A-797-81
Marc Beauregard, Puisne Judge of the Superior
Court for the District of Montreal in the Province
of Quebec (Plaintiff) (Respondent)
v.
The Queen in right of Canada (Defendant)
(Appellant)
Court of Appeal, Thurlow C.J., Pratte and Heald
JJ.—Ottawa, January 25, 26 and June 29, 1983.
Judges and courts — Amendment to Judges Act making
previously non-contributory annuities and retirement benefits
contributory — Whether Parliament bound by Constitution to
provide such benefits on non-contributory basis — Whether
Parliament having power to reduce fixed judicial salaries —
No constitutional authority for imposition on judges of con
tributory pension scheme — Amendment ultra vires — Parlia
ment's power to fix judicial salaries including power to reduce
— Trial Judge erred in holding Parliament without authority
to reduce salary and benefits of respondent's office at time of
appointment — Rights conferred by judge's commission under
Great Seal of Canada and Parliamentary authority under s.
100, 1867 Act not to be confused — Former can be taken away
only by due process of law — Due process including expro
priation — Power given by s. 100 not restricted to fixing
salaries of judges to be subsequently appointed — No law in
Canada equivalent to those in U.K. and U.S.A. prohibiting
reduction of judge's salary during continuance of commission
— Effect of impugned legislation not salary reduction but
imposition of contributory pension scheme — Judges Act,
R.S.C. 1970, c. J-1, s. 29.1 (as added by Statute Law (Super-
annuation) Amendment Act, 1975, S.C. 1974-75-76, c. 81, s.
100) — Supplementary Retirement Benefits Act, R.S.C. 1970
(1st Supp.), c. 43 (as am. by R.S.C. 1970 (2nd Supp.), c. 30
and by S.C. 1973-74, c. 36) — Constitution Act, 1867, 30 & 31
Vict., c. 3 (U.K.) [R.S.C. 1970, Appendix II, No. 5], as am. by
Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Consti
tution Act, 1982, Item 1, ss. 91(8),(27), 92(14), 96, 97, 98, 99
(rep. and sub. Constitution Act, 1960, 9 Eliz. II, c. 2 (U.K.)
[R.S.C. 1970, Appendix II, No. 361), 100, 101 — Canadian
Bill of Rights, R.S.C. 1970, Appendix III, s. 1(b) — The Act
of Settlement (1700), 12 & 13 Will. 3, c. 2 — An Act for
rendering more effectual the Provisions in [the Act of Settle
ment] relating to the Commissions and Salaries of Judges,
A.D. 1760, 1 Geo. III, c. 23, s. 3.
Constitutional law — Distribution of powers — Judicature
— Judicial salaries, allowances and pensions to be fixed and
provided by Parliament — "Provided" not meaning "secured"
— Parliament not having full legislative power re salaries —
But power not limited to fixing once and for all — Salaries
could be fixed at any amount — Parliament lacking power to
dictate how salaries to be used — Amendment to Judges Act
imposing compulsory contributory pension scheme ultra vires
— Judges Act, R.S.C. 1970, c. J-1, s. 29.1 (as added by
Statute Law (Superannuation) Amendment Act, 1975, S.C.
1974-75-76, c. 81, s. 100) — Supplementary Retirement Ben
efits Act, R.S.C. 1970 (1st Supp.), c. 43 (as am. by R.S.C. 1970
(2nd Supp.), c. 30 and by S.C. 1973-74, c. 36) — Constitution
Act, 1867, 30 & 31 Viet., c. 3 (U.K.) [R.S.C. 1970, Appendix
II, No. 51, as am. by Canada Act 1982, 1982, c. 11 (U.K.),
Schedule to the Constitution Act, 1982, Item 1, ss. 91(8),(27),
92(14), 96, 97, 98, 99 (rep. and sub. Constitution Act, 1960, 9
Eliz. II, c. 2 (U.K.) [R.S.C. 1970, Appendix II, No. 36]), 100,
101 — Canadian Bill of Rights, R.S.C. 1970, Appendix III, s.
1(b) — The Act of Settlement (1700), 12 & 13 Will. 3, c. 2
An Act for rendering more effectual the Provisions in [the Act
of Settlement] relating to the Commissions and Salaries of
Judges, A.D. 1760, 1 Geo. III, c. 23, s. 3.
Shortly after the respondent was appointed puisne judge of
the Superior Court of Quebec, the Judges Act was amended by
the addition of section 29.1. This provision forced the judges,
by reservation on their salaries, to contribute towards the cost
of annuities for judges' widows and children as well as towards
the retirement annuities and supplementary benefits of the
judges themselves, all of which had previously been non-con
tributory. The effect of this amendment was to bring about a
7% reduction of salary for the respondent and other newly-
appointed judges and a 1 1 / 2 % reduction for the judges appointed
before the coming into effect of the amendment.
The first question is whether Parliament is bound by the
Constitution to provide non-contributory retirement annuities
to judges. The second is whether Parliament has the power to
diminish, reduce or impair the fixed and established salary and
other benefits of the respondent. The third is whether subsec
tion 29.1(2) offends against paragraph 1(b) of the Canadian
Bill of Rights. The Trial Judge found that subsection 29.1(2)
was ultra vires in so far as the respondent was concerned.
Held (Pratte J. dissenting), the appeal should be dismissed.
Per Thurlow C.J.: The only authority section 100 of the
Constitution Act, 1867 gives Parliament is to "fix and provide"
the salaries, allowances and pensions of the judges referred to
therein; it does not give Parliament the authority to dictate how
they are to be used by the recipient or to require that they be
used for any particular purpose. In pith and substance, section
29.1 of the Judges Act imposes on those judges a contributory
pension scheme. This is not authorized by anything in section
100 and is accordingly ultra vires in so far as the judges
referred to therein are concerned. Therefore both subsections
(1) and (2) of section 29.1 are ultra vires and invalid.
It might be added that Parliament does have authority,
under section 100, to reduce judges' salaries. It is evident that
there is a continuing power to fix such salaries, and that this
includes the power to increase or decrease them.
Paragraph 1(b) of the Canadian Bill of Rights has not been
offended against: the amendment was enacted in the pursuit of
a valid federal objective and it was not unreasonable for
Parliament to have defined the class required to make contribu
tions by reference to the fact that they were appointed after the
date of the introduction of the bill.
Per Heald J.: The obligation set out in section 100 to provide
pensions imposes a duty on Parliament to provide the total
amount of those pensions. Since subsection 29.1(2) requires
judges to pay a portion of the cost of their own pensions, it is
contrary to section 100 and therefore ultra vires. Subsection
29.1(1) is not ultra vires because it deals with a different, albeit
related, matter.
In giving Parliament the power to "fix and provide" salaries
and other benefits of the judges, section 100 also implicitly
gives the power to adjust them upwards or downwards. The
opposing view is based essentially on a principle of fundamental
constitutional law itself derived from a political convention.
However, in Re Resolution to amend the Constitution, the
Supreme Court of Canada has expressly rejected the proposi
tion that a political convention may crystallize into law. Judges'
salaries are not constitutionally guaranteed along with tenure
(section 99). Furthermore no constitutional amendment is
required to change or alter matters which are clearly within the
powers given to Parliament by section 100.
The argument based upon paragraph 1 (b) of the Canadian
Bill of Rights is rejected for the reasons given by Thurlow C.J.
Per Pratte J. (dissenting): Section 29.1 does not affect the
judges' right to a pension but rather their right to their salaries.
The real question therefore is whether Parliament has the
power to reduce the salaries of judges.
The words "fixed and provided" in section 100 do not mean
that the salaries of judges cannot be reduced. All that section
100 does is to give Parliament the authority and to impose on it
the duty to determine and pay those salaries, which includes the
power to change them. And the guarantee of tenure in section
99 is not a guarantee that the salary of a judge will never
change.
There is no legal constitutional principle denying Parliament
the power to reduce the salaries of judges. Neither the British
statutes nor British parliamentary practice purporting to negate
that right could limit the power of the British Parliament in
this regard. Nor could they, a fortiori, limit the power of the
Canadian Parliament in this same regard.
The argument based on paragraph 1(b) of the Canadian Bill
of Rights is without merit. "Equality before the law" simply
means "equal subjection of all classes to the ordinary law of the
land as administered by the ordinary courts". It is clear that
subsection 29.1(2) does not offend against that kind of equality.
CASES JUDICIALLY CONSIDERED
APPLIED:
O. Martineau and Sons, Limited v. City of Montreal et
al., [ 1932] A.C. 113 (P.C.); Toronto Corporation v. York
Corporation, [1938] A.C. 415 (P.C.); Attorney General
of Canada v. Lavell, [1974] S.C.R. 1349; Re Resolution
to amend the Constitution, [1981] 1 S.C.R. 753.
