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64-455: The majority opinion established that independent compensation commissions are required to help set salaries free of political manipulation. These commissions, described by the majority as "an institutional sieve" and by the dissent as "a virtual fourth branch of government ", make recommendations that governments may deviate from only with rational explanations. However, the reference has been subject to harsh published criticisms. The reference

128-537: A bureaucracy (in the original literal sense). Some critics have argued that a central paradox at the heart of the American political system is democracy's reliance on what the critics view as undemocratic bureaucratic institutions that characterize the administrative agencies of government. An argument made for calling administrative agencies a "fourth branch" of government is the fact that such agencies typically exercise all three constitutionally divided powers within

192-531: A case that, after the 1997 Reference, "reinforced and even extended" the notion that lowering judges' salaries could be unconstitutional. After the Reference, all provinces had salary commissions. The Reference also inspired the federal government under Prime Minister Jean Chrétien to establish a salary commission for federal judges, the Judicial Compensation and Benefits Commission . Still,

256-537: A corporation has all the powers of a natural person plus others; also, the validity of acts which are made ultra vires is preserved. Under constitutional law , particularly in Canada and the United States , constitutions give federal and provincial or state governments various powers. To go outside those powers would be ultra vires ; for example, although the court did not use the term in striking down

320-615: A court. However, the justification need not be scrutinized to the extent that a government decision will be scrutinized under Section One of the Canadian Charter of Rights and Freedoms . Instead, governments must only show their rejections are rational, and rationality can be measured in the way it was measured by the Supreme Court in Reference re Anti-Inflation Act (1976). Another benefit for having salary commissions

384-421: A failure to exercise an administrative discretion (e.g., acting at the behest of another or unlawfully applying a government policy) or application of discretionary powers in an irrational and wrong way. Either doctrine may entitle a claimant to various prerogative writs, equitable remedies or statutory orders if they are satisfied. In the seminal case of Anisminic v Foreign Compensation Commission , Lord Reid

448-435: A fair and public hearing by an independent and impartial tribunal". In Prince Edward Island and Manitoba, the salaries of judges were lowered along with those of other civil servants to help combat deficits . In Prince Edward Island, various challenges of the judges' consequent independence were raised by defendants, causing the government to bring two reference questions to its Supreme Court. Only one reference resulted in

512-694: A federal law in United States v. Lopez because it exceeded the constitutional authority of Congress, the Supreme Court still declared the law to be ultra vires . According to Article 15.2 of the Irish constitution , the Oireachtas (parliament) is the sole lawmaking body in the Republic of Ireland . In the case of CityView Press v AnCo , however, the Supreme Court of Ireland held that

576-528: A finding of dependence, namely for lack of adequate security of tenure. In Manitoba, the pay cut was challenged directly by a provincial judges association. Meanwhile, in Alberta, cuts to judicial salaries were challenged by defendants. Concerns in Alberta were also raised by Alberta Premier Ralph Klein saying on the radio that a certain judge should be "very, very quickly fired". The judge had threatened to simply stop working due to his belief that his salary

640-419: A fourth branch of government, as they create rules with the effect of law, yet may be composed at least partially of private, non-governmental actors. The intelligence agencies have also been referred to as the fourth branch of government by people such as House of Representatives member Ron Dellums , Lloyd Gardner and Tom Engelhardt . Bob Jessop , in his book, 'The State: Past, Present, Future’ notes

704-518: A fourth branch of government. In that opinion, Scalia wrote: [T]he grand jury is mentioned in the Bill of Rights, but not in the body of the Constitution. It has not been textually assigned, therefore, to any of the branches described in the first three Articles. It 'is a constitutional fixture in its own right' [case cites]. In fact the whole theory of its function is that it belongs to no branch of

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768-450: A judge and 2) institutional independence of a court as a whole. A judge must also be reasonably seen as being independent. It is possible, Lamer found, to interpret each of the three requirements in light of the two types of independence; this case, in particular, would explore how financial security belongs to both a judge and the court as a whole. This discussion would go beyond Valente , since that decision only treated financial security as

832-429: A judicial compensation commission likely should not have a problem with this, as acknowledged by Lamer, La Forest found the requirement that the commission look into the matter to be "a triumph of form over substance". La Forest also felt requiring such commissions was also "tantamount to enacting a new constitutional provision to extend the protection provided by s. 11(d)" by forcing the creation of "what in some respects

