re Remuneration of Judges of the Provincial Court (P.E.I.), [1998] 1 S.C.R. 3

Reference re Remuneration of Judges of the Provincial Court (P.E.I.), [1998] 1 S.C.R. 3

IN THE MATTER of a Reference from the Lieutenant Governor in Council pursuant to Section 18 of the Supreme Court Act, R.S.P.E.I. 1988, Cap. S‑10, Regarding the Remuneration of Judges of the Provincial Court of Prince Edward Island and the Jurisdiction of the Legislature in Respect Thereof

and

IN THE MATTER of a Reference from the Lieutenant Governor in Council pursuant to Section 18 of the Supreme Court Act, R.S.P.E.I. 1988, Cap. S‑10, Regarding the Independence and Impartiality of Judges of the Provincial Court of Prince Edward Island

Merlin McDonald, Omer Pineau and Robert Christie Appellants

v.

The Attorney General of Prince Edward Island Respondent

and

The Attorney General of Canada,

the Attorney General of Quebec,

the Attorney General of Manitoba,

the Attorney General for Saskatchewan,

the Attorney General for Alberta,

the Canadian Association of Provincial Court Judges,

the Conférence des juges du Québec,

the Saskatchewan Provincial Court Judges Association,

the Alberta Provincial Judges’ Association,

the Canadian Bar Association and

the Federation of Law Societies of Canada Interveners

Indexed as: Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island; Reference re Independence and Impartiality of Judges of the Provincial Court of Prince Edward Island

File Nos.: 24508, 24778.

Her Majesty The Queen Appellant

v.

Shawn Carl Campbell Respondent

and between

Her Majesty The Queen Appellant

v.

Ivica Ekmecic Respondent

and between

Her Majesty The Queen Appellant

v.

Percy Dwight Wickman Respondent

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,

the Alberta Provincial Judges’ Association,

the Canadian Bar Association and

the Federation of Law Societies of Canada Interveners

Indexed as: R. v. Campbell; R. v. Ekmecic; R. v. Wickman

File No.: 24831.

The Judges of the Provincial Court of Manitoba

as represented by the Manitoba Provincial

Judges Association, Judge Marvin Garfinkel,

Judge Philip Ashdown, Judge Arnold Conner,

Judge Linda Giesbrecht, Judge Ronald Myers,

Judge Susan Devine and Judge Wesley Swail,

and the Judges of the Provincial Court of Manitoba

as represented by Judge Marvin Garfinkel,

Judge Philip Ashdown, Judge Arnold Conner,

Judge Linda Giesbrecht, Judge Ronald Myers,

Judge Susan Devine and Judge Wesley Swail Appellants

v.

Her Majesty The Queen in right of the

province of Manitoba as represented by

Rosemary Vodrey, the Minister of Justice and

the Attorney General of Manitoba, and

Darren Praznik, the Minister of Labour as

the Minister responsible for The Public

Sector Reduced Work Week and

Compensation Management Act Respondent

and

The Attorney General of Canada,

the Attorney General of Quebec,

the Attorney General of Prince Edward Island,

the Attorney General for Saskatchewan,

the Attorney General for Alberta,

the Canadian Judges Conference,

the Canadian Association of Provincial Court Judges,

the Conférence des juges du Québec,

the Saskatchewan Provincial Court Judges Association,

the Alberta Provincial Judges’ Association,

the Canadian Bar Association and

the Federation of Law Societies of Canada Interveners

Indexed as: Manitoba Provincial Judges Assn. v. Manitoba (Minister of Justice)

File No.: 24846.

1998: January 19; 1998: February 10.

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

rehearing

Courts ‑‑ Judicial independence ‑‑ Provincial Courts ‑‑ Supreme Court of Canada finding in original judgment that provincial court judges of Alberta, Manitoba and Prince Edward Island not independent ‑‑ Whether requests at rehearing for declarations validating past decisions of provincial court judges should be granted ‑‑ Doctrine of necessity.

Courts ‑‑ Judicial independence ‑‑ Provincial Courts ‑‑ Supreme Court of Canada finding in original judgment that Alberta provincial court judges not independent ‑‑ Declarations invalidating legislation in original judgment clarified ‑‑ Provincial Court Judges Act, S.A. 1981, c. P‑20.1, s. 17(1) ‑‑ Payment to Provincial Judges Amendment Regulation, Alta. Reg. 116/94.

