T-4507-77
Marc Beauregard, Puisne Judge of the Superior
Court for the District of Montreal in the Province
of Quebec (Plaintiff)
v.
The Queen (Defendant)
Trial Division, Addy J. Ottawa, June 16 and
November 25, 1981.
Jurisdiction = Subsequent to plaintiff's appointment as a
Judge of the Superior Court of Quebec, the Judges Act was
amended so that previously non-contributory retirement ben
efits were rendered contributory — Whether s. 29.1 of the
Judges Act is ultra vires — Whether the words "before the
17th day of February, 1975" in s. 29.1(1) are inoperative in so
far as they purport to affect the plaintiff because they offend
against par. 1(b) of the Canadian Bill of Rights — Section
29.1(2) is ultra vires — Plaintiff cannot succeed under the
Canadian Bill of Rights — Judges Act, R.S.C. 1970, c. J-1, as
amended, ss. 9, 20, 23, 25, 29.1 — The British North America
Act, 1867, 30 & 31 Vict., c. 3 (U.K.) [R.S.C. 1970, Appendix
II, No. 5], ss. 99, 100 — Canadian Bill of Rights, S.C. 1960, c.
44 [R.S.C. 1970, Appendix III], s. 1(b) — Interpretation Act,
R.S.C. 1970, c. I-23, s. 28.
The plaintiff accepted an appointment as Puisne Judge of the
Superior Court of the Province of Quebec on July 24, 1975.
Approximately five months later, the Statute Law (Superannu-
ation) Amendment Act, 1975 was enacted. It added section
29.1 to the Judges Act which rendered contributory the annui
ties for judges' widows and children, as well as the retirement
annuities and supplementary benefits of the judges themselves.
These benefits were previously non-contributory. The plaintiff
thus suffered a seven per cent reduction of the salary to which
he was entitled as of the date of his appointment and for five
months following the appointment. The first question is wheth
er Parliament could diminish, reduce or impair the salary and
other benefits of the plaintiff which became fixed as of the date
of his appointment. The second question is whether the words
"before the 17th day of February, 1975" are inoperative in so
far as they purport to affect the plaintiff because they offend
against paragraph 1(b) of the Canadian Bill of Rights. The
plaintiff argues that the enactment is discriminatory because it
denies the plaintiff equality before the law. The retroactivity of
the enactment is not universally applicable and the enactment
obliges a minority of judges to contribute for their pensions at a
rate of seven per cent while the majority contributes at the rate
of one and a half per cent.
Held, the plaintiff is entitled to a declaration that subsection
(2) of section 29.1 of the Judges Act is in so far as the plaintiff
is concerned ultra vires the Parliament of Canada. Unless
superior court judges enjoy a special status by virtue of the
principle of separation of powers between the judiciary and the
executive and legislative branches of government, or by virtue
of some similar legal constitutional impediment to parliamen
tary supremacy, Parliament possesses the unlimited power to
lower effectually and legally all salaries and other emoluments
granted to judges as for any other servant of the Crown.
Section 99 of The British North America Act, 1867 provided
that judges "shall be removable by the Governor General on
Address of the Senate and House of Commons." Section 100
provides that salaries "shall be fixed and provided by the
Parliament of Canada." The 1960 amendment of the B.N.A.
Act provides for the first time for obligatory retirement at age
75. The federal government before obtaining this amendment
to the B.N.A. Act obtained the consent of all of the Provinces
because of their jurisdiction over the administration of justice.
It was not until December 20, 1975 that any superior court
judge was required to contribute toward the annuities which
were payable for life. In England, as of the date of Confedera
tion, the security of judicial salaries was constitutionally guar
anteed as a matter of law since The Act of Séttlement (1700).
On the passing of the B.N.A. Act the same status was acquired
by justices of the supreme courts of the provinces as was
enjoyed by English judges at the time. With that status of the
judiciary came the same rights, powers and privileges, includ
ing by express statute the right to have their salaries "fixed and
established" by Parliament, which includes the right to receive
these salaries for the duration of their commissions as justices.
Under the Constitution, the appointment and payment of pro
vincial superior court justices and the criminal law which they
applied fell under federal jurisdiction, while the administration
of justice, the constitution of the courts and the substantive law
which those justices administered in matters of property and
civil rights fell under provincial jurisdiction. It thus seems clear
that there exists a legal constitutional requirement derived from
the federal nature of our Constitution to the effect that the
rights of federally appointed judiciary, as they existed at the
time of Confederation, cannot be abrogated, curtailed or
changed without an amendment to the Constitution. There is
an absolute requirement in a free society of a completely
independent judiciary each member of which, in the perform
ance of his judicial functions is answerable to no one but the
law, his own conscience, the courts and se male gesserit, to
Parliament and the Throne by means of an impeachment
process on joint address to the latter by both Houses. Parlia
ment, without at least the consent of the judge affected, is at
law constitutionally prevented from reducing, by means of any
legislation specifically directed to reductions of or deductions
from judicial salaries, the compensation to which that judge
was entitled at the time of his appointment. This conclusion is
based not only on the manner in which jurisdiction is shared
between the provinces and Canada, but because it arises out of
an intrinsic and fundamental principle of constitutional law
which was inherited with the British parliamentary system. The
plaintiff cannot succeed under paragraph 1(b) of the Canadian
Bill of Rights because the term "equality before the law" does
not refer and was never intended to refer to a question of equal
pay for equal work. "Equality before the law" in the Canadian
Bill of Rights has been interpreted as meaning that there are
no exemptions from the ordinary law of the land for any
privileged class. There is no legal foundation to the plaintiff's
attack on the legislation on the grounds that, even apart from
the Canadian Bill of Rights, it should be struck out because it
is discriminatory. The numerous Canadian statutes affecting
judges' salaries establish various categories of compensation for
judges of equal rank from time to time, without the slightest
objection being raised that the legislation was discriminatory.
Curr v. The Queen [1972] S.C.R. 889, referred to. Attor
ney General of Canada v. Lavell [1974] S.C.R. 1349,
referred to. R. v. Burnshine [1975] 1 S.C.R. 693, referred
to. MacKay v. The Queen [1980] 2 S.C.R. 370, referred
to. Prata v. Minister of Manpower and Immigration
[1976] 1 S.C.R. 376, referred to. Toronto Corporation v.
York Corporation [1938] A.C. (P.C.) 415, referred to.
ACTION.
COUNSEL:
David Scott, Q.C. for plaintiff.
Paul 011ivier, Q.C. and D. M. Low for
defendant.
SOLICITORS:
Scott & Aylen, Ottawa, for plaintiff.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment
rendered in English by
ADDY J.: The facts in this case are undisputed:
no witnesses were called and the case was tried on
the basis of admissions in the pleadings, an agreed
statement of facts and certain exhibits which were
filed on consent.
The plaintiff, on the 24th of July, 1975, accept
ed an appointment as Puisne Judge of the Superior
Court of the Province of Quebec. As of the date of
his appointment, the Judges Act' provided for all
puisne judges of the Superior Court of that Prov
ince the following salaries, remuneration and
benefits:
' R.S.C. 1970, c. J-1 (as amended by R.S.C. 1970 (2nd
Supp.), c. 16); S.C. 1970-71-72, c. 55; S.C. 1973-74, c. 17; S.C.
1974-75-76, c. 48; Supplementary Retirement Benefits Act,
R.S.C. 1970 (1st Supp.), c. 43 as amended by c. 30 (2nd Supp.)
and by S.C. 1973-74, c. 36 cited as Statute Law (Supplemen-
tary Retirement Benefits) Amendment Act, 1973, S.C. 1973-
74, c. 36; An Act to revise references to the Court of Queen's
Bench of the Province of Quebec, S.C. 1974-75-76, c. 19;
Statute Law (Superannuation) Amendment Act, 1975, S.C.
1974-75-76, c. 81.
1. Global salaries of $53,000 (Judges Act, sec
tions 9 and 20, as amended), basic salary
$50,000, additional salary of $3,000 for extra-
judicial services which judges may be called
upon to perform and for incidental expenses.
2. Non-contributory retirement annuities
(Judges Act, section 23 as amended).
3. Non-contributory annuities for the judges'
widows and children (Judges Act, section 25 as
amended).
4. Non-contributory supplementary retirement
benefits (Supplementary Retirement Benefits
Act, as amended).
Approximately five months following the plain
tiff's appointment, that is, on the 20th of Decem-
ber, 1975, the Statute Law (Superannuation)
Amendment Act, 1975 2 was enacted. Section 100
of that Act amended the Judges Act by adding
thereto section 29.1. This enactment rendered con
tributory not only the annuities for judges' widows
and children but also the retirement annuities and
supplementary benefits of the judges themselves,
in the case of judges appointed subsequently to the
16th of February, 1975. It, accordingly, impaired
to that extent the remuneration and benefits of the
plaintiff.
The relevant portions of section 100 above-
referred to read as follows:
100. The said Act is further amended by adding thereto,
immediately after section 29 thereof, the following sections:
29.1 (1) Every judge appointed before the 17th day of
February, 1975 to hold office as a judge of a superior or
county court shall, by reservation from his salary under this
Act, contribute to the Consolidated Revenue Fund one and
one-half per cent of his salary.
(2) Every judge appointed after the 16th day of February,
1975 to hold office as a judge of a superior or county court,
to whom subsection (1) does not apply, shall, by reservation
from his salary under this Act,
(a) contribute to the Consolidated Revenue Fund an
amount equal to six per cent of his salary; and
(b) contribute to the Supplementary Retirement Benefits
Account established in the accounts of Canada pursuant to
the Supplementary Retirement Benefits Act,
2 S.C. 1974-75-76, c. 81.
(i) prior to 1977, an amount equal to one-half of one per
cent of his salary, and
(ii) commencing with the month of January 1977, an
amount equal to one per cent of his salary.
Until that enactment and from the time of his
appointment, the plaintiff was fully entitled to
receive without any deductions the salaries and
benefits already outlined at the outset in para
graphs numbered 1 to 4 above. Its effect was to
oblige the plaintiff thenceforth to contribute six
per cent of his salary toward the cost of his own
retirement and the annuities for his widow and
children as well as one-half of one per cent prior to
the 1st of January, 1977 and thereafter one per
cent, for the indexing of retirement annuities
under the Supplementary Retirement Benefits
Act. He thus suffered a reduction of seven per cent
of the salary to which he was entitled as of the
date of his appointment and for some five months
following that appointment.
It is interesting to note here that, under subsec
tion 29.1(1), the amount of one and one-half per
cent required to be reserved from the salary of
judges appointed previous to the 17th of February,
1975, is to be paid into the Consolidated Revenue
Fund without reference to the Supplementary
Retirement Benefits Account nor is reference
made to the Supplementary Retirement Benefits
Act as in the case of the one per cent mentioned in
subparagraph (2)(b)(ii) of section 29.1 for judges
appointed after that date. One might thus con
clude that the contribution of one and a half per
cent for judges under subsection 29.1(1) does not
pertain to the supplementary retirement benefits to
which they are entitled because, as originally
enacted and as subsequently amended, the Sup
plementary Retirement Benefits Act specifically
provides that all such benefits payable to judges
out of the Consolidated Revenue Fund are not to
be charged to the Supplementary Retirement Ben
efits Account 3 .
This one and a half per cent is levied as a
contribution toward the cost of the improved
annuities for surviving spouses and children and
3 Refer to R.S.C. 1970 (1st Supp.), c. 43, subs. 8(2) as
amended by R.S.C. 1970 (2nd Supp.), c. 30, s. 1 and as further
amended by S.C. 1973-74, c. 36, s. 4 cited as the Statute Law
(Supplementary Retirement Benefits) Amendment Act, 1973.
not for the annuity of the judges themselves. Noth
ing, however, appears to turn on this in so far as
the determination of the present case is concerned.
The agreed statement of facts establishes that,
at the time of his appointment on the 24th of July,
1975, although the Bill, which ultimately led to the
enactment proclaimed on the 20th of December,
1975, was actually before Parliament, the plaintiff
was completely unaware of its existence and had
received no notice of same. Although one is
deemed to know the law of the land, there is no
such presumption in the case of Bills not yet
enacted. No one is bound by their contents.
Having regard to the substantive and progressive
emasculation of certain Bills in their stormy pas
sage through Parliament, such Bills as are finally
passed into law frequently bear little resemblance
either in substance or in form to the original
proposal. It would be grossly unjust to impute to
anyone, other than perhaps a Member of Parlia
ment, constructive knowledge of the business of
Parliament.