896-526: A matter of individual independence. The Court emphasized that the role of institutional independence has become expected of provincial courts due to their increased role in dispute resolution in the country. As a previous judicial independence case, Beauregard , had demonstrated, institutional independence was needed so that courts could guard the Constitution, the rule of law and fundamental justice . This required more separation of powers ; whereas judicial independence has normally been understood to protect

960-542: A single bureaucratic body: That is, agencies legislate (a power vested solely in the legislature by the Constitution) through delegated rulemaking authority; investigate, execute, and enforce such rules (via the executive power these agencies are typically organized under); and apply, interpret, and enforce compliance with such rules (a power separately vested in the judicial branch). Additionally, non-executive, or "independent" administrative agencies are often called

1024-479: A type of independence that is most favourable to judges. The conclusion in Valente that judicial compensation committees were not needed was therefore valid; section 11(d) left room for determining what methods can be used to achieve independence. In this case, judges' salaries were lowered along with those of other government employees, and this did not seem to raise reasonable concerns about judicial independence. As

1088-464: A vague reference to 'evolution' combined with a plainly false analogy, and an evasion".) The Court turned back to examine section 11(d) and from precedent, namely Valente v. The Queen , identified three fundamental requirements of judicial independence: 1) security of tenure, 2) financial security, and 3) some administrative independence. As well, judicial independence can be divided into two types of independence: 1) individual independence belonging to

1152-401: A valid government reason for violating rights, and in this case Prince Edward Island and Alberta's actions failed the section 1 test because they did not explain why they did not have salary commissions. Likewise, Manitoba did not explain why they did not use their salary commission. An academic commentator has suggested the section 1 analysis was actually unneeded since the right to a commission

1216-482: A variety of contexts: In corporate law, ultra vires describes acts attempted by a corporation that are beyond the scope of powers granted by the corporation's objects clause , its articles of incorporation , its by-laws , similar founding documents, or laws authorizing a corporation's formation. Acts attempted by a corporation that are beyond the scope of its charter are void or voidable . Several modern developments relating to corporate formation have limited

1280-469: Is a virtual fourth branch of government to police the interaction between the political branches and the judiciary". Judges simply asking whether government decisions seem reasonable would be enough. The 1997 Reference caused numerous challenges regarding the creation of compensation committees. Some governments needed more time to establish and consult them. Moreover, by finding provincial courts were not independent because salary commissions were not used,

1344-578: Is an unofficial term referring to groups or institutions perceived variously as influencing or acting in the stead of the three branches of the US federal government defined in the Constitution of the United States ( legislative , executive and judicial ). Views as to whether the influence is due or undue or the actions are for good or ill also vary. Such groups can include the press (akin to

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1408-414: Is based in the preamble, which is not subject to section 1; the analysis was thus "a first year law school mistake". La Forest J., alone in dissent, rejected the majority's finding of an unwritten constitutional principle that protects a right to judicial salary commissions. He was very wary of the "discovery" of such new principles, especially when some protection of judges can already be found elsewhere in

1472-561: Is credited with formulating the doctrine of ultra vires . However, ultra vires , together with unreasonableness, was mentioned much earlier by Lord Russell in the well-known case, Kruse v Johnson , regarding challenging by-laws and other rules. Anisminic is better known for not depriving courts of their jurisdiction to declare a decision a nullity, even if a statute expressly prevents it from being subject to judicial review. Further cases such as Bromley LBC v Greater London Council and Council of Civil Service Unions v Minister for

1536-490: Is unconstitutional; however, as there is a presumption in Irish constitutional law that the Oireachtas acts within the confines of the constitution, any legislation passed by the Oireachtas must be interpreted in such a way as to be constitutionally valid where possible. Thus, in several cases where bodies other than the Oireachtas were found to have used powers granted to them by primary legislation to make public policy,

1600-530: The British Constitution has inspired criticism. The British form of judicial independence was more limited in 1867, neither extending to inferior courts nor limiting government power to lower the judges' remuneration. At any rate, no act of Parliament can be declared ultra vires by a court in British law. This is why academic Jeffrey Goldsworthy attacked the decision as "a self-contradiction,

1664-759: The Electoral College , implementing e-voting and other measures. In an article titled "The 'Fourth Branch' of Government", Alex Knott of the Center for Public Integrity asserted in 2005 that " special interests and the lobbyists they employ have reported spending, since 1998, a total of almost $ 13 billion to influence Congress , the White House and more than 200 federal agencies ." The administrative agencies that are funded from public money may exercise powers granted by Congress. Without appropriate controls and oversight this practice may result in

