2014 QCCA 1654, 2014 QCCA 1654

Unofficial English Translation Conférence des juges de paix magistrats du Québec c. Québec (Procureur général) 2014 QCCA 1654 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-022600-126 (500-17-046760-081) DATE: September 11, 2014 CORAM: THE HONOURABLE PIERRE J. DALPHOND, J.A. JEAN BOUCHARD, J.A. MARTIN VAUCLAIR, J.A. CONFÉRENCE DES JUGES DE PAIX MAGISTRATS DU QUÉBEC et al. (see Schedule) APPELLANTS – Applicants v.

ATTORNEY GENERAL OF QUEBEC MINISTER OF JUSTICE OF QUEBEC RESPONDENTS – Respondents And CONFÉRENCE DES JUGES DU QUÉBEC INTERVENER JUDGMENT [ 1 ] The appellants appeal from a judgment rendered on March 16, 2012, and corrected on March 30, 2012, by the Superior Court, District of Montreal (the Honourable Mr. Justice Robert Mongeon), that dismissed their application for a declaration of invalidity of certain provisions of the Act to amend the Courts of Justice Act and other legislative provisions as regards the status of justices of the peace , S.Q. 2004, c. 12 and s. 178 of the Courts of Justice Act , C.Q.L.R., c.

T-16 , on the grounds that these provisions are contrary to the constitutional requirements for judicial independence. [ 2 ] For the reasons of Dalphond, J.A., with which Bouchard and Vauclair, JJ.A. agree, THE COURT : [ 3 ] DISMISSES the appeal, without costs given the nature of the dispute. PIERRE J. DALPHOND, J.A. JEAN BOUCHARD, J.A. MARTIN VAUCLAIR, J.A. Mtre Raymond Doray Mtre Loïc Berdnikoff LAVERY DE BILLY For the appellants Mtre France Bonsaint CHAMBERLAND GAGNON (JUSTICE QUÉBEC) Mtre Brigitte Bussières DIRECTION GÉNÉRALE DES AFFAIRES JURIDIQUES ET LÉGISLATIVES For the respondents

Mtre Chantal Châtelain Mtre Vincent de l’ÉtoileLANGLOIS, KRONSTRÖM, DESJARDINSFor the Intervener Date of hearing: May 26, 2014 REASONS OF DALPHOND, J.A. [4] The appellants, justices of the peace and their association, appeal from a judgment of the Superior Court that dismissed theirapplication seeking a declaration of invalidity of sections 27, 30 and 32 of the Act to Amend the Courts of Justice Act and otherlegislative provisions as regards the status of the justices of the peace, S.Q. 2004, c. 12 (“Act”) and

section 178 of the Courts of JusticeAct, C.Q.L.R., c. T-16 (“CJA”), on the grounds that these provisions are contrary to the constitutional requirements for judicialindependence with regard to their remuneration since 2004 and their participation in the management pension plan. [5] For the following reasons, I find that there is no reason to declare the impugned provisions to be without effect. BACKGROUND [6] In our justice system, with its roots in the British legal tradition, the justice of the peace has long fulfilled a significant function(Ell v.

Alberta, 2003 SCC 35 , [2003] 1 S.C.R. 857 at para. 4).[1] As the most accessible of judicial officers, justices of thepeace were originally ordinary citizens vested with certain powers and acting under the supervision of higher courts.

While this is stilltrue in England, it is no longer the case in Canada, where the office of justice of the peace has expanded through the years, particularlyafter the coming into force of the Charter of Rights and Freedoms[2], to become an office occupied only by individuals with legaltraining. [7] The Supreme Court of Canada has ruled that, because of their importance within the Canadian judicial system, justices of thepeace who exercise judicial functions that are directly related to the enforcement of law and that may significantly affect the rights andfreedoms of citizens must benefit from the same guarantees of independence as that accorded to judges and judicial tribunals (Ell atparas. 24–26), namely, security of tenure, financial security and administrative independence. [8] In Pomerleau v.

R., (QC CA), [2004] R.J.Q. 83, J.E. 2004-219, rendered on December 23, 2003, a panel ofthis Court on which I sat applied the teachings of Ell and found that the system in place in the province at the time was constitutionallyinvalid because it did not guarantee the independence of justices of the peace of Quebec.

At the time, that system was comprised of twocategories of justices of the peace enjoying the following powers and advantages: - 600 administrative justices of the peace, including 400 on the provincial level in three categories according to the [translation]“Justices of the Peace Appointment Policy” (Government of Quebec, February 2002) and 200 on the municipal level, authorized by theCJA to perform a limited number of judicial acts when carrying out their work of another nature (for example, municipal clerks),designated in the CJA as [translation] "justices of the peace with limited powers" (JPLPs).

This appointment was held during pleasure;and - 6 persons designated as [translation] "justices of the peace with expanded powers" (JPEPs) in the CJA, each appointed by ministerialorder to occupy this position exclusively for a five-year term, renewable at the Minister's pleasure, and authorized by the CJA to performa wide range of judicial actions. Their remuneration and other advantages were based on individual orders made by the executive counciland, if the deed of appointment so indicated, included participation in the government and public body employee pension plan.

Underthese orders, they benefited from the same salary increases as Court of Quebec judges at the same time, as well as the group insuranceplan of Court of Quebec judges. [9] In the same judgment, this Court refused to suspend the effect of the declaration of constitutional invalidity, being of the viewthat judges of the Superior Court, the Court of Quebec, and the municipal courts[3] could temporarily stand in for the justices of thepeace who could not act (Pomerleau at para. 26). [10] This was the context in which the National Assembly enacted the Act, which was assented to on June 16, 2004, with most of itsprovisions coming into effect on June 30, 2004.

The Act sought to [translation] "implement a regime to govern the constitutionalguarantees of judicial independence" by replacing

Part III.1 of the CJA concerning "justices of the peace" with a new part, chieflycharacterized by the following: - the creation of the offices of "presiding justices of the peace" (PJPs) and "administrative justices of the peace" (explanatory notesfrom the Act and sections 158 et seq. CJA); - the office of PJP is an exclusive appointment, the jurisdiction of which is exercised concurrently with those of the judges of theCourt of Quebec, extends throughout the province (section 172), and corresponds essentially to those of the JPEPs, save for a lack ofjurisdiction to preside over bail hearings or to hear

summary prosecutions for offences under

Part XXVII of the Criminal Code, whichacts are henceforth reserved for Court of Quebec judges (section 173 and

Schedule V), and the addition of the power to preside overtelephone appearances with the obligation to ensure this service at all times (section 174);

