Editorial: Governments mishandling suggestions on judges’ pay

Recent moves by the federal and B.C. governments on judges’ pay are raising concerns about judicial independence.

On Feb. 17, B.C. Supreme Court Justice M.D. Macaulay criticized the provincial government for its handling of the issue in Provincial Court Judges’ Association of British Columbia v. British Columbia (Attorney General).

Then last week, the Canadian Bar Association issued a warning that the federal government is being disrespectful of the Judicial Compensation and Benefits Commission process by taking too long to respond to its recommendations.

Both matters raised the issue of judicial independence. In the B.C. case, the association was seeking an order to force the government to produce a copy of a cabinet submission dealing with the judges compensation committee’s recommendations on judicial pay.

After the committee delivered its report in 2010, the attorney general suggested that the B.C. legislature reject seven of its recommendations. It passed the motion unanimously last year.

At issue before Macaulay was the government’s duty to articulate a legitimate reason for rejecting the recommendations that must, in the association’s view, rest upon a reasonable factual foundation.

The government, according to the association, merely invoked its so-called net-zero mandate for imposing a wage freeze on the public sector in general in rejecting the recommendations “without regard to the actual cost, benefit, fairness or reasonableness” of them.

Also at issue was the government’s obligation to disclose the cabinet submission analyzing the recommendations by a senior bureaucrat. The province argued it wasn’t relevant and, even if so, was subject to public interest immunity.

The issue at the federal level is different. According to the CBA, the minister of justice has failed to respond within the six-month legislated time frame to the federal commission’s reports on judicial compensation in recent years. In the CBA’s view, the government’s actions undermine the notion of judicial independence.

Judicial compensation is always a tricky issue, particularly at a time of austerity. While judicial independence requires careful navigation around political interference in setting judges’ pay, the current economic and financial environment means fiscal considerations will play a bigger role.

Of course, the rules surrounding recommendations on judges’ compensation, as is the case in British Columbia, often include some language around the government’s ability to pay. As such, fairness requires that governments be fully transparent and respectful of the process in their decisions on a recommendation.

That’s essentially what Macaulay said this month and that’s the approach both the B.C. and federal governments should take in the future.

We may be facing looming financial pressures again, but that doesn’t excuse governments in British Columbia, at the federal level or anywhere else in Canada from acting in ways that fully reflect the notion of judicial independence.
— Glenn Kauth

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