1728-689: The Implied Bill of Rights , into doubt. He pointed to Attorney General for Canada and Dupond v. Montreal (1978) as a prior Supreme Court decision questioning the Implied Bill of Rights. If an implied bill of rights existed, it should be found in the creation of Parliament, in section 17 of the Constitution Act, 1867, and should allow for Parliamentary supremacy instead of limiting it. In this case, La Forest pointed to Valente and R. v. Lippé to show section 11(d) does not guarantee

1792-655: The Provincial Judges Reference sparked further litigation as some provincial government's decisions not to follow commissions' salary recommendations were challenged in the courts. The Supreme Court addressed the matter again in 2005 in Provincial Court Judges' Assn. of New Brunswick v. New Brunswick (Minister of Justice) and urged courts to be deferential when governments give sufficient reasons for rejecting salary commissions' recommendations. Some scholars also expressed concern that

1856-456: The 1997 Reference represented the first time that the unwritten constitution was used to invalidate a statute in Canada, said that courts had consequently grown "bolder in their law-creating enterprise" and that "If law requires certainty, unwritten principles are bound to create problems." Fourth branch of government In politics of the United States , "fourth branch of government"

1920-577: The Civil Service have sought to refine the doctrine. In Hammersmith and Fulham London Borough Council v Hazell , the House of Lords held that interest rate swaps entered into by local authorities (a popular method of circumventing statutory restrictions on local authorities borrowing money at that time) were all ultra vires and void , sparking a raft of satellite litigation . Mark Elliott ( St Catharine's College, Cambridge ) proposes

1984-509: The Constitution Act, 1867" and "invites the use of those organizing principles to fill out gaps in the express terms of the constitutional scheme". The implication of the importance of judicial independence came from the preamble's statement that Canada's constitution should be similar to the United Kingdom 's, and the UK has a tradition of judicial independence. The Act of Settlement of 1701

Reference re Remuneration of Judges of the Provincial Court - Misplaced Pages Continue

2048-522: The Court looked to constitutional norms and found that judicial independence was one such norm implied by the preamble to the Constitution. Although Lamer recognized case law such as the Patriation Reference which noted the preamble technically has no binding effect in itself, he also found the preamble reveals the "basic principles which are the very source of the substantive provisions of

2112-458: The European ' Fourth Estate '), the people (in sum or as grand juries ), and interest groups . The independent administrative agencies of the United States government , while technically part of any one of the three branches, may also be referred to as a ‘fourth branch’. While the term ‘ fourth estate ’ is used to emphasize the independence of ' the press ', the fourth branch suggests that

2176-408: The Oireachtas may delegate certain powers to subordinate bodies through primary legislation, so long as these delegated powers allow the delegatee only to further the principles and policies laid down by the Oireachtas in primary legislation and not craft new principles or policies themselves. Any piece of primary legislation that grants the power to make public policy to a body other than the Oireachtas

2240-441: The Reference seemed to imply criminal law decisions by provincial courts were invalid under section 11(d), since defendants were not tried before independent tribunals. Consequently, the governments of Alberta, Manitoba and Prince Edward Island turned to the Court again. In Re Remuneration of Judges (No. 2) (1998), Lamer for a unanimous court decided that necessity dictated that dependent provincial courts be deemed acceptable for

2304-492: The actions of these governments breached section 11(d) of the Charter of Rights. Manitoba did have a salary commission, but its actions were unconstitutional because the provincial government did not use it. Since these considerations were made using section 11(d), the Court considered whether violations of these rights could be justified under section 1 of the Charter of Rights, as is normal procedure. Section 1 typically requires

2368-423: The applicability of ultra vires in corporate law. However, it can still apply to charities, and a shareholder may apply for an injunction , in advance only, to prevent an act which is claimed to be ultra vires . According to American laws, the concept of ultra vires can still arise in the following kinds of activities in some states: In many jurisdictions, such as Australia, legislation provides that

2432-543: The ground that the corporation lacks or lacked power to act." The doctrine still lives among non-profit corporations or state-created corporate bodies established for a specific public purpose, such as universities or charities. Historically all companies in the United Kingdom were subject to the doctrine of ultra vires and any act which was outside of the objects specified in a company's memorandum of association would be ultra vires and void . That result

2496-464: The impugned primary legislation was read in such a way that it would not have the effect of allowing a subordinate body to make public policy. In these cases, the primary legislation was held to be constitutional. Still, the subordinate or secondary legislation, which amounted to creating public policy, was held to be ultra vires the primary legislation and was struck down. In UK constitutional law , ultra vires describes patents, ordinances, and