- the eligibility criteria to be a PJP are defined as only advocates having at least ten years' practice (section 162); - the establishment of a PJP selection process seeking to guarantee that only persons apt for this position are appointed (section 163); - the appointment of PJPs by the Government, by a commission under the Great Seal as is the case for Court of Quebec judges(section 161), and not by the Minister as was the case for the JPEPs; - the obligation to make an oath similar to that made by the judges of the Court of Quebec before taking office (section 180); - the integration of the PJPs in the Court of Quebec, under the authority of the Chief Justice of that court (section 169). - the security of tenure of the PJPs until the age of 70 (sections 165–166) and not for a predefined five-year period as for the JPEPs,removal being possible only upon recommendation of the Court of Appeal of Quebec, after inquiry (section 167); - salary and other benefits fixed by the Government (section 175) after receiving recommendations from a panel separate from theCommittee on the remuneration of judges ("CRJ") (section 176), a specialized body set out in

part VI.4 of the CJA and implemented incompliance with the Government of Quebec's constitutional duties toward provincially appointed judges in the wake of Ref reRemuneration of Judges of the Prov. Court of P.E.I.; Ref re Independence and Impartiality of Judges of the Prov. Court of P.E.I, (SCC), [1997] 3 S.C.R. 3 (1997 Reference); - participation in the pension plan established by the Act respecting the Pension Plan of Management Personnel, CQLR, c. R-12.1(section 178) rather than the pension plan of government/public body employees available for the JPEPs, which plan could be modifiedas regards the PJPs only after the intervention of a CRJ (section 178, para. 2, and

section 246.29). [11]

Section 26 of the Act confers the status of PJP on the six JPEPs "deemed to have been appointed" under

part III.1. of the CJA,adding that those who were on leave without pay from the public service are deemed to have resigned as of June 30,

Section 35,however, requires that they make an oath similar to that made by judges of the Court of Quebec within 30 days of the coming into forceof the Act. [12] The first paragraph of

section 27 states that persons who have become PJPs by virtue of the Act retain the salary they werereceiving before the coming into force of the Act until that salary is equal to that of the new PJPs, thus establishing a de facto temporarilyhigher level of remuneration, referred to in labour law as a "red circle rate". [13] This right of the six former JPEPs to retain their salary turned out to be doubly advantageous. First, on June 30, 2004, by Order689-2004 enacted pursuant to

section 30 of the Act, the government fixed the starting yearly salary of the PJPs at $90,000, with a 2%increase in each of the following two years, bringing it to $91,800 on July 1, 2005, and $93,636 on July 1, 2006, while that of the JPEPswas $111,299 on June 30, 2004.[4] Then, in 2007, following the conclusion of a judgment that brought an end to the judicial sagaconcerning the CRJ report for the 2001–2004 period (O'Donnell Committee)[5], Court of Quebec judges were granted large retroactiveraises to counteract the difficulty in recruiting for this court: 31.1% on July 1, 2001, 2.4% on July 1, 2002, and 3.7% on July 1, 2003,which the JPEPs also received pursuant to the orders governing them at the time, bringing their actual salary as of June 30, 2004, to$137,280, thus significantly widening the gap between the starting salary of the PJPs and that of the former JPEPs. [14] The second paragraph of

section 27 also states that former JPEPs retain the employment conditions, including the employmentbenefits and pension plan that formerly applied to them. They were given the option, however, of participating in the pension plan formanagement personnel within the next six months. And indeed, the three JPEPs who were not members of this plan but of the plan forgovernment and public body employees took that option because the new plan was more advantageous to them. [15] As for

section 29 of the Act, it makes JPLPs administrative justices of the peace, deemed to have been appointed under the CJA(by the Minister of Justice, at his or her pleasure), whose powers concern essentially non contentious acts. They exercise their powersand functions with the Superior Court, the Court of Quebec or the municipal courts, and must make an oath identical to that of PJPswithin 30 days (section 35 of the Act). [16] Finally,

section 32 of the Act states that the CRJ may not exercise its functions with regard to PJPs before 2007, when it willinclude a representative of the PJPs and a specialized panel with regard to PJPs, which would be added to two others, one relating toCourt of Quebec judges and the other to municipal court judges (section 246.30 CJA). [17] After the Act came into force, none of the six former JPEPs challenged the amendments affecting them. Expressing no protestor reservations, they accepted their new title, made the oath required by

section 35, performed the acts that they were now authorized toperform, and joined the management personnel pension plan. [18] On May 5, 2005, following a selection process undertaken the previous September, 27 new PJPs were appointed from among188 applicants, thereby bringing the total number of PJPs to 33. [19] On December 12, 2005, the Conférence des juges de paix magistrats was formed to promote the rights of its members beforethe CRJ, among other things. [20] In 2007, the six former JPEPs received large amounts of retroactive pay for the period of 2001 to 2007 in execution of the finaljudgment of the Superior Court referred to above. [21] In a report dated April 17, 2008, and tabled before the National Assembly on April 24, 2008, a CRJ presided by former PremierDaniel Johnson (the “Johnson Committee”), considered the factors referred to in

section 246.42 CJA and recommended increasing thesalary of the PJPs to $110,000/year for a three-year period starting on July 1, 2007: [translation]

7 . RECOMMENDATIONS 7.1 Salary Recommendation

(1) The Committee recommends that the salary of the PJPs be fixed at $110,000 for a three year period beginning on July 1, 2007. The Committee recommends, however, that the salary of the four [6] PJPs appointed before June 30, 2004, remain at its current level, namely $137,280, until June 30, 2010. … In light of the factors in

section 246.42 of the Courts of Justice Act , the Committee has evaluated the salary of the PJPs at $110,000. As a result, a disparity is maintained between the two cohorts of PJPs, resulting in the freezing of the salaries of the PJPs whose salaries are already more than $110,000 a year. It is not appropriate to bridge this gap by suggesting that the salaries of the PJPs appointed on May 5, 2005, be increased by 47% to catch up with those of the PJPs appointed before June 30, 2004.

The Committee also refuses to additionally recommend a 46% increase for all PJPs to reach the salary "of at least $200,000" as suggested by the Conférence. ... The Committee is also of the view that the PJPs appointed on May 5, 2005, who applied for these positions, as did dozens of other jurists, in full knowledge of their terms of remuneration, cannot reasonably expect to see their salaries rise from about $90,000 to approximately $200,000 within 26 months: there is no justification to do so. ...

It is also relevant to note that the history of the situation relating to the PJPs is for all intents and purposes non-existent . Although the comparison is inadequate in many respects, ... the Committee believes that, at first glance, the jurisdiction, the selection criteria and ethics applying to the "Presiding Justices" of the province of Alberta are the elements that most closely resemble those of the PJPs of Quebec. ... The Committee has noted the salary granted the full-time "Sitting and Presiding Justices" by the Alberta committee for the period between April 1, 2005, and March 31, 2008, namely, $110,000.

