Beauregard v. Canada
Encyclopedia
| Beauregard v. Canada | ||||||
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 Supreme Court of Canada |
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| Argued October 4, 1985 Decided September 16, 1986 |
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| Holding | ||||||
| A pension to which judges must contribute does not violate section 100 of the Constitution Act, 1867. | ||||||
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Beauregard v. Canada [1986] 2 S.C.R. 56 was a decision by the Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
on judicial independence
Judicial independence
Judicial Independence is the idea that the judiciary needs to be kept away from the other branches of government...
. Notably, the Court found that judicial independence is based partly in an unwritten constitution, and that some institutional independence is needed so that judges can guard the Constitution of Canada
Constitution of Canada
The Constitution of Canada is the supreme law in Canada; the country's constitution is an amalgamation of codified acts and uncodified traditions and conventions. It outlines Canada's system of government, as well as the civil rights of all Canadian citizens and those in Canada...
. These findings were repeated, with far-reaching consequences, in the Provincial Judges Reference
Provincial Judges Reference
The Provincial Judges Reference [1997] 3 S.C.R. 3 is a leading opinion of the Supreme Court of Canada in response to a reference question regarding remuneration and the independence and impartiality of provincial court judges...
(1997).
Background
The case concerned section 100 of the Constitution Act, 1867Constitution Act, 1867
The Constitution Act, 1867 , is a major part of Canada's Constitution. The Act created a federal dominion and defines much of the operation of the Government of Canada, including its federal structure, the House of Commons, the Senate, the justice system, and the taxation system...
. As part of a guarantee of judicial independence for federally appointed judges, the section provides that "The Salaries, Allowances, and Pensions of the Judges of the Superior, District, and County Courts (except the Courts of Probate in Nova Scotia and New Brunswick), and of the Admiralty Courts in Cases where the Judges thereof are for the Time being paid by Salary, shall be fixed and provided by the Parliament of Canada." A salary fixed by the Parliament of Canada
Parliament of Canada
The Parliament of Canada is the federal legislative branch of Canada, seated at Parliament Hill in the national capital, Ottawa. Formally, the body consists of the Canadian monarch—represented by her governor general—the Senate, and the House of Commons, each element having its own officers and...
was preferable to a salary fixed by the executive. In 1975, Parliament began to expect judges would contribute to pension costs, and a Statute Law (Superannuation) Amendment Act, 1975 was introduced. The statute dictated that judges appointed prior to February 17, 1975 should contribute 1.5% of their pay to pension costs, and judges appointed after that day would contribute 6%.
Justice Marc Beauregard, who was appointed to the Quebec Superior Court
Quebec Superior Court
Quebec Superior Court is the highest trial Court in the Province of Quebec, Canada. It consists of 144 judges who are appointed by the federal government.Chief Justices : [partial listing]* Edward Bowen...
in July 1975, did not immediately have to contribute 6%, since the Statute Law (Superannuation) Amendment Act was not yet officially enacted. This changed in December 1975, and Beauregard challenged the law as contrary to section 100 of the Constitution Act, 1867. He also claimed his equality rights under the Canadian Bill of Rights
Canadian Bill of Rights
The Canadian Bill of Rights is a federal statute and bill of rights enacted by Prime Minister John Diefenbaker's government on August 10, 1960. It provides Canadians with certain quasi-constitutional rights in relation to other federal statutes...
were infringed, because he was being treated differently from other judges.
Decision
The majority of the Supreme Court, whose opinion was written by Chief JusticeChief Justice of Canada
The Chief Justice of Canada, like the eight puisne Justices of the Supreme Court of Canada, is appointed by the Governor-in-Council . All nine are chosen from either sitting judges or barristers who have at least ten years' standing at the bar of a province or territory...
Brian Dickson
Brian Dickson
Robert George Brian Dickson, , commonly known as Brian Dickson, was appointed Chief Justice of Canada on April 18, 1984. He retired on June 30, 1990 and died October 17, 1998.-Career:...
, rejected the constitutional challenge. In interpreting section 100, the Court noted that section 100 ensures federal judges will receive a salary and pension. In terms of Canadian federalism
Canadian federalism
Canada is a federation with two distinct jurisdictions of political authority: the country-wide federal government and the ten regionally-based provincial governments. It also has three territorial governments in the far north, though these are subject to the federal government...
, it gave the responsibility of remuneration to the federal government. In terms of separation of powers
Separation of powers
The separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...
, it gave the responsibility to Parliament and not the executive. Justice Beauregard argued section 100 also had the effect of prohibiting the lessening of benefits once they had already been granted, of providing that judges should not have to contribute toward their pensions, and providing that such contributions should not be taken away from salaries.
