Section 100 of the Constitution Act, 1867

Section 100 of the Constitution Act, 1867 () is a provision of the Constitution of Canada requiring the federal Parliament to fix and provide for the salaries for judges of the provincial superior, district and county courts.

The Constitution Act, 1867 is the constitutional statute which established Canada. Originally named the British North America Act, 1867, the Act continues to be the foundational statute for the Constitution of Canada, although it has been amended many times since 1867. It is now recognised as part of the supreme law of Canada.

Constitution Act, 1867

The Constitution Act, 1867 is part of the Constitution of Canada and thus part of the supreme law of Canada.Constitution Act, 1982, s. 52(1). It was the product of extensive negotiations by the governments of the British North American provinces in the 1860s.Donald Creighton, The Road to Confederation (Toronto: Macmillan Publishing, 1864; revised ed., Oxford, Oxford University Press, 2012.)Christopher Moore, 1867 — How the Fathers Made a Deal (Toronto: McClelland & Stewart, 1997). The Act sets out the constitutional framework of Canada, including the structure of the federal government and the powers of the federal government and the provinces. Originally enacted in 1867 by the British Parliament under the name the British North America Act, 1867,British North America Act, 1867, 30 & 31 Victoria, c. 3 (UK). in 1982 the Act was brought under full Canadian control through the Patriation of the Constitution, and was renamed the Constitution Act, 1867.Constitution Act, 1982, s. 52, s. 53, and Schedule, Item 1. Since Patriation the Act can only be amended in Canada, under the amending formula set out in the Constitution Act, 1982.Constitution Act, 1982, Part V.

Text of section 100

Section 100 reads:

Section 100 is found in Part VII of the Constitution Act, 1867, dealing with the judicature. It has not been amended since the Act was enacted in 1867.

Purpose and interpretation Section 100 ensures that the federal Parliament will provide for salaries of the judges of the provincial superior, district and county courts. This is a fundamental provision to ensure judicial independence.W.R. Lederman, "The Independence of the Judiciary", (1956) 34 Canadian Bar Review 769.W.H. McConnell, Commentary on the British North America Act (Toronto: MacMillan of Canada, 1977), p. 325. The provision is modelled on the financial security clause for English judges, set out in the Act of Settlement 1701. That Act provided that judicial salaries were to be "ascertained and established".Act of Settlement 1701, 12 & 13 Wm III, c. 2, s. 3, clause 7.

Related provisions

Preamble The Preamble to the Constitution Act, 1867 provides that Canada is to have a constitution "similar in principle to that of the United Kingdom". The Supreme Court of Canada has ruled that this phrase means that judicial independence, which is a basic principle of the British constitution, is also an unwritten constitutional principle in Canada. As a result, the federal government is constitutionally required to have an independent commission to review proposals for judicial compensation, before it implements changes to the salary under section 100. Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island; Reference re Independence and Impartiality of Judges of the Provincial Court of Prince Edward Island, 3 SCR 3.

Section 99 Taken together, section 100 and section 99, which provides for security of tenure for the judges, are constitutional guarantees for judicial independence. The two sections ensure that judges cannot be arbitrarily removed from office and have their salaries provided by the federal government.

References