This is currently the highest salary granted justices of the peace in Canada, according to the information available to the Committee. It is interesting to note that this salary, which was established in January of 2007, is at the same level in the first quarter of 2008 as it was three years ago.

The Committee believes that such a three-year freeze is also appropriate in Quebec, as it is of the view that the next adjustments will have to be based on more complete information and comparisons. [Emphasis added.] [ 22 ] The CRJ also rejected the arguments of the Conférence and its members challenging the existence of two classes of remuneration within the office of PJP, finding that the situation of the PJPs [ translation ] "while not very common, is far from unique in either the private or the public sector". [7] It also found that the participation of the PJPs in the management personnel pension plan assured them adequate financial security. [ 23 ] On October 1, 2008, the Government implemented the recommendations of the Johnson Committee by Order 932-2008. [ 24 ] In November of 2008, the Conférence and its members challenged the constitutional validity of sections 27 , 30 and 32 of the Act ,

section 178 of the CJA , and Order 932-2008, on the grounds that they compromised the independence and in particular the financial security of the PJPs.

Through this proceeding, they hoped to obtain a salary increase retroactive to July of 2004. [ 25 ] In a report dated December 23, 2010, and tabled before the National Assembly on February 17, 2011, a CRJ presided by Mtre Alban D'Amours (“D'Amours Committee”), recommended, after reading a study on the powers and functions of justices of the peace throughout Canada and their remuneration, that the salary of the PJPs be slightly higher than that of the justices of the peace of Ontario ($114,000/year), namely, $119,000 as of July 1, 2010, $119,892 as of July 1, 2011, and $121,091 as of July 1, 2012.

The Government implemented this recommendation by enacting Order 614-2011.

Like the Johnson Committee, the D'Amours Committee rejected the arguments challenging the existence of two classes of remuneration within the office of PJP and their participation in the management personnel pension plan. [ 26 ] Subsequently, another CJR, the Clair Committee, issued its recommendation on the remuneration of PJPs, rejecting the arguments of the Conférence challenging the existence of two levels of remuneration and the participation of the PJPs in the management personnel pension plan. [ 27 ] To complete the background, I note that, since July 1, 2013, the salary of the PJPs appointed in May of 2005 or later and those of the former JPEPs are identical at $137,792 (increased by the cost-of-living index over the next two years), resulting in the disappearance of the two levels of remuneration within the office of PJP.

JUDGMENT BELOW [ 28 ] In a judgment rendered on March 16, 2012, and corrected on March 30, 2012, 2012 QCCS 1021 , Mongeon J. began by considering the salary freeze for the JPEPs who became PJPs. In his view, such a measure had to be reviewed by a CRJ, although not necessarily in advance (paras. 126–139). In the present case, the freeze was considered by a CRJ formed in 2007, nearly three years after the adoption of the Act , which he considered to be a reasonable time period.

He added that, since the Johnson and D'Amours CRJs found such a freeze to be acceptable, a reasonable person could not find that the government compromised the independence of the six PJPs

concerned (paras. 118–125). Similarly, he found that the loss of the right of the former JPEPs to a salary adjustment according to therates applicable to Court of Quebec judges cannot be challenged because two CRJs validated this measure within a reasonable time(paras. 145–157). [29] The judge then dealt with the constitutional validity of

section 30 of the Act, which allowed the government to unilaterally fixthe remuneration of the PJPs appointed after June of 2004 for the first three years and to create two de facto pay grades. In his view, theAct instituted a new judicial office. Nothing in the case law or scholarly commentary, however, suggests that before creating a newcategory of judges, the government is obliged to submit the pay conditions of this new category of judges to a CRJ.

Moreover, becausethese amounts were determined before the new PJPs were hired, they were known to the applicants, and there is no indication of anyfinancial manipulation that could infringe on judicial independence (paras. 164–175). [30] In any event, the amounts determined by the government for 2004, 2005 and 2006 were adequate, since the Johnson CRJ, usingits own reference points, suggested a salary of $110,000 as of 2007, or in other words, $16,000 more than that applicable in 2006 (paras.169–174). [31] As for the result, namely, the two different pay grades for PJPs, he found that a reasonably well-informed person would notconsider it as an infringement of judicial independence, considering in particular the fact that the gap is to last only until the new PJPscatch up with the senior ones (paras. 176–199). [32] Finally, the judge found that a CRJ has the jurisdiction to rule on the appropriateness of the pension plan offered to PJPs.

TheJohnson and D'Amours CRJs recommended that PJPs continue their participation in the management personnel pension plan, being ofthe view that the plan was adequate. In this context, the judge found that the government had met its constitutional obligations (paras.224–227). [33] For all of these reasons, the judge concluded that the impugned provisions of the Act,

section 178 of the CJA, and Order 932-2008 do not infringe the independence of the PJPs. GROUNDS OF APPEAL [34] First, the appellants maintain that no new judicial office was created. They add that, in any event, the Act could notconstitutionally permit the government to unilaterally determine the starting pay of PJPs and then, for the next three years, prohibit itsrevision by a CRJ, an objective guarantee required to ensure a reasonable perception of independence.

In their opinion, the Act and Order689-2004 effectively caused a 34% reduction of the salary of PJPs appointed in May of 2005 and afterward, without a prior recourse to aCRJ. [35] The appellants then argue that the JPEP salary freeze should have been submitted to a CRJ beforehand. Moreover, in their view,the Act had the effect of infringing on the JPEPs’ acquired right to salary adjustment, which aggravated the infringement of theirindependence. [36] Finally, the appellants submit that the trial judge erred by refusing to rule on the constitutional validity of the pension planapplicable to the PJPs.

In their view, the evidence clearly shows that the management personnel pension plan is not designed to ensurethe financial security of judges and, consequently, that the measure is constitutionally invalid, an issue falling within the jurisdiction ofthe Superior Court. [37] The intervener, the Conférence des juges du Québec, refrains from taking a position on the merits but argues that the judgeerred with regard to the applicable principles. In its view, a CRJ should have given its opinion on all aspects of the proposed salary andother benefits proposed to the PJPs before Order 689-2004 was adopted.

Moreover, it objects to judges being members of themanagement personnel pension plan. ANALYSIS I.

Constitutional Principles Relevant in this Case [38] First, the “Canadian Constitution is animated by the underlying principles of federalism, democracy, constitutionalism, the ruleof law, and respect for minorities” (Reference Re Secession of Quebec, (SCC), [1998] 2 S.C.R. 217 at 220). [39] Second, through its architecture and underlying principles, including the Charter of Rights and Freedoms, the Constitutionrequires courts and their judges to be independent from all external pressure, to act impartially, and to be perceived as such by the public(Valente v.

