Therrien (Re)
Encyclopedia
Therrien, [2001] 2 S.C.R. 3, 2001 SCC 35, is a leading decision of the Supreme Court of Canada
on judicial independence
.
during the October Crisis
. Once he was released he studied law and was eventually given a pardon. Years later he applied for a position on the Quebec bench as a judge. As part of his application he disclosed his criminal record and his pardon. He was rejected based on this history. Later he applied again, this time he did not reveal his criminal history and was accepted. Once the committee discovered the existence of a criminal history they got the Minister of Justice to issue a complaint to the Quebec Conseil de la magistrature. The Conseil found the complaint to be justified and recommended that he be removed from the bench.
Therrien applied to have the decision of the Conseil to be judicially reviewed and challenged the constitutionality of the removal process under the Courts of Justice Act. The Minister of Justice applied to have Therrien's applications dismissed. The Quebec Court of Appeal
dismissed Therrien's application for review.
Gonthier dismissed the first argument by Therrien that the Court of Appeal and Supreme Court did not have jurisdiction over the matter. Section 95 of the Courts of Justice Act clearly granted the right to the courts to review the decisions of the inquiry panel.
Gonthier considered whether section 95 of the Courts of Justice Act, which established the requirements to remove a judge, violated the constitutional principle of judicial independence guaranteed under the preamble
of the Constitution Act, 1867
. He found that judicial independence did not extend so far as to require that any removal of a judge must involve an address to the legislature and so section 95 was constitutional.
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...
.
Background
In the 1970s Richard Therrien was convicted of assisting four members of the Front de libération du QuébecFront de libération du Québec
The Front de libération du Québec was a left-wing Quebecois nationalist and Marxist-Leninist paramilitary group in Quebec, Canada. It was active between 1963 and 1970, and was regarded as a terrorist organization for its violent methods of action...
during the October Crisis
October Crisis
The October Crisis was a series of events triggered by two kidnappings of government officials by members of the Front de libération du Québec during October 1970 in the province of Quebec, mainly in the Montreal metropolitan area.The circumstances ultimately culminated in the only peacetime use...
. Once he was released he studied law and was eventually given a pardon. Years later he applied for a position on the Quebec bench as a judge. As part of his application he disclosed his criminal record and his pardon. He was rejected based on this history. Later he applied again, this time he did not reveal his criminal history and was accepted. Once the committee discovered the existence of a criminal history they got the Minister of Justice to issue a complaint to the Quebec Conseil de la magistrature. The Conseil found the complaint to be justified and recommended that he be removed from the bench.
Therrien applied to have the decision of the Conseil to be judicially reviewed and challenged the constitutionality of the removal process under the Courts of Justice Act. The Minister of Justice applied to have Therrien's applications dismissed. The Quebec Court of Appeal
Quebec Court of Appeal
The Court of Appeal for Quebec is the highest judicial court in Quebec, Canada....
dismissed Therrien's application for review.
Opinion of the Court
Justice Gonthier, writing for a unanimous Court, dismissed Therrien's appeal.Gonthier dismissed the first argument by Therrien that the Court of Appeal and Supreme Court did not have jurisdiction over the matter. Section 95 of the Courts of Justice Act clearly granted the right to the courts to review the decisions of the inquiry panel.
Gonthier considered whether section 95 of the Courts of Justice Act, which established the requirements to remove a judge, violated the constitutional principle of judicial independence guaranteed under 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...
of the Constitution Act, 1867
Constitution 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...
. He found that judicial independence did not extend so far as to require that any removal of a judge must involve an address to the legislature and so section 95 was constitutional.
See also
- 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...
- 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...
- 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...
- 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...