DISTINGUISHED:
Re The Constitutional Questions Act; Re The Income
Tax Act, 1932, [1936] 4 D.L.R. 134 (Sask. C.A.),
affirmed sub nom. Judges v. Attorney-General of Sas-
katchewan, [1937] 2 D.L.R. 209 (P.C.); Abbott v. The
City St. John (1908), 40 S.C.R. 597.
REFERRED TO:
MacKay v. The Queen, [1980] 2 S.C.R. 370; The Queen
v. Burnshine, [1975] 1 S.C.R. 693; Curr v. The Queen,
[1972] S.C.R. 889; Prata v. Minister of Manpower and
Immigration, [1976] 1 S.C.R. 376; Bliss v. Attorney
General (Can.), [1979] 1 S.C.R. 183.
COUNSEL:
David W. Scott, Q.C. for plaintiff (respond-
ent).
W. I. C. Binnie, Q.C. and D. M. Low for
defendant (appellant).
SOLICITORS:
Scott & Aylen, Ottawa, for plaintiff (respond-
ent).
Deputy Attorney General of Canada for
defendant (appellant).
The following are the reasons for judgment
rendered in English by
THURLOW C.J.: This is an appeal from a judg
ment of the Trial Division [[1981] 2 F.C. 543]
which declared that subsection (2) of section 29.1
of the Judges Act [R.S.C. 1970, c. J-1] as amend
ed by section 100 of the Statute Law (Superannu-
ation) Amendment Act, 1975, S.C. 1974-75-76, c.
81, is, in so far as the respondent is concerned,
ultra vires the Parliament of Canada. The relief
claimed by the respondent had included a declara
tion that the words "before the 17th day of Febru-
ary, 1975" in subsection 29.1(1) of the Judges Act
as enacted by chapter 81 were also ultra vires but
the judgment did not deal with that subsection.
Section 29.1, which appears among the provi
sions of the Judges Act dealing with Annuities,
and for the first time required the payment by
judges of contributions for retiring annuities for
themselves, annuities for their widows and children
and benefits under the Supplementary Retirement
Benefits Act [R.S.C. 1970 (1st Supp.), c. 43],
came into effect on December 20, 1975, upon
Royal Assent to the Statute Law (Superannua-
tion) Amendment Act, 1975. It provides:
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,
(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.
The bill which included these provisions had
been introduced in the House of Commons on
February 17, 1975. At that time there was before
Parliament a measure, introduced on December
19, 1974, which provided for increases in the
salaries of judges and for additional benefits for
widows and children of deceased judges. That
measure received Royal Assent on July 4, 1975
[SI/75-831.
The respondent was appointed a judge of the
Superior Court for the District of Montreal on
July 14, 1975, that is to say, after the Act increas
ing judges' salaries and benefits for widows and
children came into effect and before the Act
requiring contributions towards such annuities and
benefits was enacted. His commission constituted
and appointed him a judge of the Court with all
the powers, rights, authorities, prerogatives, ben
efits, emoluments and advantages appertaining by
right or by law to the said functions during his
good behaviour. When he accepted the appoint
ment, the respondent was not aware of the bill that
was before Parliament which would require contri
butions. Judges who were in office when the bill to
increase salaries was introduced had been advised
by the Minister of Justice that:
However, these improvements were achieved in the context
of a comprehensive review of federal policies in relation to
pensions which has just recently been concluded. As a result, it
may become necessary at some future time to ask judges now in
office to make a modest contribution towards the cost of the
improved pensions for widows, and to ask persons who are in
the future appointed to judicial office to contribute in some
measure to pension benefit costs.
The measure requiring these contributions was
the Statute Law (Superannuation) Amendment
Act, 1975, which as mentioned was introduced on
February 17, 1975 and came into effect on Decem-
ber 20, 1975. Under it the respondent, who, from
the time of his appointment had received his salary
without deductions for such contribution for
annuities, was required to pay contributions which
amounted in 1976 to $3,445, in 1977 to $3,815
and in 1978 to $3,955.
Both in the Trial Division and on the appeal the
position taken by the respondent was that subsec
tion 29.1(2) is ultra vires because Parliament does
not have authority under the Constitution Act,
1867 [30 & 31 Vict., c. 3 (U.K.) [R.S.C. 1970,
Appendix II, No. 5], as am. by Canada Act 1982,
1982, c. 11 (U.K.), Schedule to the Constitution
Act, 1982, Item 1] or under the customary law of
the constitution to render contributory the retire
ment annuities and supplementary retirement ben
efits (as opposed to the annuities for the widows
and children) which superior court judges enjoyed
on December 20, 1975.
Alternatively, the respondent's position was that
the words "before the 17th day of February, 1975"
in subsection 29.1(1) and all of subsection 29.1(2)
are ultra vires so far as the respondent is con
cerned because Parliament did not have authority
to reduce or impair the fixed and established ben
efits conferred on the respondent by his commis
sion.
Alternatively, the respondent asserted that the
words "before the 17th day of February, 1975" in
subsection 29.1(1) and the whole of subsection
29.1(2) are inoperative and invalid in so far as
they affect the respondent in that they are dis
criminatory and offend paragraph 1(b) of the
Canadian Bill of Rights [R.S.C. 1970, Appendix
III] by depriving the respondent of his right to
equality before the law.
The argument on the last-mentioned point, as I
understood it, was that inequality before the law
was created by the enactment because under it the
respondent no longer enjoyed his right to salary
without deductions for contributions to the same
extent as other judges who held office before
December 20, 1975. Reliance was placed on the
reasoning of McIntyre J., in MacKay v. The
Queen' and it was said that there was no valid
federal objective to be attained by discriminating
on December 20, 1975 between judges appointed
on or before and those appointed after February
16, 1975, and that to do so was arbitrary, capri
cious and unnecessary.
The respondent's submission on this point was
rejected by the learned Trial Judge and it is the
subject-matter of a cross-appeal for a declaration
that the provisions, if not ultra vires, are
inoperative.
The submission is thus based on the assumption
that the legislation is within the legislative powers
of Parliament. On that basis it seems to me that it
cannot be said that Parliament, in requiring judges
to participate in and contribute to a contributory
pensions scheme, was not seeking to achieve a
valid federal objective. Moreover, the distinction
made in the statute between judges appointed
before a fixed date, for whom non-contributory
pension provisions were already in existence, and
judges to be appointed after that date so as ulti
mately, by the attrition of senior appointees
through deaths and resignations, the whole body of
the judiciary would be participants in and con
tributors to the contributory pension scheme seems
to me to be but a manner of achieving the other
wise valid federal objective. Difficulty arises from
the fact that the particular date chosen was earlier
than the date of the coming into force of the Act
but, harsh as the result may seem to be to one who
did not know, as opposed to one who did know
' [1980] 2 S.C.R. 370, at page 406.
when appointed, that a contributory scheme to be
applicable to all judges appointed after the date of
the introduction of the bill was to be imposed, I do
not think it can on that account be said that it has
been established, in the sense referred to by Rit-
chie J., in the same case, 2 that the provisions of the
bill, including the choice of the date, were not
enacted for the purpose of achieving the valid
federal objective or that it was arbitrary or capri
cious or unnecessary for Parliament to have
defined the class required to make contributions by
reference to their being appointed after the date of
the introduction of the bill. Accordingly, I would
reject the contention and dismiss the cross-appeal.
In the circumstances, as the appellant has not
asked for costs, I would not award any.
The learned Trial Judge did not express a con
clusion on the respondent's first position but
founded his judgment on the alternative submis
sion, that is to say, that Parliament did not have
authority to reduce the salary and benefits estab
lished for judges of the Superior Court at the time
of the respondent's appointment to the office. Both
points, as it appears to me, turn on the provisions
of the Constitution Act, 1867, as amended by the
Constitution Act, 1960 [9 Eliz. II, c. 2 (U.K.)
[R.S.C. 1970, Appendix II, No. 36]], the latter
being the amendment which required judges to
retire on reaching seventy-five years of age.
It appears to me that the scheme of the 1867
Act and the fact that it is a constitutional enact
ment must be borne in mind in considering the
points raised. The Act recited the expressed desire
of the three provinces of Canada, Nova Scotia and
New Brunswick to be "federally united into One
Dominion ... with a Constitution similar in Prin
ciple to that of the United Kingdom". It went on
to provide, in separate parts of the Act, for the
Union itself, for the executive power, for the con
stitution of the Parliament of Canada, for the
constitutions of the legislatures of the provinces
and, in sections 91 and 92, for the division of
legislative powers between the Parliament of
Canada and the legislatures of the provinces. By
section 92 the legislatures of the provinces were
given exclusive authority to make laws in relation
2 MacKay v. The Queen, [1980] 2 S.C.R. 370, at page 393,
citing The Queen v. Burnshine, [1975] 1 S.C.R. 693.
to matters coming within the class of subjects
which include:
92....
