Conférence des juges de paix magistrats du Québec v. Quebec (Attorney General)

2016 SCC 39

(Constitutional law — Judicial independence — Pensions — Justices of peace — Judicial reform)

On appeal from a judgment of the Quebec Court of Appeal (2014 QCCA 1654), affirming a decision of Mongeon J. (2012 QCCS 1021)

In 2004, the Quebec government reformed its justices of the peace regime in response to a Court of Appeal judgment declaring that the existing regime violated the tenure security guarantee of judicial independence. Six sitting justices of the peace were transitioned to the new regime, with the same remuneration as before; however, justices newly appointed to that office received a lower remuneration. None of the legislative provisions affecting remuneration were put to a reviewing committee before 2007, which then made recommendations only on a forward‑looking basis. In 2008, the Conférence des juges de paix magistrats du Québec and its individual members (presiding justices of the peace (“PJPs”)) challenged ss. 27, 30 and 32 of the Act to amend the Courts of Justice Act and other legislative provisions as regards the status of justices of the peace (the “amending Act”) and executive Order 932‑2008, as infringing the financial security guarantee of judicial independence. In addition, the PJPs argued that s. 178 of the Courts of Justice Act (“CJA”), which mandates their participation in the public service Pension Plan of Management Personnel, also infringes the financial security guarantee. Both the Superior Court and the Court of Appeal, in turn, found no violation of judicial independence because the provisions were part of a reform resulting in the creation of a new judicial office.

Held: The appeal should be allowed in part. Sections 27, 30 and 32 of the Act to amend the Courts of Justice Act and other legislative provisions as regards the status of justices of the peace are unconstitutional.

A judicial reform may raise questions of judicial independence both for judges occupying offices that are reformed or abolished, and for judges appointed to newly created positions. Any measure that affects remuneration will automatically trigger the institutional dimension of financial security. The initial remuneration for the new office must meet the constitutional minimum required to ensure judicial integrity. Without committee review of the initial remuneration, there is no guarantee that the constitutional minimum is met. A review is also required where the new judges were transferred from an old judicial office. The government should not be able to replace one office with another, adjust the jurisdiction, transfer the judges and change the remuneration, without any safeguards. Because sitting judges are in an existing relationship with the government, their relationship is more susceptible to the risk of manipulation. This warrants additional protection for sitting judges. Thus, while the government retains the discretion to set the remuneration of newly appointed judges, it cannot change the remuneration of sitting judges until after committee review.

To protect judicial independence when a new judicial office is created, all remuneration must be reviewed within a reasonable time. A reasonable time refers to the time required to implement a judicial reform, to establish the appropriate review committee and to ensure proper participation by the new judges. It will generally be measured in months, and not in years.

In the context of a judicial reform, the same reasons that justify deferring committee review of the remuneration for newly appointed judges apply equally to sitting judges who are transferred to a new office. Requiring prior review for sitting judges would create delays for judicial reforms that are in the public interest, potentially prolong an unconstitutional judicial regime, undermine judicial independence and negatively impact public perception. The principle of judicial independence exists for the benefit of the public, not for the judge. Viewed from the perspective of the public, a review within a reasonable time for all judges is an effective safeguard for financial security, even if some judges were previously serving in another judicial office.

In determining whether a judicial office has merely been changed, or a new judicial office has been created, the judicial function and the conditions of employment, including tenure, financial security, selection and administrative independence, are relevant considerations. In this case, the 2004 reform created a new judicial office. The PJPs have a different jurisdiction than under the previous regime: they do not have jurisdiction to preside over bail hearings and do not hear summary prosecutions under Part XXVII of the Criminal Code. In addition, the PJPs now benefit from greater judicial independence guarantees: they enjoy tenure until the age of 70; their remuneration and other benefits are subject to periodic committee review; their selection criteria are set out in the CJA; and finally, they are integrated into the Court of Québec and are thus subject to the authority of its Chief Judge.

Because the reform created a new judicial office, the remuneration of all the judges appointed to it (whether they were appointed for the first time or transferred from another office) needed to be reviewed retroactively, within a reasonable time after their appointment. Section 32 of the amending Act prohibits any review of the remuneration before 2007, although the judicial office was established in 2004. This contravenes the constitutional requirement that the initial remuneration of judges occupying a new office be reviewed by a committee within a reasonable time after their appointment. There were no compelling reasons why a review could not proceed before 2007. Three years is not a reasonable time. As such, s. 32 of the amending Act infringes the financial security guarantee of judicial independence. In addition, as ss. 27 and 30 provide for a freeze in the remuneration of the sitting judges and the establishment of the remuneration of the newly appointed judges, respectively, without referencing the need to retroactively submit the remuneration to a committee, these sections also infringe judicial independence. Finally, s. 27 infringes judicial independence because it freezes the remuneration of sitting judges before a committee has reviewed this remuneration, contrary to the financial security guarantee. As for the salary gap between the sitting judges and those newly appointed, the gap, by itself, did not infringe the financial security guarantee.

As ss. 27, 30 and 32 of the amending Act did not provide for retroactive committee review within a reasonable time, these sections infringe the institutional financial security guarantee of judicial independence, and are thus contrary to s. 11(d) of the Charter and the preamble to the Constitution Act, 1867. This infringement of judicial independence is not justified under s. 1 of the Charter, because there is no evidence of a dire and exceptional financial emergency. Therefore, ss. 27, 30 and 32 are unconstitutional. Because the infringement arises from the lack of committee review between 2004 and 2007, a review for this period is required for all PJPs as a remedy. The committee must consider all factors bearing on remuneration, including the remuneration of the previous judicial office. While the guarantee of judicial independence was compromised between 2004 and 2007, however, the judicial decisions rendered by the PJPs throughout that period are valid.

Since the government complied with its constitutional obligation to periodically submit PJPs remuneration to a committee from 2007 onwards, public confidence in judicial independence was in no way undermined for that later period. As such, there was no violation of judicial independence after 2007 and no defect in the executive Order 932‑2008. Moreover, any impact that the lack of committee review from 2004 to 2007 may have had on PJPs remuneration after 2007 cannot be said to have raised constitutional concerns.

Finally, s. 178 of the CJA is valid. While the Pension Plan of Management Personnel may not be as beneficial as that of the judges of the Court of Québec, as part of overall remuneration, it meets the minimum constitutional threshold required for the office of a judge such that the PJPs are not perceived as susceptible to political pressure through economic manipulation.

Reasons for Judgment by: Karakatsanis, Wagner and Côté JJ. (McLachlin C.J. and Abella, Cromwell, Moldaver, Gascon and Brown JJ. concurring)

Neutral Citation: 2016 SCC 39

Docket No.: 36165.