Courts ‑‑ Judicial independence ‑‑ Provincial Courts ‑‑ Judicial remuneration ‑‑ Requirement for independent, objective and effective process for setting judicial remuneration suspended for one year from date of original judgment.

In a judgment rendered on September 18, 1997, the Supreme Court found that the provincial court judges of the provinces of Alberta, Manitoba and P.E.I. lacked the independence required by the preamble of the Constitution Act, 1867 and s. 11(d) of the Canadian Charter of Rights and Freedoms. At the rehearing, the Attorneys General of all three provinces requested declarations deeming past decisions made by the judges of their provincial courts to be valid, despite the courts’ lack of independence.

Held: The declarations requested should not be granted.

Although there is a general rule that a judge who is not impartial is disqualified from hearing a case, the doctrine of necessity ‑‑ an exception to the general rule of disqualification ‑‑ allows in certain circumstances a judge who would otherwise be disqualified to hear the case nonetheless, if there is no impartial judge who can take his place. The law recognizes that in some situations a judge who is not impartial and independent is preferable to no judge at all. The doctrine of necessity acknowledges the importance of finality and continuity in the administration of justice and sanctions a limited degree of unfairness toward the individual accused. Given this adverse effect, the exception should be applied rarely, and with great circumspection. As this exception applies here, absent a demonstration of positive and substantial injustice in the circumstances of a particular case, the doctrine of necessity will prevent the reopening of past decisions of the provincial courts of Alberta, Manitoba and P.E.I. by reason only of their lack of independence. Further, in the case of P.E.I., the issue of the independence of the provincial court judges came to this Court in the form of two references. Therefore, the Court has no jurisdiction to grant the relief requested.

In the case of Alberta, the September 18, 1997 judgment should be varied to clarify the orders made after the original hearing. Section 17(1) of the Provincial Court Judges Act is declared unconstitutional; however, given the institutional burdens that must be met by Alberta, this declaration of invalidity is suspended for a period of one year from the date of the original judgment. The Payment to Provincial Judges Amendment Regulation, Alta. Reg. 116/94, is also declared of no force or effect and that declaration takes effect retroactively as of September 18, 1997.

To allow governments time to comply with the constitutional requirements mandated by the September 18, 1997 judgment, and to ensure that the orderly administration of justice is not disrupted in the interim, all aspects of the requirement for an independent, objective and effective process for setting judicial remuneration, including any reimbursement for past salary reductions, are suspended for one year from the date of the original judgment. As of September 18, 1998, the judicial compensation commission requirement will apply prospectively. The transition period will apply throughout Canada.

Cases Cited

Distinguished: Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721; referred to: Air Canada v. British Columbia, [1989] 1 S.C.R. 1161; Dimes v. Grand Junction Canal (Proprietors of) (1852), 3 H.L.C. 759, 10 E.R. 301; Laws v. Australian Broadcasting Tribunal (1990), 93 A.L.R. 435; United States v. Will, 449 U.S. 200 (1980); Beauregard v. Canada, [1986] 2 S.C.R. 56; Reference re Public Schools Act (Man.), S. 79(3), (4) and (7), [1993] 1 S.C.R. 839; Attorney‑General for Ontario v. Attorney-General for Canada, [1912] A.C. 571; R. v. Brydges, [1990] 1 S.C.R. 190; R. v. Feeney, [1997] 2 S.C.R. 117; Year Book, 8 Hen. 6, 19b.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, s. 11(d).

Criminal Code, R.S.C., 1985, c. C‑46, ss. 553 [rep. & sub. c. 27 (1st Supp.), s. 104; am. 1992, c. 1, s. 58(1) (Sch. I, item 11); am. 1994, c. 44, s. 57; am. 1995, c. 22, s. 2; am. 1996, c. 19, s. 72; am. 1997, c. 18, s. 66], 554(1) [am. c. 27 (1st Supp.), s. 203].

Payment to Provincial Judges Amendment Regulation, Alta. Reg. 116/94.

Payment to Provincial Judges Amendment Regulation, Alta. Reg. 171/91.

Payment to Provincial Judges Regulation, Alta. Reg. 27/80.

Provincial Court Judges Act, S.A. 1981, c. P‑20.1, s. 17(1).

Provincial Judges and Masters in Chambers Pension Plan Amendment Regulation, Alta. Reg. 29/92.

Provincial Judges and Masters in Chambers Pension Plan Regulation, Alta. Reg. 265/88.

Public Sector Reduced Work Week and Compensation Management Act, S.M. 1993, c. 21.