14. The Administration of Justice in the Province, including
the Constitution, Maintenance, and Organization of Provin
cial Courts, both of Civil and of Criminal Jurisdiction, and
including Procedure in Civil Matters in those Courts.
The seventh Part of the statute is entitled
"JUDICATURE" and contained the following
provisions:
96. The Governor General shall appoint the Judges of the
Superior, District, and County Courts in each Province, except
those of the Courts of Probate in Nova Scotia and New
Brunswick.
97. Until the Laws relative to Property and Civil Rights in
Ontario, Nova Scotia, and New Brunswick, and the Procedure
of the Courts in those Provinces, are made uniform, the Judges
of the Courts of those Provinces appointed by the Governor
General shall be selected from the respective Bars of those
Provinces.
98. The Judges of the Courts of Quebec shall be selected
from the Bar of that Province.
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.
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.
101. The Parliament of Canada may, notwithstanding any
thing in this Act, from Time to Time provide for the Constitu
tion, Maintenance, and Organization of a General Court of
Appeal for Canada, and for the Establishment of any addition
al Courts for the better Administration of the Laws of Canada.
Section 99 was repealed by the 1960 Act and
replaced by the following:
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.
I do not propose to discuss the historical back
ground of these provisions either in relation to the
constitutional situation in the United Kingdom or
that in this country with respect to the judiciary
when the Constitution Act, 1867 was passed. Their
general purpose and effect sufficiently appear
from the following excerpts from the judgments of
the Privy Council in O. Martineau and Sons,
Limited v. City of Montreal et al. 3 and Toronto
Corporation v. York Corporation, 4 and from an
article by Professor W. R. Lederman published in
The Canadian Bar Review in 1956 [Vol. 34, pages
769 and 1139].
In the Martineau case Lord Blanesburgh said:
The case made by the appellant company is that in the statutes
to which reference will be made in a moment, the legislature of
Quebec has trespassed upon the power given to the Governor-
General in the matter of the appointment of judges by s. 96 of
the British North America Act, 1867. A very serious question
is thereby raised, for it cannot be doubted that the exclusive
power by that section conferred upon the Governor-General to
appoint the judges of the superior, district and county courts in
each Province is a cardinal provision of the statute. Supple
mented by s. 100, which lays upon the Parliament of Canada
the duty of fixing and providing the salaries, allowances and
pensions of these judges, and also by s. 99, which provides that
the judges of the Superior Courts shall hold office during good
behaviour, being removable only by the Governor-General on
address of the Senate and House of Commons, the section is
shown to lie at the root of the means adopted by the framers of
the statute to secure the impartiality and the independence of
the Provincial judiciary. A Court of construction would accord
ingly fail in its duty if it were to permit these provisions and the
principle therein enshrined to be impinged upon in any way by
Provincial legislation.
In the Toronto case, Lord Atkin said:
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
3 [1932] A.C. 113 (P.C.), at pages 120-121.
4 [1938] A.C. 415 (P.C.), at pages 425-426.
principal pillars in the temple of justice, and they are not to be
undermined.
In the course of his article, Professor Lederman
wrote [at pages 1158 and 1160]:
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". The existing courts in each province
were continued by section 129, subject to certain other provi
sions of the act that divided power and responsibility for the
judicature between provincial and federal authorities. Section
92(14) gave the provinces "exclusive" legislative power over
"The Administration of Justice in the Province, including the
Constitution, Maintenance, and Organization of Provincial
Courts, both of Civil and of Criminal Jurisdiction, and includ
ing Procedure in Civil Matters in those Courts".
Even were there no other evidence, a mere reading of sections
96 to 100 of the B.N.A. Act discloses the intention to reproduce
superior courts in the image of the English central royal courts.
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,
removal and security of salaries to the position of the judges of
the historic English superior courts after the Act of Settlement.
I am not persuaded that the words "fixed and
provided" in section 100, whether or not is was so
intended, have precisely the same meaning as the
words "ascertained and established" as used in
The Act of Settlement [(1700), 12 & 13 Will. 3,
c. 2]. The meaning of "fixed" may not differ much
from "ascertained" but I do 'not regard the word
"provided" as having in its context the same con
notation as "established" might have in the same
context. "Established" as it seems to me, connotes
"secured", a concept that I do not detect in
"provided".
It appears to me that there are at least two
facets to the meaning of section 100. The first is
that the judges' salaries are to be "fixed and
provided" in a sense similar to that of "ascertained
and established" so as to give to a person appoint
ed by the Governor General an assurance of a
salary as fixed by the Parliament of Canada and to
be provided by that body. The other is that, having
provided in section 96 for the appointment of
provincial superior, district and county court
judges by the Governor General, and in section 99
for the tenure of superior court judges during good
behaviour and that they are to be subject to re
moval by the Governor General on address of the
Senate and House of Commons, section 100
requires Parliament, rather than the executive
branch of government, to both fix the amounts and
provide the money to pay the salaries, pensions
and allowances of the judges to be so appointed.
The section thus also settles the question of where
the responsibility is to lie by imposing it on the
Parliament of Canada.
I do not agree with the submission made by
counsel for the appellant that the effect of section
100 is to confer on the Parliament of Canada full
and complete legislative power in relation to
judges' salaries, pensions and allowances. In my
opinion, and in particular having regard to the
legislative authority of provincial legislatures
under head 14 of section 92, Parliament has no
general power or authority to legislate in respect to
judges of provincial superior, district or county
courts. These courts are established by provincial
authority and any authority Parliament has in
relation to the judges of these courts is limited to
what is conferred by section 100. Even the power
of removal, though exercisable only on address of
the Senate and House of Commons, is vested in
the Governor General. It was thus necessary in
1960 to obtain a constitutional amendment by the
United Kingdom Parliament to alter the tenure
provided by section 99 so as to require retirement
of superior court judges at seventy-five years of
age. Neither the legislature of the provinces nor
the Parliament of Canada had authority to make
the change in section 99. I should think it at least
arguable as well that what is meant by "good
behaviour" in that section is not subject to redefi
nition by Parliament, though it is not inconceiv
able that the Senate and House of Commons, in
some particular case, may one day have to decide
what it meant in 1867. Nor is it open to Parlia
ment to change the provisions of sections 96, 97
and 98.
As I read section 100, the only authority given
to Parliament in relation to the salaries, etc., of
provincial superior, district and county court
judges, is to fix and provide them. This is not a full
legislative power in relation to them. If it were,
Parliament might leave the fixing of them to the
Governor in Council, or some other authority, a
course which seems to me to be inconsistent with
the wording. Moreover, such authority as is given
by section 100 is coupled with a responsibility to
fix salaries, etc., and having done so to provide
them.' But I do not think that what Parliament
can do in relation to such salaries, pensions or
allowances is limited to fixing them once and for
all. As a matter of language, it appears to me that
the authority or the responsibility to fix a salary
would, so long as it was exercised bona fide and
not for a colourable or ulterior purpose, permit
Parliament to fix the salary at any amount, be it
ever so large or small. No doubt it might become
difficult to find qualified persons who would
accept appointment if the salary were fixed at a
nominal amount but that is not in point. It would
not affect the extent of the power of Parliament to
fix the salary at that amount. The same would
apply to the power to fix pensions and allowances
of judges. On the other hand, under section 100, to
fix them and provide them is all that Parliament
has authority to do. It has no authority to dictate
how they are to be used by the recipient or to
require that they be used for any particular pur
pose. It may also be noted that, though these
judges are appointed by the Governor General on
5 The form of the section may have been due to the fact that
most Canadian judges were, at the time of its enactment, being
remunerated by salaries, rather than by fees or other means.
The judges of the Courts of Probate of Nova Scotia and New
Brunswick were probably being remunerated solely by fees. It
is not unlikely that it was contemplated that the judges referred
to in section 100 would continue to be compensated by salaries,
retirement pensions and allowances. That in fact was what was
done in the first enactment by the Parliament of Canada on the
subject. See Statutes of Canada, 1868, c. 33.
the advice of the federal cabinet, they are not
federal public servants or officers and they are not
appointees over whom the federal executive has
any authority, whether to require them to partici
pate in or to contribute to a contributory pension
scheme or otherwise.
