Case information

Constitutional law — Judicial independence — Special clerks — Registrars in bankruptcy — In light of powers that special clerks and registrars in bankruptcy exercise as part of their subject-matter jurisdiction, whether unwritten constitutional principle of institutional judicial independence arising from preamble to Constitution Act, 1867 applies to them and whether they must therefore be included in legal framework that meets requirements of guarantee of institutional financial security established by Supreme Court in Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3.

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In Quebec, special clerks and registrars in bankruptcy exercise significant powers in the administration of civil justice. The application of the Public Officers Act, CQLR, c. E-6, the Public Service Act, CQLR, c. F-3.1.1, and the Labour Code, CQLR, c. C-27, makes special clerks and registrars in bankruptcy public servants, members of the executive branch, even though they exercise judicial powers. They challenged this legislative scheme. In their opinion, the legislature’s failure to add them to the list of judges and justices set out in s. 3 of the Courts of Justice Act, CQLR, c. T-16, leads to the conclusion that they do not enjoy the guarantees of judicial independence that are essential to the performance of their judicial functions. They therefore brought an application for judicial review in order to obtain a judgment on the constitutionality of this status.

The Superior Court was of the view that the statutory scheme governing special clerks and registrars in bankruptcy violates judicial independence. This is reflected, among other things, in the fact that managers can interfere with the way they handle cases and the fact that they are not adequately remunerated. The appropriate remedy was to declare this non-inclusion contrary to s. 23 of the Charter of human rights and freedoms (“Quebec Charter”), CQLR, c. C-12, as that quasi-constitutional section must be interpreted by reference to the constitutional principle of judicial independence enshrined in the preamble to the Constitution Act, 1867 (“CA, 1867”). The Superior Court suspended the effect of its declaration of invalidity for a period of 12 months. The majority of the Court of Appeal upheld the trial judge’s decision. In the majority’s opinion, special clerks and registrars in bankruptcy undeniably exercise adjudicative powers. Because they hold an office that is judicial by nature, they are, in their own way, an embodiment of a fundamental constitutional principle, namely the separation between the judicial branch on the one hand and the legislative or executive branch on the other. Special clerks and registrars in bankruptcy are an essential part of the judicial branch. As for Bachand J.A., dissenting in part, he was of the view that only s. 23 of the Quebec Charter applies to special clerks and registrars in bankruptcy. The unwritten constitutional principle that arises from the preamble to the CA, 1867 and protects judicial independence in its institutional dimension is not applicable.