Monday, June 25, 2012

Judicial independence

Ontario Deputy Judges' Association v. Ontario (Attorney General), 2012 ONCA 437 is a helpful decision making clear that a judge serving at the pleasure of a chief justice is permissible while serving at the please of the executive is not:

[3]          This appeal involves the reappointment process for Deputy Judges.  Pursuant to s. 32(4) of the CJA, subject to an age restriction, a Regional Senior Judge has the authority to renew the appointment of a Deputy Judge for a term of three years.  The Attorney General is not involved in the decision to renew or not to renew an appointment. 

[4]          The appellant, the Ontario Deputy Judges' Association, argues that the reappointment process violates the principles of judicial independence because the process does not comply with the principle of security of tenure. 

[5]          The appellant does not argue that renewable fixed–term appointments are inconsistent with judicial independence, nor does it argue that the reappointment process has resulted in an actual loss of independence for Deputy Judges.  Rather, the appellant contends the reappointment process undermines the institutional independence of a Small Claims Court such that a reasonable person, fully informed of all the circumstances, would not consider the Small Claims Court to be independent.

[6]          We do not accept this argument.  In our view, the appellant's argument is answered by the Supreme Court of Canada's decision in R. v. Valente, [1985] 2 S.C.R. 673.  In that case, the post-retirement security of tenure of provincial judges was challenged.  At the time, Ontario provincial judges served until age 65 and then could be reappointed by the Executive to serve during pleasure.  The Supreme Court objected to the post-65 tenure of provincial judges because it was a tenure at the pleasure of the Executive.  However, the court spoke approvingly of proposed amendments to the CJA pursuant to which judges would be allowed to continue in office between the ages of 65 and 70 with the annual approval of the Chief Justice and thereafter until age 75 with the annual approval of the Ontario Judicial Council (essentially renewable 1-year fixed-term appointments).

[7]          Justice Ledain, writing for the court, held (at para. 39): 

This change in the law, while creating a post-retirement status that is by no means ideal from the point of view of security of tenure, may be said to have removed the principal objection to the provision which applied when Sharpe J. declined jurisdiction since it replaces the discretion of the Executive by the judgment and approval of senior judicial officers who may be reasonably perceived as likely to act exclusively out of consideration for the interests of the Court and the administration of justice generally.

[8]          We note that the proposed amendments upon which the Supreme Court commented did not include criteria to guide the decision of the Chief Justice for approving the year-to-year renewal of appointments of judges between the ages of 65 and 70, nor did it set out the process by which such approvals would be considered.

[9]          We see no basis upon which to distinguish Valente. 

[10]       We agree with the application judge that having regard to the nature of the jurisdiction of the Small Claims Court and the presumption that a Regional Senior Judge will act in the best interest of the administration of justice, that a reasonable and well informed observer would conclude that the Deputy Judges and the Ontario Small Claims Court are sufficiently independent so as to satisfy constitutional requirements.

[11]       We also endorse the application judge's comment as follows (at para. 62):

Without doubt, the [Small Claims Court] plays an important and unique role in the justice system.  It is absolutely essential that the [Small Claims Court] institutionally and the [Deputy Judges] personally, be regarded as independent.

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