Rice, P.C.J. v. N.B. (2002), 282 N.R. 201 (SCC)
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Temp. Cite: [2002] N.R. TBEd. FE.007
Her Majesty the Queen in Right of the Province of New Brunswick as represented by the Minister of Finance (appellant) v. Ian P. Mackin (respondent)
Her Majesty the Queen in Right of the Province of New Brunswick as represented by the Minister of Finance (appellant) v. Douglas E. Rice (respondent) and the Attorney General of Canada, the Attorney General for Ontario, the Attorney General of Quebec, the Attorney General of Manitoba, the Attorney General of British Columbia, the Attorney General for Saskatchewan, the Attorney General for Alberta, the Canadian Judges Conference and the Canadian Association of Provincial Court Judges (interveners)
(27722; 2002 SCC 13)
Indexed As:
Rice, P.C.J. v. New Brunswick
Supreme Court of Canada
L’Heureux-Dubé, Gonthier, Iacobucci, Major, Binnie, Arbour and LeBel, JJ.
February 14, 2002.
Summary:
Rice, P.C.J., and Mackin, P.C.J, brought separate actions against the Province of New Brunswick seeking damages and declaratory relief. They asserted, inter alia, that the abolition of the supernumerary designation for Provincial Court judges violated judicial independence.
The New Brunswick Court of Queen’s Bench, Trial Division, in a decision reported at 202 N.B.R.(2d) 324; 516 A.P.R. 324, decided the Mackin case. The court declared that the repeal of the supernumerary status was unconstitutional, but suspended the declaration until such time as the issue was dealt with through the commission process referred to by the Supreme Court Canada in Reference Re Remuneration of Judges of the Provincial Court (P.E.I.). The court ordered that the legal expenses of Mackin, P.C.J., relating to a complaint by the Minister of Justice be paid. The court dismissed the claim for damages and other declaratory relief and awarded party and party costs. Mackin, P.C.J., appealed. The Province cross-appealed.
The New Brunswick Court of Queen’s Bench, Trial Division, in a decision reported at [1998] N.B.R.(2d) Uned. 69, held that its reasoning in the Mackin case applied in the Rice case. Rice, P.C.J., appealed. The Province cross-appealed.
In a decision reported at 235 N.B.R.(2d) 1; 607 A.P.R. 1, the New Brunswick Court of Appeal, Daigle, C.J.N.B., dissenting, allowed Rice, P.C.J.’s appeal. The court held that Rice, P.C.J., was entitled to damages and remitted that matter to the trial judge. The court awarded solicitor and client costs. The court dismissed the Province’s cross-appeal. All three judges held that their reasoning in the Rice appeal applied in the Mackin appeal. See [1999] N.B.R.(2d) Uned. 194. The Province appealed the decisions.
The Supreme Court of Canada, Binnie and LeBel, JJ., dissenting, allowed the appeal in part. The court held that the abolition of the office of supernumerary judge did not affect security of tenure. However, it did affect the institutional aspect of financial security and this had a concrete impact on the financial security of all Provincial Court judges. The court held that there was no entitlement to damages and only party and party costs were appropriate. Binnie and LeBel, JJ., dissenting, found no violation of judicial independence.
Civil Rights – Topic 3135
Trials – Due process, fundamental justice and fair hearings – Criminal and quasi-criminal proceedings – Right to independent and impartial tribunal – New Brunswick’s Provincial Court Act provided for the office of supernumerary judge – Amending legislation (Bill 7) abolished the office without referring the matter to an independent commission – The Supreme Court of Canada held that the institutional dimension of the financial security of all Provincial Court judges had been violated -Because judicial independence was protected by both the preamble to the Constitution and s. 11(d) of the Charter, the standard application of s. 1 of the Charter could not alone justify an infringement – Here, the Crown adduced no evidence to justify the violation – Further, the lack of a grandfather clause in Bill 7 in favour of the supernumerary judges in office and the Provincial Court judges appointed before Bill 7 came into force aggravated the violation – See paragraphs 71 to 73.
Civil Rights – Topic 8348
Canadian Charter of Rights and Freedoms – Application – Exceptions – Reasonable limits prescribed by law (Charter, s. 1) – [See
Civil Rights – Topic 3135
].