Although equitable considerations are irrelevant
in determining the issues before me, in the plain
tiff's case at least, it is surprising to note that, as
he was appointed at the age of 38, he will appar
ently have contributed much more than would be
required to take care of his own retirement annui
ties and supplementary benefits, assuming he con
tinues in office and retires at the age of 65. The
deductions from his salary for 1976 were $3,445
and for this year they will amount to some $5,175.
Over 27 years his contributions would amount to a
total well in excess of $125,000 based on the
assumption that there would be no increase in
salary. Annual contributions of $5,000, if com
pounded annually at 15% interest, would create a
fund at retirement of some $600,000 in terms of
1981 dollars. If invested at 15% interest this would
produce an annual revenue of $90,000, well in
excess of his present salary and approximately
twice the amount required to pay him a two-thirds
pension as presently provided for, without any
encroachment upon the capital sum.
This, of course, does not take into account the
income protection which he, his wife and children
enjoy in the meantime against the possibility of his
death or his own entitlement to full pension in the
event of early retirement on grounds of ill health.
Furthermore, 15% might possibly be considered an
inordinately high rate of interest to use as a factor.
In any event, in so far as the plaintiff is concerned,
the action undoubtedly involves a very consider
able sum of money.
Following trial of the action, counsel for the
plaintiff applied for an order to amend the prayer
for relief of the statement of claim. A consent
order was subsequently issued on the 22nd of July,
1981, as a result of which the plaintiff now claims
the following:
a) A declaration that the words "before February 17, 1975"
of Section 29.1 and that the whole of Section 29.1(2) of the
Judges Act, as enacted by Section 100 of 1974-75-76, c. 81
are
i) ultra vires of the Parliament of Canada, or, in the
alternative:
ii) ultra vires of the Parliament of Canada insofar as the
Plaintiff is concerned;
or, in the alternative,
b) A declaration that the words "before February 17, 1975"
of Section 29.1 and the whole Section 29.1(2) of the Judges
Act, as enacted by Section 100 of 1974-75-76, c. 81 are
inoperative insofar as the Plaintiff is concerned;
Before proceeding with the determination of
these issues, it is incumbent upon me to declare my
interest in the outcome. Where, as in the case at
bar, a judge having a personal interest in the
determination of a legal issue is, nevertheless out
of necessity, obliged to try it because there is no
other disinterested judge available possessing the
required jurisdiction, the task becomes doubly
onerous. By reason of his personal interest in the
outcome, the judge, ex abundanti cautela and out
of a genuine concern that justice be rendered with
absolute impartiality, is obliged to guard against
the danger of unduly leaning toward the view
opposed to such interest as well as that of being
unconsciously influenced by it. It is a balancing act
which calls upon acrobatic feats of judgment and
moral navel gazing, which few people possess and
even fewer are called upon to exercise. Finally, no
matter how conscientiously the task is accom
plished, there always remains the very real possi-
bility that it will appear to the ordinary citizen as
nothing less than an act of judicial incest.
My appointment dates several years previous to
the 17th of February 1975 and, under the legisla
tion as it exists at present, I am not obliged to pay
the 6% with which judges appointed subsequently
thereto are saddled. It might thus appear that I
presently possess no direct interest in the determi
nation of the specific issues raised in the statement
of claim. It became quite obvious at the outset of
the hearing, however, that, because the plaintiff
raised the issue of Parliament's constitutional
power to exact deductions from a judge's salary for
a specific purpose peculiar to judges, I do have at
least a potential personal interest in the proceed
ings arising out of the 1 1 / 2 % which I must
contribute.
In 1931 in England, by reason of the economic
crisis existing there at the time, which amounted
to a national emergency, the National Economy
Act, 1931, 21 & 22 Geo. 5, c. 48, was passed. It
provided that the salaries of all "persons in His
Majesty's service" including those of judges, be
reduced by 20%. The judges of England dis
patched a confidential memorandum to the Prime
Minister at the time giving their view as to the
right of Parliament to reduce the salaries of the
judiciary. (The memorandum, a most interesting
document, became a public document when it was
tabled two years later in the House of Lords. I
shall be referring to it in extenso later on in these
reasons.) That method of pointing out the constitu
tional problem was adopted largely because Sir
William Holdsworth was, at that time, of the view
that no normal judicial determination of the
applicability of the statute to the judiciary was
possible for, in his opinion, all judges were dis
qualified by interest from deciding the issue.
The 1 1 / 2 % which I and all other superior court
judges appointed previous to the 17th of February,
1975, must contribute is, as previously stated,
apparently for the additional protection afforded
to spouses and dependent children in the event of
decease of the judge. Parliament, of course, was
never at any time constitutionally obliged to pro
vide protection for the dependants of judges and it,
therefore, has a right to require a contribution
toward any such benefit at the time it is granted.
This, at first sight, would appear to allow me to try
the issues raised by the plaintiff without any possi
bility of personal interest. There would in fact
appear to be no problem as to self-interest if I and
all other superior court judges in my position were
entitled to elect either to accept or refuse this
additional supplementary protection and thus
either to allow the deduction or refuse to authorize
it. However, the contribution is mandatory and the
broader question as to the right of Parliament to
declare any amount to be deductible from an
incumbent judge's salary was raised and argued at
trial and I, therefore, from a strictly legal point of
view, do have an interest in the ultimate determi
nation of the proceedings. From a practical and
personal standpoint, however, I wish to state that,
although my children are all ineligible because of
age, had I been given a choice I would most
certainly have elected to pay the 1 1 / 2 % in order to
obtain the resulting additional protection for my
wife. There is also the fact that judges in my
position were for a period of five months entitled
to those benefits without deduction and that the
1 1 / 2 % imposes a reduction in compensation.
Since Sir William Holdsworth made the pro
nouncement to which I referred earlier, it now
seems to be the accepted view that, where an
important legal issue arises in which all judges
have an interest, it may be determined by a judge
on the basis of necessity, the reasoning being that
justice in such cases, is presumed to be better
served by having the matter decided by one who
has a personal interest in the outcome than by
allowing the matter to remain unresolved. (As to
ex necessitate jurisdiction see Re The Constitu
tional Questions Act. Re The Income Tax Act,
1932 4 affirmed sub nom Judges v. Attorney-Gen
eral of Saskatchewan 5 . There was also the old
decision of Dimes v. The Proprietors of the Grand
Junction Cana1 6 .)
Having said this, I must now add that it is quite
probable that I really have no legally recognizable
interest in the outcome of this case because Jus-
[1936] 4 D.L.R. 134.
5 [1937] 2 D.L.R. 209 (P.C.).
6 (1852) 3 H.L.C. 759; 10 E.R. 301.
tices of the Federal Court of Canada as well as
those of the Supreme Court of Canada derive their
existence, role and jurisdiction entirely from feder
al statute and do not enjoy the same constitutional
status as Justices of the Superior Courts of the
Provinces, who exercise a general jurisdiction
throughout the provincial realms and who are
constitutionally the true successors to the original
King's Justices of the Central Courts of England.
It is nevertheless important to note that, in order
to guarantee and preserve the respect due our
system of justice and the resulting observance and
efficient enforcement of our laws, legislators
should scrupulously avoid at all costs the introduc
tion of legislation regarding the judiciary which
might even remotely affect its independence by
raising even the possibility of a successful judicial
challenge. Since The Act of Settlement (1700)
legislators both in England and in the Common
wealth have, generally speaking, until recently at
least, carefully applied this principle. In the last
few years, however, some otherwise responsible
legislators and members of Government appear to
look upon judges as a class of senior civil servants.
Those persons are either ignorant or unaware of
our roots or of our history which clearly shows that
past legislators have carefully sought to guard and
treat as sacrosanct the constitutional principle of
separation of powers. Any lack of strict adherence
to that principle imperils not only the status and
role of our judiciary but, more importantly, the
very essence of our parliamentary form of govern
ment and the preservation of all our fundamental
liberties.
Some years ago Canadian legislators appeared
to have had a much greater awareness of the
constitutional problem: where, for instance, it was
decided in 1919 to render judges liable for pay
ment pursuant to an Income Tax Act of general
application the legislation provided that the gener
al exemption for income tax, which previously
applied to judges, would cease to apply to any
judge who accepts or had accepted in 1919 an
increase in salary. Those appointed prior to the
enactment were given an option to accept the
increase and pay tax or refuse and remain tax
exempt. It seems obvious therefore that even in the
case of a general taxing statute great care was
taken to preserve the remuneration of sitting
judges which they were receiving not only as of the
time of their original appointment but as of the
time of the enactment of the taxing statute.
Today, however, there seems to exist not only a
lack of understanding of the status of the judiciary
in our system of government but of its fundamen
tal role. Typical examples of this complete and
constitutionally dangerous misconception of the
judicial role lie in one existing piece of legislation
and a proposed one of which I am aware where
superior court judges are expected, in the exercise
of their judicial functions, to make recommenda
tions to a Minister of the Crown who can choose to
follow or reject the recommendations.
Citizens can feel secure only when they can look
for protection to a completely independent judici
ary who are answerable to and subordinate to no
one but the law and their own conscience.
As to the effect of subsection 29.1(1), which I
have quoted earlier, the plaintiff claims that it is
ultra vires of Parliament because the latter is not
empowered under The British North America Act,
1867, 30 & 31 Vict., c. 3 (U.K.) [R.S.C. 1970,
Appendix II, No. 5] or under the customary law of
the Constitution to require contributions for
judges' annuities which they enjoyed on the 20th
of December, 1975, when the Act complained of
was proclaimed. He also argues, alternatively, that
Parliament could not diminish, reduce or impair
the salaries and other benefits of the plaintiff
which became fixed as of the date of his appoint
ment. Finally, he argues that the words "before
February 17, 1975" are inoperative in so far as
they purport to affect him because they offend
against paragraph 1(b) of the Canadian Bill of
Rights' on the grounds that the effect of the
enactment is to oblige a minority of judges to
7 S.C. 1960, c. 44 [R.S.C. 1970, Appendix III].
contribute for their pensions and those of their
dependants at a rate of seven per cent, while the
majority contributes at a rate of one and a half per
cent and also that the retroactivity of the enact
ment is not universally applicable to superior court
judges and is, therefore, discriminatory by reason
of the fact that it denies the plaintiff equality
before the law.
Dealing with the above arguments in their
reverse order, I shall consider in the first place
whether paragraph 1(b) of the Canadian Bill of
Rights is of any assistance to the plaintiff. That
enactment stipulates as one of the fundamental
freedoms "the right of the individual to equality
before the law and the protection of the law." In
considering whether the plaintiff's claim can be
maintained by that section of the Canadian Bill of
Rights I am, of course, assuming (but for that
purpose only) that Parliament otherwise has full
power to vary from time to time as it deems fit, the
remuneration of superior court judges as it would
have for an employee of the federal Crown.
The plaintiff, in arguing that the words "before
the 17th day of February, 1975" in subsection
29.1(1) and "after the 16th day of February,
1975" in subsection 29.1(2) offend the principle of
equality before the law, relied on and referred to
the following cases: The Queen v. Drybones 8 ; Curr
v. The Queen 9 ; Attorney General of Canada v.
Lavell 10 ; The Queen v. Burnshine"; Prata v. Min
ister of Manpower and Immigration 12 ; Bliss v.
The Attorney General of Canada"; and MacKay
v. The Queen'''.
All of these cases with the exception of the Bliss
case, which dealt with entitlement to unemploy
ment insurance benefits and where in fact the
Canadian Bill of Rights was held not to apply,
dealt with loss or denial of very substantive funda
mental rights of some kind or involved criminal or
8 [1970] S.C.R. 282.
9 [1972] S.C.R. 889.
10 [1974] S.C.R. 1349.
" [1975] 1 S.C.R. 693.
12 [1976] 1 S.C.R. 376.
13 [1979] 1 S.C.R. 183.
14 [ 1980] 2 S.C.R. 370.
quasi-criminal responsibility and had nothing to do
with the mere quantum of remuneration for ser
vices rendered.
"Equality before the law" in the Canadian Bill
of Rights has, since its enactment, been interpret
ed as understood by Dicey, namely, that there are
no exemptions from the ordinary law of the land
for any privileged class. As Ritchie J. stated in
Curr v. The Queen, supra, at page 916:
... I prefer to base this conclusion on my understanding that
the meaning to be given to the language employed in the Bill of
Rights is the meaning which it bore at the time when the Bill
was enacted ....
Again in the Lavell case, supra, the same
learned Judge referred to equality before the law
in the following terms at pages 1365 and 1366 of
the report:
In my view the meaning to be given to the language
employed in the Bill of Rights is the meaning which it bore in
Canada at the time when the Bill was enacted, and it follows
that the phrase "equality before the law" is to be contrued [sic]
in light of the law existing in Canada at that time.