The Queen, (SCC), [1985] 2 S.C.R. 673 at 689; 1997 Reference at para. 113 and Mackin v. New Brunswick;Rice v. New Brunswick, [2002] 1 S.C.R. 405, 2002 SCC 13 at para. 38). In reality, judicial independence is a vital element of Canadiandemocracy (R. v. Beauregard, (SCC), [1986] 2 S.C.R. 56 at 70; Mackin at paras. 34–35; Ell at paras. 18–23; ProvincialCourt Judges' Assn. of New Brunswick v. New Brunswick (Minister of Justice); Ontario Judges' Assn. v. Ontario (Management Board);Bodner v. Alberta; Conférence des juges du Québec v. Quebec (Attorney General); Minc v.

Quebec (Attorney General), 2005 SCC 44,[2005] 2 S.C.R. 286 (Bodner) at para. 4). [40] Judicial independence comprises both an individual and an institutional aspect. The former concerns the independence of judgesthemselves, and the latter, that of the court to which they belong.

Each of these aspects depends on the existence of objective guaranteesthat ensure the judiciary’s freedom from external influence (Valente at 685 and 687; Ell at para. 28). [41] Commentary and case law now recognize three characteristics or conditions central to this independence: security of tenure,financial security, and administrative independence (1997 Reference at paras. 115 and 143). The judicial

interpretation of theseguarantees varies depending on the nature of the court and the interests at stake (Therrien (Re), [2001] 2 S.C.R. 3, 2001 SCC 35 at para.

65, echoed in Ell at para. 30; Association des juges administratifs de la Commission des lésions professionnelles v. Quebec (AttorneyGeneral), 2013 QCCA 1690 at paras. 26 and 40). This being said, a constant emerges: the

interpretation must always be in light of theinterests of the litigants, who are the true beneficiaries of judicial independence (Mackin at para. 71; Ell at para. 29), or of theindependence of specialized adjudicators (Association des juges administratifs at paras. 24 and 25). [42] Judges must therefore resist the temptation to rely on the principle of judicial independence as nothing more than a means toimprove their working conditions (1997 Reference at para. 9). [43] In order to guarantee this perception of independence to citizens, judges are prohibited from negotiating their salaries and otherbenefits with the relevant government because doing so would risk politicizing the issue.

The 1997 Reference, Mackin and Bodnerestablish the broad parameters applicable to the remuneration of judges in the absence of the possibility of negotiation.

These judgmentsindicate the obligation on governments to form an independent committee to periodically review judges' salaries and other benefits andmake recommendations, which cannot be summarily set aside by the government or legislator, as the case may be, whose decisions aresubsequently reviewable by a superior court on the standard of simple rationality. [44] Failing such periodic reviews, judges' salaries and other benefits may become unfit to guarantee judicial independence andconsequently lead to challenges to the authority of the courts by litigants (Mackin at para. 59). [45] In other words, the Constitution does not guarantee the highest pay grade possible given the finances of the state (1997Reference at para. 190), but rather an independent and effective process of periodic review of the salaries and other benefits of judges,thereby depoliticizing the issue and ensuring that salaries and other benefits do not fall below a level that could cast doubt on theinstitutional or individual independence of judges (1997 Reference at para. 193). [46] Similarly, governments cannot unilaterally make orders amending judges' working conditions without potentially triggering theapplication of principles governing the institutional dimension of the financial security guarantee (Mackin at para. 53; 1997 Reference atparas. 147 and 178).

Specifically, the government concerned bears the constitutional obligation to resort to an independent, effective andobjective body that will make prior recommendations (1997 Reference at paras. 133, 137, 166, 174, 200, 226, 233, 234, 242, and 287(2))on reductions, increases and freezes of judges' salaries, which, if disregarded, could give rise to a judicial challenge requiring thegovernment to justify its position on the basis of the simple rationality test (1997 Reference at paras. 183, 184, and 287(4); Bodner atparas. 25–29 and 31; Mackin at para. 57), save in exceptional circumstances where measures must be taken immediately, such as aserious financial crisis or war (1997 Reference at para. 137).[8] [47] Finally, the Constitution establishes a hierarchy in the Canadian judicial order in each province by distinguishing provincialsuperior courts from other provincial courts, the latter being subject to the superintending and reforming power of the former. [48] Provincial superior court judges are appointed by the federal government (section 96 Constitution Act, 1867 (U.K), 30 & 31Victoria, c. 3), which must meet Constitutional requirements (sections 97 and 98 Constitution Act, 1867) and the Judges Act, R.S.C., c.

J-1. They hold office during good behaviour until the age of 75 (section 99 Constitution Act, 1867). Even if they work in courts fallingunder provincial jurisdiction, their salary and other benefits are fixed by the Parliament of Canada (section 100 Constitution Act, 1867). [49] Judges in the other provincial courts are appointed by and under the responsibility of the provincial government concerned(subsection 92(14) Constitution Act, 1867).

Specific statutes such as the CJA set out the eligibility criteria, the length of office (inQuebec, until the age of 70), and the salary and other benefits of these judges. [50] Moreover, the Supreme Court of Canada, a federal court created by Parliament under

section 101 of the Constitution Act, 1867as the general court of appeal for the country, the composition and powers of which have been constitutionalized since the patriation ofthe Constitution (Constitution Act, 1982,

Part V, sections 41 and 42; Reference re Supreme Court Act, sections 5 and 6; 2014 SCC 21),constitutes the highest court in the Canadian judicial system (Reference re Secession of Quebec at 218). II. The Constitution does not Require Uniformity of Judges’ Remuneration and other Benefits [51] In Valente, the Supreme Court explained that the conditions essential to judicial independence under subsection 11(

d) of theCharter must have a reasonable connection with the Canadian legislative and constitutional provisions governing the judicialindependence of courts judging persons accused of offences. It is the spirit of the guarantee provided by the essential conditions ofjudicial independence under paragraph 11(

d) that must be applied, not some legislative or constitutional formula that may offer or ensurethat guarantee. Paragraph 11(

d) must not be interpreted or applied as conferring on provincial court judges the same constitutionalguarantees of security of tenure, salary and pension as superior court judges, because such an

interpretation would effectively amend theconstitutional provisions relating to the judiciary (see also 1997 Reference at paras. 105–109). [52] As the highest court in fact noted in Valente at page 692: These efforts, particularly by the legal profession and the judiciary, to strengthen the conditions of judicial independence in Canada maybe expected to continue as a movement towards the ideal.