Authors Cited

de Smith, Stanley A. Judicial Review of Administrative Action, 5th ed. By Lord Woolf and Jeffrey Jowell. London: Sweet & Maxwell, 1995.

Halsbury’s Laws of England, vol. 1(1), 4th ed. (reissue). By Lord Hailsham of St. Marylebone. London: Butterworths, 1989.

Rolle’s Abridgment, vol. 2, 1668.

Tracey, R. R. S. “Disqualified Adjudicators: The Doctrine of Necessity in Public Law”, [1982] Public Law 628.

REHEARING of appeals on independence of provincial court judges of Prince Edward Island, Manitoba and Alberta, [1997] 3 S.C.R. 3.

Peter C. Ghiz, for the appellants in the P.E.I. references.

Gordon L. Campbell and Tracey Clements, for the respondent in the P.E.I. references.

Richard F. Taylor, for the appellant Her Majesty the Queen.

John A. Legge, for the respondents Campbell, Ekmecic and Wickman.

Robb Tonn and Colin S. Robinson, for the appellants the Judges of the Provincial Court of Manitoba.

E. W. Olson, Q.C., for the respondent Her Majesty the Queen in right of Manitoba.

Edward R. Sojonky, Q.C., and Jon Brongers, for the intervener the Attorney General of Canada.

Robb Tonn and Colin S. Robinson, for the intervener the Canadian Association of Provincial Court Judges.

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

Raynold Langlois, Q.C., for the intervener the Conférence des juges du Québec.

D. O. Sabey, Q.C., and Scott H. D. Bower, for the intervener the Alberta Provincial Judges’ Association.

//The Chief Justice//

The judgment of the Court was delivered by

1The Chief Justice -- On September 18, 1997, this Court issued a judgment dealing with the unconstitutionality of certain actions of the provincial governments of Alberta, Manitoba and Prince Edward Island that interfered with the judicial independence of their provincial courts ([1997] 3 S.C.R. 3 (the “Provincial Court Judges Case”)). The Court issued several declarations invalidating statutes or censuring acts that impinged upon the security of tenure, financial security and/or administrative independence of the judges of the Provincial Courts of Alberta and Manitoba, and we gave our advisory opinion in response to reference questions on the same issues with respect to the Provincial Court of Prince Edward Island. The declarations of invalidity of offending provisions in provincial statutes and regulations retroactively nullified them. However, those declarations do not “cure” all of the unconstitutional effects those provisions had while they were in force: Air Canada v. British Columbia, [1989] 1 S.C.R. 1161, at p. 1195.

2One effect of those legislative provisions that had undermined the financial security of provincial court judges was to render those tribunals dependent. The retroactive annulment of the salary reductions by this Court does not change the fact that provincial court judges were not independent during the period of time when those reductions were imposed upon them. Section 11(d) of the Canadian Charter of Rights and Freedoms guarantees the right “to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal” (emphasis added). The upshot of this Court’s judgment is that every person found guilty by a provincial court in Alberta, Manitoba or Prince Edward Island while those unconstitutional laws were being applied has suffered a breach of his or her s. 11(d) rights. The retroactive nullification of the legislation that caused those breaches does not, however, have the effect of “deeming” them never to have occurred.

3The Attorneys General of Alberta, Manitoba and Prince Edward Island have returned to this Court primarily to request declarations deeming past decisions of provincial court judges in those provinces to be valid. The reasons why such relief is unnecessary and the Court’s decision regarding other relief requested by individual provinces are set out below. I will also explain our decision to suspend temporarily the requirement of an independent, objective and effective process for setting judicial remuneration.

A. Doctrine of Necessity

4The Attorneys General of all three provinces have returned to this Court primarily to seek additional remedies to ensure that the Provincial Court Judges Case does not have the effect of opening every decision made by their provincial courts to a s. 11(d) challenge. All three provinces have requested declarations deeming past acts and decisions of the members of their provincial courts to be valid, despite the courts’ lack of independence. There is no need for this Court to make such declarations. Past decisions cannot be reopened by relying on the constitutional defects in the Provincial Courts of Alberta, Manitoba and Prince Edward Island that were discussed in this Court’s reasons in the Provincial Court Judges Case. Although there is a general rule that a judge who is not impartial is disqualified from hearing a case, there is an exception to this rule that allows a judge who would otherwise be disqualified to hear the case nonetheless, if there is no impartial judge who can take his or her place. The law recognizes that in some situations a judge who is not impartial and independent is preferable to no judge at all.