The Court noted the previous landmark judicial independence case, Valente v. The Queen
Valente v. The Queen
Valente v. The Queen, [1985] 2 S.C.R. 673 is a leading Supreme Court of Canada decision on protection of judicial independence under section 11 of the Canadian Charter of Rights and Freedoms.-Background:...
(1985), established that independence belongs both to a judge and to a court as a whole. The Court now explained that this interpretation of independence was appropriate considering the roles of courts. While one role is to resolve conflicts, another was to guard the Constitution and constitutional values of the rule of law
Rule of law
The rule of law, sometimes called supremacy of law, is a legal maxim that says that governmental decisions should be made by applying known principles or laws with minimal discretion in their application...
and fundamental justice
Fundamental justice
Fundamental justice is a legal term that signifies a dynamic concept of fairness underlying the administration of justice and its operation, whereas principles of fundamental justice are specific legal principles that command "significant societal consensus" as "fundamental to the way in which the...
. Thus, judicial independence is the "lifeblood of constitutionalism in democratic societies." The Court then explained judicial independence in Canada has more than one basis. One was the existence of federalism, as courts were needed to clarify jurisdictions, especially since Parliament no longer used its power to decide such questions, disallowance
Disallowance and reservation
Disallowance and reservation are constitutional powers that theoretically exist in certain Commonwealth realms to delay or overrule legislation. Originally created to retain the Crown's authority over colonial authorities across the British Empire, these powers are now generally obsolete, or have...
. The existence of the Canadian Charter of Rights and Freedoms
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
, since 1982, also implies judicial independence is necessary to guard rights. Another source of judicial independence could be found in the preamble
Preamble
A preamble is an introductory and expressionary statement in a document that explains the document's purpose and underlying philosophy. When applied to the opening paragraphs of a statute, it may recite historical facts pertinent to the subject of the statute...
to the Constitution Act, 1867. It stated the Constitution of Canada should be "similar in Principle" to the Constitution of the United Kingdom
Constitution of the United Kingdom
The constitution of the United Kingdom is the set of laws and principles under which the United Kingdom is governed.Unlike many other nations, the UK has no single core constitutional document. In this sense, it is said not to have a written constitution but an uncodified one...
, and judicial independence was a constitutional principle in the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
. Sections 96 to 100 of the Constitution Act, 1867 were another source.
Regarding this case, the Court noted that while traditionally judicial independence protects courts from the executive, the relationship between courts and legislatures was now at issue. This case also concerned financial security, which Dickson acknowledged was a part of judicial independence since the Act of Settlement 1701
Act of Settlement 1701
The Act of Settlement is an act of the Parliament of England that was passed in 1701 to settle the succession to the English throne on the Electress Sophia of Hanover and her Protestant heirs. The act was later extended to Scotland, as a result of the Treaty of Union , enacted in the Acts of Union...
and was reaffirmed by Valente.
With all this in mind, the Court turned to Beauregard's argument that Parliament cannot lower existing remuneration. Section 100 states that Parliament is responsible for judicial remuneration, and the question now was Parliament's limits in exercising this responsibility. Dickson started by saying that "As a general observation, Canadian judges are Canadian citizens and must bear their fair share of the financial burden of administering the country." Judges v. Attorney-General of Saskatchewan (1937) had demonstrated that judges must pay tax
Tax
To tax is to impose a financial charge or other levy upon a taxpayer by a state or the functional equivalent of a state such that failure to pay is punishable by law. Taxes are also imposed by many subnational entities...
es. The law at issue targeted judges only, but Dickson did not regard this as damaging to judicial independence. This financial obligation did not touch the true purpose of judicial independence, namely freedom from manipulation and the separation of powers. The law merely established a conventional form of pension, and did so along with a considerable raise in salaries. Dickson then clarified Parliamentary power regarding remuneration is not absolute, but what should be guarded against was decisions with sinister motivations and discrimination
Discrimination
Discrimination is the prejudicial treatment of an individual based on their membership in a certain group or category. It involves the actual behaviors towards groups such as excluding or restricting members of one group from opportunities that are available to another group. The term began to be...
against judges.
Beauregard's suggestion that judges should not have to contribute to pensions owed partly to section 92(14) of the Constitution Act, 1867, which assigned the administration of justice to the provincial governments. This suggested the federal and provincial governments would have to agree to the creation of a pension to which judges must contribute. Dickson refuted this argument by saying the general effect of the section 92(14) is limited by other more specific parts of the Constitution, in this case section 100. Another interpretation of section 100 was that the type of pensions it mentioned was the kind that existed at the time of Canadian Confederation
Canadian Confederation
Canadian Confederation was the process by which the federal Dominion of Canada was formed on July 1, 1867. On that day, three British colonies were formed into four Canadian provinces...
