Salary standoff threatens ‘judicial independence’

OTTAWA - An unprecedented confrontation is brewing between the judiciary and the Harper government over the chasm between their respective proposals for hikes in the salaries of federal judges.

Hints of the conflict are contained in submissions to the federal Judicial Compensation and Benefits Commission, with the judiciary accusing the Conservatives of reducing the last pay hike for “political reasons” and the government suggesting the judicial demands are exorbitant.

The judicial submission discloses that the Canadian Superior Courts Judges Association and the Canadian Judicial Council fired off a private legal letter to Justice Minister Rob Nicholson in 2007 that the government’s last salary increase for judges in 2006 was “constitutionally and statutorily invalid.”

The Canadian Bar Association has also stepped into the fray, arguing in its submission to the commission that the parliamentary process of passing legislation to authorize the pay hikes every four years “increases rather than decreases the likelihood of politicizing judicial compensation issues.”

The judiciary’s submission to the compensation and benefits commission - which must present its recommendation on salary increases to the government by the end of next month - calls for catch-up pay hikes to take a puisne judge’s salary from the current $252,000 to $307,170 by 2011, including statutory inflation adjustments.

The government - arguing money is tight and that it has other spending priorities from its political platform - is proposing a judge’s salary of $287,127 by 2011, also including statutory indexation.

The Canadian Bar Association - which says it is not taking monetary sides in the dispute and is arguing on the principles - wrote that judicial independence is at risk and urged the commission to make that point in its May report to Nicholson.

“Any links between judicial decisions, either specifically or generally, and compensation issues will have the effect of eroding judicial independence and should not be countenanced,” says the bar association’s submissions to the commission, whose membership includes former Privy Council clerk Paul Tellier.

“We believe the commission should caution Parliament that its consideration of the commission’s report involves special constitutional considerations, which risk being endangered by a politicized approach and by making any links between judge’s remuneration and the decisions they make,” says the bar association’s brief.

“The whole notion of judicial independence is critical,” says Guy Joubert, the incoming president of the bar association.

“At the end of the day, a judge that is hearing a case should be hearing a case and rendering a decision in a completely impartial manner and not being consciously or unconsciously concerned about whether or not the government will be pleased or displeased with the decision,” he tells Law Times.

“The moment you have a situation where you have judges sort of negotiating salary, or in salary disputes with government, you create a scenario where that negative perception can permeate.”

The bar association’s submission and the submission from the superior court judges association and the judicial council are replete with references to two key Supreme Court of Canada decisions - Re Provincial Court Judges and Bodner v. Alberta - that underline the constitutional requirement for judicial independence and its relation to judges’ salaries.

Pierre Bienvenu, lead counsel and author for the judicial submission, expressed the same degree of importance on the principle of judicial independence.

“This is the beginning and the end in terms of what this process is all about,” he tells Law Times. “It’s about preserving judicial independence and enhancing that very important constitutional principle.”
Bienvenu says the ideal government response in that context would be its acceptance of the neutral compensation commission’s recommendations.

The government must respond to the commission report by tabling legislation to enact the new salaries within six months of receiving the report.

The vast gap between the government and judicial proposals is based on three major areas: their different perspective on government finances and economic forecasts, the salary levels of lawyers that should be used for comparison, and the performance bonuses that senior federal public servants receive.

Salary levels of private-practice lawyers and the salaries received by deputy ministers have become the established standards for establishing salaries for federally appointed judges, as well as the government’s spending room.

But the government argues the judiciary limited its survey of lawyers’ salaries to the higher incomes of counsel with larger firms in major urban centres, and says the pay-at-risk performance bonus system should not apply to judges.

The government also argues that judges benefit from an array of allowances, health and dental plans, and attractive retirement conditions, including substantial government funding for a $168,000 annual pension annuity.

The judges analyze the government’s fiscal room in excruciating detail, noting the federal surplus for 2007-08 is forecast at $11.6 billion and its surplus the following fiscal year is forecast at $4.4 billion.
“While Canada’s economic fundamentals are strong, there are potential downside risks to which the government must remain attentive,” counters the attorney general’s submission.

In the end, however, the main conflict between the two sides is based on the Conservative decision to entirely ignore the last commission’s salary recommendations when it introduced its own proposals last year.
That forced the judges association and the judicial council to respond with catch-up proposals in this round.

“The association and council submit that the second (Conservative) response was, in essence, the expression of a newly elected government’s disagreement, for political reasons, with a previous government’s formal response to the (previous) report,” says their submission.

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