It would not be feasible, however, to apply the most rigorous and elaborateconditions of judicial independence to the constitutional requirement of independence in s. 11d) of the Charter, which may have to beapplied to a variety of tribunals. See also: R. v. Lippé, (SCC), [1991] 2 S.C.R. 114 at 142. [53] In short, the standard of judicial independence does not require uniformity but must instead reflect what is common to thevarious conceptions of the essential conditions of judicial independence in Canada. It follows, then, that there is no single model for the

salaries and other benefits of Canadian judges or the periodic review process. [ 54 ] Thus, eligibility criteria and mandatory retirement ages vary, and so do the methods for calculating the pension and the conditions for obtaining it. [ 55 ] Furthermore, over time, differences have appeared in the salaries of judges, both federally and provincially appointed, that reflect their hierarchical position in the Canadian judiciary as a whole. [ 56 ] For example, the Judges Act provides that judges of the Supreme Court of Canada, who are members of the highest appellate court of the country, have the highest salary of all federally appointed judges.

Similarly, this statute grants judges in temporary positions of authority a different salary from those of the other members of the same court. [ 57 ] As for provincially appointed judges, the Quebec model now recognizes a hierarchy in salaries based on the scope of jurisdiction of each category of judge. Thus, Court of Quebec judges are paid more than municipal court judges, who in turn have a higher salary than presiding justices of the peace.

Similarly, the CRJ now proposes that Court of Quebec judges receive remuneration that takes into account the fact that Superior Court judges exercise a superintending and reforming power over them. [ 58 ] Even within the provincial courts, there are pay differentials favouring persons who occupy temporary positions of authority ( sections 115 and 117 CJA ). [ 59 ] In addition, the possibility of movement within the judiciary may result in a red circle rate for judges.

Thus, the Judges Act provides that a judge in a position of authority who becomes a puisne or supernumerary judge retains his or her salary until the other judges reach the same level ( Judges Act , paragraph 9( a ) [Supreme Court], paragraphs 10(

a) and ( c ) [Federal Court and Federal Court of Appeal] and paragraphs 13(

a) and ( c ) [Court of Appeal of Quebec and Superior Court]), thus establishing a de facto red circle rate for some judges. [ 60 ] The same is true with regard to provincially appointed judges. For instance,

section 116 of the CJA provides that a judge of the Court of Quebec who held the office of chief judge, senior associate chief judge, associate chief judge, president of the Human Rights Tribunal (an administrative tribunal) or chair of the Professions Tribunal (another administrative tribunal) for at least seven years is entitled, until his salary as a judge is equal to the amount of salary and additional remuneration he was paid before he ceased to hold such office, to receive the difference between the latter amount and his salary.

This may also occur if the judge is appointed to the Municipal Court of Montreal, Laval or Quebec. [ 61 ] The case law has also recognized the validity of certain amendments that resulted in two levels of remuneration for judges of the same court based on their date of appointment, as in Beauregard . In that case, the Judges Act had changed the terms for becoming entitled to pension benefits for judges.

Section 29.1 of the amended act provided that judges appointed before February 17, 1975, would contribute one and one-half per cent of their salary toward the cost of pensions, while those appointed after February 16, 1975, would contribute six and one-half per cent prior to January 1, 1977, and seven per cent thereafter. On December 20, 1975, before this provision was enacted, superior court judges were not required to contribute to their pension plans. Beauregard J. challenged the provision, being of the view that it created an unjustified distinction between the judges of the same court.

The Supreme Court dismissed the challenge, finding that the amendments to the Judges Act did not create unjustified discrimination or infringe the independence of the judges. [ 62 ] Likewise, the CJA provides for the existence of two pension plans for Court of Quebec judges depending on their date of appointment, with the possibility for those in the first group to opt for the second group's plan (section 224.1). [ 63 ] The Judges Act also provides that provincial Superior Court judges may acquire the right to full retirement only once they reach the age of 60 and meet the "80 rule" (total of combined age and number of years in judicial office), while the mere fact of having served 10 years on the Supreme Court is sufficient for full retirement (paragraphs 42(1)(

a) and ( e )). [ 64 ] The Constitution does not require the establishment of insurance or retirement plans controlled by the judges or for their benefit alone.

Therefore, federally appointed judges participate in the federal public service management personnel dental and health care plans. [ 65 ] In reality, what is required is that the pension plans take into account the specific characteristics of judicial office, in particular by ensuring the financial security of judges, sheltered from arbitrary interference from the government or any other source ( Valente at 704). [ 66 ] Similarly, regarding salary adjustments to account for inflation, the Canadian system reveals significant variations.

While an automatic annual salary adjustment is provided for federally appointed judges (subsection 25(2) Judges Act ), the same is not necessarily true for provincially appointed judges.

For example, in Quebec, there is no automatic indexation, but rather an adjustment every three years for inflation, among other things (section 246.2, paragraph 1, subsection (4) CJA ). [ 67 ] In reality, the lack of an automatic adjustment clause in the relevant statute is not unconstitutional, unless its effect over time is to result in remuneration that falls below the minimum threshold required to guarantee independence, as stated in the 1997 Reference at paragraphs 135 and 174. [ 68 ] Finally, the case law recognizes the need for a flexible mechanism for reviewing the remuneration of judges ( 1997 Reference at para. 167).

In the 1997 Reference , the Supreme Court suggests a review every three to five years (para. 147). In reality, the formulas in place across Canada vary significantly: there is a review every four years for federally appointed judges, but every three years for provincially appointed judges in Quebec.

As for independent committee reports, they are binding in certain jurisdictions (in Ontario, for example, with regard to salary and benefits, except for the pension plan) or represent recommendations for the legislature concerned or the government. [ 69 ] In short, the constitutional guarantees are minimal and do not create a single model for remuneration or other benefits or for the review thereof. Whatever model is accepted, however, must take into account the specific situation of the judges and protect their

independence and impartiality. III. Application of these Principles [ 70 ] In the present case, it is not contested that the amendments brought by the Act to the CJA reflect a considered, good faith decision by the legislature to promote the independence of important actors in the judicial system and thus bolster public confidence in the administration of justice in Quebec. [ 71 ] These amendments, which the judgment of this Court in Pomerleau made necessary, represent as significant a structural reform as that carried out in Alberta and upheld in Ell ( Ell at para. 49 ).

The parties do not agree on the appropriate legal characterization of this reform. In the view of the appellants, it amounts to the abolition of the office of JPLP and the amendment of the title of JPEP. In the view of the government, it is the creation of the new offices of PJP and administrative justice of the peace to replace two of the existing categories of justices of the peace, JPEPs and JPLPs. [ 72 ] The trial judge accepted the second theory, a choice the appellants characterize as an error of mixed fact and law.