In considering the meaning to be attached to "equality
before the law" as those words occur in section 1(b) of the Bill,
I think it important to point out that in my opinion this phrase
is not effective to invoke the egalitarian concept exemplified by
the 14th Amendment of the U.S. Constitution as interpreted by
the courts of that country. (See Smythe v. The Queen ([1971]
S.C.R. 680) per Fauteux C.J. at pp. 683 and 686). I think
rather that, having regard to the language employed in the
second paragraph of the preamble to the Bill of Rights, the
phrase "equality before the law" as used in s. 1 is to be read in
its context as a part of "the rule of law" to which overriding
authority is accorded by the terms of that paragraph.
In this connection I refer to Stephens Commentaries on the
Laws of England, 21st Ed. 1950, where it is said in Vol. III at
p. 337:
Now the great constitutional lawyer Dicey writing in 1885
was so deeply impressed by the absence of arbitrary govern
ments present and past, that he coined the phrase 'the rule of
law' to express the regime under which Englishmen lived;
and he tried to give precision to it in the following words
which have exercised a profound influence on all subsequent
thought and conduct.
'That the "rule of law" which forms a fundamental princi
ple of the constitution has three meanings or may be
regarded from three different points of view....'
The second meaning proposed by Dicey is the one with which
we are here concerned and it was stated in the following terms:
It means again equality before the law or the equal subjec
tion of all classes to the ordinary law of the land adminis
tered by the ordinary courts; the 'rule of law' in this sense
excludes the idea of any exemption of officials or others from
the duty of obedience to the law which governs other citizens
or from the jurisdiction of the ordinary courts.
"Equality before the law" in this sense is frequently invoked
to demonstrate that the same law applies to the highest official
of government as to any other ordinary citizen, and in this
regard Professor F. R. Scott, in delivering the Plaunt Memorial
Lectures on Civil Liberties and Canadian Federalism in 1959,
speaking of the case of Roncarelli v. Duplessis ([1959] S.C.R.
121), had occasion to say:
It is always a triumph for the law to show that it is applied
equally to all without fear or favour. This is what we mean
when we say that all are equal before the law.
This passage was quoted with approval by Mart-
land J. in delivering the judgment of the majority
of the Supreme Court of Canada in the Burnshine
case, supra (refer pages 704 and 705 of the above-
mentioned report). Even section 3 of the Canadian
Human Rights Act 15 which has been enacted since
then (proclaimed in force on the 14th of July,
1977) and by means of which counsel for the
plaintiff sought to draw an analogy with the
Canadian Bill of Rights, does not prohibit dis
crimination generally on grounds other than "race,
national or ethnic origin, colour, religion, age, sex,
marital status, conviction for which a pardon has
been granted and, in matters related to employ
ment, physical handicap ...." It seems obvious
that, in the case at bar, there exists no discrimina
tion on any of the above-mentioned grounds.
Counsel for the plaintiff emphasized particular
ly the following statement of McIntyre J. in the
MacKay case, supra, which is found at page 406
of the above-mentioned report:
The question which must be resolved in each case is whether
such inequality as may be created by legislation affecting a
special class—here the military—is arbitrary, capricious or
unnecessary, or whether it is rationally based and acceptable as
a necessary variation from the general principle of universal
application of law to meet special conditions and to attain a
necessary and desirable social objective.
This statement, in my view, does not support the
proposition advanced on behalf of the plaintiff. As
Martland J. stated in delivering the judgment for
the Supreme Court of Canada in the Prata case,
supra, at page 382 of the above-cited report of the
case:
15 S.C. 1976-77, c. 33.
This Court has held that s. 1(b) of the Canadian Bill of Rights
does not require that all federal statutes must apply to all
individuals in the same manner. Legislation dealing with a
particular class of people is valid if it is enacted for the purpose
of achieving a valid federal objective (R. v. Burnshine ((1974),
44 D.L.R. (3d) 584)).
Since I find that the plaintiff cannot succeed
under paragraph 1(b) of the Canadian Bill of
Rights because the term "equality before the law"
as used in that enactment does not refer and was
never intended to refer to a question of equal pay
for equal work, I shall refrain from dealing with
the further answer advanced on behalf of the
defendant to the effect that, even if "inequality" is
found to exist, it in effect arises in the pursuit of a
valid federal objective and that, in addition, the
plaintiff has failed to discharge the onus of estab
lishing that the requirement of making contribu
tions is arbitrary, capricious or unnecessary.
I see no legal foundation to the plaintiff's attack
on the legislation on the grounds that, even apart
from the Canadian Bill of Rights, it should be
struck out because it is discriminatory. Apart from
the same reasons why the Canadian Bill of Rights
does not apply, the numerous Canadian statutes
affecting judges' salaries enacted since 1846 until
1932 quoted by the defendant (refer footnote no.
16 infra) clearly establish various categories of
compensation for judges of equal rank from time
to time, without the slightest objection being -
raised even indirectly on the grounds that the
legislation was discriminatory. It is important to
note also, however, that in this legislation when
ever required to protect the compensation being
paid to incumbents, "grandfather" clauses were
inserted in the legislation and that, in the one or
two cases where that precaution was not taken at
the time of the passing of the legislation, an
amending statute was subsequently enacted to rec
tify the situation 16 . ( V.g.: S.C. 1927, c. 33 which
reduced the retirement annuity of certain judges to
two-thirds of salary was amended by S.C. 1930, c.
16 (1) An Act for granting a Civil List to Her Majesty,
S.C. 1846, 9 Vict., c. 114.
(2) An Act to amend the Act for granting a Civil List to
Her Majesty, S.C. 1851, 14 & 15 Vict., c. 173.
(3) An Act to reduce the Salaries attached to certain
Judicial Offices, etc., S.C. 1851, 14 & 15 Vict., c. 174.
(Continued on next page)
27 where retirement at full salary of those judges
was restored.)
I now turn to the plaintiff's second argument to
the effect that Parliament could not diminish,
reduce or impair the salaries and other benefits of
the plaintiff which became fixed as of the date of
his appointment.
Having regard to the absolute supremacy of our
Parliament when legislating within the jurisdic
tional areas granted to it by our Constitution,
unless superior court judges enjoy a special status
by virtue of the principle of separation of powers
between the judiciary and the executive and legis
lative branches of government, or by virtue of
some similar legal constitutional impediment to
parliamentary supremacy, it seems obvious that
Parliament possesses the unlimited power to lower
effectually and legally all salaries and other
emoluments granted to judges, as for any ordinary
servant of the Crown. Any right to impose the
deductions complained of would thus be constitu
tionally unassailable at the present time subject,
however, by reason of the division of jurisdiction
(Continued from previous page)
(4) An Act respecting the Governor, Civil List, and Sal
aries of certain Public Officers, C.S.C. 1859, 22 Vict.,
c. 10.
(5) An Act respecting the Superior Court, C.S.L.C. 1860,
c. 78.
(6) An Act to fix and provide for the payment of the
salaries of the Judges etc. (of certain provinces), S.C.
1882, 45 Vict., c. 11.
(7) The Supreme and Exchequer Courts Act, R.S.C.
1886, 49 Vict., c. 135.
(8) An Act respecting the Judges of Provincial Courts,
R.S.C. 1886, 49 Vict., c. 138.
(9) Judges Act, R.S.C. 1906, c. 138.
(10) An Act to amend the Judges Act, S.C. 1919, 9-10
Geo. V, c. 59.
(11) An Act to amend the Judges Act, S.C. 1920, 10-11
Geo. V, c. 56.
(12) An Act to amend the Judges Act, S.C. 1927, 17 Geo.
V, c. 33.
(13) Judges Act, R.S.C. 1927, c. 105.
(14) An Act to amend the Judges Act, S.C. 1930, 20-21
Geo. V, c. 27.
(15) The Judges Act, 1946, S.C. 1946, 10 Geo. VI, c. 56.
(16) An Act to amend the Income War Tax Act, S.C.
1932, 22-23 Geo. V, c. 44.
between the federal and provincial governments, to
the latter's rights to have judges appointed and
paid by the federal government.
The determination of the issues before me might
well turn in effect on whether there truly exists in
our parliamentary system a legal separation of
powers or whether, notwithstanding the separate
and distinct role which the judiciary have tradi
tionally been called upon to exercise the Canadian
Parliament with the consent of the Governor Gen
eral, on behalf of Her Majesty, nevertheless pos
sesses at law and as of right an absolute power
over the judiciary. Should the answer to the last
question be negative and Parliament be unable to
legally exercise absolute power over the judiciary,
what then are its limits? Put another way, the
question might be: To what extent does there truly
exist at law a separation of powers between the
judicial branch and legislative and executive
branches of government? The answers can only be
found after considering the historical background
of the evolution of the judiciary in England and
considering further the effects, if any, which our
former status as a colony ultimately leading to our
present status as an independent country, with
distribution of powers between the provincial and
federal jurisdictions, might have had on the status,
rights and powers of the judiciary and to what
extent Parliament may vary or control them.
To say that England has no formal written
constitution is not to say that it is without a
constitution except for the specific provisions of
Magna Carta, The Act of Settlement (1700) 17 and
the Act of 1760 entitled An Act for rendering
more effectual the Provisions in [The Act of Set
tlement] relating to the Commissions and Salaries
of Judges'$ and other such statutes which, in
effect, first determined a certain division of powers
between the King and Parliament, that is, between
the executive and legislative branches of govern
ment. The judicial system was introduced and
sanctified by The Act of Settlement (1700) and the
Act of 1760 which were in essence really constitu
tional treaties or imperative constitutional texts
17 12 & 13 Will. 3, c. 2.
18 A.D. 1760, 1 Geo. III., c. 23.
between the King and Parliament. As the very
name of the Act indicates it is a settlement of
powers between them. At that time, these two
powers, to put it mildly, frequently did not agree
on what should be done nor, more importantly, on
who had the right to do it. These two constitution
al statutes provided a very practical means of
ensuring that neither King nor Parliament would
be capable of attaining their particular political
objectives or ambitions by exercising control over
the decisions of the judiciary. The King could no
longer hold over every judge's head the very real
threat of immediate dismissal from an office held
at his pleasure, nor could Parliament attain its own
ends by an equally peremptory and almost as
effective menace of withdrawal of livelihood. The
situation created by those Acts constituted the
major means of ensuring constitutionally a politi
cal balance of power and was a great step in
establishing something akin to what our American
friends refer to as a system of checks and balances.
The Canadian Bar Review in 1956 19 published
in two parts a very well researched and learned
article by Professor W. R. Lederman, a respected
authority on constitutional matters. This widely
read article was referred to at some length by
counsel for both parties. I, in turn, intend to quote
extensively from it and wish to state at the outset
that, notwithstanding certain recent remarks of the
Supreme Court of Canada, to which I shall refer
later, regarding Professor Lederman's views on
whether constitutional law can arise from conven
tion or custom, I accept those passages from the
Professor's article which I will be quoting. On the
question of the unwritten constitution of England
and, more specifically, on the particular role of the
judiciary in the English constitution Professor
Lederman has this to say in his introduction to the
above-mentioned article (refer pages 769 and
770):
It has been widely accepted legal doctrine that the English
constitution begins and ends with the one principle that Parlia
ment is supreme—that there is nothing a particular parliament
cannot do by an appropriately worded statute. This is said by
19 "The Independence of the Judiciary" in The Canadian Bar
Review, Volume 34, pages 769 to 809 and 1139 to 1179.
many authorities to be the result of the revolutionary settle
ment worked out in 1688 and the years immediately following.
Yet there are both historical and theoretical reasons to doubt
whether the completely unlimited supremacy of Parliament in
this sense was established at that time or at any time. Indeed
history rather indicates that other principles also assumed very
great importance constitutionally at the end of the seventeenth
century, and these other principles—then reaffirmed or estab-
lished—could operate only as limitations in some degree at
least on the supremacy of a particular parliament.
We have the recent testimony of Dr. A. L. Goodhart that the
English are not as much without a constitution as they profess
to be. He gives four principles which he maintains are equally
basic as first or original principles of the English constitution.
