Nobody looks good in fight over judges' pay
Neither side is looking particularly good in process that has been going on too long
The B.C. government has won the latest battle of a seemingly interminable conflict over provincial court judges' salaries. It has become a decade-long Pyrrhic war, damaging both institutions.
A process to depoliticize the setting of judicial remuneration has engendered only nasty legal arguments and court showdowns, doing little to instil confidence in either politicians or the bench.
The judges have put their valued independence at risk by banding together like a ditch diggers' union, while both parties are rolling the dice with disinterested justice by regularly rejecting the recommendations of an independent commission.
The public can only scratch their heads over the process created by the Supreme Court of Canada 20-odd years ago, hoping it would resolve the historic challenges in setting judicial compensation.
In a 1997 decision involving judges in P.E.I., the nation's top court traced the origins of judicial independence back to the 1701 Act of Settlement and its place in the Constitution acts of 1867 and 1982.
It decided the best way to protect judges from political interference through economic manipulation was by interposing independent consultative commissions between the judiciary and government.
By 2005, though, the Supreme Court acknowledged an unintended consequence — instead of diminishing friction between judges and governments, the process exacerbated it: “Direct negotiations no longer take place, but have been replaced by litigation.”
The justices tried to “clarify” the principles of the process and the role of commissions, governments and reviewing courts. It didn't really help.
“While the (Judicial Compensation) Act has avoided the unseemly involvement of judges of the B.C. Provincial Court in the negotiation of their remuneration, it has done so at the cost of constant litigation,” Justice Mary Newbury explained in Thursday's unanimous appeal decision.
As a result of the 2008 financial crisis, the former Liberal administration had adopted broad austerity measures and rejected the recommendations, saying judges needed to share the pain.
The workhorse bench responded that the number of judges wasn't keeping up with population growth and they were handling a burgeoning caseload.
They took the government to court, won, and were even awarded special costs.
There have been four judicial reviews in the last six years, and the judges won the previous three, Newbury noted.
The latest was over the commission's 2016, three-year remuneration package — the legislature in October 2017 accepted most of the recommendations, but not the full salary increases.
The commission suggested effective April 1, 2017, a regular judge receive $273,000, increased to $277,095 in 2018, and to $281,251 in 2019 — making them fourth compared to other provincial judges and in the same bracket as senior civil servants.
The government gave them, respectively, $262,000, $266,000, and $270,000. The estimated cost of the recommendations was $12.94 million, the ministry's increases $7.15 million, a difference the government said was significant.
It emphasized the number of new cases had declined, as had the caseload per judicial fulltime equivalent.
The judges balked — demanding Victoria produce a secret cabinet document that supported the cut to their pay hike. They were incensed that former B.C. Liberal leader Andrew Wilkinson called them “public servants.”
The judges complained about the “unfortunate posture government has taken in the last several responses to ( judicial compensation) recommendations — that is a pattern of routine dismissal of ... recommendations that the (Supreme Court) warned against.”
The wrangling over the cabinet document ended last year at the Supreme Court — the judges lost, and were refused access. Newbury upheld the legislature's decision to whittle back their salary increase.
The division did not consider Wilkinson's comments germane: “Counsel for the Attorney General conceded below that Mr. Wilkinson's comments were incorrect.”
Setting aside the lower court order that favoured the judges, Newbury added the government “did not take issue with the principle that `the judiciary is distinct from the civil service'
... the Attorney made it clear to the Assembly in his longer remarks that judges are distinct from civil servants and that the commission process is `necessarily different from collective bargaining' due to the need to ensure that `judges are and are seen to be independent of government.' Further, after Mr. Wilkinson spoke, the Attorney told the Assembly inter alia that `we recognize that judges are not civil servants,' as the `judiciary is a separate branch of the state and must be independent of government.'
“Obviously, the critic's remarks were not made on behalf of the government ... as far as I am aware, the topic of judges' pay was not shown to be of any particular `political' or partisan interest, and the Attorney's motion was passed unanimously in the Legislature.
“The court in the P.E.I. Reference accepted that judges' salaries could be `reduced, increased, or frozen, either as part of an overall economic measure that affects all persons paid from the public purse' or part of a measure `directed at provincial court judges as a class.'”
Still, there remains no question the process is dysfunctional.
The legislature last year rejected the 2019 recommendations and set their salaries at $276,000.