Conférence des juges de paix magistrats du Québec v Quebec (Attorney General): A Commentary
This guest post was contributed by Deanna Cristovao and Talvinder Singh. Both Deanna and Talvinder are 2019 J.D. Candidates at Osgoode Hall Law School.
Judicial independence is a fundamental aspect of the rule of law. Recognized by the Supreme Court of Canada (“SCC”) as an important unwritten constitutional principle, judicial independence is essential for “both public confidence in the proper administration of justice and for the constitutional separation of powers” (Conférence des juges de paix magistrats du Québec v Quebec (Attorney General), 2016 SCC 39, para 31 [Conférence des juges]. The principle of judicial independence applies to all courts, including justices of the peace (“JPs”) (para 32). Its three core characteristics are security of tenure, financial security, and administrative independence. The issue of financial security was specifically at issue before the SCC in Conference des juges, where the Court assessed a regime reformed by the government of Quebec that created two categories of JPs, and set out a new framework for their remuneration. In particular, the SCC dealt with whether the transitional provisions arising out of the reform that relate to the setting and review of remuneration violate the principle of financial security.
Judicial Independence and Financial Security
The three elements of the financial security guarantee of judicial independence were outlined by the Court in Conférence des juges: 1) changes to remuneration must first be put forward to an independent committee; 2) there cannot be any negotiations between the judiciary and government regarding remuneration; and 3) any reduction of remuneration must not fall below the minimum standard required (para 34). These elements are essential to ensure the separate relationship between the judiciary and other branches of government, to protect the integrity of the judiciary, and to promote the public trust of our courts. The importance of maintaining independent committees to review the remuneration of judges is necessary to avoid potential manipulation by governments to control their salaries in order to fulfil specific political goals.
The SCC ultimately held that, contrary to the Superior Court’s decision, a violation of judicial independence had occurred (para 4). Committee review of remuneration is necessary for any new judicial office, regardless of whether the appointed judges were newly appointed or transferred from a previous judicial office (para 5). In addressing the judicial independence of JPs, the Court addressed several issues pertaining to the requirement of prior committee review of remuneration, and whether that review satisfies an objective guarantee of financial security.
The SCC first assessed whether committee review is necessary when a new judicial office is created. The Attorney General of Quebec (“Respondent”) argued that the safeguarding function of the remuneration committee is not required in instances where a new judicial office has been created, since there is no potential for the government to exercise political pressure on judges who have not been appointed (para 43). The SCC rejected this argument, and noted that allowing legislatures to decide judicial remuneration of new offices without committee review creates a risk of possible “political interference through economic manipulation” (para 45). The SCC is correct in stating that a review committee is required when a new judicial office is created, as the public’s confidence increases knowing that a review mechanism is in place to prevent political interference altogether (para 45). Nevertheless, the Court’s argument that legislatures left to their own devices can potentially reorganize courts, adjust jurisdiction, and then decrease remuneration in order to influence judicial decision making is flawed, as it fails to account for the ability of public opinion and scrutiny to prevent such an occurrence.
With regards to sitting judges that are transferred to new offices under the reform, the appellants argue that prior committee review is the appropriate approach to take (para 57), as there is an existing relationship between these judges and the executive that may give rise to political implications. In other words, if committee review instead was to take place retroactively, it could allow for potential economic manipulation by a government attempting to enforce its political will, and there would be no “check” on government action that affects this remuneration until a later date. The SCC partly disagreed with the appellants on this issue, arguing that prior review would “create delays for judicial reform in the public interest,” “prolong an unconstitutional judicial regime,” and potentially remove the legislature’s constitutional authority over implementing court reforms. Thus, the Court agreed that retroactive review would be appropriate (para 59). However, this position does not allay serious concerns of governmental interference through economic manipulation. Even though retroactive review would presumably highlight any and all violations of the financial security guarantee, the time between interference and correction may be insufficient to prevent any serious manipulations that would undermine the public’s benefit and trust in the judiciary. It is more important to prevent any attempts at manipulating our judiciary and undermining the rule of law than it is to allow governments to proceed with a constitutional authority that remains unchecked.
The SCC went on to state that, in the interest of preventing a committee from having to convene twice (once for prior review of transferred sitting judges, and once for retroactive review of newly appointed judges), the committee should instead convene once for the retroactive review of all judges, in order to “better fulfil its mandate” (para 60). However, this proposal does not address the concern of giving the government a window of opportunity in which to set remuneration without input from a committee until the review actually takes place. Efficiency of a review committee’s mandate means nothing if our judiciary is subject to potential economic manipulation—even if just for a short period of time. The importance of protecting the impartiality of our courts should be seen as paramount to giving anyone a chance at threatening their independence. Thus, even in the case of newly-created judicial offices, there should be consideration and review of remuneration prior to the government’s setting of salaries, in order to protect the financial security of judges and to uphold the public’s trust in the judiciary.
The SCC is correct in finding that committee review of the PJP offices, which would occur three years after their establishment, violates the constitutional requirement that review of remuneration must take place within a reasonable time (para 80). Certainly, three years is not a reasonable period of time to wait before reviewing a judge’s remuneration, as this leaves a large window of opportunity for political interference in the adjudication process. However, it appears that the SCC failed to consider that the need for prior review of all judges does guarantee judicial independence much more effectively than waiting for retroactive review—even within a reasonable period of time.
The SCC ruling in Conférence des juges highlights the importance of preventing governments from using reform as a political maneuver to reduce the remuneration of judges. The arguments put forth by the SCC are largely based on a cynical view of legislatures that ignore the societal realities within which legislatures operate. The Court fails to account for other “checks” and “balances” (i.e. public opinion), which could work to protect the public good and advance the interests of judicial independence. Further, in deciding that retroactive review within a reasonable time is the best recourse for review of remuneration, the SCC failed to account for the window of opportunity that would still exist for political interference through economic manipulation before review takes place.