They are briefly as follows: (1) "That no man is above the law"
(among other things, this means that all official persons, the
Queen, the judges and members of Parliament included, must
look to the law for the definition of their respective positions
and powers). (2) "That those who govern Great Britain do so in
a representative capacity and are subject to change .... The
free election of the members of the House of Commons is a
basic principle of English constitutional law." (3) That there
shall be freedom of speech, of thought and of assembly. (4)
That there shall be an independent judiciary. "The fourth and
final principle which is a basic part of the English constitution
is the independence of the judiciary. It would be inconceivable
that Parliament should to-day regard itself as free to abolish
the principle which has been accepted as a corner-stone of
freedom ever since the Act of Settlement in 1701. It has been
recognised as axiomatic that if the judiciary were placed under
the authority of either the legislative or the executive branches
of the Government then the administration of the law might no
longer have that impartiality which is essential if justice is to
prevail." Sir William Holdsworth expressed a very similar view
on the status of the judiciary. He said ( ... His Majesty's
Judges (1932), 173 Law Times 336, at pp. 336-377):
The judges hold an office to which is annexed the function of
guarding the supremacy of the law. It is because they are the
holders of an office to which the guardianship of this funda
mental constitutional principle is entrusted, that the judiciary
forms one of the three great divisions into which the power of
the State is divided. The Judiciary has separate and autono
mous powers just as truly as the King or Parliament; and, in
the exercise of those powers, its members are no more in the
position of servants than the King or Parliament in the
exercise of their powers .... it is quite beside the mark to say
that modern legislation often bestows undivided executive,
legislative and judicial powers on the same person or body of
persons. The separation of powers in the British Constitution
has never been complete. But some of the powers in the
constitution were, and still are, so separated that their hold
ers have autonomous powers, that is, powers which they can
exercise independently, subject only to the law enacted or
unenacted. The judges have powers of this nature because,
being entrusted with the maintenance of the supremacy of
the law, they are and always have been regarded as a
separate and independent part of the constitution. It is true
that this view of the law was contested by the Stuart kings;
but the result of the Great Rebellion and the Revolution was
to affirm it. [The underlining is mine.]
This would be a convenient point at which to
refer to the comments of the Supreme Court of
Canada on Professor Lederman's article to which I
have referred and will be referring again. Before
delivering these present reasons I awaited the
results of three appeals to that Court from refer
ences by the Provinces of Manitoba, Quebec and
Newfoundland on the proposed patriation of our
Constitution [(1981) 39 N.R. 1] (hereinafter
referred to as the "patriation appeals"), as it was
obvious from the arguments originally advanced
before the provincial appeal courts that the ques
tion of whether a constitutional convention could
crystallize into a law would be raised. In their
historic reasons released on the 28th of September
of this year, the majority of the Supreme Court of
Canada held that no such possibility existed and
commented on Professor Lederman's view to the
contrary in the following terms [at pages 25 and
34]:
The attempted assimilation of the growth of a convention to
the growth of the common law is misconceived.
A contrary view relied on by the provincial appellants is that
expressed by Professor W.R. Lederman in two published
articles, one entitled Process of Constitutional Amendment in
Canada (1967), 12 McGill, L.J. 371, and the second entitled
Constitutional Amendment and Canadian Unity, [1978] Law
Soc. U.C. Lectures, 17. As a respected scholar, Professor
Lederman's views deserve more than cursory consideration. He
himself recognizes that there are contrary views, including
those of an equally distinguished scholar, Professor F.R. Scott:
see Scott, Essays on the Constitution (1977), pp. 144, 169,
204-205, 245, 370-371, 402. There is also the contrary view of
Professor Hogg, already cited.
Professor Lederman relies in part on a line of cases that has
already been considered, especially the reasons of Sir Lyman
Duff in the Labour Conventions case. The leap from convention
to law is explained almost as if there was a common law of
constitutional law, but originating in political practice. That is
simply not so. What is desirable as a political limitation does
not translate into a legal limitation, without expression in
imperative constitutional text or statute.
From a first reading of these passages one might
be inclined to think that the Court was taking the
rather surprising view that there existed no such
thing as a common law of the Constitution or a
constitutional legal principle, capable of enforce-
ment by the Courts, which is not found in an
imperative text or statute.
However, in taking heed of that Court's admoni
tion [at page 33] in those very reasons to the effect
that "there is no independent force to be found in
selective quotations from a portion of the reasons
unless regard is had to issues raised and the con
text in which the quotations are found," one readi
ly concludes that the Court was not referring to
the existence of a common law of the Constitution
in a general sense, but rather to the infinitely
narrower question of whether a convention or
arrangement of a political nature and which is not
expressed in any imperative text or statute, which
had been followed by two governments each
supreme in its own areas of jurisdiction, could
eventually crystallize into a legal constitutional
principle recognizable and enforceable by the
Courts. This becomes abundantly clear on reading
the reasons of the majority of that same Court
(composed of two judges who had dissented from
and four who had subscribed to the previously
referred to findings) who, when dealing with a
further question on the appeals, stated quite
categorically that a common law or unwritten law
of the Constitution did exist. In their reasons
under the heading "The nature of constitutional
conventions" we find the following [at pages
189-190]:
Another part of the Constitution of Canada consists of the
rules of the common law. These are rules which the courts have
developed over the centuries in the discharge of their judicial
duties. An important portion of these rules concerns the pre
rogative of the Crown. Sections 9 and 15 of the B.N.A. Act
provide:
9. The Executive Government and authority of and over
Canada is hereby declared to continue and be vested in the
Queen.
15. The Commander-in-Chief of the land and Naval
Militia, and of all Naval and Military Forces, of and in
Canada, is hereby declared to continue and be vested in the
Queen.
But the Act does not otherwise say very much with respect to
the elements of "Executive Government and authority" and one
must look at the common law to find out what they are, apart
from authority delegated to the Executive by statute.
The common law provides that the authority of the Crown
includes for instance the prerogative of mercy or clemency
(Reference as to the effect of the exercise of the royal preroga
tive of mercy upon deportation proceedings, [1933] S.C.R.
269.) and the power to incorporate by charter so as to confer a
general capacity analogous to that of a natural person (Bonan-
za Creek Gold Mining Company Limited v. Rex, [1916] 1 A.C.
566.). The royal prerogative puts the Crown in a preferred
position as a creditor (Liquidators of the Maritime Bank of
Canada v. Receiver General of New Brunswick, [1892] A.C.
437.) or with respect to the inheritance of lands for defect of
heirs (Attorney General of Ontario v. Mercer (1882-83), 8
App. Cas. 767.) or in relation to the ownership of precious
metals (Attorney General of British Columbia v. Attorney
General of Canada (1889), 14 A.C. 295.) and bona vacantia
(Rex v. Attorney General of British Columbia, [1924] A.C.
213.). It is also under the prerogative and the common law that
the Crown appoints and receives ambassadors, declares war,
concludes treaties and it is in the name of the Queen that
passports are issued.
Those parts of the Constitution of Canada which are com
posed of statutory rules and common law rules are generically
referred to as the law of the Constitution.
NOTE: One might now add also the right of Parlia
ment to proceed by way of resolution in order to
obtain an amendment to the B.N.A. Act and also
the legal validity of a unilateral application by
Canada for amendment of that Act.
Other examples of unwritten laws of our Consti
tution were also cited by the majority such as the
right of the Governor General or of a lieutenant
governor to refuse to assent to a Bill and also the
fact that the government is in office at the pleas
ure of the Crown.
The three dissenting judges also agreed fully
with the existence of a common law or unwritten
law of the Constitution where they stated at page 7
of their dissenting reasons [see pages 262-263]:
The Constitution of Canada, as has been pointed out by the
majority, is only in part written, i.e. contained in statutes which
have the force of law and which include, in addition to the
British North America Act (hereinafter called the B.N.A. Act),
the various other enactments which are listed in the reasons of
the majority. Another, and indeed highly important, part of the
Constitution has taken the form of custom and usage, adopting
in large part the practices of the Parliament of the United
Kingdom and adapting them to the federal nature of this
country. These have evolved with time to form with the statutes
referred to above and certain rules of the common law a
constitution for Canada. This Constitution depends then on
statutes and common law rules which declare the law and have
the force of law, and upon customs, usages and conventions
developed in political science which, while not having the force
of law in the sense that there is a legal enforcement process or
sanction available for their breach, form a vital part of the
Constitution without which it would be incomplete and unable
to serve its purpose.
As has been pointed out by the majority, a fundamental
difference between the legal, that is the statutory and common
law rules of the Constitution, and the conventional rules is that,
while a breach of the legal rules, whether of statutory or
common law nature, has a legal consequence in that it will be
restrained by the courts, no such sanction exists for breach or
non-observance of the conventional rules.
It thus appears evident that all members of the
Supreme Court of Canada are of the view that,
legally recognizable and enforceable, constitution
al rights, powers and privileges as well as constitu
tional principles can and do in fact exist although
not enshrined in any statute or text of our Consti
tution. However, as will be found later, my ratio
decidendi is not founded mainly on any such prin
ciple but rather on statutory texts which constitute
a settlement between King and Parliament and on
the nature of the powers and jurisdiction of
Canada and the provinces under the B.N.A. Act.
A brief historical summary of the conditions and
methods of appointment of superior court judges is
revealing. Except for the Chief Baron and the
other Barons of the Exchequer and except for a
very short period immediately preceding the
advent of the Stuart Kings, judges in England
were invariably appointed during the King's pleas
ure. It was following the Revolution, i.e., during
the period of the Commonwealth (1649-1660) that
the then existing Exchequer Court practice of
having judges appointed during good behaviour
(quamdiu se bene gesserint) was adopted. The
former practice of making all appointments sub
ject only to the King's pleasure was reintroduced,
however, with the advent of Charles II and con
tinued during the reign of James II. Most if not all
of the former judges were dismissed and many of
the new appointees were subsequently summarily
dismissed for rendering decisions with which the
Sovereign did not agree. William III, in turn,
dismissed the judges in office at the time of his
ascension and reappointed all judges from among
lawyers at the bar as opposed to the common
practice of the Stuart Kings of appointing court
favourites. All the commissions of William III
were life commissions subject only to good
behaviour.
It was not, however, until he gave his royal
assent to The Act of Settlement (1700) that the
King became legally obliged to appoint judges
during good behaviour. Parliament, naturally, was
insisting on this to prevent the King from control
ling the judiciary and effectively nullifying the
powers of Parliament. Section 3, paragraph 7 of
The Act of Settlement (at page 782 of Professor
Lederman's article) provided as follows:
... "judges commissions be made quamdiu se bene gesserint,
and their salaries ascertained and established; but upon the
address of both houses of parliament it may be lawful to
remove them".
This provision actually took effect only on the
ascension of George I in 1714.
As Professor Lederman points out, the judges
referred to in The Act of Settlement meant the
judges of the Central Courts of Common Law.
Until the 19th century, the only chancery judges
were the Lord Chancellor and the Master of the
Rolls. The latter, as well as the Vice-Chancellors
and the other judges in chancery as their positions
were created, were also appointed quamdiu se
bene gesserint. The Lord Chancellor, however, by
reason of his dual role as a member of the execu
tive as well as a member of the judiciary, has to
this day always held his appointment during the
King's pleasure. He remains the only member of
the judiciary in England with that type of
commission.
The Act of Settlement was truly the foundation
of the independence of the judiciary and of the
constitutional principle of separation of powers.
The King could now appoint the judges, but had
no control over them once they were appointed.
Parliament, for its part, was obliged to provide
salaries and was entitled to remove a judge only by
reason of misconduct on an address to the King by
both Houses of Parliament; this was the interpre
tation put on the words "quamdiu se bene ges-
serint." See Harcourt v. Fox 20 . Some authorities
in England claim that a judge could and can still
be removed from office without recourse to a joint
address in both Houses of Parliament, upon con
viction by a jury of a criminal offence. There exists
some doubt as to this however. There is also the
possibility of the office itself being abolished by
Parliament. The constitutional validity of any such
legislation, however, would probably depend on the
20 (1692-93) 89 E.R. 680, 720 and 750.
practical question as to whether there truly no
longer exists any need for that particular judicial
office.
Dealing with The Act of Settlement, Professor
Lederman had this to say at page 790:
In any event, the seventh paragraph of the third section of
the Act of Settlement dealt with payment as well as tenure of
judges, providing that their salaries were to be "ascertained and
established". It does not appear that financial pressure in the
form of the withholding or reduction of salary had hitherto
been used as a means of controlling judges, though, as we have
seen, inadequate salaries contributed to the judicial scandals of
the later thirteenth century. There were times also when the
royal treasury was badly in arrears in paying judicial salaries,
though not by design to put pressure on the judges. But
apparently those who framed the constitutional settlement at
the end of the seventeenth century foresaw the possibility of
pressure and attempted to foreclose it. The possibility might
have been in their minds because Parliament itself had been
successfully using the power of the purse against the king for
some time. It is worth recalling that the bill William III vetoed
in 1692 attempted to "ascertain and establish" judicial salaries
by making them a permanent charge against the royal heredi
tary revenues.
