The Lamer Legacy for Judicial Independence

46 Supreme Court Law Review (2d) 29, 2009

21 Pages Posted: 11 May 2013

See all articles by Ed Ratushny

Ed Ratushny

University of Ottawa - Faculty of Law (Common Law)

Daphne Gilbert

University of Ottawa - Common Law Section

Date Written: 2009

Abstract

Canada Supreme Court Chief Justice Lamer's 6-1 majority decision in the P.E.I. Reference (1997) is one of his most controversial judgments. At issue was the independence of provincial courts, particularly how section 11(d) of the Canadian Charter of Rights and Freedoms restricted the ability of provincial governments to fix the renumeration of provincial court judges. This article responds to criticism of how Lamer CJC imposed a constitutional requirement of independent, objective and effective judicial compensation commissions in the P.E.I. Reference. Such criticism fails to account for the political context in which Lamer CJC wrote the judgment, namely the arbitrary and unfair treatment of provincial judges by their governments. To appreciate the wisdom of Lamer CJC's judgment, one must understand it as a response to a serious existing conflict between the three branches of government.

The author concludes by noting that Lamer CJC's judgment opts for a more deferential approach than an attractive alternative, to make commission recommendations on judicial renumeration binding. Instead, government has the final say regarding the appropriateness of judicial renumeration, provided their position is “globally rational”. The majority decision has not resolved all conflicts between judges and governments on the issue of compensation. But the new constitutional scheme adds predictability, consistency and defined boundaries and limits to the resolution of these conflicts, and litigation will diminish as a result. Ultimately, the decision to establish a solid constitutional foundation for judicial financial independence and create an independent commission for assessing judicial renumeration was an appropriate response to the unique and deteriorating conflict in the years preceding the decision.

Keywords: Lamer, Supreme Court of Canada, Supreme Court, Canada, law, independence, judicial independence, separation of powers, constitution, constitutional principle, renumeration, reference, PEI reference, Charter, 11d, 11(d), 11 d, rights, financial independence

Suggested Citation

Ratushny, Ed and Gilbert, Daphne, The Lamer Legacy for Judicial Independence (2009). 46 Supreme Court Law Review (2d) 29, 2009, Available at SSRN: https://ssrn.com/abstract=2262430

Ed Ratushny

University of Ottawa - Faculty of Law (Common Law) ( email )

57 Louis Pasteur Street
Ottawa, Ontario K1N 6N5
Canada

Daphne Gilbert (Contact Author)

University of Ottawa - Common Law Section ( email )

57 Louis Pasteur Street
Ottawa, K1N 6N5
Canada

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