R. v. Campbell, 1998 CanLII 19118 (SCC), [1999] 2 SCR 956

R. v. Campbell, 1998 CanLII 19118 (SCC), [1999] 2 SCR 956

Her Majesty The Queen Appellant

v.

Shawn Carl Campbell Respondent

and

The Alberta Provincial Judges’ Association Intervener

and

The Attorney General of Canada, the Attorney General of Quebec, the Attorney General of Manitoba, the Attorney General of Prince Edward Island, the Attorney General for Saskatchewan, the Canadian Association of Provincial Court Judges, the Conférence des juges du Québec, the Saskatchewan Provincial Court Judges Association and the Canadian Bar Association Interveners

Indexed as: R. v. Campbell

File No.: 24831.

1998: December 24.

Present: Lamer C.J. and L’Heureux‑Dubé, Gonthier, Cory and Iacobucci JJ.

motion for directions

Constitutional law -- Charter of Rights -- Independent and impartial tribunal -- Provincial Courts ‑‑ Judicial remuneration ‑‑ Supreme Court judgment requiring Alberta to establish independent, objective and effective judicial compensation commission -- Motion for directions to rule on whether Alberta required to pay reasonable expenses of judges incurred in participating in commission process or related proceedings -- Motion dismissed since not arising from implementation of judgment of Court.

Courts ‑‑ Judicial independence ‑‑ Provincial Courts ‑‑ Judicial remuneration ‑‑ Supreme Court judgment requiring Alberta to establish independent, objective and effective judicial compensation commission -- Motion for directions to rule on whether Alberta required to pay reasonable expenses of judges incurred in participating in commission process or related proceedings -- Motion dismissed since not arising from implementation of judgment of Court.

Cases Cited

Referred to: Newfoundland Assn. of Provincial Court Judges v. Newfoundland (1998), 1998 14092 (NL SC), 160 D.L.R. (4th) 337; R. v. Campbell, 1997 317 (SCC), [1997] 3 S.C.R. 3 (sub nom. Provincial Court Judges (No. 1)); R. v. Campbell, 1998 833 (SCC), [1998] 1 S.C.R. 3 (sub nom. Provincial Court Judges (No. 2)); R. v. Campbell, 1998 797 (SCC), [1998] 2 S.C.R. 443.

MOTION for directions relating to Provincial Court Judges decision, 1997 317 (SCC), [1997] 3 S.C.R. 3. Motion dismissed.

Written submissions by D. O. Sabey, Q.C., B. G. Nemetz and Scott H. D. Bower, for the intervener/applicant the Alberta Provincial Judges’ Association.

Written submissions by Phyllis A. Smith, Q.C., for the appellant Her Majesty the Queen in right of Alberta, respondent on the motion.

Written submissions by Robb Tonn, for the Manitoba Provincial Judges Association et al. and the intervener the Canadian Association of Provincial Court Judges.

Written submissions by E. William Olson, Q.C., and Vivian E. Rachlis, for the province of Manitoba.

Written submissions by Marise Visocchi, for the intervener the Attorney General of Quebec.

Written submissions by L. Yves Fortier, Q.C., and Leigh D. Crestohl, for the intervener the Canadian Judges Conference.

Written submissions by Raynold Langlois, for the intervener the Conférence des juges du Québec.

The following order was delivered by

//The Court//

1The Court -- The Alberta Provincial Judges’ Association (“Association”) has submitted a motion for directions relating to our decision in Provincial Court Judges (No. 1), 1997 317 (SCC), [1997] 3 S.C.R. 3. In that case, the Court provided for, inter alia, a period of time ending on September 18, 1998 during which in effect judicial salary commissions in Canada were to be established. The Association’s motion for directions was submitted in accordance with the Court’s decision in Provincial Court Judges (No. 2), 1998 833 (SCC), [1998] 1 S.C.R. 3, and the extension granted on September 15, 1998, 1998 797 (SCC), [1998] 2 S.C.R. 443, the principal effect of which was to extend the transition period to the earlier of a further two months and the day Bill C-37 receives Royal Assent. Briefly stated, the motion for directions of the Association requests the Court to rule in principle on whether its findings in Provincial Court Judges (No. 1) require the Province of Alberta to pay the reasonable expenses of the Alberta judiciary incurred in participating in the commission process or in any proceedings which call upon the Province of Alberta to justify its decision not to accept one or more of the recommendations of the judicial salary commission.

2Upon reading the submissions and supporting material of the parties and interveners, the Court is of the opinion that the motion for directions should be dismissed without costs in that it does not arise from the implementation of the judgment of the Court in Provincial Court Judges (No. 1) or in Provincial Court Judges (No. 2). In this respect, see the views expressed by Roberts J. in Newfoundland Assn. of Provincial Court Judges v. Newfoundland (1998), 1998 14092 (NL SC), 160 D.L.R. (4th) 337 (Nfld. S.C.), at p. 372.

3As was stated by the Chief Justice in Provincial Court Judges (No. 1), supra, at para. 173:

Although s. 11(d) does not require it, the commission’s objectivity can be promoted by ensuring that it is fully informed before deliberating and making its recommendations. This can be best achieved by requiring that the commission receive and consider submissions from the judiciary, the executive, and the legislature. In Ontario, for example, the Provincial Judges’ Remuneration Commission is bound to consider submissions from the provincial judges’ association and the government (Courts of Justice Act, Schedule, para. 20). Moreover, I recommend (but do not require) that the objectivity of the commission be ensured by including in the enabling legislation or regulations a list of relevant factors to guide the commission’s deliberations.

4Although not constitutionally requiring the participation of judges or judges’ associations in the commission process (or litigation relating thereto), it is worth repeating that the Court in Provincial Court Judges (No. 1) decided that judicial compensation commissions were to be independent, effective and objective as described therein. Furthermore, Lamer C.J. at para. 287 stated:

Under no circumstances is it permissible for the judiciary to engage in negotiations over remuneration with the executive or representatives of the legislature. However, that does not preclude chief justices or judges, or bodies representing judges, from expressing concerns or making representations to governments regarding judicial remuneration.

5The composition and the procedure established for hearings before the independent, effective and objective commissions may vary widely. So will the approach to the payment of the representational costs of the judges. In some instances the resolution of the payment of representational costs will be achieved by agreement. Often the commission will have to determine the issue subject to an appeal to the court. In those circumstances the position adopted in the reasons of Roberts J. in Newfoundland Assn. of Provincial Court Judges, supra, may be appropriate, a matter upon which we need not comment in this motion. Suffice it to say, whatever may be the approach to the payment of costs it should be fair, equitable and reasonable.