In the course of the eighteenth century, Parliament did make
definite statutory provision for judicial salaries. Moreover the
modern position in England seems to be that, unless and until
Parliament has provided or in effect has promised a salary, no
judicial vacancy exists to which the sovereign may appoint
anyone. [The underlining is mine.]
Regarding the Act of 1760, Professor Lederman
states at pages 791 and 792:
The preamble is, in part, as follows:
Whereas your Majesty has been graciously pleased to declare
from the throne to both houses of parliament, that you look
upon the independence and uprightness of judges, as essential
to the impartial administration of justice, as one of the best
securities to the rights and liberties of your loving subjects,
and as most conductive to the honour of your crown; and in
consequence thereof, your Majesty has recommended it to
the consideration of your parliament, to make further provi
sion for continuing judges in the enjoyment of their offices
during their good behaviour, notwithstanding the demise of
your Majesty, or any of your heirs and successors; and your
Majesty has also desired your faithful commons, that you
may be enabled to secure the salaries of judges, during the
continuance of their commissions; and whereas in return for
this paternal goodness, and in the justest sense of your tender
concern for the religion, laws, and liberties, of your people,
we have taken this important work into our consideration,
and have resolved to enable your Majesty to effectuate the
wise, just, and generous purposes of your royal heart:
Section one of this act (on the continuance of judicial commis
sions in spite of a demise of the sovereign) has already been
quoted. Section two merely reiterated the royal power to
remove a judge on a joint address from Parliament requesting
removal. Section three is as follows:
And be it enacted by the authority aforesaid, That such
salaries as are settled upon judges for the time being, or any
of them, by act of parliament, and also such salaries as have
been or shall be granted by his Majesty, his heirs, and
successors, to any judge or judges, shall, in all time coming,
be paid and payable to every such judge and judges for the
time being, so long as the patent or commissions of them, or
any of them respectively, shall continue and remain in force.
Section four in effect reinforced section three by providing that,
to the extent that judges were dependent upon salaries granted
by George III, those salaries were to remain a charge upon the
duties and revenues supporting the royal civil list of George
III's successors after his death. The further story of the mode
of paying judges out of public moneys is complex, but the trend
was consistent and the result clear. In 1787 the consolidated
fund was created by statute and some of the payments due to
judges charged against it. The process of statutorily charging
all salary moneys payable to the judges on the consolidated
fund was substantially complete by about 1799, but not finally
complete in every detail until 1875. It has already been men
tioned that the result of this development is to prevent any
routine or frivolous discussion of the conduct of judges by
Parliament in financial debate. (See The Parliamentary
Debates (fifth series) Vol. 90 (1933-34) The House of Lords,
per Lord Rankeillour at p. 63 and Viscount Sankey L.C. at pp.
77-80.)
Speaking of the significance of the statute of 1760, Lord
Herschell for the Privy Council had this to say ([1892] A.C. at
p. 393):
Their Lordships think that the Act of 1 Geo. 3, c. 23, would
render it difficult to contend that the Crown could after that
date appoint additional judges for the payment of salary to
whom Parliament had given no sanction. For the salaries of
the judges were then, by the authority of Parliament, secured
to them during the continuance of their commissions, and
after the demise of the Sovereign were charged upon the
revenues granted by Parliament for the civil government of
the realm. The recital which precedes this legislation shews
that, with a view to their independence, it must have been
intended that all the judges should be in this position, and it
certainly cannot have been the intention of Parliament to
enable the Sovereign to increase without its sanction the
charges which after the demise of the Sovereign were to be
imposed on the revenues of the realm.
Two significant conclusions seem warranted, then, on the Eng-
lish position: (i) parliamentary provision for a salary is neces
sary for the creation of a judicial vacancy to which the sover
eign may appoint, and (ii) once there has been an appointment,
the judge is entitled to have his salary continue so long as his
commission is in effect, that is, for life during good behaviour.
In both the Act of Settlement and the later Act of 1760 for
rendering the Act of Settlement more effective, tenure during
good behaviour was coupled with what was in effect a prescrip
tion that judicial salaries were to be assured for the same
period. Sir William Blackstone was in no doubt that this was
the intention, purport and effect of the two enactments, and, on
the Act of 1760, he is a contemporary authority. In his
Commentaries, published in 1765, he says (Blackstone, ante,
footnote 21, Book I, pp. 267-268):
And now, by the noble improvements of that law [the Act of
Settlement], in the statute of 1 Geo. III c. 23, enacted at the
earnest recommendation of the king himself from the throne,
the judges are continued in their offices during their good
behaviour, ... and their full salaries are absolutely secured
to them during the continuance of their commissions ... .
[The underlining is mine.]
In 1799, in order to increase the salaries of
judges and mainly to provide for the granting of
life annuities in the event of voluntary resignation
from office or of their being afflicted with a
permanent disability, Parliament enacted a further
statute, 39 Geo. III, c. 110. Section 7 of that Act
reads as follows:
VII. And be it further enacted, That it shall and may be
lawful for his Majesty, his Heirs and Successors, by any Letters
Patent, under the Great Seal of Great Britain, to give and grant
unto any Person who may or shall have executed the Office of
Chief Justice of the Court of King's Bench, and shall have
resigned the same, an Annuity or yearly Sum of Money, not
exceeding the Sum of three thousand Pounds; and to any
Person who may or shall have executed the Office of Master of
the Rolls, Chief Justice of the Common Pleas, or Chief Baron
of the Exchequer, and who shall respectively have resigned the
same, an Annuity or yearly Sum of Money, not exceeding the
Sum of two thousand five hundred Pounds; and to any Person
who may or shall have executed the Office of Puisne Judge of
the Courts of King's Bench or Common Pleas, or of Baron of
the Coif of the Court of Exchequer, and who shall have
resigned the same, an Annuity or yearly Sum of Money, not
exceeding the Sum of two thousand Pounds; the said several
last mentioned Annuities to commence from and after the
Period when the Person, to whom any such Annuity or yearly
Sum of Money shall be granted as aforesaid, shall have
resigned his said Office, and to continue from thenceforth for
and during the natural Life of the Person to whom the same
shall be granted as aforesaid; and every such Annuity or yearly
Sum of Money shall be issued and payable out of, and charged
and chargeable upon the Consolidated Fund, next in Order of
Payment to, and after paying, or reserving sufficient to pay, the
said several Annuities herein-before granted, and all such Sum
or Sums of Money as have been directed by any former Act or
Acts of Parliament to be paid out of the same, but with like
Preference to all other Payments as aforesaid; and the same
shall from Time to Time be paid and payable quarterly, free
and clear of all Taxes and Deductions whatever, on the four
usual Days of Payment in the Year before mentioned, in each
and every Year, by even and equal Portions, the first Payment
thereof to be made on such of the said Days as shall next
happen after such Resignation as aforesaid of the Person to
whom any such Annuity or yearly Sum of Money shall be
granted: Provided always, That no such Annuity or yearly Sum
of Money, granted to any Person having executed the Office of
Chief Justice, Master of the Rolls, Chief Baron, Justice, or
Baron of the Coif, of the said Courts respectively, shall be
valid, unless such Chief Justice, Master of the Rolls, Chief
Baron, Justice, or Baron respectively, shall have continued in
one or more of the said last mentioned Offices for the Period of
fifteen Years, or shall be afflicted with some permanent Infirm
ity, disabling him from the due Execution of his Office, which
shall be distinctly recited in the said Grant.
A judge could therefore still continue in office
for life, but, if he chose to resign his office he was
entitled to a yearly fixed indemnity for life, provid
ing he had served for fifteen years.
Until approximately 1843, judges in Canada
were appointed during the pleasure of the King.
There had been previous but fruitless attempts,
representations and recommendations made to
change the nature of the tenure. However, West-
minster had been reluctant to relinquish its control
over the judiciary in the colonies. In view of the
poor communications in existence at the time and
of the manner in which laws were administered in
some of the colonies, such a policy was under
standable. Up until that time in certain cases
colonial judges held their appointments during
good conduct in so far as the local legislatures or
assemblies were concerned but only during the
pleasure of the King in so far as the mother
country was concerned. The colonial judges had no
constitutional legal tenure or security of salary.
It must be noted here, however, that the judici
ary in the Canadas and elsewhere in British North
America, unlike the judges of the United Kingdom
at the time, were not obliged to confine their
activities to judicial functions. Most of them
occupied important lucrative key positions in the
government of the colonies, such as active mem
bership in legislative assemblies and legislative or
executive councils as well as other public adminis
trative positions.
In 1831, Viscount Goodrich, the Colonial Secre
tary, wrote to Aylmer, the Governor in Canada,
advising him that the King would be agreeable
that a Bill be enacted by the Legislative Council
and Assembly of Lower Canada declaring that the
commissions of all judges of the Supreme Courts
be granted during good behaviour on condition
that "an adequate permanent provision should be
made for the judges." This was to be also subject
to the condition that no judge would, in the future,
be named to or vote at either of the Executive or
Legislative Councils of the Province, with the
exception of the Chief Justice of Quebec who
would remain a member of the Legislative Council
in order to assist in framing the laws. The Bill was
passed by the Legislature but the Legislative
Council did not assent to it. It was not until 1843
that, following a recommendation made by Lord
Durham in 1839, the Canadian Legislature adopt
ed an Act which provided for the appointment of
superior court judges during good behaviour. On
this subject Professor Lederman quotes from the
historian Edward Kylie at page 1151:
In 1843 an act of the Canadian legislature declared it 'expedi-
ent to render the Judges of the Court of King's Bench in that
part of this Province which heretofore constituted the Province
of Lower Canada, independent of the Crown'. Such judges
were hereafter to hold their offices during good behaviour, not
during pleasure, and they could be removed only on a joint
address of the legislative council and the legislative assembly.
In 1849 the same principle was applied to the Court of Queen's
Bench and the Superior Court newly constituted in Lower
Canada, and to the Courts of Common Pleas and of Chancery
in Upper Canada .... Meanwhile the removal of the judges
from the executive and legislative bodies was being made
complete. No justice in any of the courts established in Lower
Canada was allowed to sit or vote in the executive council, or in
the legislative council or assembly .... The judges in the ...
Upper Canadian courts were likewise restricted to the dis
charge of their peculiar duties.
In 1849, 12 Vict. (Province of Canada) c. 63,
section VI, which undoubtedly drew its inspiration
from the British Act of 1799 to which I have
previously referred, granted judges the privilege of
retiring if they wished to do so after fifteen years
service or if afflicted with some permanent infirmi
ty. They were then entitled to life annuities during
their retirement equivalent to two-thirds of their
annual salaries.
One year previously, in 1848, the judges in
Nova Scotia were granted security of tenure which
they, thenceforth, enjoyed together with security
of income as provided for in the English Acts of
Settlement and of 1760. They could thereafter
only be removed from office on the grounds of
misconduct or of incapacity upon a joint address of
the Legislative Council and House of Assembly.
They also enjoyed an additional right in that any
decision regarding their removal from office would
not take effect until approved by the Privy Coun
cil. They had, previous to 1848, been prevented
from participating any longer or playing any role
in the executive or legislative branches of
government.
It is clear therefore that nearly twenty years
before Confederation, Canadian judges held their
commissions during good behaviour and were
assured of a full salary for life or of an annuity
should they fall ill or should they, after fifteen
years of service, voluntarily wish to retire. This
relaxing of authority by the United Kingdom over
its remaining colonies in North America was
undoubtedly attributable to a large extent to the
experience gained from its previous policies, which
had led to the American Revolution.
This brings us to The British North America
Act, 1867. When considering the constitutional
aspect and historical background, it is of some
importance to consider the B.N.A. Act as it existed
previous to 1960, as opposed to the state of the
Constitution following that date. Section 99 of the
B.N.A. Act was amended at that time by section 1
of 9 Eliz. II, c. 2 (U.K.) [R.S.C. 1970, Appendix
II, No. 36] known as the B.N.A. Act, 1960. Until
that time judges were appointed for life and could
hold office for life. By that amendment, judges
were required to retire upon attaining the age of
75 years. In all other respects, section 99 as it
existed since Confederation was never modified. It
originally read as follows:
99. The Judges of the Superior Courts shall hold Office
during good Behaviour, but shall be removable by the Governor
General on Address of the Senate and House of Commons.
It now reads:
99. (1) Subject to subsection (2) of this section, the judges of
the superior courts shall hold office during good behaviour, but
shall be removable by the Governor General on address of the
Senate and House of Commons.
(2) A judge of a superior court, whether appointed before or
after the coming into force of this section, shall cease to hold
office upon attaining the age of seventy-five years, or upon the
coming into force of this section if at that time he has already
attained that age.