Civil Rights – Topic 8375
Canadian Charter of Rights and Freedoms – Denial of rights – Remedies – Damages – New Brunswick’s Provincial Court Act provided for the office of supernumerary judge – Amending legislation abolished the office without referring the matter to an independent commission – The Supreme Court of Canada affirmed that New Brunswick had thereby violated the judicial independence guaranteed by the preamble to the Constitution and s. 11(d) of the Charter – However, the court held that the New Brunswick government did not display negligence, bad faith or wilful blindness with respect to its constitutional obligations at the time that it enacted the unconstitutional legislation, and two Provincial Court judges affected by the legislation were not entitled to damages – See paragraphs 78 to 84.
Civil Rights – Topic 8375
Canadian Charter of Rights and Freedoms – Denial of rights – Remedies – Damages – The Supreme Court of Canada stated that “According to a general rule of public law, absent conduct that is clearly wrong, in bad faith or an abuse of power, the courts will not award damages for the harm suffered as a result of the mere enactment or application of a law that is subsequently declared to be unconstitutional …” – See paragraph 78 – Further, “as a rule, an action for damages brought under s. 24(1) of the Charter cannot be combined with an action for a declaration of invalidity based on s. 52 of the Constitution Act, 1982.” – See paragraph 81.
Civil Rights – Topic 8380.7
Canadian Charter of Rights and Freedoms – Denial of rights – Remedies – Costs – New Brunswick’s Provincial Court Act provided for the office of supernumerary judge – Amending legislation abolished the office without referring the matter to an independent commission – Two Provincial Court judges sued the Province seeking, inter alia, a declaration that the amending legislation was unconstitutional – The Supreme Court of Canada affirmed that the amending legislation violated the judicial independence guaranteed by the preamble to the Constitution and s. 11(d) of the Charter – However, the Province had not displayed negligence, bad faith or wilful blindness with respect to its constitutional obligations at the time that it enacted the legislation – The court held that the two Provincial Court judges who brought the proceedings were entitled to costs on a party and party basis – See paragraphs 85 to 87.
Constitutional Law – Topic 541
Powers of parliament and the legislatures -Limitations on powers of legislatures – General – [See second
Courts – Topic 308
].
Constitutional Law – Topic 2507.2
Determination of validity of statutes or acts – General principles – Declaration of invalidity – New Brunswick’s Provincial Court Act provided for the office of supernumerary judge – Amending legislation (Bill 7) abolished the office without referring the matter to an independent commission – Two Provincial Court judges sued the Province seeking, inter alia, a declaration that Bill 7 was unconstitutional- The Supreme Court of Canada held that the system of supernumerary judges was an economic benefit for all Provincial Court judges appointed before Bill 7 came into force and abolishing the office violated the institutional dimension of their financial security – Further, the violation was not justified – The court granted a declaration of invalidity – However, the court suspended the declaration for six months to allow New Brunswick to provide a solution that met its constitutional obligations – See paragraphs 74 to 77.
Courts – Topic 308
Judges – Independence of judiciary – What constitutes interference with – New Brunswick’s Provincial Court Act provided for the office of supernumerary judge – Amending legislation (Bill 7) abolished the office without referring the matter to an independent commission – The Supreme Court of Canada held that the system of supernumerary judges was an economic benefit for all Provincial Court judges appointed before Bill 7 came into force, abolishing the office violated the institutional dimension of their financial security, and a violation of the institutional aspect of financial security had a concrete impact on the financial security of all Provincial Court judges – See paragraphs 42 to 70.
Courts – Topic 308
Judges – Independence of judiciary – What constitutes interference with – The Supreme Court of Canada stated that “any change made to the remuneration conditions of judges at any given time must necessarily pass through the
institutional filter
of an independent, effective and objective body so that the relationship between the judiciary, on the one hand, and the executive and legislative branches, on the other, remain depoliticized as far as possible. That is a structural requirement of the Canadian Constitution resulting from the separation of powers and the rule of law.” – See paragraph 69.
Courts – Topic 311
Judges – Independence of judiciary – Financial security – [See both
Courts – Topic 308
].
Courts – Topic 312
Judges – Independence of judiciary – Security of tenure – The Supreme Court of Canada held that New Brunswick’s Provincial Court Act did not create a separate judicial office of supernumerary judge – Thus, the abolition of the position of supernumerary judge did not result in a removal from office where supernumerary judges were given the possibility of resuming their duties full time – Security of tenure was not affected – See paragraphs 42 to 49 and 139 to 140.
Courts – Topic 314
Judges – Independence of judiciary – Institutional independence – [See first
Courts – Topic 308
].
Courts – Topic 314.1
Judges – Independence of judiciary – Individual independence – [See first
Courts – Topic 308
].
