Mackeigan v. Hickman
Encyclopedia
Mackeigan 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.
youth who was wrongly convicted of murder in 1971. In 1983, the federal government, on the basis of new evidence, referred the case to the Nova Scotia Court of Appeal
who overturned the conviction.
The panel which heard the reference included Justice Pace who was the Attorney General of Nova Scotia at the time of the investigation in 1971. At the end of the Court's judgement it was observed that Marshall was largely at fault for his own conviction by misleading the investigation and that "any miscarriage of justice was more apparent than real". This comment had a major effect on the amount of settlement Marshall received.
In 1986, the Nova Scotia government established a royal commission
, under the Public Inquiries Act, to investigate the handling of the Marshall case. As part of the investigation the Commission tried to compel the judges on the reference, including Pace, to testify. The judges applied for a declaration that the Commission had no authority to compel them as they were protected by judicial immunity.
The Supreme Court considered two issues:
The majority held that the judges could not be compelled and that the direction to the Commission was not ultra vires
the province.
Justice McLachlin
, writing for L'Heureux-Dubé and Gonthier, held that,
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...
decision on judicial independence
Judicial independence
Judicial Independence is the idea that the judiciary needs to be kept away from the other branches of government...
. The Court unanimously held that to require a federal judge to explain his or her decisions would violate the principle of judicial independence.
Background
Donald Marshall was an AboriginalAboriginal peoples in Canada
Aboriginal peoples in Canada comprise the First Nations, Inuit and Métis. The descriptors "Indian" and "Eskimo" have fallen into disuse in Canada and are commonly considered pejorative....
youth who was wrongly convicted of murder in 1971. In 1983, the federal government, on the basis of new evidence, referred the case to the Nova Scotia Court of Appeal
Nova Scotia Court of Appeal
The Court of Appeal for Nova Scotia is the highest appeal court in the province of Nova Scotia, Canada. There are currently seven Justices and one Chief Justice. The court sits in Halifax, which is the capital of Nova Scotia...
who overturned the conviction.
The panel which heard the reference included Justice Pace who was the Attorney General of Nova Scotia at the time of the investigation in 1971. At the end of the Court's judgement it was observed that Marshall was largely at fault for his own conviction by misleading the investigation and that "any miscarriage of justice was more apparent than real". This comment had a major effect on the amount of settlement Marshall received.
In 1986, the Nova Scotia government established a royal commission
Royal Commission
In Commonwealth realms and other monarchies a Royal Commission is a major ad-hoc formal public inquiry into a defined issue. They have been held in various countries such as the United Kingdom, Australia, Canada, New Zealand, and Saudi Arabia...
, under the Public Inquiries Act, to investigate the handling of the Marshall case. As part of the investigation the Commission tried to compel the judges on the reference, including Pace, to testify. The judges applied for a declaration that the Commission had no authority to compel them as they were protected by judicial immunity.
The Supreme Court considered two issues:
- whether ss. 3 and 4 of the Public Inquiries Act could be used to compel superior court judges to testify before the Commission, either with respect to how and why they reached their decision or with respect to the composition of the panel that heard the case.
- whether the direction to the Commission to inquire into a reference by the Minister of Justice was ultra vires the Province because it is a matter of criminal law and procedure reserved exclusively to the federal Parliament under s. 91(27) of the Constitution Act, 1867Constitution Act, 1867The 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...
.
The majority held that the judges could not be compelled and that the direction to the Commission was not ultra vires
Ultra vires
Ultra vires is a Latin phrase meaning literally "beyond the powers", although its standard legal translation and substitute is "beyond power". If an act requires legal authority and it is done with such authority, it is...
the province.
Reasons of the court
Three reasons were written for the majority.Justice McLachlin
Beverley McLachlin
Beverley McLachlin, PC is the Chief Justice of Canada, the first woman to hold this position. She also serves as a Deputy of the Governor General of Canada.-Early life:...
, writing for L'Heureux-Dubé and Gonthier, held that,
- the judge's right to refuse to answer to the executive or legislative branches of government or their appointees as to how and why the judge arrived at a particular judicial conclusion is essential to the personal independence of the judge…To entertain the demand that a judge testify before a civil body, or emanation of the legislature or executive, on how and why he or she made his or her decision would be to strike at the most sacrosanct core of judicial independence
See also
- List of Supreme Court of Canada cases (Dickson Court)
- Valente v. The QueenValente v. The QueenValente 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:...
- Beauregard v. CanadaBeauregard v. CanadaBeauregard v. Canada [1986] 2 S.C.R. 56 was a decision by the Supreme Court of Canada on judicial independence. 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...
- 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...
- Provincial Judges ReferenceProvincial Judges ReferenceThe 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...
- 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...