5This exception, usually referred to as the “doctrine of necessity” or the “rule of necessity”, developed side by side with the general rule of disqualification. The first recorded case in which this principle was applied seems to be one decided in 1430, in which it was held that the judges of the Common Pleas were not disqualified from judging an action against all of them, because there was no other court in which the case could be brought: Year Book, 8 Hen. 6, 19b; 2 Rolle’s Abridgment (1668), at p. 93. This rule has been applied by the highest courts of several common law jurisdictions; see, e.g., Dimes v. Grand Junction Canal (Proprietors of) (1852), 3 H.L.C. 759, 10 E.R. 301; Laws v. Australian Broadcasting Tribunal (1990), 93 A.L.R. 435 (H.C.); and United States v. Will, 449 U.S. 200 (1980). It was implicitly relied upon by this Court in Beauregard v. Canada, [1986] 2 S.C.R. 56, in which we considered the constitutionality of provisions requiring federally appointed judges, including the judges of this Court, to contribute part of their salaries toward the cost of pensions.

6This doctrine is explained by Halsbury’s Laws of England (4th ed. 1989), vol. 1(1), at para. 93, as follows:

If all members of the only tribunal competent to determine a matter are subject to disqualification, they may be authorised and obliged to hear and determine that matter by virtue of the operation of the common law doctrine of necessity.

Like the more general doctrine of necessity considered in Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721, this exception finds its source in the rule of law. As observed by de Smith, Woolf and Jowell in Judicial Review of Administrative Action (5th ed. 1995), at p. 544:

A person who is subject to disqualification [by reason of bias] at common law may be required to decide the matter if there is no other competent tribunal or if a quorum cannot be formed without him. Here the doctrine of necessity is applied to prevent a failure of justice.

After an exhaustive analysis of cases applying the necessity exception to judicial disqualification, R. R. S. Tracey describes the scope of the rule as follows (“Disqualified Adjudicators: The Doctrine of Necessity in Public Law”, [1982] Public Law 628, at p. 641):

The doctrine will operate when the only adjudicator with jurisdiction is disqualified or, in multi-member tribunals, where a quorum cannot be found because of disqualification, provided that the cause of the disqualification is involuntary. It will not operate when the cause is voluntary, except in the rare case in which the disqualified adjudicator is the only person with power to perform a formal act which must be performed if the course of justice is to continue.

7We would add to this definition the two provisos noted by the High Court of Australia in Laws v. Australian Broadcasting Tribunal, supra, at p. 454:

. . . the rule of necessity is, in an appropriate case, applicable to a statutory administrative tribunal, as it is to a court, to prevent a failure of justice or a frustration of statutory provisions. That rule operates to qualify the effect of what would otherwise be actual or ostensible disqualifying bias so as to enable the discharge of public functions in circumstances where, but for its operation, the discharge of those functions would be frustrated with consequent public or private detriment. There are, however, two prima facie qualifications of the rule. First, the rule will not apply in circumstances where its application would involve positive and substantial injustice since it cannot be presumed that the policy of either the legislature or the law is that the rule of necessity should represent an instrument of such injustice. Secondly, when the rule does apply, it applies only to the extent that necessity justifies. [Emphasis added.]

These two limitations make clear that the doctrine should not be applied mechanically. To do so would gravely undermine the guarantee of an impartial and independent tribunal provided by s. 11(d) of the Charter. The doctrine of necessity is unfair in the same way that res judicata causes unfairness; both doctrines preserve the effects of an unconstitutional law. While the Charter has done much to improve the fairness of the administration of criminal law, it cannot guarantee complete fairness in all matters at all costs. Like res judicata, the doctrine of necessity recognizes the importance of finality and continuity in the administration of justice and sanctions a limited degree of unfairness toward the individual accused. Given this adverse effect, it should be applied rarely, and with great circumspection.

8As this rule applies to the situation at hand, absent a demonstration of positive and substantial injustice in the circumstances of a particular case, the doctrine of necessity will prevent the reopening of past decisions of the Provincial Courts of Alberta, Manitoba and Prince Edward Island by reason only of their lack of independence as found by this Court in our judgment of September 18, 1997. The judges who heard those cases were obliged to do so, either because the charge fell within the absolute jurisdiction of the provincial court under s. 553 of the Criminal Code, R.S.C., 1985, c. C-46, or because the accused elected trial by provincial court judge under s. 554(1), an election that belongs to the accused, not to the judge. All members of the provincial courts, through no fault of their own, were found not to be independent as a result of the actions of their governments. It would have been contrary to public policy to refuse to hear criminal cases in these circumstances. Therefore, the doctrine of necessity applies, rendering these decisions valid, and there is no need to grant the declaratory relief sought by the Attorneys General of Alberta, Manitoba and Prince Edward Island.