Section 100 has never been amended. It reads as
follows:
100. The Salaries, Allowances, and Pensions of the Judges of
the Superior, District, and County Courts (except the Courts of
Probate in Nova Scotia and New Brunswick), and of the
Admiralty Courts in Cases where the Judges thereof are for the
Time being paid by Salary, shall be fixed and provided by the
Parliament of Canada.
I have on occasion, on grounds which I shall
deal with later, heard senior superior court judges,
who were appointed previous to the 29th of
December, 1960, question the constitutional validi
ty of the section 99 amendment as it applied to
them. However, they contented themselves with
grumbling and growling and never to my knowl
edge actually challenged the enactment.
As to the importance of these two sections and
of section 96, Lord Atkin had this to say in
Toronto Corporation v. York Corporation 21 at
pages 425 and 426:
The first question touches a matter of first importance to the
people of Canada. While legislative power in relation to the
constitution, maintenance and organization of Provincial
Courts of Civil Jurisdiction, including procedure in civil mat
ters, is confided to the Province, the independence of the judges
is protected by provisions that the judges of the Superior,
District, and County Courts shall be appointed by the Gover-
nor-General (s. 96 of the British North America Act, 1867),
that the judges of the Superior Courts shall hold office during
good behaviour (s. 99), and that the salaries of the judges of the
Superior, District, and County Courts shall be fixed and pro
vided by the Parliament of Canada (s. 100). These are three
principal pillars in the temple of justice, and they are not to be
undermined. [The underlining is mine.]
On the same subject, Professor Lederman had
this to say (ibid. page 1158):
The judicial provisions of the confederation act of 1867 (30-31
Vict., c. 3) make it clear that the federating provinces and the
new nation were to continue to follow the model afforded by
the English judicature. Here, as in other respects, there was to
be "a Constitution similar in Principle to that of the United
Kingdom".
Also at page 1160:
By section 96 appointment of provincial superior-court judges
remains a royal prerogative, now to be exercised by the Gover
nor General under control of the federal cabinet. Also, by
sections 97 and 98 such judges must be lawyers drawn from the
bars of their respective provinces. Section 99 is obviously a
close reproduction of the famous provisions for tenure during
good behaviour and removal by joint parliamentary address of
the Act of Settlement. Finally, section 100 requires that the
salaries of superior-court judges "shall be fixed and provided by
the Parliament of Canada". The Act of Settlement said salaries
were to be "ascertained and established", but it seems obvious
that "fixed and provided" was intended to convey the same
meaning. It is a fair conclusion, then, that provincial superior-
court judges are assimilated respecting appointment, tenure,
21 [1938] A.C. (P.C.) 415.
removal and security of salaries to the position of the judges of
the historic English superior courts after the Act of Settlement.
[The underlining is mine.]
Following Confederation and until the constitu
tional amendment in 1960, the Judges Act was
amended as follows:
1. An Act to amend "The Supreme and Ex
chequer Courts Act," etc., S.C. 1887, 50-51
Vict., c. 16, sections 4 and 6:
At that time the judges of the Supreme Court of
Canada and of the Exchequer Court were also
appointed during good behaviour: by this Act
they could retire after 15 years in office or
sooner on account of infirmity.
2. An Act to amend the law respecting the
Superannuation of Judges of Provincial Courts,
S.C. 1895, 58-59 Vict., c. 39, section 1:
Superannuation granted to judges who have
served for fifteen years or more or become
afflicted by permanent disability or infirmity
may be granted upon resignation life pension of
two-thirds of salary.
Note: No specific duty on Executive to decide
whether in best interests of justice.
3. An Act to amend the Supreme and Excheq
uer Courts Act, the Exchequer Court Act, and
the Act respecting the Judges of Provincial
Courts, S.C. 1903, 3 Ed. VII, c. 29, section 1:
This amendment provided for another case of
possible retirement by judges: judges of the
Supreme Court of Canada or of the Exchequer
Court or of any superior courts could retire with
full salary at 75, after 20 years in office or at 70,
after 25 years in office, or, irrespective of their
age, after 30 years in office.
4. The Judges Act, R.S.C. 1906, c. 138, section
20:
Increase in retirement annuity rights to full
salary if age 75 and occupied post for 20 years
or more, or if 70 years of age and occupied
position for 25 years or if 65 for 30 years.
5. An Act to amend the Judges Act, S.C. 1919,
9-10 Geo. V, c. 59, section 11:
This amendment provided that no annuity
would be paid to a judge retiring after 15 years
in office unless the Governor in Council was of
the opinion that the retirement was in the public
interest. See section 11. It is to be noted that
this new provision does not apply to the retire
ment after 30 years in office nor to the retire
ments after 20 or 25 years in office when the
judge is 75 or 70. Section 11 does not apply to
County Court judges who are obliged to retire
on account of age. The enactment suggests that
before 1919 the Governor in Council had no
discretion to refuse annuities to a judge who
retired after 15 years in office. It might well be
that section 11 of chapter 59 was unconstitu
tional because it offended section 100 of the
B.N.A. Act and the right which judges enjoyed,
in Canada since 1849, and in England since
1799. In any event, commencing in 1919 the
Governor in Council still had no discretion to
refuse retirement annuities to a judge who
retires after 20 years in office and who is 75 or
after 25 years in office and who is 70 nor to a
judge who retires after 30 years in office.
6. An Act to amend the Judges Act, S.C. 1927,
17 Geo. V, c. 33, section 2:
In that year the judges of the Supreme Court of
Canada and of the Exchequer Court were forced
to retire at the age of 75. Section 2 of this Act
provided for annuities to judges who had to
retire and obviously no section of the Judges Act
allowed discretion to the Governor in Council to
grant or not to grant annuities to these judges.
7. The Judges Act, R.S.C. 1927, c. 105, sections
23 and 24:
Sections 23 and 24 of the Act confirmed the
prevailing situation at that time regarding
retirement annuities:
(i) section 23 dealt with the case of voluntary
retirement after 15 years in office, irrespec
tive of the age of the judge. This voluntary
retirement was subject to the opinion of the
Governor in Council that the retirement was
in the public interest: see subsection 3 of
section 23. The annuity was equal to 2 / 3 of the
judge's salary;
(ii) section 24 provided for the case of retire
ment after 30 years in office irrespective of
the age and after 25 and 20 years in office if
the judge was 70 or 75: no discretion was
given to the Governor in Council;
(iii) subsection 2 of section 24 dealt with the
case of the judges of the Supreme Court of
Canada and of the Exchequer Court who
were forced to retire at 75: no discretion was
granted to the Governor in Council.
8. An Act to amend the Judges Act, S.C. 1930,
20-21 Geo. V, c. 27, section 1:
This amendment specified that the provisions of
chapter 33 of 17 Geo. V enacted in 1927 did not
apply retroactively and that judges of the
Supreme Court of Canada or of the Exchequer
Court appointed before March 31, 1927 and
who were forced to retire at 75 were to receive
annuities equal to their full salary even if they
had not been ten years in office. Obviously the
payment of the full salary to these judges was
not dependent on the will of the Governor in
Council.
9. An Act to amend the Judges Act (Annuities),
S.C. 1944, 8 Geo. VI, c. 45, section 1:
Provides for the right of a judge to elect to
either retain the personal retirement annuity
benefits previously provided for or to accept the
new plan of a reduced annuity for the judge
coupled with a life annuity for his wife payable
to her both before and after his decease.
10. The Judges Act, 1946, S.C. 1946, 10 Geo.
VI, c. 56, section 23:
This Act abrogated the right of the superior
court judges to be paid their full salary on
retiring after 30 years in office irrespective of
their age or after 25 or 20 years in office if they
were 70 or 75. Still the Act maintains the right
of the judge to retire at any age after 15 years in
office provided the Governor in Council was of
the opinion that the retirement was in the public
interest. See section 28. But section 23 which
provided for the retirement of the judges of the
Supreme Court of Canada or of the Exchequer
Court at the age of 75 and for the payment of
annuities to the judges was not made dependent
on the opinion of the Governor in Council. The
provisions of section 28 did not apply to
section 23.
There were one or two other amendments which
are not relevant to the present issue.
Therefore, previous to 1960, when the B.N.A.
Act was amended, judges were to be paid their full
salaries for life. They had, however, since 1849, as
the English judges had since 1799, enjoyed the
privilege of retiring after fifteen years in office and
of receiving a non-contributory annuity for life of
two-thirds of their annual salaries, providing the
Governor General in Council was of the opinion
that the retirement was in the public interest. They
also had the right of retiring and of receiving the
annuity should they become incapable of perform
ing their duties by reason of mental or physical
incapacity. As previously stated, I entertain some
doubt as to the constitutional validity of this dis
cretion presumably granted to the Governor Gen
eral in Council mainly on the grounds that the
judicial office of provincial superior court judge
straddles both jurisdictions and cannot be materi
ally altered without a constitutional amendment.
In any event, the discretion of the Governor Gen
eral only extended to the question of whether the
proposed retirement is in the public interest. Once
that question has been answered in the affirmative
the judge is still, as he always has been, absolutely
entitled to receive his annuity for life. In other
words, there is no discretion as to whether the
annual compensation should be paid once it has
been determined that the retirement is in the
public interest.
The 1960 amendment of the B.N.A. Act pro
vides for the first time for obligatory retirement at
age 75 and sections 23 to 25 of the Judges Act
were accordingly amended by S.C. 1960, c. 46
which provides for:
(i) Voluntary retirement after 15 years in
office irrespective of age if the Governor in
Council is of the opinion that the retirement is
in the best interest of justice or of the national
interest;
(ii) Retirement at the age of 75 after 10 years
in office with no discretion granted to the
Governor in Council;
(iii) Voluntary retirement at the age of 70
after 15 years in office with no discretion
granted to the Governor in Council;
(iv) Retirement on account of permanent
infirmity with no discretion granted to the
Governor in Council.
The federal government before obtaining this
amendment to the B.N.A. Act took the precaution
of obtaining the consent of all of the provinces
because of their jurisdiction over the administra
tion of justice. It was, according to the Favreau
White Paper, felt that this question (of compulsory
retirement) was of direct concern to the provinces.
A further amendment by S.C. 1970-71-72, c. 55,
authorized judges to retire as of right after fifteen
years in office if of the age of 65 or over.
It was not until the 20th of December, 1975,
that any superior court judge was required to
contribute toward the annuities which were pay
able for life. Because of the legal constitutional
obligation of Parliament to pay a judge for life
pursuant to The Act of Settlement and the Act of
1760, but, more importantly, because the powers
of the Parliament of Canada, unlike that of the
United Kingdom, are subject to the jurisdiction of
the provinces over the administration of justice as
provided for in the sections of the B.N.A. Act to
which I have already referred, there arises a ques
tion as to its right to require judges to contribute
to their own annuities without a constitutional
amendment or the consent of the provinces. This
specific issue, however, is not required to be decid
ed in order to dispose of the present case.
The defendant claims that the plaintiff was
never legally entitled to the annuities provided for
in sections 23 and 25 of the Judges Act nor to the
supplementary retirement benefits provided for in
the Supplementary Retirement Benefits Act
because sections 23 and 25 of the Judges Act
provided that "the Governor in Council may
grant ...", and that, since "may" is only permis
sive, no federally appointed judge has a legal right
to the annuities provided for in that Act and in the
Supplementary Retirement Benefits Act. The
argument is founded, of course, on section 28 of
the Interpretation Act 22 which stipulates that
"may", in a statutory enactment, is to be con
strued as permissive.
The plaintiff's counter-argument was based on
the now well-recognized rule that, notwithstanding
that the words of a statute might merely be en
abling or permissive and, therefore, merely confer
a power, there may nevertheless exist concurrently
with that power, a legal duty on the person in
whom it is vested, to exercise it. (See Julius v.
Lord Bishop of Oxford 23 ; R. v. Adamson 24 ; R. v.
Cambridge 25 ; R. v. Finnis 26 ; R. v. Boteler 27 ; R. v.
Evans 28 ; and Thyssen Mining Construction of
Canada Ltd. v. The Queen 29 .) Considerable legal
argument was addressed to the Court and an
abundance of jurisprudence as well as a large
number of legal authors were cited and quoted on
the question as to what principle would prevail in
the case of each of the various provisions of these
sections. Having regard, however, to the disposal
which I will be making of this case as a result of a
more general argument of the plaintiff and which
is particularly applicable to this case, with which I
now intend to deal, I do not think it advisable to
decide which, if any, of these provisions establishes
a firm legal entitlement.
The general argument which is particularly ap
plicable to the plaintiff's case is to the effect that,
under the Constitution, Parliament could not on
the 20th of December, 1975, diminish, reduce or
impair the fixed and established salary and other
benefits of the plaintiff to which he had become
entitled from the time of his appointment on the
24th of July, 1975.