With respect, I am of the view that they have not demonstrated this to be the case. [ 73 ] First, it is clear from the evidence that under the reform, approximately thirty PJPs, who hold this office exclusively, who have the same powers, who are integrated in the Court of Quebec, and who are governed by uniform rules of selection, remuneration and termination, are conferred powers and functions until then exercised by 600 JPLPs (provincial and municipal) and six JPEPs, who were subject to various working conditions. [ 74 ] Second, other than the fact that the office of administrative justice of the peace is not comparable to that of the JPLP because its powers are much more restricted, the fact remains that the office of PJP is not equivalent to that of the JPEP: the powers are modified, the selection criteria are set out in the CJA , PJPs are appointed by the Executive Council and not the Minister of Justice, tenure is now secure until the age of 70, there is periodic review of remuneration and other benefits adapted to the office of PJP, PJPs participate in a new pension plan, and they are integrated into the Court of Quebec and thus become subject to the authority of the Chief Judge of the Court of Quebec, in connection with assignments and other modalities related to the discharge of their office. [ 75 ] Finally, it is clear from a reading of the Act that JPEPs do not continue to hold the same office that has been modified but are in fact appointed to a new office, for which they are deemed to possess the required qualifications: 26.

Les juges de paix nommés avant le 30 juin 2004 conformément à l’

article 158 de la

Loi sur les tribunaux judiciaires (L.R.Q.,

chapitre T-16), auxquels l’article 162 de cette loi était rendu applicable par leur acte de nomination et qui sont en fonction à cette date, deviennent juges de paix magistrats. Ils sont réputés avoir été nommés durant bonne conduite suivant les dispositions de la

section II de la

partie III.1 de la

Loi sur les tribunaux judiciaires telle que modifiée par la présente loi et, aux fins de l’application de l’article 161 de cette loi, avoir établi leur résidence au lieu dans lequel ils résidaient le 30 juin 2004. Parmi ces personnes, celles qui étaient en congé sans solde de la fonction publique sont, à compter de l’entrée en vigueur du présent article, réputés avoir remis à cette date leur démission de leur poste de fonctionnaires. 26. Justices of the peace appointed before 30 June 2004 in accordance with

section 158 of the Courts of Justice Act (R.S.Q.,

chapter T-16), to whom

section 162 of that Act was made applicable by their deed of appointment and who are in office on that date become presiding justices of the peace. They are deemed to have been appointed to hold office during good behaviour in accordance with Division II of

Part III.1 of the Courts of Justice Act, as amended by this Act, and, for the purposes of

section 161 of that Act, to have established their residence in the place where they were residing on 30 June 2004. Justices of the peace referred to in the first paragraph who were on leave without pay from the public service are, from the date of coming into force of this section, deemed to have resigned from their public service position. [ 76 ] The need to take a new oath, as prescribed in

section 35 of the Act , is a logical consequence of holding a new office. [ 77 ] The same is true with regard to former JPLPs who do not continue in an office with reduced responsibilities but are appointed to a new function and must take oath again ( sections 29 and 35 of the Act ). [ 78 ] Moreover, parliamentary debates confirm that the legislature intended to create a new regime comprising two new offices, PJPs and administrative justices of the peace. [9] [ 79 ] The appellants nevertheless argue that the working conditions of the six former JPEPs could not be modified by the Act without a prior review by an independent committee (mandatory duty of the legislature), that the government could not enact Order 689-2004 determining the starting salaries of PJPs without obtaining a prior recommendation from an independent committee (mandatory duty of the government), and that the participation of the PJPs in the management personnel pension plan, as required by the CJA , is unconstitutional. [ 80 ] For the following reasons, I am of the view that each of these grounds should be dismissed. (

i) Determination of the Starting Salary for PJPs [ 81 ] Sections 30 and 32 of the Act state the following: 30. Le gouvernement fixe, par décret, le traitement et les conditions de travail des juges de paix magistrats nommés à compter du 30 juin 2004, y compris leurs avantages sociaux autres que le régime de retraite. Ce décret demeure applicable jusqu’à l’adoption du premier décret pris en application de l’

article 175 de la

Loi sur les tribunaux judiciaires (L.R.Q.,

chapitre T-16) édicté par l’article 1 de la présente loi. 30. The Government determines, by order, the salary and employment conditions of presiding justices of the peace appointed on or after 30 June 2004, including their employment benefits other than the pension plan. The order remains applicable until the first order is made under

section 175 of the Courts of Justice Act (R.S.Q.,

chapter T-16) enacted by

section 1 .

Malgré les articles 2 à 8 de la présente loi, le Comité de la rémunération des juges n’exerce ses attributions eu égard aux juges de paix magistrats qu’à compter du moment où il sera procédé à la nomination des membres du comité qui sera formé en 2007 à l’égard des juges de la Cour du Québec et des cours municipales. 32.

Despite sections 2 to 8, the committee on the remuneration of judges will not exercise its functions with regard to presiding justices of the peace until a committee is formed in 2007 with respect to judges of the Court of Québec and municipal courts. [ 82 ] Pursuant to the Act , Order 689-2004, dated June 30, 2004, determines the starting salary of PJPs without the involvement of an independent committee. [ 83 ] In actual fact, this order affected no one until May 5, 2005, the date that 27 new PJPs were appointed.

None of these PJPs, either individually or through their association, brought any objection before the Superior Court about the fact that Order 689-2004 had determined their remuneration without being first put through the institutional sieve of an independent committee.

Instead, they chose to wait for the first CRJ with a panel relating to the PJPs in 2007 (the Johnson Committee) to ask for a substantial salary increase (47%) to bring it up to [ translation ] "at least $200,000" as of July 1, 2007. [ 84 ] It was not until November of 2008, following the rejection of their request by the Johnson Committee and the enactment of an order implementing its recommendations, including a yearly salary increase of nearly $16,000, that the PJPs and their Conférence decided to bring the case to court.

Although I do not decide whether this constitutional challenge should have been dismissed because it was tardy or because the different levels of remuneration ordered in June of 2004 were accepted, I am of the view that it cannot stand on the merits. [ 85 ] Like the trial judge, in this case, I believe that the government was not obliged to obtain a recommendation from a CRJ on the remuneration of the holders of the new office of PJP before adopting Order 689-2004, even though such a recommendation might have been beneficial.

This situation did not involve a modification of the judge's working conditions by increasing, reducing, or freezing their salaries, the three situations the Supreme Court of Canada lists as requiring a review by an independent committee in order to protect litigants from attempts by the government to financially manipulate judges. [ 86 ] Moreover, if an independent committee had been consulted and the government had rejected the starting salary it suggested, who could have brought a legal challenge? Potential candidates for the office? The six former JPEPs, who were not subject to the order?

A member of the public? The Barreau? [ 87 ] Furthermore, without a Conférence of PJPs and holders of the office receiving remuneration at the level determined in the order, it would have been difficult for the Cimon Committee, formed in March of 2004, to adequately participate in the analysis of the factors in

section 246.24 CJA . The process outlined in

part VI.4 of the Act could not really be applied to the office of the newly created PJPs. [ 88 ] That said, the fact that the intervention of an independent committee was not necessary does not mean that the government could determine any starting salary they wanted. On the contrary, the government needed to fix a level of remuneration that ensured public confidence in the new judicial authority.