B. Prince Edward Island: The Advisory Nature of Answers to Reference Questions

9In the case of Prince Edward Island, there is an additional reason for refusing this declaration and all other orders sought by the provincial Attorney General on this rehearing. The issue of the independence of the judges of the Provincial Court of Prince Edward Island came to this Court in the form of two references. In this context the Court has no jurisdiction to make the orders requested. My reasons of September 18, 1997, set out the answers of the majority of this Court to the questions posed in two references made to the Prince Edward Island Supreme Court, Appeal Division, and appealed to this Court. Those answers constitute an advisory opinion and not a judgment. As I said in Reference re Public Schools Act (Man.), S. 79(3), (4) and (7), [1993] 1 S.C.R. 839, at p. 863:

Although all parties agree that The Public Schools Act violates s. 23 of the Charter, this appeal came to this Court by way of a constitutional reference. This Court, therefore, has jurisdiction to answer the questions referred to it, but not to declare the impugned statute of no force or effect under s. 52(1) of the Constitution Act, 1982.

See also Attorney-General for Ontario v. Attorney-General for Canada, [1912] A.C. 571 (P.C.).

10The only case in which this Court issued a binding declaration in response to a reference was Reference re Manitoba Language Rights, supra. The circumstances of that case were exceptional, and are not analogous to the references at bar. In the Prince Edward Island references, the fact that this Court’s opinion is only advisory does not leave the parties without a remedy. They can seek a declaration from the Prince Edward Island Supreme Court, and this Court’s opinion will be of highly persuasive weight. In contrast, in the Reference re Manitoba Language Rights there was a risk that there would be no other properly constituted court that could order a declaration of temporary validity. This Court’s decision that all unilingual acts of the Legislature of Manitoba, which encompassed virtually every statute passed since 1890, were unconstitutional created a potential legal vacuum. Any court whose constituting statute was passed in English only was abolished. The composition of the Manitoba Legislature was also potentially invalid. The rule of law gave this Court constitutional authority to provide a binding remedy in this unique situation. There is nothing in this case that creates the same degree of necessity.

11Therefore, this Court cannot grant the specific relief requested. However, this Court’s decision on the legal issues that arose in the original hearing of the Manitoba and Alberta appeals and in this rehearing (e.g., the application of the doctrine of necessity) is binding on the courts of Prince Edward Island, and indeed, on all other courts in Canada. Moreover, as explained below, the transition period ordered by this Court will apply throughout Canada.

C. Request by the Manitoba Appellants: Costs

12The appellants requested that the order as to costs be varied, such that costs be awarded to the appellants on a solicitor and client basis. This motion is dismissed.

D. Additional Orders Requested by Alberta

13In addition to requesting a declaration validating past Provincial Court decisions, the Attorney General for Alberta sought two additional orders on this rehearing:

1. An order declaring that the salary levels of judges of the Provincial Court of Alberta are as set out:

(a) in the Payment to Provincial Judges Amendment Regulation, Alta. Reg. 171/91, or

(b) in the Payment to Provincial Judges Amendment Regulation, Alta. Reg. 116/94.

2. (a) An order declaring that s. 17(1) of the Provincial Court Judges Act, S.A. 1981, c. P-20.1, and the regulations made thereunder, namely:

(i) the Payment to Provincial Judges Regulation, Alta. Reg. 27/80, as amended up to and including either

(A) the Payment to Provincial Judges Amendment Regulation, Alta. Reg. 171/91, or

(B) the Payment to Provincial Judges Amendment Regulation, Alta. Reg. 116/94;

and

(ii) the Provincial Judges and Masters in Chambers Pension Plan Regulation, Alta. Reg. 265/88, as amended up to and including Alta. Reg. 29/92,

which provision and regulations would currently be in force were it not for constitutional defect, are deemed to have temporary validity and force and effect for a period of one year following the date of the judgment.