Damages – Topic 200
Entitlement – General – [See second
Civil Rights – Topic 8375
].
Cases Noticed:
R. v. Valente, [1985] 2 S.C.R. 673; 64 N.R. 1; 14 O.A.C. 79; 49 C.R.(3d) 97; 23 C.C.C.(3d) 193; 24 D.L.R.(4th) 161; 37 M.V.R. 9; 19 C.R.R. 354, refd to. [paras. 8, 117].
Reference Re Remuneration of Judges of the Provincial Court (P.E.I.), [1997] 3 S.C.R. 3; 217 N.R. 1; 206 A.R. 1; 156 W.A.C. 1; 121 Man.R.(2d) 1; 158 W.A.C. 1; 156 Nfld. & P.E.I.R. 1; 483 A.P.R. 1; 150 D.L.R.(4th) 577, refd to. [paras. 8, 94].
Guimond v. Québec (Procureur général), [1996] 3 S.C.R. 347; 201 N.R. 380, refd to. [para. 13].
Committee for Justice and Liberty Foundation et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115, refd to. [para. 38].
Beauregard v. Canada, [1986] 2 S.C.R. 56; 70 N.R. 1; 30 D.L.R.(4th) 481; 26 C.R.R. 59, refd to. [paras. 50, 128].
Craig v. British Columbia, [1997] B.C.T.C. Uned. 895; 40 B.C.L.R.(3d) 289 (S.C.), refd to. [para. 68].
British Columbia (Provincial Court Judge) v. British Columbia – see Craig v. British Columbia.
Reference Re Remuneration of Judges of the Provincial Court (P.E.I.), [1998] 1 S.C.R. 3; 223 N.R. 21; 212 A.R. 161; 168 W.A.C. 161; 126 Man.R.(2d) 96; 167 W.A.C. 196; 161 Nfld. & P.E.I.R. 124; 497 A.P.R. 124, refd to. [para. 74].
Newfoundland Association of Provincial Court Judges et al. v. Newfoundland (2000), 192 Nfld. & P.E.I.R. 183; 580 A.P.R. 183; 191 D.L.R.(4th) 225 (Nfld. C.A.), refd to. [para. 76].
Schachter v. Canada, [1992] 2 S.C.R. 679; 139 N.R. 1; 93 D.L.R.(4th) 1, refd to. [para. 77].
Alberta (Attorney General) v. Canada (Attorney General), [1947] A.C. 503 (P.C.), refd to. [para. 77].
Manitoba Language Rights Reference, [1985] 1 S.C.R. 721; 59 N.R. 321; 35 Man.R.(2d) 83; 19 D.L.R.(4th) 1; [1985] 4 W.W.R. 385, refd to. [para. 77].
Welbridge Holdings Ltd. v. Greater Winnipeg (Municipality), [1971] S.C.R. 957; [1972] 3 W.W.R. 433; 22 D.L.R.(3d) 470, refd to. [para. 78].
Central Canada Potash Co. and Canada (Attorney General) v. Saskatchewan, [1979] 1 S.C.R. 42; 23 N.R. 481; 88 D.L.R.(3d) 609, refd to. [para. 78].
Crown Trust Co. et al. v. Ontario et al. (1986), 14 O.A.C. 137; 26 D.L.R.(4th) 41 (Div. Ct.), refd to. [para. 79].
Young v. Young et al., [1993] 4 S.C.R. 3; 160 N.R. 1; 34 B.C.A.C. 161; 56 W.A.C. 161; [1993] 8 W.W.R. 513; 108 D.L.R.(4th) 193; 84 B.C.L.R.(2d) 1; 18 C.R.R.(2d) 41; 49 R.F.L.(3d) 117, refd to. [para. 86].
Friends of the Oldman River Society v. Canada (Minister of Transport and Minister of Fisheries and Oceans), [1992] 1 S.C.R. 3; 132 N.R. 321; [1992] 2 W.W.R. 193; 88 D.L.R.(4th) 1, refd to. [para. 86].
R. v. Woods (D.J.) (1996), 179 N.B.R.(2d) 153; 455 A.P.R. 153 (C.A.), refd to. [para. 110].
R. v. Lapointe (J.), [1997] N.B.R.(2d) Uned. 17 (C.A.), refd to. [para. 110].
R. v. LeBlanc (B.J.) (1997), 190 N.B.R.(2d) 70; 484 A.P.R. 70 (C.A.), refd to. [para. 110].
R. v. Lippé – see Lippé et autres v. Québec (Procureur général) et autres.
Lippé et autres v. Québec (Procureur général) et autres, [1991] 2 S.C.R. 114; 128 N.R. 1; 39 Q.A.C. 241, refd to. [para. 118].