2560-513: The institutional government, serving as a kind of buffer or referee between the Government and the people. Some have used this to call for common law grand juries "to expose fraud and corruption whether it is in the judicial or political realm." Others have used the term in calls to, e.g, "empower the people" by petition or referendum processes or, similarly, for "broader and more direct participation in our governance" by eliminating

2624-422: The judges' alone. The continued independence of judges, however, will be kept apparent in any of these circumstances if it involves review by an "independent, effective, and objective" body, i.e. the salary commissions. While salary recommendations of these commissions should not be binding, they should be taken seriously. Any government rejection of a recommendation will have to be justified and may be challenged in

Reference re Remuneration of Judges of the Provincial Court - Misplaced Pages Continue

2688-428: The judiciary from the executive, the Court now found the judiciary should be free of manipulation from the legislative branch. Provincial courts should benefit from this independence, as demonstrated by their handling of important cases such as R. v. Big M Drug Mart Ltd. in 1983. For these reasons, it was strongly suggested that the government establish judicial salary commissions, thus overruling obiter dicta in

2752-576: The like enacted under the prerogative powers of the Crown that contradict statutes enacted by the Crown-in-Parliament . Almost unheard of in modern times, ultra vires acts by the Crown or its servants were previously a major threat to the rule of law . Boddington v British Transport Police is an example of an appeal heard by the House of Lords that contested that a by-law was beyond

2816-555: The notion that governments and judges cannot directly negotiate. He wrote that "It assumes that there is a real possibility that judges would violate their oath of office and decide cases wrongly (for example, by convicting an innocent person or imposing an unduly harsh penalty) in order to obtain some (highly speculative and likely trivial) advantage at the negotiating table." Hogg also felt the Reference made it increasingly unlikely that judges' salaries can be lowered. In terms of case law, he pointed to Mackin v. New Brunswick (2002) as

2880-472: The other three branches.” Ultra vires Ultra vires ('beyond the powers') is a Latin phrase used in law to describe an act that requires legal authority but is done without it. Its opposite, an act done under proper authority, is intra vires ('within the powers'). Acts that are intra vires may equivalently be termed "valid", and those that are ultra vires termed "invalid". Legal issues relating to ultra vires can arise in

2944-402: The power of the state." La Forest went on to caution that "judicial power" is limited so that a court "does not initiate matters and has no agenda of its own". This made him worried about the majority launching into an extensive, unneeded discussion on unwritten principles. He accepted unwritten principles exist, but disputed that limits on government decisions can be found in the preamble. There

3008-513: The powers conferred to it under section 67 of the Transport Act 1962 . In administrative law , an act may be judicially reviewable for ultra vires in a narrow or broad sense. Narrow ultra vires applies if an administrator did not have the substantive power to make a decision or it was wrought with procedural defects. Broad ultra vires applies if there is an abuse of power (e.g., Wednesbury unreasonableness or bad faith) or

3072-428: The press is not independent of the government. The concept of the news media or press as a fourth branch stems from a belief that the media's responsibility to inform the populace is essential to the healthy functioning of democracy. Douglass Cater , in his 1959 "The Fourth Branch of Government" offered the hypothesis that the press had become "a de facto , quasiofficial fourth branch of government " and observed it

3136-418: The previous landmark judicial independence case, Valente v. The Queen , which had found such commissions were desirable but not necessary. In this case, it was noted commissions could guard against manipulation by both the executive and legislatures. If remuneration of provincial judges is to be raised, lowered or kept the same, this may be done along with the remuneration of other government employees or with

3200-429: The probability that ultra vires acts will occur. Except in the case of non-profit corporations (including municipal corporations ), this legal doctrine is obsolescent ; within recent years, almost all business corporations have been chartered to allow them to transact any lawful business. The Model Business Corporation Act of the United States states that: "The validity of corporate action may not be challenged on

3264-692: The public against all trespassers on their rights." In 1985, Walter Annenberg noted that several commentators were applying the term 'fourth branch of government' to the press to indicate that it has at least as much if not more power to direct public policy than do the other three branches, in part because of its direct contact with the public and its protection "by the First Amendment from responsibility for what they report". Justice Antonin Scalia 's majority opinion in United States v. Williams , 1992 has been relied on to refer to grand juries as

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3328-466: The reference set a precedent for enforcing unwritten rules. This could lead to even wider grounds for judicial review . The study of unwritten rules is also said to have surfaced in the Supreme Court decisions New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly) (1993) and Reference re Secession of Quebec (1998), and one scholar called it a "very old and venerable" feature of common law . Conversely, one critic, who claimed