An argument was made, based on comments by
Martin J.A. [as he then was], in Re The Constitu
tional Questions Act, [ 1936] 4 D.L.R. 134 (Sask.
C.A.) and in the judgment of the Privy Council in
Judges v. Attorney-General of Saskatchewan,
[1937] 2 D.L.R. 209, that the authority of Parlia
ment under section 100 is similar to that under
section 91, head 8 in which power is given to
legislate in relation to
91. ...
8. The fixing of and providing for the Salaries and Allow
ances of Civil and other Officers of the Government of
Canada.
but the difference appears to me to be apparent
both from the fact that head 91(8) is a legislative
power over the subject-matter and from the pres
ence in head 91(8) of the word "for" which makes
the sense quite different. There is also no mention
of pensions in head 91(8). The issue involved in the
judgments mentioned did not turn on the extent of
the authority of Parliament under section 100 and
I do not think that there is in them anything that
conflicts with the view I have expressed on that
point.
I turn now to section 29.1 of the Judges Act and
the question of its pith and substance. It was, as it
seems to me, a part of the appellant's case and is, I
think, beyond dispute that this legislation was part
of an overall scheme to put all federally funded
pension plans on a contributory basis. The method
by which this was to be accomplished was to
include and enact these provisions as part of an
enactment relating to retirement pensions for
public servants, public officials, members of Par
liament and others and requiring contributions
from all of them. In relation to such persons, the
statute is enacted in the exercise of legislative
powers entirely separate and different from any to
be found in section 100. In so far as judges are
concerned, the legislation enacting section 29.1 is
thus, in my opinion, in pith and substance, the
imposition of a contributory pension scheme
requiring judges to make contributions to a fund
and giving them no option as to whether they will
contribute or participate or not. Such an enact
ment, in my opinion, is not authorized by anything
in section 100 and is accordingly ultra vires in so
far as the judges referred to in that section, of
whom the respondent is one, are concerned.
In view of this conclusion it is not strictly neces
sary that I should deal with the point which found
favour with the learned Trial Judge, that is to say,
that Parliament was without authority to reduce
the salary and other benefits appertaining to the
respondent's office at the time of his appointment.
However, as the submission was the basis of the
judgment under appeal, it seems desirable that I
should at least indicate why I do not think it
should be adopted.
There are two things that, in my view, should
not be confused. One is the rights conferred by the
judge's commission under the Great Seal of
Canada. The other is the authority of Parliament
under section 100.
The commission issues upon appointment of a
judge by the Governor General under the author
ity of section 96 and the provincial statute setting
up the office. It constitutes a grant both of the
office with its authority and of the salary and
other benefits attached by law at that time to the
office as fixed by Parliament under section 99. The
grant entitles the appointee to the salary so fixed
in much the same way as a grant of money or land
vests title to the money or the land in the grantee.
It is something that cannot be taken from him
except by due process of law. Due process may
include expropriation by the authority of the legis
lature, but it is established principle that the legis
lature is not, in the absence of a clear expression of
intent to the contrary, to be taken as intending to
expropriate without due compensation. And a
taking without compensation is extraordinary. It is
something that Parliament, ordinarily at least,
avoids. It is, in my view, the reason why, in a
number of statutes relating to judges' salaries,
provisions referred to as grandfather clauses to
protect the position of incumbent judges have been
included. But the fact they have been included is
not in itself a basis for saying that Parliament does
not have the legal power to expropriate without
compensation or to take away rights that have
been lawfully granted.
As Parliament has under section 100 the respon
sibility to fix and provide the salaries of judges, it
seems to me that as a matter of interpretation of
the language of the section Parliament must have
a continuing power to fix such salaries and that
that power is not restricted to the fixing of salaries
for judges to be subsequently appointed. Plainly
Parliament can increase the salaries of judges who
are in office and it seems to me that as a matter of
naked power it can also decrease them even though
such decrease may be regarded by the incumbent
judges as confiscatory and unjust and may be in
substance a derogation from the grant lawfully
made by the Governor General in the judge's
commission.
There is of course a very powerful reason, which
has been expressed time and again by eminent
writers, both judges and others, why judges' sal
aries should not be reduced during the continuance
of their commissions. It is that the security of both
their tenure and their salaries are the foundations
of and are essential to their independence. In the
United Kingdom there has been for many years a
statute against reducing a judge's salary during
the continuance of his commission. In the United
States there is a constitutional provision against it.
But there seems to be nothing in section 100 to
prevent it and the soundness of the reason for such
a provision will not alone make it the law.
That said, however, I should add that while the
deductions taken from the respondent's salary
undoubtedly reduced the amount actually paid to
him as his salary, in my opinion, the effect of the
enactment of section 29.1 was not to reduce his
salary or the amount credited to him as salary but
was to require him to contribute to and participate
in a contributory pension scheme. For the reasons
which I have expressed, that, in my opinion, is
ultra vires.
It follows from the view I have expressed that
both subsection (1) and subsection (2) of section
29.1 are ultra vires and invalid, and I do not
understand by what reasoning only the words
"before the 17th day of February, 1975" could on
that account be declared invalid. For if subsection
(2) is ultra vires because Parliament does not have
authority to require judges to participate in a
contributory pension scheme in respect of their
own pensions it seems to me that it is also ultra
vires to require judges to participate in and con
tribute to such a scheme related to pensions for the
widows and children of judges.
I would dismiss the appeal with costs, but, to
take account of time spent in relation to the unsuc
cessful cross-appeal, I would direct that the costs
of the appeal be taxed on the basis of a hearing
that lasted one and one-half days.
* * *
The following are the reasons for judgment
rendered in English by
PRATTE J. (dissenting): This is an appeal from a
judgment of the Trial Division (Addy J.) declaring
that subsection 29.1(2) of the Judges Act 6 is ultra
vires the Parliament of Canada in that it unlawful
ly reduces the remuneration of judges appointed
under section 96 of the Constitution Act, 1867.
There is also a cross-appeal from the same judg
ment which, according to the respondent, should
also have declared that subsection 29.1(2) of the
Judges Act was inoperative because it offended the
Canadian Bill of Rights.
The respondent was appointed a judge of the
Superior Court for the District of Montreal on
July 24, 1975. At that time, the Judges Act pro
vided, as it still does, for the payment of annuities
6 R.S.C. 1970, c. J-1 (as amended by section 100 of the
Statute Law (Superannuation) Amendment Act, 1975, S.C.
1974-75-76, c. 81).
to retired judges and to the surviving spouses and
children of deceased judges. However, judges were
not then required to contribute or pay anything
towards the costs of those annuities. True, a bill
imposing that obligation had been given its first
reading on February 16, 1975. But that bill was
still before Parliament and the respondent did not
know of it when he accepted to become a judge.
For a few months after his appointment, the
respondent received the full salary that was
attached to his function. That situation changed
after December 20, 1975. On that date, the bill to
which I just referred became law and amended the
Judges Act by adding section 29.1. The new sec
tion required the judges to contribute towards the
costs of the annuities payable under the Judges
Act and the Supplementary Retirement Benefits
Act; 7 it read in part as follows:
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,
(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.
This new provision had the effect of dividing the
judges into two classes according to the date of
their appointment. Judges who had been appointed
on or before February 16, 1975, (which was the
date on which the bill amending the Judges Act
had been given its first reading) were required to
contribute 1 1 / 2 % of their salary while the contribu
tion to be made by the other judges was fixed at
6 1 / 2 % of their salary for the year 1976 and 7%
R.S.C. 1970 (1st Supp.), c. 43 (as amended by R.S.C. 1970
(2nd Supp.), c. 30 and by S.C. 1973-74, c. 36).
thereafter. According to a letter dated February
17, 1975, sent by the Minister of Justice to
"... ALL FEDERALLY APPOINTED JUDGES", the
contribution of 1 1 / 2 % imposed on all judges was a
contribution towards the costs of the annuities
payable to the widowed spouses and other depend
ents of deceased judges whereas the additional
contribution required from the judges appointed
after February 16, 1975, was imposed in respect of
the retirement annuities payable to judges.
As the respondent had been appointed on July
24, 1975, the enactment of section 29.1 had the
effect of reducing his salary by more than 6%.
The respondent did not object to the deduction
of 1 1 / 2 % that was imposed on all judges in respect
of the costs of the annuities payable to widowed
spouses and other dependents of deceased judges.