OR

(b) An order

(i) suspending the declaration of invalidity of s. 17(1); or

(ii) deeming it temporarily valid

and

deeming the Provincial Court of Alberta and its members to be a constitutionally independent tribunal despite the financial remuneration of the members having been set without recourse to a judicial compensation committee, for a period of one year.

14It is unnecessary to grant the first order. The Court’s decision that the Payment to Provincial Judges Amendment Regulation, Alta. Reg. 116/94, is unconstitutional has the effect of reviving the prior salary regulation, which was the Payment to Provincial Judges Amendment Regulation, Alta. Reg. 171/91. However, this incidental reactivation of Alta. Reg. 171/91 should not be taken as a decision by this Court that the earlier regulation was valid. The constitutionality of that regulation was not in issue in the Provincial Court Judges Case. Therefore, we prefer to deal with the question of which regulation is currently in force in Alberta in our decision on the second order requested.

15The second order set out above was requested for two reasons. The first was to clarify the orders made after the original hearing. There was some confusion as to whether the suspension ordered in that judgment related to the declaration of invalidity of s. 17(1) of the Provincial Court Judges Act or the declaration of invalidity of Alta. Reg. 116/94. Our intention was to suspend the declaration of invalidity relating to s. 17(1) of the statute, not the declaration in respect of the unconstitutional regulation. Therefore, the September 18, 1997 judgment is varied to reflect that intention. This Court declares s. 17(1) of the Provincial Court Judges Act to be unconstitutional; however, given the institutional burdens that must be met by Alberta, we suspend this declaration of invalidity for a period of one year. The Payment to Provincial Judges Amendment Regulation, Alta. Reg. 116/94, is also of no force or effect; that declaration takes effect retroactively as of September 18, 1997.

16The second reason given by Alberta for requesting the second order set out above was to ensure that the Provincial Court can continue to function while the government is going through the judicial remuneration review process required by the original judgment. The suspension of the requirement for an independent, objective and effective process where judicial remuneration is changed or frozen, which is described below, will ensure that this concern is met. It is therefore unnecessary to grant the relief requested.

E. Transition Period

17The Attorneys General of Alberta and Prince Edward Island, as well as several of the interveners, have asked for a further remedy to ensure that courts that are not currently independent can continue to function while governments are going through the judicial remuneration review process required by this Court’s September 18, 1997 judgment. That process, by its very nature, will require a considerable amount of time to complete. Some provinces, such as Alberta and Prince Edward Island, have never had a judicial compensation commission, so they need time to establish one. In addition, although not required by s. 11(d), we recommended that the independent body charged with setting or recommending the level of judicial remuneration ensure that it is fully informed before deliberating and making its recommendations (Provincial Court Judges Case, supra, at para. 173). Time is also needed to permit the legislature to respond to the commission’s recommendations.

18Therefore, to allow governments time to comply with the constitutional requirements mandated by our September 18, 1997 decision, and to ensure that the orderly administration of justice is not disrupted in the interim, the Court has decided to suspend all aspects of the requirement for an independent, objective and effective process for setting judicial remuneration, including any reimbursement for past salary reductions, for one year from the date of the original judgment. That is, there will be a transition period of one year before that requirement takes effect. As of September 18, 1998, the judicial compensation commission requirement will apply prospectively.

19In provinces where less than a year is needed to go through the judicial remuneration review process mandated by s. 11(d), this suspension should not be viewed as a license to delay compliance with the constitutional imperatives set out in the Provincial Court Judges Case. The suspension is for the benefit of those jurisdictions that have not yet had sufficient time to remedy constitutional defects in legislation affecting judicial independence. Those provinces that were already honouring the guarantee of an independent tribunal provided by s. 11(d) of the Charter, and those that acted promptly to correct any deficiencies revealed by this Court’s clarification of the content of the s. 11(d) guarantee, are to be commended.

20I note that the prospectiveness of the judicial compensation requirement does not change the retroactivity of the declarations of invalidity made in this case (e.g., the declarations respecting Alta. Reg. 116/94 and Manitoba’s Bill 22 (Public Sector Reduced Work Week and Compensation Management Act, S.M. 1993, c. 21)). In the rare cases in which this Court makes a prospective ruling, it has always allowed the party bringing the case to take advantage of the finding of unconstitutionality: see, e.g., R. v. Brydges, [1990] 1 S.C.R. 190; R. v. Feeney, [1997] 2 S.C.R. 117.

21The Court will remain seized of this matter until the end of the suspension period, and the parties or any intervener may apply to the Court for further directions as needed during the suspension.