3392-442: The similarity of three constructs: Per Engelhardt: “Classically, … the three branches of government … were to check and balance one another so that power would never become centralized …. The founding fathers [never envisioned] that a fourth branch of government , the national security state , would arise, dedicated to the centralization of power in an atmosphere of total secrecy. In the post-9/11 years, it has significantly absorbed

3456-437: The text of the Constitution, namely section 11(d), which was the subject of this case. The counsel had primarily relied on section 11(d) and only briefly spoke of unwritten rules. La Forest also suggested that section 11(d) granting independence only to inferior criminal law judges, and not inferior civil law judges, was deliberate, because "Being accused of a crime is one of the most momentous encounters an individual can have with

3520-690: The time being. Also as a result of the second decision, the requirement for commissions did not become binding until September 18, 1998. Scholars have offered various specific critiques for the majority opinion. Among these was that it was self-contradictory. The request that government reasons should be rational and legitimate seemed to ask for two separate things, namely reasonableness and correctness. Rationality allows for government reasons to be accepted if they are not overly flawed, even if courts disagree with them. Legitimacy, meanwhile, implies government decisions should be correct, i.e., consistent with commission recommendations. Professor Peter Hogg objected to

3584-488: Was also decided that the commissions should meet regularly, for example once every three to five years. Since judicial independence is guaranteed by the preamble, civil law judges have a right to these salary commissions, even though they have no rights under section 11(d). Turning to the facts of the case, the Supreme Court faulted the governments of Prince Edward Island and Alberta for neither consulting salary commissions nor having such bodies to begin with. For this reason,

3648-504: Was commercially unpalatable. It led to companies being formed with extremely wide and generic objects clauses permitting a company to engage in all manner of commercial activities. The position was changed by statute by the Companies Act 1985 , which essentially abolished the doctrine concerning commercial companies. The position is now regulated by the Companies Act 2006 , sections 31 and 39, which similarly significantly reduces

3712-440: Was insufficient. (The Supreme Court only briefly addressed this, saying Klein's words were "unfortunate and reflect a misunderstanding of the theory and practice of judicial independence in Canada".) Lamer C.J. with L'Heureux-Dubé, Sopinka, Gonthier, Cory and Iacobucci JJ, allowed the appeals in part, stating that there was constitutional protection of judicial independence and impartiality for all judges. One problem identified

3776-743: Was no tradition guarding judicial independence against Parliament. Parliamentary supremacy remained important in Britain even after the Act of Settlement; thus British courts cannot invalidate a law, even if the law is generally thought to be wrong. La Forest acknowledged this could be seen as a "technical quibble" since courts in Canada can invalidate laws, but he went on to point out that the Act of Settlement only covered superior judges, and not inferior judges. He also said courts should have clearer grounds for limiting legislative actions, casting previous decisions such as Switzman v. Elbling (1957), which relied on

3840-513: Was particularly important for independence. The Supreme Court had previously reached this conclusion in Beauregard v. Canada (1986). However, the Court now claimed that since courts are more important today, judicial independence has become a fundamental issue that should not just be reserved for the superior courts, as dictated by the Act of Settlement. The Constitution could adapt to changing circumstances in this regard. (This interpretation of

3904-425: Was that it eliminated direct salary negotiations between the government and judges. Such direct negotiations would naturally raise concerns about what exactly is being negotiated. Namely, there was a concern that governments could manipulate judges to make decisions in certain ways. In order to ensure the government would not deliberately let judges' salaries fall below the cost of living, in relation to inflation , it

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3968-499: Was that the independence of provincial judges was not protected as extensively as the federal judges were under sections 96 to 100 of the Constitution Act, 1867 . The majority read section 11(d) as only protecting independence in the exercise of jurisdiction in relation to offence (i.e., it would protect judges concerned with criminal law, but not civil law ). However, section 11(d) is not a broad or exhaustive code. Instead,

4032-576: Was the amalgamation of three different sets of challenges to the impartiality and independence of provincial court judges in Manitoba , Prince Edward Island , and Alberta . The powers of the provincial legislatures to reduce the salaries of the provincial court judges was challenged as a violation of section 11(d) of the Canadian Charter of Rights and Freedoms , which gives an accused the right to be presumed innocent until proven guilty "in

4096-411: Was the looseness of the American political framework that allowed news media to “insert themselves as another branch of the government”. Cater was "convinced that, insofar as the press did act as a true political player (rather than an unbiased observer of politics), it corrupted itself and went astray from its primary responsibility—to convey important information and to act as a nonpartisan watchdog for

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