There cannot, in my mind, be any question but
that the additional emoluments or benefits such as
22 R.S.C. 1970, c. 1-23.
23 [1874-80] All E.R. (Rep.) 43; (1880) 5 App. Cas. 214, at
225 and 241.
24 [1875] 1 Q.B.D. 201.
25 (1839) 8 Dowl. 89.
26 (1859) 28 L.J. 263; M.C. 201.
27 (1864) 33 L.J. 129; M.C. 101.
28 (1890) 54 J.P. 471.
29 [1975] F.C. 81 at 88.
the annuity rights for the judge himself, the pro
tection afforded him against inflation or that
afforded his dependants in the event of his decease
truly formed part of the remuneration or compen
sation to which the plaintiff was entitled from the
moment of his appointment, to the same extent as
if actual salary had been paid in lieu of those
benefits. It is abundantly clear also that he was at
that time fully entitled to his salary without any
deductions except those applicable to all citizens
pursuant to general legislation such as income tax
and old age pension laws.
I have already quoted section 3 of the Act of
1760, which complemented and completed The
Act of Settlement but I shall repeat it here for ease
of reference:
III. And be it enacted by the Authority aforesaid, That such
Salaries as are settled upon Judges for the time being, or any of
them, by Act of Parliament, and also such Salaries as have
been or shall be granted by his Majesty, his Heirs, and Succes
sors, to any Judge or Judges, shall, in all time coming, be paid
and payable to every such Judge and Judges for the time being,
so long as the Patents or Commissions of them, or any of them
respectively, shall continue and remain in force. [Emphasis
added.]
By reason of the natural reluctance of judges to
engage in litigation whenever their salaries or
other rights are affected, there exists a paucity of
jurisprudence on the matter. Since The Act of
Settlement, many learned authors, constitutional
experts and famous statesmen have, however, dealt
with that specific subject. An example of the
reluctance of the judiciary to bring before the
courts issues in which they were interested arose in
England at the time of the passing of the National
Economy Act in 1931. I referred earlier to this
matter and to the fact that the judges dealt with
the situation by forwarding a memorandum on the
matter to the Prime Minister. The relevant por
tions of the text are reproduced in Professor Led-
erman's article (ibid. at pages 793 and 794):
The Government ordered reduction of judicial salaries by one
fifth, along with a great many others, but the constitutional
propriety of this action was widely doubted. Sir William Holds-
worth argued that judges were not "in the service of His
Majesty" within the meaning of the National Economy Act.
Only public officers who could be instructed in the name of the
Crown how to perform their functions (he said) could be
described as "servants of' or "in the service of' His Majesty.
(Holdsworth, The Constitutional Position of Judges (1932), 48
L.Q. Rev. 25.) As we have seen, royal power to instruct the
judges in this sense was on its way out by 1328.
Professor E. C. S. Wade took issue with Holdsworth, (E. C.
S. Wade, His Majesty's Judges (1932), 173 Law Times at pp.
246 and 267. A reply by Holdsworth is printed in the same
volume at page 336) arguing that judges were properly
described as "in the service of His Majesty", and that, as a
matter of statutory construction, the words in issue were
intended to include the judges. Government spokesmen took the
same line, and the cuts were put in effect. But the most
significant development was that the judges themselves sent a
confidential memorandum on the subject to the Prime Minister
on December 4th, 1931, which became public when it was read
into the record of the House of Lords on July 24th, 1933, by
the Lord Chancellor at the request of the Lord Chief Justice
and the Master of the Rolls. (Reproduced starting at p. 103 of
(1933), 176 Law Times. The quotation is not quite the whole of
this memorandum.) It is clear from this unique document that
the judges themselves fully agreed with Sir William
Holdsworth: •
The judges of His Majesty's Supreme Court of Judicature
think it their duty to submit certain considerations in regard
to the recent reductions of the salary payable to judges which
seem to have escaped notice.
It is, we think, beyond question that the judges are not in
the position occupied by civil servants. They are appointed to
hold particular offices of dignity and exceptional importance.
They occupy a vital place in the constitution of this country.
They stand equally between the Crown and the Executive,
and between the Executive and the subject. They have to
discharge the gravest and most responsible duties. It has for
over two centuries been considered essential that their secu
rity and independence should be maintained inviolate.
The Act of Settlement made clear provision for this in the
following terms: 'That after the said limitation shall take
effect as aforesaid, judges' commissions be made quamdiu se
bene gesserint, and their salaries ascertained and established;
but upon the Address of both Houses of Parliament, it may
be lawful to remove them' . ... Further by sect. 12 of the Act
of 2 and 3 Will. 4, c. 116, judges were exempted from taxes.
'It was long ago said that there can be no true liberty in a
country where the judges are not entirely independent of the
Government; and the soundness of the remark has never been
questioned. Art. III of the Constitution of the United States
runs as follows: 'The judicial power of the United States shall
be vested in one Supreme Court, and in such inferior courts
as the Congress may from time to time ordain and establish.
The judges, both of the supreme and inferior courts, shall
hold their offices during good behaviour, and shall, at stated
times, receive for their services, a compensation, which shall
not be diminished during their continuance in office'.
In this matter our country has set an example to the world,
and we believe that the respect felt by the people for an
English judge has been partly due to his unique position, a
feeling which will survive with difficulty if his salary can be
reduced as if he were an ordinary salaried servant of the
Crown.
It was owing to the general acceptance of these views that
on the one hand the salaries of High Court judges have never
been the subject of a House of Commons vote, but have been
charged on the Consolidated Fund, and that on the other
hand the judges hold their office as expressed above during
good behaviour and are removable only on an Address to the
Crown by both Houses of Parliament.
If the salaries of the judges can be reduced almost sub
silentio by the methods recently employed, the independence
of the Judicature is seriously impaired. It cannot be wise to
expose judges of the High Court to the suggestion, however
malevolent and ill-founded, that if their decisions are favour
able to the Crown in revenue and other cases, their salaries
may be raised and if unfavourable may be diminished.
We must express our deep regret that no opportunity was
given to the judges of offering a voluntary reduction of
salaries for an appropriate period; but we recognize that the
Government was in a grave difficulty and that the time for
consideration was very short .... [The underlining is mine.]
The legislation was withdrawn in so far as it
affected the judges. It is interesting to note here
that this opinion and protest addressed to the
Prime Minister by the judiciary of the United
Kingdom was given at the very depth of the great
depression when unemployment had reached
unheard of levels, prices had tumbled and the
salaries of those who were still fortunate enough to
remain employed in either the private or public
sectors of society had all been decreased to a very
substantial degree. There seemed to be no doubt as
to the political desirability of the legislation. The
objections raised by the judges were on purely
legal constitutional grounds.
The great majority of legal authors and consti
tutional experts, both past and present, are of the
view that, once appointed, a judge's salary is invi
olable for as long as his commission continues.
We find in Blackstone's Commentaries on the
Laws of England 3° "Of the Rights of Persons" at
pages 267-268:
And, in order to maintain both the dignity and independence of
the judges in the superior courts, it is enacted by the statute 13
W. III, c. 2, that their commissions shall be made (not as
formerly, durante bene placito, but) quamdiu bene se gesserint,
and their salaries ascertained and established; but that it may
be lawful to remove them on the address of both houses of
parliament. And now, by the noble improvements of that law,
in the statute of I Geo. III. c. 23, enacted at the earnest
30 (15th Edition) Book I, Chapter 7.
recommendation of the king himself from the throne, the
judges are continued in their offices during their good behavior,
notwithstanding any demise of the crown, (which was formerly
held immediately to vacate their seats,) and their full salaries
are absolutely secured to them during the continuance of their
commissions; his majesty having been pleased to declare, that
"he looked upon the independence and uprightness of the
judges as essential to the impartial administration of justice; as
one of the best securities of the rights and liberties of his
subjects; and as most conducive to the honor of the crown."
Shimon Shetreet in the publication Judges on
Trial, A Study of the Appointment and Accounta
bility of the English Judiciary" states at pages
35-36 that it appears that judges' salaries were
reduced several times in the 19th century but adds
in a footnote that apparently the government of
the day obtained the consent of the judges con
cerned. Then in commenting on the move during
the depression to reduce administratively the
judges' salaries in England pursuant to the Na
tional Economy Act, 1931, he adds at the same
page of that text:
The judges strongly protested against the reduction. In meeting
the Prime Minister and in a collective memorandum to the
Lord Chancellor, which was subsequently read in the House of
Lords, they argued that the independence of the judiciary
would be impaired if their salaries were reduced in this manner.
The government finally retreated and the reduction of judicial
salaries was cancelled.
Final judgement on the reduction of judicial salaries is
disputed. Professor Heuston thought that `there can be little
doubt that in the controversy of the 1930s the judges had the
stronger position in point of law'. This view finds support in the
Parliamentary practice of avoiding any reduction of salaries or
the alteration of conditions of office of existing judges without
obtaining their consent. But the opposite view that neither the
security of judicial tenure nor judicial independence was affect
ed at all by a universally applied deflationary measure, also has
merit.
On the subject of whether the salaries of judges
were ever reduced in England, Professor Lederman
doubts that the total annual compensation ever
was reduced. He states (ibid. page 795):
The changes to which Holdsworth refers in his History all seem
to be increases, (see Holdsworth, Vol. I, pp. 252-254 and 262)
though it is difficult to be sure what the net effect was when the
mode of payment was being slowly changed from charges on
special taxes and royal revenues to charges on the consolidated
fund, and when judicial income from patronage and fees was
being progressively eliminated.
31 (1976) edited by Gordon J. Borrie, University of
Birmingham.
The Canadian Government, in order to reduce
the judges' salaries by 10% during the depression
as was done for all those in the public service by
direct legislation, and to avoid the constitutional
difficulty involved by reason of the judiciary's
special status, caused Parliament to enact the
Income War Tax Act 32 which authorized the levy
ing of a special 10% applicable only against the
judiciary. This fact was advanced by the defendant
in an attempt to show that there existed a right of
Parliament to reduce the salaries of judges. The
legislation was never challenged by the judiciary
for the obvious reason that all public employees
were suffering a 10% reduction of income and
employees in the private sector were suffering to a
much greater extent. It seems clear to me that
altogether apart from the constitutional position of
judges, the legislation, if challenged, would have
been declared void and of no effect as a taxing
statute as being clearly discriminatory against the
judges as a class of individuals with regard to the
remainder of the population.
Professor Lederman had this to say regarding
that particular piece of legislation (ibid. pages
1163 bottom, 1164 and 1165):
In the matter of salary security, it is interesting that a federal
government recently acted on the Blackstonian version of the
meaning of security-of-salary provisions like section 100 of the
B.N.A. Act, though not in connection with alleged judicial
disability. In 1932 the problem of including judges in a general
salary-cutting statute for the civil service was before the
Canadian House of Commons. As shown in part II of this
essay, the same issue was a matter of controversy in England in
1931 and 1932. The Canadian government proposed a ten per
cent statutory salary deduction for the civil service, but the
judiciary were specifically exempted. Prime Minister Bennett
said of this (Debates, House of Commons, Dominion of
Canada, Session 1932, Vol. I, p. 562):
The judges are not included in this measure. It has been
contended by legal authority, and an article in the last issue
of the Law Quarterly Review goes into the matter rather
fully, that it would be a breach of the statutory rights of
judges to undertake to make a curtailment of their salaries in
this way. There are, however, other methods by which the
matter may be dealt with, and the government has not finally
determined what action it may take in that regard.
32 S.C. 1932, c. 44.
Undoubtedly the article referred to was Sir William Holds-
worth's, which has been explained and approved in part II of
this essay. When in his turn the Minister of Justice, Mr. Hugh
Guthrie, was pressed to explain the exemption of judges, he
made it clear that he held the same view of the importance of
the judiciary and of the security of their salaries as Holdsworth.
But there was much pressure to extend the deduction to judges,
and eventually the cabinet gave in. The result was a special
Income Tax Act to levy an additional tax of ten per cent for
one year on judicial salaries. The Minister of Justice asserted
that this action was justified by a Privy Council decision on the
taxing power of the federal parliament. He must have been
referring to Caron v. The King in 1924, ([1924] A.C. 999) but
on examination this case does not support the validity of a
discriminatory tax of this character, only of a non-discriminato
ry tax. Also, as shown in part II of this essay, the Judicial
Committee in 1937 reiterated this principle of non-discrimina
tion respecting judges in upholding the validity of applying a
general provincial income tax to them. It looks as if the special
taxing statute of 1932, as a taxing statute, was ultra vires the
federal parliament. A general income tax of ten per cent on all
public salaries might have been valid to effect the total object,
including the judicial salaries.