, i.e. pensions to which judges did not contribute. Moreover, the section's requirement that Parliament provides the pension could be taken as meaning Parliament alone; the section did not say judges along with Parliament had the responsibility. Dickson rejected the idea that the type of pension had to be the same as it was at Confederation in 1867, because the Constitution is meant to adapt to changing circumstances. This was the living tree doctrine
Living tree doctrine
In Canadian law, the living tree doctrine is a doctrine of constitutional interpretation that says that a constitution is organic and must be read in a broad and progressive manner so as to adapt it to the changing times....
. As for the notion that Parliament alone must pay for the pension, Dickson replied under section 100, Parliament must pay a pension, but section 100 did not say what percentage of a total pension.
Finally, Beauregard argued the pension limited the judges' freedom in how to spend their salaries. Dickson rejected the argument since salaries and pensions are both meant to compensate the judge, and the total compensation would have been the same if the salary raise was less and the pensions were kept the same. If the compensation would be the same anyway, Parliament was allowed some choice.
Regarding the Bill of Rights, Dickson said that it has normally been interpreted to have little effect, so that statutes with valid objectives are upheld. It was too late to re-consider that strategy.
Dissent
Justice Jean BeetzJean Beetz
Jean-Marie Philémon Joseph Beetz, was a Canadian jurist and puisne justice of the Supreme Court of Canada....
wrote a partial dissent. Although he agreed with Dickson regarding judicial independence, he would have found in favour of Beauregard, through the Bill of Rights. He denied that the equality rights under the Bill of Rights only prohibited racial discrimination and similar forms of discrimination, and pointed to Bora Laskin
Bora Laskin
Bora Laskin, PC, CC, FRSC was a Canadian jurist, who served on the Supreme Court of Canada for fourteen years, including a decade as its Chief Justice.-Early life:...
's opinion in Curr v. The Queen (1972). On the question of whether the differential treatment owed to a valid objective, Beetz agreed that the law did aim at such an objective, which was to lessen the taxes paid by other Canadians. However, Beetz also concluded that the method used to achieve this goal was improper, as it affected equality too deeply and judicial acceptance of these kinds of government actions would make the right meaningless. Laws may treat people differently, but this treatment must not be arbitrary. Moreover, Beetz found that with a valid objective, a law may still violate the Bill of Rights if it "goes beyond what is necessary to reach a desirable social objective."
Turning to the case, Beetz found the measures taken by Parliament were not all necessary. There seemed to be no compelling reason why the date was chosen regarding which judges would contribute what. The date the law officially came into effect would have likely been more appropriate. If this were done, some differential treatment in the form of grandfather clause
Grandfather clause
Grandfather clause is a legal term used to describe a situation in which an old rule continues to apply to some existing situations, while a new rule will apply to all future situations. It is often used as a verb: to grandfather means to grant such an exemption...
s would have been acceptable. If this were done, all judges appointed after the date could be reasonably expected to know they would have to pay the 6%, whereas Beauregard was surprised when the change was made.
See also
- List of Supreme Court of Canada cases (Dickson Court)
- Mackeigan v. HickmanMackeigan v. HickmanMackeigan v. Hickman, [1989] 2 S.C.R. 796 is a leading Supreme Court of Canada decision on judicial independence. The Court unanimously held that to require a federal judge to explain his or her decisions would violate the principle of judicial independence....
- R. v. GénéreuxR. v. GénéreuxR. v. Genereux, [1992] 1 S.C.R. 259 is a leading Supreme Court of Canada decision where the Court held that the government had the constitutional right to create a military justice system that existed in parallel to the regular court system...
- Therrien (Re)Therrien (Re)Therrien , [2001] 2 S.C.R. 3, 2001 SCC 35, is a leading decision of the Supreme Court of Canada on judicial independence.-Background:In the 1970s Richard Therrien was convicted of assisting four members of the Front de libération du Québec during the October Crisis. Once he was released he studied...
- Provincial Court Judges' Assn. of New Brunswick v. New Brunswick (Minister of Justice)Provincial Court Judges' Assn. of New Brunswick v. New Brunswick (Minister of Justice)Provincial Court Judges’ Assn. of New Brunswick v. New Brunswick ; Ontario Judges’ Assn. v. Ontario ; Bodner v. Alberta; Conférence des juges du Québec v. Quebec ; Minc v. Quebec [2005] 2 S.C.R...