in Conferénce: that retroactive review by a remuneration committee within a reasonable time is the most balanced approach. This decision is balanced for its upholding the independent committee review process while also preventing unnecessary delays with respect to judicial reform.
It may have been easy for the Supreme Court to slide into the trap of applying the principle of judicial independence for its own sake. This may have led the SCC to insist on the all-importance of immediate committee review and determine that it should happen prior to the establishment of the new office. Instead, the SCC’s instrumental view of judicial independence served as the guiding light of this decision and directed the Supreme Court toward a heightened concern for public perception, which in turn led to a more balanced and context-sensitive result.
While we have shown that the SCC’s new requirement, on its face, does a good job of safeguarding the public’s confidence in the judicial system, there are also reasons to believe that it may have the opposite effect. Retroactive review could potentially undermine the public confidence that the court seeks to preserve in creating a committee review requirement. The ultimate purpose of an independent committee is to uphold this confidence. At the same time, the Supreme Court uses similar reasoning to justify sacrificing immediate recourse to a remuneration committee. It argues that delaying the review process upholds the public’s confidence in the judiciary, after it has just asserted in the section beforehand that a committee review is so crucial as to be a constitutional requirement. Rather than being viewed as context-sensitive reasoning, as argued above, the decision in Conferénce may indeed be viewed as a contradiction compounded by the Supreme Court’s unwillingness to accept delays in rolling out reforms (because they would undermine trust) but will accept delaying constitutionally required review committees (which are supposed to preserve trust). It is certainly possible for one to read this judgment and feel that the court is playing it fast and loose with the public confidence justification. It may appear to some that the SCC is simply applying its justification after the fact instead of relying on it as a guiding principle from the start.
Moreover, the emphasis on having unbiased third parties comprise the committee is so strong that it may raise speculation about the motives of judges, where there may not have been any before. In his book, Constitutional Law of Canada, Peter Hogg writes that this emphasis ” assumes that there is a real possibility that judges would violate their oath of office and decide cases wrongly […] in order to obtain some (highly speculative and likely trivial) advantage at the negotiating table” (187). While this may be highly unlikely, emphasis on recourse to a committee that must be absolutely devoid of biases from either the government or judiciary may suggest to the public that without such a mechanism, these “corrupt” judges would have their way. It reinforces the idea that judges are naturally untrustworthy and that the committee exists for this reason. Although it is noble for the Supreme Court to champion the independence of the review committee, it may inadvertently undo the work that it is seeking to accomplish.
Despite these possible objections, there is no flagrant flaw in the SCC’s reasoning or in the conclusions it draws in the Conferénce judgment. The criticisms recognized here simply anticipate the ways in which the public may perceive the judgment rendered. Ultimately, the Supreme Court must place itself in the position of the public, and we argue that it did so effectively in this case. Indeed, it is worth noting that the judgment was endorsed by every justice of the Supreme Court and rightly so. If the judiciary continues to prioritize the public interest as it did here the integrity of the SCC will be well-preserved moving forward.