Mackeigan V Hickman
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''Mackeigan v Hickman'',
989 Year 989 ( CMLXXXIX) was a common year starting on Tuesday of the Julian calendar. Events By place Byzantine Empire * Emperor Basil II uses his contingent of 6,000 Varangians to help him defeat Bardas Phokas (the Younger), who suffe ...
2 S.C.R. 796 is a leading
Supreme Court of Canada The Supreme Court of Canada (SCC; , ) is the highest court in the judicial system of Canada. It comprises nine justices, whose decisions are the ultimate application of Canadian law, and grants permission to between 40 and 75 litigants eac ...
decision on
judicial independence Judicial independence is the concept that the judiciary should be independent from the other branches of government. That is, courts should not be subject to improper influence from the other branches of government or from private or partisan inte ...
. The Court unanimously held that to require a federal judge to explain his or her decisions would violate the principle of judicial independence.


Background

Donald Marshall was an Aboriginal youth who was wrongly convicted of murder in 1971. In 1983, the federal government, on the basis of new evidence, referred the case to the
Nova Scotia Court of Appeal The Court of Appeal for Nova Scotia (Nova Scotia Court of Appeal or NSCA) is the highest appeal court in the province of Nova Scotia, Canada. There are currently 8 judicial seats including one assigned to the Chief Justice of Nova Scotia. At any ...
who overturned the conviction. The panel which heard the reference included Justice Pace who was the Attorney General of Nova Scotia at the time of the investigation in 1971. At the end of the Court's judgement it was observed that Marshall was largely at fault for his own conviction by misleading the investigation and that "any miscarriage of justice was more apparent than real". This comment had a major effect on the amount of settlement Marshall received. In 1986, the Nova Scotia government established a
royal commission A royal commission is a major ad-hoc formal public inquiry into a defined issue in some monarchies. They have been held in the United Kingdom, Australia, Canada, New Zealand, Norway, Malaysia, Mauritius and Saudi Arabia. In republics an equi ...
, under the ''Public Inquiries Act'', to investigate the handling of the Marshall case. As part of the investigation the Commission tried to compel the judges on the reference, including Pace, to testify. The judges ( Ian M. MacKeigan, Gordon L. S. Hart, Malachi C. Jones, Angus L. Macdonald, and Leonard L. Pace) applied for a declaration that the Commission had no authority to compel them as they were protected by judicial immunity. The Supreme Court considered two issues: # whether ss. 3 and 4 of the Public Inquiries Act could be used to compel superior court judges to testify before the Commission, either with respect to how and why they reached their decision or with respect to the composition of the panel that heard the case. # whether the direction to the Commission to inquire into a reference by the Minister of Justice was ultra vires the Province because it is a matter of criminal law and procedure reserved exclusively to the federal Parliament under s. 91(27) of the
Constitution Act, 1867 The ''Constitution Act, 1867'' ( 30 & 31 Vict. c. 3) (),''The Constitution Act, 1867'', 30 & 31 Victoria (U.K.), c. 3, http://canlii.ca/t/ldsw retrieved on 2019-03-14. originally enacted as the ''British North America Act, 1867'' (BNA Act), ...
. The majority held that the judges could not be compelled and that the direction to the Commission was not ''
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 ('within the powers'). Acts that are may equivalently be termed ...
'' the province.


Reasons of the court

Three reasons were written for the majority. Justice McLachlin, writing for L'Heureux-Dubé and Gonthier, held that, :''the judge's right to refuse to answer to the executive or legislative branches of government or their appointees as to how and why the judge arrived at a particular judicial conclusion is essential to the personal independence of the judge…To entertain the demand that a judge testify before a civil body, or emanation of the legislature or executive, on how and why he or she made his or her decision would be to strike at the most sacrosanct core of judicial independence''


See also

*
List of Supreme Court of Canada cases (Dickson Court) This is a chronological List of Supreme Court of Canada cases, list of notable cases decided by the Supreme Court of Canada from Brian Dickson's appointment as Chief Justice on April 18, 1984, to his retirement on June 30, 1990. 1984 19851989 ...
* '' Valente v. The Queen'' * '' Beauregard v. Canada'' * '' R. v. Généreux'' * ''
Provincial Judges Reference The ''Reference re Remuneration of Judges of the Provincial Court (P.E.I.)'' 9973 S.C.R. 3 is a leading opinion of the Supreme Court of Canada in response to a reference question regarding remuneration and the independence and impartiality of pro ...
'' * '' Therrien (Re)'' * '' Provincial Court Judges' Assn. of New Brunswick v. New Brunswick (Minister of Justice)''


External links

* {{DEFAULTSORT:Mackeigan V. Hickman Canadian constitutional case law Supreme Court of Canada cases 1989 in Canadian case law