He objected, however, to the additional deduction
imposed on judges appointed after February 16,
1975. In his view, Parliament, in imposing that
additional deduction, had exceeded its legislative
power under the Constitution and violated the
respondent's right to "equality before the law"
under paragraph 1(b) of the Canadian Bill of
Rights. He sued Her Majesty for a declaration
that subsection 29.1(2) was both ultra vires and
inoperative. Mr. Justice Addy rejected the argu
ment that subsection 29.1(2) offended the Canadi-
an Bill of Rights; he did not deem it necessary to
express any opinion on the respondent's contention
that Parliament was not empowered, under the
Constitution, to require the judges to contribute
towards the costs of their retirement annuities; he
held, however, that subsection 29.1(2) was ultra
vires, in so far as the respondent was concerned,
because Parliament was not empowered, under the
Constitution, to reduce the salary or remuneration
of a judge. This appeal is directed against that
judgment. It raises three questions:
(1) Is Parliament bound, under the Constitution,
to pay non-contributory retirement annuities to
judges?
(2) Has Parliament the power, under the Con
stitution, to reduce the salaries of judges?
(3) Does subsection 29.1(2) of the Judges Act
offend paragraph 1(b) of the Canadian Bill of
Rights?
1. The power of Parliament to require judges to
contribute towards the costs of the retirement
annuities to which they are entitled.
To support his contention that Parliament lacks
the power to force judges to contribute towards the
costs of their retirement annuities, counsel for the
respondent first referred to the history of the
judiciary both in England and Canada. That histo
ry showed, said he, that immediately before the
enactment of the Constitution Act, 1867, the in
dependence of judges, both in Canada and Eng-
land, was guaranteed by their appointment during
good behaviour and their entitlement, on retire
ment, to a non-contributory annuity. He argued,
as I understood him, that sections 99 and 100 of
the Constitution Act, 1867 had enshrined in the
Constitution these two guarantees of the indepen
dence of judges. Sections 99 and 100 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.
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.
Counsel also found support for his contention in
the fact that, in 1960, before asking the Parlia
ment of the United Kingdom to amend section 99
so as to force superior court judges to retire at the
age of 75, 8 the Canadian Parliament amended the
Judges Act so as to ensure that the judges would,
upon reaching the age of mandatory retirement, be
a Section 99 was amended by the Constitution Act, 1960 and
now reads as follows:
99. (1) Subject to subsection (2) of this section, the judges
of the superior courts shall hold office during good behavi
our, 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.
entitled to an annuity equal to 2 / 3 of their salary.
I do not understand this argument. Sections 99
and 100 of the Constitution Act, 1867 were obvi
ously enacted for the purpose of guaranteeing the
independence of the judiciary. But I do not see any
relation between that independence and the fact
that judges may be required or not to contribute
towards the costs of their retirement annuities.
The independence of the judges may require that
they be paid a decent salary and that they be
entitled, on retirement, to a sufficient pension; it
certainly does not require that a non-contributory
pension scheme be established in their favour.
Moreover, I cannot find in sections 99 and 100 of
the Constitution Act, 1867 an intention to impose
on the Canadian Parliament the duty to continue
to provide the judges with exactly the same type of
pension and annuities as those which were payable
to them before Confederation.
I do not, therefore, find the solution of our
problem in the history of the Constitution. That
solution, in my opinion, must be found in the text
of the Constitution Act, 1867. Did that Act give
Parliament the power to require that superior
court judges contribute towards the costs of their
retirement annuities? Before answering that ques
tion, two observations are in order. The first one is
that section 100, as I read it, does not create any
rights in favour of the judges but merely deter
mines that Parliament, rather than the Executive
or the Provinces, shall have the responsibility of
fixing and paying the salaries and pensions of the
judges. The second observation is that Parliament,
in enacting section 29.1 of the Judges Act, did not
affect the judges' right to a pension. Their right to
be paid a pension on retirement was exactly the
same after the enactment of section 29.1 of the
Judges Act as it was before. The only right of the
judges that was affected by that new provision was
their right to their salaries. This was so because
section 29.1 did not oblige the judges to pay
anything; it merely prescribed that a deduction be
made from their salaries. It follows from these two
observations that the real question raised by the
enactment of section 29.1 of the Judges Act is
whether Parliament had the power to reduce the
salaries of the judges. However, once it is assumed,
as it must be for the purposes of the argument now
under discussion, that Parliament had that power,
it necessarily follows, in my view, that Parliament
also had the power to prescribe a deduction from
the salaries of the judges as a contribution towards
the costs of their retirement annuities. I do not see
how such a power could be denied to Parliament
who, by virtue of section 100 of the Constitution
Act, 1867, had the authority and the duty to
determine and pay both the salaries and the pen
sions of the judges.
2. The power of Parliament to reduce judicial
salaries.
Mr. Justice Addy accepted the argument that,
under the Constitution, Parliament could not
reduce the respondent's salary. This is why he
declared that subsection 29.1(2) of the Judges Act
was, in so far as the respondent was concerned,
ultra vires the Parliament of Canada.
As I understand the judgment and the respond
ent's argument, they do not challenge the power of
Parliament, under section 100 of the Constitution
Act, 1867, to legislate so as to reduce the salaries
of judges if that reduction applies only to judges
appointed after the date of the enactment prescrib
ing the reduction. What Parliament had no au
thority to do, according to the argument that was
accepted by the judgment of first instance, was to
reduce the salaries of judges who had been
appointed before the enactment of the statute pre
scribing the reduction. According to that theory, a
superior court judge, once appointed, is entitled
under the Constitution, as long as he remains a
judge, to receive at least the salary that was
attached to his function at the time of his
appointment.
Mr. Justice Addy summarized his reasons and
conclusion in the following terms [at pages 588
and 590]:
As previously stated, 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 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 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,
including 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 provincial superior court justices and the criminal law which
they applied fell under federal jurisdiction, while the adminis
tration of justice, the constitution of the courts and the substan
tive law which those justices administered in matters of prop
erty 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.
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 specifically 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 constitu
tional law which we inherited with the British parliamentary
system.
I must confess that, at first, I had difficulty
understanding the learned judge's reference to the
distribution of powers between Canada and the
Provinces. I think I now understand what he
meant. In his view, there is a legal constitutional
principle that requires that the salaries of incum
bent judges be not reduced. If Canada were a
unitary state, that principle would not limit the
supremacy of Parliament who could either repeal
it or ignore it in its legislation. As, however,
Canada is not a unitary state and as, under our
Constitution, the Provinces have, in view of their
jurisdiction in the field of the administration of
justice, a clear interest in the application of a
constitutional principle which guarantees the in
dependence of the judiciary, the learned Judge
concluded that Parliament could not repeal or
ignore that principle in its legislation.
The crucial question, therefore, is whether there
existed a constitutional legal rule preventing Par
liament from reducing the salaries of incumbent
judges. In order to answer that question, one must
first determine whether there was such a rule in
the Constitution Act, 1867, as it stood in 1975.
Professor Lederman expressed the opinion, in an
article published in The Canadian Bar Review, 9
that such a limitation on the power of Parliament
was found in section 100 of the Constitution Act,
1867, pursuant to which
the salaries of superior-court judges "shall be fixed and pro
vided by the Parliament of Canada".
In his view, which was shared by the learned Trial
Judge, the words "fixed and provided" in that
section were meant to convey the idea that the
salaries of the judges could not be reduced. I do
not agree. All that section 100 does, in my opinion,
is to give Parliament the authority and to impose
on it the duty to determine and pay the salaries of
the judges. Whether or not I look at the historical
background of that provision, I cannot read it as
meaning more than that.
In my opinion, therefore, section 100 gives Par
liament the power to determine and change the
salaries of judges. The only other section of the
Constitution Act, which might be interpreted as
imposing a limit on that power is section 99 which
prescribes that, subject to the requirement that
they retire at the age of 75,
99. (1) ... 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.
As the entitlement to a judicial salary is a
normal incident of the judicial function, can the
guarantee of tenure contained in section 99 be
interpreted as an implied guarantee against any
reduction of the salaries of judges? I do not think
so. If the entitlement to a judicial salary is a
necessary corollary of the judicial function, it fol
lows that a judge is, as long as he remained a
judge, entitled to the salary attached to his func
tion; it does not follow that he benefits from a
guarantee that the salary attached to his function
will never change.
The learned Trial Judge held, however, that
there was a legal constitutional principle that
denied Parliament the power to reduce the salaries
9 (1956), 34 Can. Bar Rev. 769 and 1139, at page 1160.
of judges. He derived that principle from two old
statutes of the Parliament of the United King
dom, 10 which he interpreted as prescribing that
judicial salaries could not be reduced, and from a
practice, allegedly followed by Parliament, both in
England and in Canada, not to reduce the salaries
of incumbent judges without their consent.
I do not see how The Act of Settlement and the
Act of 1760 can support the decision of the learned
Judge. These two statutes did not limit the power
of the Parliament that had enacted them and,
furthermore, never applied to Canada. How could
such statutes limit the power of the Canadian
Parliament?