Thus, remuneration to be adjusted on the basis of the fines imposed or collected would not have passed constitutional muster. [ 89 ] In this case, a constitutional challenge could succeed only if the PJPs demonstrated that their starting salary did not meet the basic minimum required to maintain public confidence in their office. [ 90 ] In other words, would a reasonable and well-informed person conclude in this case that the remuneration determined by Order 689-2004 indicated an attempt to manipulate the PJPs or that it was too low to guarantee the independence of the holders of this new office? [ 91 ] In light of the evidence, this question can only be answered in the negative. [ 92 ] To begin, the first CRJ, the Johnson Committee, found that the starting salary of PJPs had been set at an adequate level and recommended that the government raise it by only approximately $16,000 as of July 1, 2007, bringing it to $110,000, which was much less than the salary at the time of the former JPEPs appointed as PJPs and the $200,000 sought by the PJPs.

Since it was not demonstrated at trial that the Johnson Committee's recommendations or the government's decision to abide by them was unreasonable, they must be considered in the analysis of the constitutional sufficiency of the starting salary fixed by Order 689-2004. [ 93 ] Then, during arguments at trial, the appellants admitted that their remuneration was not below the required minimum to ensure their independence. [10]

[94] I add that even if a prior recommendation by an independent committee had been constitutionally required in 2004, a submissionthat I have rejected for the reasons stated above, I would not have been inclined to award the remedy sought, since there is nothing toindicate that there was any attempt at financial manipulation or that the original remuneration fixed in Order 689-2004 was below theconstitutionally acceptable threshold.

It seems to me that making the institutional sieve stage into a sine qua non inevitably resulting inthe invalidation of sections 30 and 32 of the Act or of Order 689-2004 (which has not been sought) would allow form to prevail oversubstance. Judicial independence is fundamental and must be protected to guarantee the right of litigants to impartial judgments, which isnot brought into question here, rather than to advance the economic interests of holders of judicial office. [95] Finally, in this case, there was nothing unlawful in the existence of two salary levels for PJPs until 2013.

The creation of a redcircle rate for judges is not unusual and I see nothing in the Constitution, including the Charter of Rights and Freedoms, that requiresequal pay for all judges occupying the same office in all circumstances.

Here, as in Beauregard, the legislature distinguishes on the basisof date of appointment, temporarily granting former JPEPs remuneration greater than what is appropriate for the office of PJP accordingto all the CRJs who have discussed the issue. [96] In conclusion, the appellants have not demonstrated that the PJPs’ starting salary as determined by Order 689-2004 did not meetthe constitutionally required minimum to guarantee the financial independence of the PJPs (quite the contrary, as they have in factadmitted the opposite) or that there was an attempt by the government to financially manipulate the PJPs. (ii) Determination of the Working Conditions of the Former JPEPs: [97] The appellants are right to argue that making security of tenure a characteristic of the office of JPEP was probably inevitableonce that office is defined as one that requires judicial independence and therefore the three objective guarantees thereof, one of which issecurity of tenure. [98] That said, the right to security of tenure does not guarantee the permanence of the office or prevent the legislature fromabolishing it as part of a reform in the public interest (Ell; see also City of Westmount et al. v.

Attorney General of Quebec, (QC CA), [2001] R.J.Q. 2520 (C.A.) at paras. 233–247, leave to appeal and application for a stay denied by the Supreme Court,2001-12-07. No. 28869). [99] In short, the essence of security of tenure, whether until the age of retirement, for a fixed term, or in an ad hoc office, is that theoffice is sheltered from any discretionary or arbitrary intervention from the executive or the authority responsible for the appointments(Valente at 698).

In this case, the Act sought to remedy an unconstitutional scheme, not to revoke judicial office from its holders. [100] As indicated above, the Act abolished the office of JPEP and appointed the six holders of this office as PJPs (section 26) becausethey seemed to possess the qualities required by the new system, which did not compromise the objectives of the legislative reform,unlike the situation in Ell. The legislature then circumscribed the working conditions of the new PJPs as follows: 27.

Les personnes devenues juges de paixmagistrats par l’effet de l’article 26conservent le traitement qu’elles recevaientavant l’entrée en vigueur de l’article 26,jusqu’à ce que ce traitement soit égal à celuiqui sera établi par le gouvernement enapplication de l’article 175 de la

Loi sur lestribunaux judiciaires (L.R.Q.,

chapitre T-16). Elles conservent également les conditions detravail, y compris les avantages sociaux et lerégime de retraite, qui leur étaient jusque-làapplicables. Elles peuvent toutefois, dans lessix mois suivant l’entrée en vigueur del’article 26, opter de participer au régime deretraite établi par la

Loi sur le régime deretraite du personnel d’encadrement (L.R.Q.,chapitre R-12.1) en transmettant un avis à ceteffet à la Commission administrative desrégimes de retraite et d’assurances constituéeen vertu de la

Loi sur le régime de retraitedes employés du gouvernement et desorganismes publics (L.R.Q.,

chapitre R-10).Dans ce cas, et si elles participaient aurégime de retraite établi par la

Loi sur lerégime de retraite des fonctionnaires(L.R.Q.,

chapitre R-12), l’article 42 et lepremier alinéa de l’article 139 de la

Loi surle régime de retraite du personneld’encadrement s’appliquent, compte tenu desadaptations nécessaires. 27. Persons who became presiding justices ofthe peace by virtue of

section 26 retain thesalary they were receiving before the cominginto force of

section 26, until that salary isequal to the salary to be determined by theGovernment pursuant to

section 175 of theCourts of Justice Act. They also retain the employment conditions,including the employment benefits and thepension plan, formerly applicable to them.However, during the six months followingthe coming into force of

section 26, they mayelect to become members of the pension planestablished under the Act respecting thePension Plan of Management Personnel(R.S.Q.,

chapter R-12.1) by sending a noticeto that effect to the Commissionadministrative des régimes de retraite etd’assurances established under the Actrespecting the Government and PublicEmployees Retirement Plan (R.S.Q., chapterR-10). In that case, and if they were formerlymembers of the pension plan establishedunder the Act respecting the Civil ServiceSuperannuation Plan (R.S.Q.,

chapter R-12),section 42 and the first paragraph of section139 of the Act respecting the Pension Plan ofManagement Personnel apply, with thenecessary modifications. [101] This led to three series of consequences for these six people.