Finally, in this regard, while Holdsworth argued for security
of judicial salaries in England partly as a matter of statutory
construction, the argument is stronger in Canada. The words
"fixed and provided" are specially entrenched in the constitu
tional sense as part of section 100 of the B.N.A. Act and hence
confer a guarantee of salary to superior-court judges that
cannot be impaired by an ordinary federal statute. [The under
lining is mine.]
The same author more recently stated in The
Canadian Judiciary 33 at page 5:
In other words, I am saying that security of tenure and salary
for judges in Canada, as a matter of basic constitutional law
and tradition, is not limited to the strictly literal reach of
sections 99 and 100 of the B.N.A. Act, I remind you of the
words of Goodhart and Holdsworth. They make it clear that
essential provision for the independence of the judiciary gener
ally has long been deeply rooted as an original principle in the
basic customary law of the constitution. In Britain herself, the
explicit provisions about judicial security are in the ordinary
statutes—but these ordinary statutes, including the Act of
Settlement itself, manifest the more fundamental unwritten
constitutional principle I have described, as Goodhart and
Holdsworth insist. The same point can and should be made
about the status of Canadian judges.
J. R. Mallory in his text The Structure of
Canadian Government 34 after tracing the develop
33 (Edited by Allen M. Linden) Osgoode Hall Law School,
York University, Toronto 1976.
34 Macmillan of Canada, Toronto.
ment of the judiciary as a third power in our
system of government, in chapter 8 of his book
approves of the views of Blackstone and of Profes
sor Lederman regarding judges' salaries in the
following terms (refer pages 291 and 292):
Part of the security of a judge's tenure has always been
related to his right to enjoy his full salary. Professor Lederman
notes Blackstone's view that the judges' "full salaries are
absolutely secured to them during the continuance of their
commissions," and feels that the provision of section 100 of the
B.N.A. Act which requires Parliament to fix and provide the
salaries means the same as the corresponding English provision,
the effect of which is to protect judges against diminution of
their salaries during the force of their commissions. This does
not mean that judges are not liable for income tax or any other
tax which applies equally to all others. However, the govern
ment of Canada, when it imposed a 10 per cent cut in civil
service salaries in 1932, did not feel that it had the legal right
to impose a similar cut on judicial salaries. Instead, it imposed
a special income tax with a special impost for one year on
judicial salaries. While this was not challenged at the time, it
would appear doubtful if such a discriminatory tax was any
more justified than the proposed salary cut.
R. MacGregor Dawson in The Government of
Canada 35 states at page 396:
The judiciary, in short, must be given a special sphere, clearly
separated from that of the legislature and executive. They
must, to accomplish this separation, be given privileges which
are not vouchsafed to other branches of the government; and
they must be protected against political, economic, or other
influences which would disturb that detachment and impartial
ity which are indispensable prerequisites for the proper
performance of their function. It is these unusual factors which
create the condition known as the "independence" of the
judiciary. [The underlining is mine.]
He adds at page 402 of the same publication:
Salary is another factor determining the independence of the
judge. The first condition is that it should be certain and not
subject to the changing opinions of Parliament. Judicial salaries
in Canada are therefore fixed by statute and do not appear in
the annual parliamentary vote, and they are given special
security by being made a charge on the Consolidated Revenue
Fund. When the salaries of public officials were cut down
during the depression those of the judiciary were not reduced,
although a special income tax of 10 per cent was levied on
judicial salaries, in order to maintain the principle—if not the
income—intact. [The underlining is mine.]
Although the South African and the American
Constitutions contain express provisions whereby
35 Fifth Edition, University of Toronto Press.
the compensation payable to judges cannot be
diminished during their term of office and ours
does not, this does not mean that our Constitution
is not subject to that provision. On the contrary,
those express provisions are but codifications of
that well recognized principle which has existed
since The Act of Settlement and, if not, then at the
very least since the Act of 1760. The security of
judges' salaries as a question of fundamental con
stitutional law is to be distinguished from mere
convention between governments as considered
and found by the Judicial Committee of the Privy
Council in Madzimbamuto v. Lardner- Burke 36
I do not accept the argument of counsel for the
defendant that the salary and benefits of incum
bent judges were generally maintained merely as a
matter of policy. On the contrary, I find that it
was a matter of constitutional law which frequent
ly caused some difficulty and embarrassment to
legislators and which they, by devious means on
one or two occasions such as the enactments re the
Income War Tax Act of 1932, attempted to avoid.
Finally, the preservation of the salaries of incum
bents was not only a principle applied generally
but one applied constantly with the exception of
one or, at the most, two occasions where, because
of the social or economic situation existing at the
time and the embarrassment of trying its own case,
the judiciary chose not to challenge the legislation
before their own courts. It appears in those cases
that had they chosen to act, compensation would
undoubtedly have been re-established.
A further argument was advanced to the effect
that the maintenance of the judges' salaries grant
ed as of the date of their appointment depended at
the very most on a constitutional convention and
not on any legally recognizable or enforceable
principle of constitutional law. In the recent
patriation appeals to which I have referred, when
considering whether a constitutional convention
existed regarding the requirement of provincial
consent to the amendments to the B.N.A. Act,
both the majority and the dissenting minority of
the Supreme Court of Canada approved of the
36 [1969] 1 A.C. 645.
definition given by the learned Chief Justice of
Manitoba, Freedman C.J., in the Manitoba Refer
ence on that question, namely [at page 195]:
Thus there is general agreement that a convention occupies a
position somewhere in between a usage or custom on the one
hand and a constitutional law on the other. There is general
agreement that if one sought to fix that position with greater
precision he would place convention nearer to law than to usage
or custom. There is also general agreement that 'a convention is
a rule which is regarded as obligatory by the officials to whom
it applies'. Hogg, `Constitutional Law of Canada' (1977), p. 9.
There is, if not general agreement, at least weighty authority,
that the sanction for breach of a convention will be political
rather than legal.
I cannot consider that, in Canada, either the
question of security of tenure or of salaries of
judges is merely a "rule which is regarded as
obligatory by the officials to whom it applies": it is
much more fundamental and essential than that.
As previously stated, in England, as of the date of
Confederation, the security of judicial salaries was
constitutionally guaranteed as a matter of law
since The Act of Settlement. (This is not to say
that, since it was a unitary state, the Constitution
could not have been changed by Parliament with
the consent of the King.) On the passing of the
B.N.A. Act the same status was acquired by jus
tices of the supreme courts of the provinces as was
enjoyed by English judges at the time. With that
status of the judiciary came the same rights,
powers and privileges, including by express statute
the right to have their salaries "fixed and estab
lished" by Parliament, which includes the right to
receive these salaries for the duration of their
commissions as justices. Under the Constitution,
the appointment and payment of provincial supe
rior court justices and the criminal law which they
applied fell under federal jurisdiction, while the
administration of justice, the constitution of the
courts and the substantive law which those justices
administered in matters of property and civil rights
fell under provincial jurisdiction. It thus seems
clear that there exists a legal constitutional
requirement derived from the federal nature of our
Constitution to the effect that the rights of federal
ly appointed judiciary, as they existed at the time
of Confederation, cannot be abrogated, curtailed
or changed without an amendment to the Consti
tution. Failing a constitutional amendment, even
the express consent of the Provinces would not
suffice because a constitutional power or obliga-
tion cannot be legally changed or abandoned in a
federal state by mere consent.
It might also be of some benefit to reiterate that,
in the case at bar, we are not concerned merely
with a reduction of the compensation of an incum
bent judge below the amount which he was receiv
ing immediately before the legislation was passed,
but, a reduction below the amount to which he was
entitled and was in fact receiving from the moment
of his appointment. Furthermore, the case at bar
does not fall within the ambit of those decisions
such as Judges v. Attorney-General of Saskatche-
wan, supra, or in the Re The Constitutional Ques
tions Act. Re The Income Tax Act, 1932, supra,
which establish that the members of the judiciary
are not, by reason of their constitutional position,
exempt at law from the provisions of general
taxing statutes applicable to all citizens of the
country.
Although it obviously has no validity from a
constitutional law standpoint, it is interesting to
note the contents and spirit of the fourth article of
the "Declaration of San Juan de Puerto Rico" 37 on
the integrity and independence of the judiciary,
which was issued as a result of the first judicial
conference of the Americas in Puerto Rico in
1965:
Fourth:
The economic autonomy of the Judicial Power, based on
resources that permit the fulfillment of its high mission, should
be constitutionally recognized. Judges should receive adequate
compensation in order to free them from the pressures of
economic insecurity. This compensation should not be altered
to their detriment.
Although political or social necessity are not
factors which are to be taken into account in
determining the legal issue before me, I have, in
order to underline the importance of that issue,
quoted several passages from learned jurists and
authors which affirm over the last two hundred
years the absolute requirement in a free society of
a completely independent judiciary each member
of which, in the performance of his judicial func
tions, is answerable to no one but the law, his own
conscience, the courts and se male gesserit, to
37 Handbook for Judges, edited by Glen R. Winters, The
American Judicature Society, 1975.
Parliament and the Throne by means of an
impeachment process on joint address to the latter
by both Houses. For the importance of that
requirement in the context of Canada today, one
can find no better reference than the report on the
very comprehensive and scholarly study made by
the Honourable Jules Deschênes, Chief Justice of
the Superior Court of Quebec, on the subject of
The Independent Judicial Administration of the
Courts. The study was sponsored by the Canadian
Judicial Council in cooperation with the Canadian
Judges Conference and the Canadian Institute for
the Administration of Justice. The report was
released by the Judicial Council a few days ago. It
contains some 198 recommendations for the better
administration of justice in Canada. The Chief
Justice founds all of his recommendations on the
absolute need for ensuring and preserving a com
pletely independent judicial power. On this subject
the Chief Justice states at page 12:
Yet the independence of the judicial power from the legisla
tive and executive powers constitutes one of the pillars of our
political system; on an equal footing with the principle of the
primacy of the rule of law, its importance cannot be exaggerat
ed. Indeed it has just been reaffirmed last May. (Draft Princi
ples on The Independence of the Judiciary, prepared by a
Committee of Experts meeting at Siracusa, Sicily, on 25-29
May 1981.)
For reasons previously stated, I conclude that
Parliament, without at least the consent of the
judge affected, is at law constitutionally prevented
from reducing, by means of any legislation specifi
cally directed to reductions of or deductions from
judicial salaries, the compensation to which that
judge was entitled at the time of his appointment
and I come to this conclusion not only because of
the manner in which jurisdiction is shared between
the provinces and Canada but, because it arises
out of an intrinsic and fundamental principle of
constitutional law which we inherited with the
British parliamentary system.
Although such compensation can undoubtedly
be reduced de facto, it cannot be done de jure
without changing our Constitution and fundamen
tally affecting the parliamentary system under
which we operate.
I therefore find that the plaintiff is entitled to a
declaration that subsection (2) of section 29.1 of
the Judges Act as amended by section 100 of the
Statute Law (Superannuation) Amendment Act,
1975, supra, is, in so far as the plaintiff is con
cerned, ultra vires the Parliament of Canada. He
is also entitled to his costs of this action.
Since I have effectively disposed of this case on
the basis of the fact that the plaintiff was appoint
ed (the 24th of July, 1975) before the impugned
legislation was proclaimed (the 20th of December,
1975) but subsequent to the retroactive date when
it purported to become effective (the 16th of Feb-
ruary, 1975), I will refrain from dealing with the
first argument advanced on behalf of the plaintiff
to the effect that subsection 29.1(1) is ultra vires
because by reason of the B.N.A. Act as well as the
customary law of the Constitution, Parliament is
not entitled to require contribution for the annui
ties of judges which the latter enjoyed on the 20th
of December, 1975, when the Act complained of
was proclaimed. Regarding the other argument
that all the provisions complained of are inopera
tive, in so far as the plaintiff is concerned, I fail to
see how, if Parliament possesses the jurisdiction
and power to reduce the plaintiffs salary, the law
could possibly be considered as inoperative in its
application to that salary.
Finally, I wish to state that, in rendering this
decision, I am not unaware of the fact that, should
none among the other justices whose commissions
date previous to the 16th of February, 1975, chal
lenge the obligation to contribute 11% from their
salaries or should the challenge fail at law, then,
the more senior judges obviously will be receiving
1 1 / 2 % less than the plaintiff. Having regard to my
findings as to discrimination generally and the
Canadian Bill of Rights in particular, it would
appear that, on the grounds of discrimination they
would have no redress. They might, however, find
some solace in the Gospel by St. Matthew pertain
ing to the workers in the vineyard (Matt. 20,
1-16).
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.