In so far as parliamentary practice is concerned,
it is important to note that, in England, that
practice never denied Parliament the power to
reduce judicial salaries. In spite of that practice,
the supremacy of Parliament remained intact. It is
difficult to understand how such a practice could
give rise to a constitutional rule which, once trans
planted into Canada, would have acquired a new
vigour and denied to the Canadian Parliament a
power that the Parliament of the United Kingdom
still possessed.
True, the Provinces have an interest in the
administration of justice and in the preservation of
the independence of the judiciary. However, in
spite of that direct interest, it is Parliament and
Parliament alone that was given the power to fix
the salaries and pensions of the judges. The inter
est of the Provinces cannot be invoked to deprive
Parliament of its jurisdiction.
I do not agree, therefore, that there ever existed,
either in England or here, a constitutional princi
ple preventing Parliament from reducing judicial
salaries. Our Constitution protects the indepen
dence of the judges by reserving to Parliament
exclusively the power to remove them from office
and to fix or change their salaries. It is clear that,
at the basis of the provisions of the Constitution
Act on this subject, there is the idea that the
protection of the independence of judges requires
10 The Act of Settlement (1700), 12 & 13 Will. 3, c. 2, and
An Act for rendering more effectual, etc., A.D. 1760, 1 Geo.
III, c. 23.
that their removal be reserved to Parliament; it
would be, in my view, inconsistent with that idea
to say that the protection of the independence of
the same judges requires that the same Parliament
be denied the power to reduce their salaries.
I do not, therefore, share the opinion of Mr.
Justice Addy that Parliament had no authority to
reduce the salaries of the judges and that, for that
reason, subsection 29.1(2) of the Judges Act is
ultra vires.
3. Subsection 29.1(2) of the Judges Act and para
graph 1(b) of the Canadian Bill of Rights.
The respondent's last argument, which was
rejected by the Trial Judge, is that subsection
29.1(2) of the Judges Act, in prescribing that
judges appointed after February 16, 1975, should
receive a lower salary than other judges, offends
against paragraph 1(b) of the Canadian Bill of
Rights.
The relevant portion of paragraph 1(b) of the
Canadian Bill of Rights reads as follows:
1. It is hereby recognized and declared that in Canada there
have existed and shall continue to exist ... the following human
rights and fundamental freedoms, namely,
(b) the right of the individual to equality before the law and
the protection of the law;
Mr. Justice Addy was of opinion that the
Supreme Court of Canada had interpreted the
phrase "equality before the law" in that provision
as meaning the "equal subjection of all classes to
the ordinary law of the land as administered by the
ordinary courts"." As it is clear that subsection
29.1(2) does not offend against that kind of equal
ity, he rejected that argument of the respondent.
" Attorney General of Canada v. Lavell, [1974] S.C.R.
1349, at page 1366; see also Curr v. The Queen, [1972] S.C.R.
889; The Queen v. Burnshine, [1975] 1 S.C.R. 693; Prata v.
Minister of Manpower and Immigration, [1976] 1 S.C.R. 376;
Bliss v. Attorney General (Can.), [1979] 1 S.C.R. 183; MacKay
v. The Queen, [1980] 2 S.C.R. 370.
I agree with that view. Furthermore, I am of
opinion that the whole of section 29.1 was enacted
by Parliament for the purpose of achieving a valid
federal objective.
For all these reasons, I would allow the appeal,
dismiss the cross-appeal, set aside the judgment of
the Trial Division and dismiss the respondent's
action. Following the appellant's suggestion, I
would make no order as to costs.
* * *
The following are the reasons for judgment
rendered in English by
HEALD J.: This is an appeal from a judgment of
the Trial Division wherein it was ordered and
declared that subsection (2) of section 29.1 of the
Judges Act as amended by section 100 of the
Statute Law (Superannuation) Amendment Act,
1975, S.C. 1974-75-76, c. 81, is, as applied to the
respondent herein, ultra vires, the Parliament of
Canada. The respondent's cross-appeal from that
portion of the Trial Division judgment which held
that paragraph (b) of section 1 of the Canadian
Bill of Rights is inapplicable, and that the
impugned legislation is not inoperative in so far as
the respondent is concerned by reason of being
discriminatory, was argued concurrently with the
appeal.
Section 29.1 reads as follows:
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,
(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.
As observed by the Trial Judge, 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 filed on consent. On July 24, 1975, the
respondent accepted an appointment as puisne
judge of the Superior Court of Quebec. As of that
date, the Judges Act provided for all puisne judges
of that Court the following salaries and benefits:
1. Global salaries of $53,000 comprised of a
basic salary of $50,000 and an 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.
3. Non-contributory annuities for the judges'
widows and children.
4. Non-contributory supplementary retirement
benefits pursuant to the provisions of the
Supplementary Retirement Benefits Act, as
amended.
On December 20, 1975, being approximately five
months after the respondent's appointment, the
Statute Law (Superannuation) Amendment Act,
1975, supra, was enacted. This legislation ren
dered contributory not only the annuities for
judges' widows and children but also the retire
ment annuities and supplementary benefits of the
judges themselves in the case of judges appointed
subsequent to February 16, 1975. 12 Thus, the
effect of this change in the law, in so far as the
respondent is concerned, was to impair to the
extent of those contributions the remuneration and
benefits which he had been receiving since the date
of his appointment. This is clear since the enact
ment required him thenceforth to contribute 6% of
his salary towards the cost of his own retirement
and the annuities for his family as well as one-half
of 1% prior to January 1, 1977, and 1% after
January 1, 1977 for the indexing of retirement
2 The Statute Law (Superannuation) Amendment Act, 1975,
supra, was given First Reading on February 17, 1975. This
appears to be the rationale for the selection of the dates of
February 17, 1975 and February 16, 1975 in section 29.1
supra.
annuities under the Supplementary Retirement
Benefits Act. The Trial Judge accordingly con
cluded that the respondent had, thereby, suffered a
reduction in the salary to which he was entitled
and had received as of the date of his appointment
and for some five months thereafter. It was agreed
by the parties that, at the date of his appointment
to the bench on July 24, 1975, the respondent was
completely unaware of the fact that the Statute
Law (Superannuation) Amendment Bill was actu
ally before Parliament. It was further agreed that
he had not received any notice thereof.
As I understood counsel for both parties, it was
agreed between them that the issue herein is a
justiciable one which must be decided by federally
appointed judges and while such judges may have
the same or a similar potential interest in the
outcome, the Court must act ex necessitate. 13
This appeal raises three issues:
1. Is Parliament bound by the Constitution to
provide to the respondent and others in a similar
position non-contributory retirement annuities?
The learned Trial Judge refrained from dealing
with this issue because, in his view, it was unneces
sary since he had effectively disposed of this action
on another basis.
2. Did Parliament have the power, under the
Constitution as of December 20, 1975, to diminish,
reduce or impair the fixed and established salary
and other benefits of the respondent? The learned
Trial Judge answered this question in the negative.
He said (at page 590):
... 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 specifically directed to
reductions of or deductions from judicial salaries, the compen
sation 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 prov
inces and Canada but, because it arises out of an intrinsic and
fundamental principle of constitutional law which we inherited
with the British parliamentary system.
" See Re Income Tax Act, 1932, [1936] 4 D.L.R. 134 (Sask.
C.A.), at p. 135, affirmed sub nom. Judges v. Attorney-Gen
eral of Saskatchewan, [ 1937] 2 D.L.R. 209 (P.C.).
3. Does subsection 29.1(2) of the Judges Act
offend paragraph 1(b) of the Canadian Bill of
Rights? The learned Trial Judge answered this
question in the negative. It forms the subject-
matter of the respondent's cross-appeal.
Issue No. 1—The Pensions (Retirement Annui
ties) Issue.
In my view, the starting point for a discussion of
this issue is sections 99 and 100 of the Constitu
tion Act, 1867. Those sections 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.
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.