[ 102 ] Some are clearly positive: the granting of the status of PJP without having to go through a selection committee; the option of participating in the management personnel pension plan, which must have been considered more advantageous than the plan for government and public body employees because the option was exercised by those to whom it was given; a connection to the Court of Quebec, a strong and well-established institution; and the right to benefit retroactively to July 1, 2001, 2002 and 2003 from adjustments potentially to be vested in judges of the Court of Quebec upon settlement of the legal actions and eventually resulting in a 37% salary increase received in June of 2004 upon appointment of the office of PJP, not to mention the cheque for retroactive salary. [ 103 ] Another consequence actually proved to be neutral, namely, the fact that PJPs were not assigned the power to preside over bail hearings or hear

summary prosecutions for offences under

Part XXVII of the Criminal Code . In this respect, the parties agree that the coming into force of the Act changed nothing in the daily reality of former JPEPs appointed as PJPs. [ 104 ] There was one consequence, however, that appears negative for the former JPEPs. Under the new regime, they have lost the benefit of a yearly salary adjustment modelled on the one the government grants judges of the Court of Quebec. This is not a salary reduction, but a loss of a benefit set out in their deed of appointment under the former system, and one that was inevitable given the reasonableness of the red circle rate for certain judges established by

section 27 of the Act , as the Johnson, D'Amours and Clair Committees all decided. [ 105 ] Together, the consequences created a whole that clearly pleased the six former JPEPs, who agreed to take the oath in July of 2004 and opted for the management personnel pension plan, without any protest whatsoever, but perhaps with the hope that they would receive a large raise after the conclusion of the dispute with the judges of the Court of Quebec and that they could convince the first CRJ with a panel relating to the PJPs in 2007 to recommend raises for them. [ 106 ] The failure of the six former JPEPs to challenge

section 27 of the Act when it was applied to them in June of 2004 on the grounds that it was not screened by an independent committee, combined with their choice to take oath and opt for the pension plan option in the Act and collect significant amounts in 2007, constitutes a fin de non-recevoir to their 2008 attempt to claim a higher salary as of 2004. [ 107 ] In addition, I am of the view that, in this case, a reasonable and well-informed person would find that these effects do not indicate any attempt on the part of the government to financially manipulate the PJPs who were formerly JPEPs.

On the contrary, such a person would find that overall, through the effect of the Act , they benefited from broader guarantees of independence and preserved a higher salary level than what two independent committees, namely the Johnson and D'Amours Committees, found was adequate for a PJP.

In other words, upon analysis, that person would find that the Act significantly reinforced the independence of the PJPs, including those that were formerly JPEPs, while minimizing the negative consequences of abolishing the office of the JPEPs. [ 108 ] Finally, even if a prior recommendation by an independent committee had been constitutionally required in 2004 – a proposition I reject since there was no modification of the working conditions of judges still in office but rather an abolition of the office JPEP that did not violate the right to security of tenure, followed by an appointment of the holders of that office to the new office of PJP – I would not have granted the remedy sought because there is nothing indicating any attempt on the part of the legislature to financially manipulate PJPs who used to be JPEPs.

As noted previously, making screening by a CRJ into a sine qua non condition inevitably resulting in the invalidity of

section 27 of the Act would be tantamount to allowing form to prevail over substance, which would not be to the benefit of litigants but solely in the economic interests of the holders of the office of JPEP on June 30, 2004. (iii) Pension Plan [ 109 ] The appellants challenge the validity of

section 178 CJA as amended by

section 1 of the Act : 178. Les juges de paix magistrats participent au régime de retraite établi par la

Loi sur le régime de retraite du personnel d'encadrement (chapitre R-12.1). Le présent

article s'applique sous réserve des dispositions de la

partie VI.4. 178. Presiding justices of the peace shall participate in the pension plan established by the Act respecting the Pension Plan of Management Personnel (chapter R-12.1). This

section applies subject to the provisions of

Part VI.4. [ 110 ] Basing themselves on their expert's demonstration that this plan is less advantageous and more costly than the plan of the judges of the Court of Quebec, the appellants argue that the participation of the PJPs in this plan – in some cases voluntarily – is constitutionally invalid because the plan is controlled by the government and designed to meet the needs of the 29,000 active civil servants responsible for public service management and the 25,000 beneficiaries, who are former civil servants. [ 111 ] As noted above, the Constitution does not require the implementation of pension plans intended solely for and controlled by judges, but merely that judges benefit from a pension plan that takes into account the specificities of their duties, particularly by ensuring that they have adequate financial security ( Valente at 708).

Nor does the Constitution require that there be a single pension plan for all the judges of the same court, as Beauregard makes clear. [ 112 ] Nevertheless, the principles regarding salary referred to above apply to the pension plan and the pensions ( 1997 Reference at para. 136 and Beauregard ).

Thus, the right to benefits must not be discretionary and must be sheltered from arbitrary interference by the executive or the legislature ( Valente at 704 and Beauregard at 74–75). [ 113 ] In this case, all the CRJs that heard the appellants’ grievances in this respect concluded either unanimously or in the majority that the management personnel pension plan was adequate for the situation of the PJPs. [11] It has not been demonstrated that these conclusions are unreasonable.

[ 114 ] These committees also found that the CJA required that any modification to the pension plan affecting the justices of the peace be subject to prior review by a CRJ (section 178, paragraph 2 and 246.29 CJA ). [ 115 ] In this context, a reasonable and well-informed person would not find that the constitutionally required minimum threshold was not met or that participation in this regime exposes the PJPs to attempts at financial manipulation by the government or another source. CONCLUSION [ 116 ] For these reasons, I would dismiss the appeal, without costs given the nature of the dispute. PIERRE J. DALPHOND, J.A.

SCHEDULE 1 CHRISTINE AUGER JACQUES BARBÈS RÉJEAN BÉDARD DOMINIQUE BENOÎT GEORGES BENOÎT MICHEL BOISSONNEAULT SUZANNE BOUSQUET SYLVIE DESMEULES JULIE DIONNE MARIE-CHANTAL DOUCET LOUIS DUGUAY GABY DUMAS NATHALIE DUPERRON ROY RÉNA ÉMOND PIERRE FORTIN LOUISE GALLANT MARIE-JOSÉE HÉNAULT FRANÇOIS KOURI JEAN-GEORGES LALIBERTÉ ROBERT LANCTÔT LUC MARCHILDON SYLVIE MARCOTTE NICOLE MARTIN DANIELLE MICHAUD GILLES MICHAUD LUCIE MORISSETTE MONIQUE PERRON JEAN-GILLES RACICOT GAÉTAN RATTÉ MARC RENAUD ROSAIRE VALLIÈRES PIERRE VERRETTE JOHANNE WHITE GILLES PIGEON LÉOPOLD GOULET YANNICK COUTURE

MARIE-CLAUDE BÉLANGER PATRICIA COMPAGNONE [7] Report of the Committee on the remuneration of judges, presided by Mr. Daniel Johnson (April 2008) at IV-18.