The Preamble to the Constitution Act, 1867 provides:
This has had a significant impact on constitutional jurisprudence concerning the nature of Canadian Confederation and the independence of the Canadian courts.
Section 96 of the Constitution Act, 1867 states:
In the 1930s, in cases such as Re Adoption Act of Ontario (where the reasoning of Duff C.J. was subsequently adopted by the Judicial Committee of the Privy Council in Saskatchewan v. John East Iron Works), provincial legislatures were restricted from vesting in administrative tribunals powers ordinarily exercised by judges appointed under s. 96. This was relaxed in the Residential Tenancies Reference to allow for such tribunals to exercise ancillary “judicial” powers, subject to the qualification that the judicial function must not be isolated from the rest of the administrative structure of the legislation. Whether a tribunal could exercise such powers was made subject to a three-step test:
did the "Superior, District, and County Courts" exercise an identical or analogous power at the time Canada was created in 1867?
if not, power can be conferred on a provincial tribunal whatever its primary character
after examining the institutional context, does it becomes apparent that the power is not being exercised as a “judicial power”?
whether any particular function is "judicial" is not to be determined simply on the basis of procedural trappings
where the tribunal is faced with a private dispute between parties, and is called upon to adjudicate through the application of a recognized body of rules in a manner consistent with fairness and impartiality, then it is normally acting in a "judicial capacity"
the judicial task involves questions of "principle", as opposed to "policy"
what is its setting in the institutional arrangements in which it appears? In that regard, allowable circumstances are those where:
the powers are merely subsidiary or ancillary to general administrative functions assigned to the tribunal
the powers may be necessarily incidental to the achievement of a broader policy goal of the legislature
A provincial scheme is only invalid where the adjudicative function is a sole or central function of the tribunal.
In 1982, as part of the Constitution Act, 1982, Section 11(d) of the Canadian Charter of Rights and Freedoms came into effect, which provides that:
In the Reference re Remuneration of Judges, it was held that the right to judicial independence was thus extended to provincial court judges in the following core characteristics:
security of tenure (ie, judges can only be removed for cause, after an inquiry in which he must be given a full opportunity to be heard)
financial security (ie, the right to salary of a provincial court judge is established by law, and there is no way in which the Executive can interfere with that right in a manner to affect the independence of the individual judge)
administrative independence (which is the control by the courts over the administrative decisions that bear directly and immediately on the exercise of the judicial function)
In addition, there are two dimensions of judicial independence:
the individual independence of a judge, and
the institutional or collective independence of the court or tribunal of which that judge is a member
The relationship between these two aspects of judicial independence is that an individual judge may enjoy the essential conditions of judicial independence but if the court or tribunal over which he or she presides is not independent of the other branches of government, in what is essential to its function, he or she cannot be said to be an independent tribunal.
With respect to its applicability to protecting the financial security of judges' salaries, the following principles were stated:
salaries of provincial courts may be varied, but only after undertaking an independent, effective, and objective process by an independent body
under no circumstances is it permissible for the judiciary — not only collectively through representative organizations, but also as individuals — to engage in negotiations over remuneration with the executive or representatives of the legislature
any reductions to judicial remuneration, including de facto reductions through the erosion of judicial salaries by inflation, cannot take those salaries below a basic minimum level of remuneration which is required for the office of a judge
Reference Re Authority to Perform Functions Vested by Adoption Act, The Children of Unmarried Parents Act, The Deserted Wives' and Children's Maintenance Act of Ontario, [1938] SCR 398, 1938 CanLII 2 (SCC) Full text of Supreme Court of Canada decision at LexUM and CanLII
The Labour Relations Board of Saskatchewan v. John East Iron Works Limited [1948] UKPC 75, [1949] AC 134, [1949] SCR 677 (13 October 1948), P.C. (on appeal from Saskatchewan)
Re Residential Tenancies Act, 1979, [1981] 1 SCR 714, 1981 CanLII 24 (SCC) Full text of Supreme Court of Canada decision at LexUM and CanLII
Re Manitoba Language Rights, [1985] 1 SCR 721, 1985 CanLII 33 (SCC) Full text of Supreme Court of Canada decision at LexUM and CanLII
Morguard Investments Ltd. v. De Savoye, [1990] 3 S.C.R. 1077, 1990 CanLII 29 (SCC) Full text of Supreme Court of Canada decision at LexUM and CanLII
Hunt v. T&N plc, [1993] 4 SCR 289, 1993 CanLII 43 (SCC) Full text of Supreme Court of Canada decision at LexUM and CanLII
MacMillan Bloedel Ltd. v. Simpson, [1996] 2 SCR 1048, 1996 CanLII 165 (SCC) Full text of Supreme Court of Canada decision at LexUM and CanLII
Reference re Remuneration of Judges, [1997] 3 SCR 3, 1997 CanLII 317 (SCC) Full text of Supreme Court of Canada decision at LexUM and CanLII