Counsel for the appellant submitted that there was
nothing in the language of section 100 of the
Constitution Act, 1867 that would fetter the legis
lative capacity of Parliament so as to prevent it
from requiring federally appointed judges to con
tribute towards the costs of their post-retirement
security benefits. In support of this submission,
counsel cited Re Income Tax Act, 1932, [ 1936] 4
D.L.R. 134 supra. That decision was a unanimous
judgment of the Saskatchewan Court of Appeal
and concerned itself, inter alia, with the question
as to whether or not federally appointed judges
resident in the Province of Saskatchewan, and
being, otherwise, persons subject to the provisions
of The Income Tax Act, 1932, of Saskatchewan
[S.S. 1932, c. 9] were, notwithstanding their status
as federally appointed judges, taxable pursuant to
the provincial income tax statute. The Court
answered the question affirmatively. However, in
reaching this conclusion, Martin J.A. (as he then
was) relied on the presence of the word "fixed" in
section 100 and followed a decision of the Supreme
Court of Canada in Abbott v. The City St. John
(1908), 40 S.C.R. 597, dealing with the liability of
federal civil servants to taxation in the province of
their residence. As I read the reasons of Martin
J.A., they were premised on the presence of the
word "fixing" in subsection 91(8) of the Constitu
tion Act, 1867. 14
In my view, the Saskatchewan decision relied on
supra by the appellant is not helpful in resolving
the issue herein being discussed. The portion of
section 100 which, in my opinion, has to be inter
preted to decide the pensions issue is the require
ment in the section that "... Pensions of the
Judges ... shall be fixed and provided by the
Parliament of Canada." (Emphasis added.)
In the appellant's submission, Parliament has
the power to alter both the amount of a judges'
pension and to change the pension scheme from a
non-contributory to a contributory one. As support
for this submission, he refers to subsection 91(8) of
the Constitution Act, 1867, supra, dealing with
civil servants.
In my view, subsection 91(8) is in no way
analogous or comparable to section 100. Subsec
tion 91(8) is an enabling section. It empowers
Parliament to provide for the salaries of civil ser
vants but does not require it to do so. There is no
provision in the subsection at all for the pensions
of civil servants. Section 100, on the other hand,
imposes a responsibility, inter alia, to provide the
pensions of judges. The word "for" in subsection
91(8) is absent from section 100. In my view, the
obligation imposed by section 100 to provide pen
sions imposes a duty on Parliament to provide the
total amount of those pensions. If this is so, then
the provisions in section 29.1 requiring judges to
pay a portion of the cost of their own pensions are
contrary to section 100. When the judges are
required to pay a percentage of the cost of their
own pension, whether it be 5% or 95%, it cannot be
said that Parliament is "providing" their pensions.
Parliament, in section 29.1 can be said to be
making provisions for judges' pensions but that
does not satisfy section 100. In these circum
stances, Parliament is only partially providing
those pensions. Counsel for the appellant submits,
however, that the 1975 amendments must be con
14 Subsection 91(8) of the Constitution Act, 1867, empowers
the Parliament of Canada to legislate with respect to "The
fixing of and providing for the Salaries and Allowances of Civil
and other Officers of the Government of Canada."
sidered as a package, that Parliament has the
authority to diminish and impair salaries and pen
sions, that the 1975 amendments when taken to
gether resulted in an increase in salaries and ben
efits, that while the judges appointed before
February 17, 1975 receive the benefit of a grand
father clause with respect to the contributory fea
ture of the amendments, the practice of contribu
tion will become uniform with the passage of time
and that Parliament has the power to enact such a
provision. Even assuming, without deciding at this
stage, that the power of Parliament allows it to
increase or decrease salaries and pensions, I do not
think such a result could be accomplished by
making the pension contributory because by so
doing Parliament is no longer "providing" the
entire pensions for judges as section 100 requires it
to do. It may well be that Parliament could have
reduced judges' pensions by enacting a law which
simply, for example, reduced the pension or retire
ment annuity from two-thirds to one-third of the
salary received by a judge immediately prior to his
retirement. On the basis that Parliament provided
all of the funds for that reduced judge's pension, it
is my view that the provisions of section 100 of the
Constitution Act, 1867, would not be breached in
so far as the requirement to provide judges' pen
sions is concerned. What is contrary to that
requirement in subsection 29.1(2), in my view, is
the scheme for the sharing of the cost of those
pensions.
The appellant says: "... that the introduction of
a contributory requirement for judicial annuities
was a measure of financial responsibility, intended
to accomplish the general application of a policy to
structure all federally funded pension plans on a
contributory basis. It was not directed exclusively
towards the judges, but was part of a comprehen
sive pensions policy whereby all holders of public
office were to be put on a contributory basis."
(Appellant's Memorandum of Fact and Law, para.
22.) This position ignores completely the very dif
ferent constitutional position of civil servants as
compared to federally appointed judges as dis
cussed supra and as set out in sections 99 and 100
of the Constitution Act, 1867. It is simply not
possible, in my view, to structure the judges' pen
sion plan on the same basis as a pension plan for
the civil service, having regard to sections 99 and
100 supra.
Counsel for the appellant submits, however, that
the words "provided by the Parliament of Cana-
da", mean only that Parliament, rather than the
provincial legislatures, shall pay the federally
appointed judges. In his view, such a provision is
necessary because of the divided jurisdiction as
specified in subsections 91(27) and 92(14) of the
Constitution Act, 1867, between Canada and the
Provinces.
I do not agree that "provided" as used in section
100 is capable of such a restricted interpretation. I
think it requires a wider construction. Quite apart
from any other consideration, if all that was
intended was to cover the area of responsibility as
between Canada and the Provinces, I would have
thought that the word "for" would have been
added as was the case in subsection 91(8) as noted
supra. Furthermore, if the sole reason for inserting
this provision in section 100 was to settle the
question of payment as between Canada and the
Provinces, the provision would more logically be
included in Part VI of the Constitution Act, 1867,
entitled "DISTRIBUTION OF LEGISLATIVE POW
ERS" which includes sections 91 and 92. It is
however included in Part VII, entitled "JUDICA-
TURE". That Part speaks to the appointment,
selection, tenure, salaries, allowances and pensions
of federally appointed judges and concludes with
section 101 authorizing the constitution, mainte
nance and organization of a general court of
appeal for Canada together with additional courts
for the better administration of the laws of
Canada. When taken in this context and giving to
the words used their plain and unequivocal mean
ing, I conclude that the words "provided by the
Parliament" in section 100 mean that Parliament
is required to supply all of the funds for judges'
pensions. 15
Accordingly, and for the above reasons, I would
answer the first question in the affirmative, and
thus decide the first issue in the respondent's
favour.
Issue No. 2—The power of Parliament, under
the Constitution, as of December 20, 1975, to
diminish, reduce or impair the fixed and estab
lished salary and other benefits of the respond
ent.
As stated earlier herein, the Trial Judge concluded
that Parliament, without the consent of the
respondent, did not have this constitutional power
because:
(a) Canada is a federal state with a division of
jurisdiction between the Provinces and Canada;
and
(b) of the existence in our constitutional law of a
fundamental legal principle that the full salaries
of judges are absolutely secured to them during
the continuance of their commissions.
In his opinion, this fundamental legal principle
which forms a part of the constitution has its
genesis in [at page 565] "... statutory texts which
constitute a settlement between King and Parlia
ment". The "statutory texts" to which he refers
are firstly The Act of Settlement (1700) and
secondly the Act of 1760. The Act of Settlement
provided that "... Judges Commissions be made
Quarndiu se bene gesserint, and their Salaries
ascertained and established ...". (Emphasis
added.) The Act of 1760 provided [in section 3]:
"... That such Salaries as are settled upon Judges
... shall, in all time coming, be paid and payable
to every such Judge ... so long as the Patents or
Commissions of them, or any of them respectively,
15 The Living Webster defines "provide" inter alia, as "to
furnish or supply for a purpose".
Similarly The Shorter Oxford English Dictionary defines
"provide" inter alia, as: "to supply or furnish for use".
shall continue and remain in force." After a review
of the various statutory provisions in the different
Provinces of Canada prior to Confederation; of
sections 99 and 100 of the Constitution Act, 1867;
of the various amendments to the Judges Act; and
after quoting extensively from articles by Professor
W. R. Lederman, the Trial Judge concluded that
(at page 582):
The great majority of legal authors and constitutional
experts, both past and present, are of the view that, once
appointed, a judge's salary is inviolable for as long as his
commission continues.
At page 587, he makes it very clear that in his
view this principle is one of fundamental constitu
tional law as distinguished from mere political
convention. With deference, I am unable to agree
with this conclusion of the learned Trial Judge. In
my view, the decision of the Supreme Court of
Canada in Re Resolution to amend the Constitu
tion, [1981] 1 S.C.R. 753, is most persuasive
against that conclusion. In part I of that judgment,
seven of the nine judges expressly rejected the
proposition that a political convention may crystal
lize into law (pages 774-775) stating:
No instance of an explicit recognition of a convention as having
matured into a rule of law was produced. The very nature of a
convention, as political in inception and as depending on a
consistent course of political recognition by those for whose
benefit and to whose detriment (if any) the convention devel
oped over a considerable period of time is inconsistent with its
legal enforcement.
