In Prince Edward Island and Manitoba, the salaries of judges were lowered along with those of other civil servants to help combat deficits. In Prince Edward Island, various challenges of the judges' consequent independence were raised by defendants, causing the government to bring two reference questions to its Supreme Court. Only one reference resulted in a finding of dependence, namely for lack of adequate security of tenure. In Manitoba, the pay cut was challenged directly by a provincial judges association. Meanwhile, in Alberta, cuts to judicial salaries were challenged by defendants.
- Does the guarantee of judicial independence in s.11(d) of the Charter restrict the manner by and the extent to which provincial governments and legislatures can reduce the salaries of provincial court judges?
There is a constitutional norm that protects the judicial independence of all judges.
The Court examined s.11(d) and identified three fundamental requirements of judicial independence:
- security of tenure,
- financial security,
- some administrative independence.
As well, judicial independence can be divided into two types of independence:
- individual independence belonging to a judge,
- institutional independence of a court as a whole.
A judge must also be reasonably seen as being independent. The Court then held:
. . . the salaries of provincial court judges can be reduced, increased, or frozen, either as part of an overall economic measure which affects the salaries of all or some persons who are remunerated from public funds, or as part of a measure which is directed at provincial court judges as a class. However, any changes to or freezes in judicial remuneration require prior recourse to a special process, which is independent, effective, and objective, for determining judicial remuneration, to avoid the possibility of, or the appearance of, political interference through economic manipulation . . .as well as stating that judges cannot participate in negotiations about salary, nor can their salaries be lowered below some base level required for the office of a judge.