The sore spot of judicial pay hikes

Stephen Harper''s anti-government government finds itself in a fine mess, having no choice but to give a huge pay raise to the nine Supreme Court of Canada judges and to hundreds of federally appointed judges across Canada. The raises will cost $21 million a year, and since judges' pensions are calculated on their best five years, the pay raise will ending up costing the federal treasury hundreds of millions more over the next decade.
The prime minister has no choice. It was done by the Liberals before the last election. It would take a vote of Parliament to rescind the pay increase, not something Harper is about to risk in a minority situation.
What rankles the Conservatives is giving a nice pay raise to the very people they have been vilifying as "activists" for years.
And the fellow who gets to watch the money going out the door is none other than Vic Toews, the Manitoba government lawyer who was appointed Justice minister by Stephen Harper for reasons many still aren't sure about.
We know how Toews feels about judges. He has told us: "However, over the past two decades, Supreme Court justices in particular have, to varying degrees, engaged in a frenzy of constitutional experimentation that resulted in the judiciary substituting its legal and social preferences for those of the elected representatives of the people in Parliament and the legislatures."
That's straight from Hansard, March 12, 2001.
There is something delightful about the sight of nine Supreme Court justices "engaged in a frenzy" of any kind, let alone a frenzy of "constitutional experimentation" . . . whatever that means. Likely they would be wearing their scarlet judicial robes, we imagine.
It was not just a one-shot attack on the judiciary by Toews: "Our democratic principles and institutions are too important to be hijacked by a non-elected political judiciary," Toews said (Hansard, March 1, 2001).
The image of Supreme Court judges as institutional "hijackers" may be a bit much. Just imagine the full bench charging, gowns flowing, into the Commons on a quiet afternoon and taking over by force our most important institution, with the Sergeant-at-Arms, and his mace, powerless to stop them.
"First we take Manhattan, then we take the Commons!"
You will note that Toews warns a "non-elected" political judiciary would do this. Perhaps an "elected" judiciary would be more restrained. Toews never explained.
Since he became justice minister, Toews appears to have cooled down on the idea of an "elected" judiciary.
The closest Harper and Toews have come so far to elections for judges has been to oblige the latest appointee Marshall Rothstein to trot out before an "ad hoc" Commons sub-committee where Toews had only "fawning" praise for his fellow Manitoban.
Rothstein is still a "non-elected" justice. Will he too be "hijacking" the Commons, or can we, at best, expect only a mild "frenzy" from him?
When Toews was a Manitoba public servant, he earned less than $80,000 a year. Then he became an MP and his salary last year was $144,200 a year plus expenses. Now he's a cabinet minister earning $216,300 a year with a chauffeur plus expenses.
 A special judicial pay commission was set up a number of years ago, wisely, so such matters as judges' pay would not be left in the hands of people such as Vic Toews.
Last year Toews discovered that a pay raise for judges was in the works. He was furious. He called it "an outrageous abuse of the public trust." They didn't need a raise, he said.
The Commission on Judicial Salaries recommended that federal judges' salaries go from the current $219,400 a year to $240,000 a year over a four-year period. The chief justices of the federal courts will be earning $263,000. It's still not what a good lawyer appearing before them is making, but then a quarter-million and change is not to be sneered at.
Supreme Court judges will get $285,600 each, and Chief Justice Beverly McLachlin will earn $308,400. A car and a chauffeur come with the job.
Now that's almost $100K a year more than Toews is pulling in as head man over at Justice, but surely we aren't talking the same legal skill level here, are we?
The Conservatives are expected, if Toews has his way, to hem and haw and stall on the pay raise for as long as they can, until the judges take the Conservatives to court, if they have to.
The judges are adamant. To attract the kind of legal talent needed on the bench, the salaries of judges have to be somewhere close to what the top lawyers are making.
The latest figures from the federal government show that the brilliant Montreal lawyer Bernard Roy from the Montreal firm Ogilvy Renault was paid $1.56 million for his 20 months of work for the Gomery Commission. His partner at the inquiry, Neil Finkelstein, of Blake, Cassels & Graydon LLP of Toronto, pulled in $1.16 million. Their associate Guy Cournoyer, of Shadley Battista In Montreal, was paid $1.17 million.
It is billings like this, which go only to the brightest and the best, that make some of the best legal talent pass up the opportunity to sit on the bench.
But then, they could always run for office and end up making $216,300 a year like Toews.

Richard Cleroux is a freelance reporter and columnist on Parliament Hill.

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