The attempted assimilation of the growth of a convention to
the growth of the common law is misconceived. The latter is the
product of judicial effort, based on justiciable issues which have
attained legal formulation and are subject to modification and
even reversal by the courts which gave them birth when acting
within their role in the state in obedience to statutes or consti
tutional directives. No such parental role is played by the
courts with respect to conventions.
And then, again at page 784, in commenting on
one of Professor Lederman's articles, the same
seven judges stated:
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.
To the same effect, in my view are the views of the
six of the nine judges who wrote the majority
judgment in respect of part II of the Court's
decision. In discussing the nature of constitutional
conventions the Court majority said at pages 880
and 881:
The conventional rules of the constitution present one strik
ing peculiarity. In contradistinction to the laws of the constitu
tion, they are not enforced by the courts. One reason for this
situation is that, unlike common law rules, conventions are not
judge-made rules. They are not based on judicial precedents
but on precedents established by the institutions of government
themselves. Nor are they in the nature of statutory commands
which it is the function and duty of the courts to obey and
enforce. Furthermore, to enforce them would mean to adminis
ter some formal sanction when they are breached. But the legal
system from which -they are distinct does not contemplate
formal sanctions for their breach.
Perhaps the main reason why conventional rules cannot be
enforced by the courts is that they are generally in conflict with
the legal rules which they postulate and the courts are bound to
enforce the legal rules. The conflict is not of a type which
would entail the commission of any illegality. It results from
the fact that legal rules create wide powers, discretions and
rights which conventions prescribe should be exercised only in a
certain limited manner, if at all.
The difficulty I have with the proposition of the
learned Trial Judge is that the so-called "settle-
ment between King and Parliament" in England
which, in his view, became a part of the Canadian
Constitution in 1867 has not been "translated into
a legal limitation" because it has not found
"expression in imperative constitutional text or
statute". Had it been intended that this so-called
"statutory bargain" was to be incorporated into
the Constitution of Canada, I would have thought
that it would have found its way into the provisions
of section 100 of the Constitution Act, 1867. As
observed by the Trial Judge, such is the case with
the South African and the American Constitutions
which both contain express provisions that com
pensation payable to judges cannot be diminished
during their terms of office. As stated by the
Supreme Court majority (in part II) supra, the
conventional rules of the Constitution are not in
the nature of statutory commands which courts
must obey and enforce. Furthermore, as stated
supra, conventional rules are generally in conflict
with the legal rules which they postulate and the
courts must enforce the legal rules. In the context
of this issue in the instant case, the legal rules are
set out in section 100. The duty imposed therein on
Parliament is to fix and provide judges' salaries.
The Shorter Oxford English Dictionary defines
"fix", inter alia, as "to determine". The Living
Webster defines it, inter alia, as "to settle definite
ly; to determine; to adjust or arrange; to provide or
supply". I think that the duty imposed on Parlia
ment by those words is to determine the quantum
of the judge's salary and to supply the entire
amount thereof. I think that implicit in that power
to determine is the power to adjust that salary
upwards or downwards as Parliament in its
wisdom decides from time to time.
Counsel for the respondent made a further sub
mission that section 100 of the Constitution Act,
1867, supra, cannot be considered in isolation but
must be considered along with section 99 which
extends security of tenure to federally appointed
judges during good behaviour and provides for
their removal from office only by the Governor
General on address of the Senate and House of
Commons. He submits that when these two sec
tions are read together, they clearly provide that
judges have constitutionally guaranteed tenure
including constitutionally guaranteed salaries. I
agree that section 99 guarantees tenure. I think
however that section 100 requires Parliament to
set and provide all of the funds for judges' salaries
which, as stated supra, includes the power to vary
those salaries upwards or downwards. Even read
ing the two sections together, I find consistency
rather than inconsistency in the constitutional
provision contained in section 99 that the indepen
dence of the judiciary be entrusted to Parliament
while at the same time, by section 100, also
entrusting to Parliament the duty to fix and pay
for their salaries.
Turning now to the initial basis for his conclu
sion on Issue No. 2, namely the fact that Canada
is a federal state with a sharing of jurisdiction
between the Provinces and Canada, the Trial
Judge seems to have reached this conclusion on the
following reasoning (at pages 588-589):
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. Failing a
constitutional amendment, even the express consent of the
Provinces would not suffice because a constitutional power or
obligation cannot be legally changed or abandoned in a federal
state by mere consent.
With respect I am unable to agree that the "feder-
al nature of our Constitution" requires a constitu
tional amendment to change or alter matters
which are clearly within the powers given to Par
liament by section 100 of the Constitution Act,
1867. As pointed out by the seven judges of the
Supreme Court of Canada who wrote the majority
judgment in respect of part I of the Court's deci
sion (p. 806), there is an internal contradiction in
speaking of federalism in the light of the invariable
principle of British parliamentary supremacy
which contradiction is resolved by the scheme of
distribution of legislative power in the Constitution
Act, 1867. Thus, it is my conclusion that since,
pursuant to section 100, Parliament is entrusted
with the power and obligation to provide, inter
alia, the salaries of federally appointed judges, and
since there is no qualification or restriction else
where in the Constitution which would fetter that
power and obligation, it remains unimpaired and is
fully operative.
For these reasons I disagree with the conclusion
of the Trial Judge that there exists in our constitu
tional law, the fundamental legal principle dis
cussed supra.
Issue No. 3—The respondent's cross-appeal on
the question as to whether subsection 29.1(2)
offends paragraph 1(b) of the Canadian Bill of
Rights.
Counsel for the respondent said that this submis
sion was not really a cross-appeal but was more in
the nature of an alternative argument. It was the
respondent's position that if the Court failed to
find that section 29.1 was ultra vires for the
reasons advanced in support of either Issue No. 1
or Issue No. 2 supra, then the scheme envisaged
by the section failed because it is contrary to
paragraph 1(b) of the Canadian Bill of Rights in
so far as the respondent is concerned because of its
discriminatory effect on him. Since, in my view,
the respondent is entitled to succeed on the first
issue discussed supra, I do not propose to enter
into a detailed examination of the merits of this
issue. Suffice it to say that I agree with the
disposition of this issue as proposed by the Chief
Justice and with his reasons therefor.
Nature of the relief to which the respondent is
entitled.
On page 22 of his Memorandum of Fact and Law,
the respondent has suggested that if the Court
should find that Parliament is not empowered
under the Constitution to render contributory the
retirement annuities of judges, the Court order
should read:
The appeal is dismissed with costs but the relief of the judg
ment a quo should read "the words `before February 17, 1975'
of section 29.1(1) and the whole of section 29.1(2) of the
Judges Act, as enacted by section 100 of 1974-75-76, c.81 are
ultra vires of the Parliament of Canada."
I do not think that an order in such a form would
be consistent with or reflect the conclusions I have
reached. In my view, subsection 29.1(1) is not
ultra vires the Parliament of Canada because the
1 1 / 2 % deduction from salaries provided for therein
is dedicated exclusively to the cost of the improved
annuities for widowed spouses and other depend
ants of judges (see A.B. p. 18—letter from Otto
Lang to all federally appointed judges, February
17, 1975). Such a provision does not offend the
provisions of section 100 of the Constitution Act,
1867, supra since it does not require a contribution
to the pensions of judges by the judges themselves.
However, subsection 29.1(2) does offend section
100 because the judge's contribution thereunder is
in respect of both his own annuity and those which
may be paid to his dependants (see A.B. p. 19—
the letter of February 17, 1975 from Otto Lang to
all federally appointed judges referred to supra).
It is accordingly my opinion that the judgment
given by the Trial Judge is the proper one, not
withstanding that he reached his conclusion on a
different basis than I have in these reasons. I
would, therefore, dismiss the appeal with costs
payable by the appellant to the respondent both
here and in the Trial Division. I would dismiss the
cross-appeal. Since the appellant has not asked for
costs, I would not award any costs in respect of the
cross-appeal. However, I agree with the direction
proposed by the Chief Justice that the costs of the
appeal be taxed on the basis of a hearing that
lasted one and one-half days to compensate for the
time spent in relation to the unsuccessful
cross-appeal.
I realize that my proposed disposition would be
to place judges appointed before February 17,
1975 in a less advantageous position than those
appointed after February 16, 1975 because of my
opinion that subsection 29.1(1) is not ultra vires
the Parliament of Canada. However, if I am right
in my view of the matter, Parliament, if it so
decides, has the constitutional capacity to amend
subsection 29.1(1) to require a like contribution of
1 1 / 2 % by the judges appointed after February 16,
1975 thus removing any inequity between federally
appointed judges based solely on the date of their
appointment.
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.