Ref. re Remuneration of Judges of Prov. Court of PEI; Ref. re Independence & Impartiality of Judges of Prov. Court of PEI; R. v. Campbell; R. v. Ekmecic; R. v. Wickman; Manitoba Prov. Judges Assn. v. Manitoba (Min. of Justice)

Ref. re Remuneration of Judges of Prov. Court of PEI; Ref. re Independence & Impartiality of Judges of Prov. Court of PEI; R. v. Campbell; R. v. Ekmecic; R. v. Wickman; Manitoba Prov. Judges Assn. v. Manitoba (Min. of Justice)

Absent a demonstration of positive and substantial injustice in individual cases, the common law doctrine of necessity bars reopening past provincial court decisions rendered while provincial courts lacked the required independence; this Court lacks jurisdiction to make binding remedial declarations in advisory references from P.E.I.; s.17(1) Provincial Court Judges Act (Alberta) is unconstitutional but its invalidity is suspended for one year, Alta. Reg. 116/94 is of no force and effect retroactive to Sept 18, 1997, and the requirement for an independent judicial remuneration process is suspended for one year nationally to permit orderly compliance.

Citation
[1998] 1 SCR 3
Parties
Appellant (p.e.i. Reference): Merlin McDonald; Appellant (p.e.i. Reference): Omer Pineau; Appellant (p.e.i. Reference): Robert Christie; Respondent (p.e.i. Reference): Attorney General of Prince Edward Island; Appellant (criminal Appeals): Her Majesty The Queen; Respondent (r. V. Campbell): Shawn Carl Campbell; Respondent (r. V. Ekmecic): Ivica Ekmecic; Respondent (r. V. Wickman): Percy Dwight Wickman; Appellants (manitoba): Judges of the Provincial Court of Manitoba; Respondent (manitoba): Her Majesty The Queen in right of the province of Manitoba
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
10 February 1998
Procedural Posture
Rehearing of Consolidated References and Appeals Concerning Judicial Independence and Remuneration / Rehearing Judgment (orders Clarified and Remedial Suspension Imposed)
Outcome
Reliefs limited: declarations validating past provincial court decisions refused; Alberta declaration of s.17(1) unconstitutional but suspended for one year; Alta. Reg. 116/94 declared of no force and effect retroactive to Sept 18, 1997; national one-year suspension of the requirement for independent judicial...
Legal Topics
Judicial Independence, Doctrine of Necessity, Judicial Remuneration, Section 11(d) Charter, References, Declarations of Invalidity, Remedial Suspension, Retroactivity
Source Language
English
Constitutional Law Administrative Law Criminal Law Public Law Judicial Administration Judicial Independence Doctrine of Necessity Judicial Remuneration +5 more

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Parties

Merlin McDonald

Appellant (p.e.i. Reference)

Omer Pineau

Appellant (p.e.i. Reference)

Robert Christie

Appellant (p.e.i. Reference)

Attorney General of Prince Edward Island

Respondent (p.e.i. Reference)

Her Majesty The Queen

Appellant (criminal Appeals)

Shawn Carl Campbell

Respondent (r. V. Campbell)

Ivica Ekmecic

Respondent (r. V. Ekmecic)

Percy Dwight Wickman

Respondent (r. V. Wickman)

Judges of the Provincial Court of Manitoba

Appellants (manitoba)

Her Majesty The Queen in right of the province of Manitoba

Respondent (manitoba)

Procedural Posture

Rehearing of Consolidated References and Appeals Concerning Judicial Independence and Remuneration / Rehearing Judgment (orders Clarified and Remedial Suspension Imposed)

Legal Issues

  1. 1 Whether declarations validating past provincial court decisions should be granted despite findings of lack of independence
  2. 2 Whether the doctrine of necessity prevents reopening of past decisions absent positive and substantial injustice
  3. 3 Whether this Court has jurisdiction to grant binding remedial declarations in response to P.E.I. reference questions

Ratio Decidendi

Absent a demonstration of positive and substantial injustice in individual cases, the common law doctrine of necessity bars reopening past provincial court decisions rendered while provincial courts lacked the required independence; this Court lacks jurisdiction to make binding remedial declarations in advisory references from P.E.I.; s.17(1) Provincial Court Judges Act (Alberta) is unconstitutional but its invalidity is suspended for one year, Alta. Reg. 116/94 is of no force and effect retroactive to Sept 18, 1997, and the requirement for an independent judicial remuneration process is suspended for one year nationally to permit orderly compliance.

Court Disposition

Reliefs limited: declarations validating past provincial court decisions refused; Alberta declaration of s.17(1) unconstitutional but suspended for one year; Alta. Reg. 116/94 declared of no force and effect retroactive to Sept 18, 1997; national one-year suspension of the requirement for independent judicial...

Orders

  • Declarations validating past provincial court decisions refused; doctrine of necessity prevents reopening absent positive and substantial injustice
  • s. 17(1) of the Provincial Court Judges Act (S.A. 1981, c. P-20.1) declared unconstitutional but declaration of invalidity suspended for one year from Sept 18, 1997