Ridge v. Baldwin, [1964] A.C. 40 (H.L.), refd to. [para. 140].
Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police and Ontario (Attorney General), [1979] 1 S.C.R. 311; 23 N.R. 410; 88 D.L.R.(3d) 671; 78 C.L.L.C. 14,181, refd to. [para. 140].
Old St. Boniface Residents Association Inc. v. Winnipeg (City) et al., [1990] 3 S.C.R. 1170; 116 N.R. 46; 60 Man.R.(2d) 134; 75 D.L.R.(4th) 385, refd to. [para. 162].
Reference Re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525; 127 N.R. 161; 1 B.C.A.C. 241; 1 W.A.C. 241, refd to. [para. 162].
Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22; 174 D.L.R.(4th) 193, refd to. [para. 162].
Authors and Works Noticed:
Davis, Kenneth Culp, Administrative Law Treatise (1958), vol. 3, p. 487 [para. 78].
Dussault, René, and Borgeat, Louis, Administrative Law: A Treatise (2nd Ed. 1990), vol. 5, p. 177 [para. 78].
Friedland, Martin Lawrence, A Place Apart: Judicial Independence and Accountability in Canada (1995), p. 46 [para. 63].
Hogg, Peter W., Constitutional Law of Canada (1977), p. 120 [para. 132].
Shetreet, Shimon, and Deschênes, J., Judicial Independence: The Contemporary Debate (1985), p. 450 [para. 35].
Shetreet, Shimon, and Deschênes, Jules, Judicial Independence: New Conceptual Dimensions and Contemporary Challenges, p. 599 [para. 36].
Counsel:
Brian A. Crane, Q.C., Bruce Judah, Q.C., and Ritu Gambhir, for the appellant;
J. Brent Melanson, for the respondent Mackin;
J. Gordon Petrie, Q.C., and James M. Petrie, for the respondent Rice;
Graham R. Garton, Q.C., and Karen Cuddy, for the intervener the Attorney General of Canada;
Lori Sterling and Sean Hanley, for the intervener the Attorney General for Ontario;
Monique Rousseau, for the intervener the Attorney General of Quebec;
Deborah Carlson, for the intervener the Attorney General of Manitoba;
George H. Copley, Q.C., for the intervener the Attorney General of British Columbia;
Graeme G. Mitchell, Q.C., for the intervener the Attorney General for Saskatchewan;
Robert C. Maybank, for the intervener the Attorney General of Alberta;
Leigh D. Crestohl, for the intervener the Canadian Judges Conference;
Robert D. Tonn, for the intervener the Canadian Association of Provincial Court Judges.
Solicitors of Record:
The Attorney General of New Brunswick, Fredericton, New Brunswick, for the appellant;
Wood Melanson, Fredericton, New Brunswick, for the respondent Mackin;
Stewart McKelvey Stirling Scales, Fredericton, New Brunswick, for the respondent Rice;
The Attorney General of Canada, Ottawa, Ontario, for the intervener the Attorney General of Canada;
The Attorney General of Ontario, Toronto, Ontario, for the intervener the Attorney General for Ontario;
The Department of Justice, Sainte-Foy, Quebec, for the intervener the Attorney General of Quebec;
The Department of Justice, Winnipeg, Manitoba, for the intervener the Attorney General of Manitoba;
The Ministry of Attorney General, Victoria, British Columbia, for the intervener the Attorney General of British Columbia;
The Attorney General for Saskatchewan, Regina, Saskatchewan, for the intervener the Attorney General for Saskatchewan;
The Attorney General of Alberta, Edmonton, Alberta, for the intervener the Attorney General for Alberta;
Ogilvy Renault, Montreal, Quebec, for the intervener the Canadian Judges Conference;
Myers Weinberg, Winnipeg, Manitoba, for the intervener the Canadian Association of Provincial Court Judges.
This appeal was heard on May 23, 2001, by L’Heureux-Dubé, Gonthier, Iacobucci, Major, Binnie, Arbour and LeBel, JJ., of the Supreme Court of Canada. The decision of the court was delivered in both official languages on February 14, 2002, when the following opinions were filed:
Gonthier, J. (L’Heureux-Dubé, Iacobucci, Major, and Arbour, JJ., concurring) – see paragraphs 1 to 90;
Binnie, J., dissenting (LeBel, J., concurring) – see paragraphs 91 to 164.
