It's been a thorny question for decades. But governments could simplify the issue by using compensation commissions with binding recommendations.

The salaries and benefits paid to judges in Canada is a heated topic. Over the years, it has become highly politicized and litigious.

I had never thought much about how judges’ pay is decided and who does the deciding until a year ago, when the Canadian Provincial Court Judges Association asked me to conduct independent research into the process for determining judicial compensation.

In December, I compiled my findings and recommendations for a fairer, more effective process.

Deciding what a good judge is worth, I discovered, is a difficult and values-laden process leading to subjective judgments that must balance constitutional, financial and political considerations.

Remuneration needs to be appropriate, and not modified in an arbitrary manner. This is important if we are to avoid a situation where judges could be beholden to – or be perceived to be beholden to – governments for pay raises and other benefits. The fear is that judges might pull their punches when reviewing the constitutionality and legality of government actions.

Procedures for determining judicial compensation are controversial because of an inherent tension built into them.

It is the tension between the constitutional principles of responsible government and democratic accountability and the equally important constitutional principles of judicial independence as an essential feature of a liberal democracy in which the rule of law prevails.

For more than two decades, a compensation process for federal and provincial judges has been used to try to balance the two sets of constitutional principles.

Unfortunately, that process has become entangled in controversy, conflict and litigation among governments, legislatures and judges.

The bottom line is that political opportunism is mainly to blame for the breakdown of a process that was meant to be independent and  objective.

The backdrop

Historically, federal and provincial governments argued that the constitutional principles of responsible government required all spending to originate with the Crown. They felt entitled to set judicial compensation unilaterally.

Judges can only accept what’s offered. They cannot engage in collective bargaining. They can’t lobby governments or negotiate through the media. To do so might open them to the suspicion that they would relax their scrutiny of government action in return for extra pay.

Compensation for judges ranges from $200,000 and $500,000, which explains why there has never been a public outcry for higher salaries and benefits. It also explains why governments have long had a tough time with judicial salaries.

Back in the 1980s, some governments periodically appointed advisory commissions to make recommendations. Then they typically ignored them.

Incomes of judges fell behind inflation and farther behind compensation levels of lawyers in the private sector. During the economic downturn of the 1990s, a number of provincial governments imposed cutbacks or freezes across the public sector, including for judges.

In the mid-‘90s one provincial judges’ association and some accused persons argued that the reductions violated the principle of financial security for judges, which is a crucial component of the broader concept of judicial independence. Judges’ associations went to court to appeal restraint measures by four provincial governments. Their cases were further appealed in a single case before the Supreme Court of Canada.

Out of that came the PEI Reference case of 1997. In the controversial landmark decision, the court took the unusual step of outlining a new process for determining how judges would be paid.

The ruling forced the federal government and all provinces to establish commissions (some called them tribunals or committees) that conformed to new constitutional requirements.

Rivers of ink have flowed on the ruling, mainly in law journals. Here is one example.

The main points in the Supreme Court ruling

The Supreme Court found that to uphold judicial independence, there should be neither the reality nor the perception that governments might penalize judges financially for challenging legislation.

Compensation should not be determined unilaterally or through negotiations. Rather, adjustments should only occur after consideration by a commission that would be independent and objective.

Commission recommendations need not be binding but they must not be set aside without substantive reasons and must meaningfully influence salaries.

Typically, commissions are formed on a three- or four-year cycle. They are usually composed of three members: A nominee of the provincial judges’ association, a nominee of the government and a chairperson chosen by agreement of the two sides.

The commissions were instructed to consider the state of the economy and the financial circumstances of the particular government. Arrangements across the country for finalizing judicial salary adjustments have been varied and technical.

In the Yukon, recommendations are binding, as they were in Nova Scotia before the government changed the law in 2016 to a non-binding model. Ontario has a binding model, but only for salaries. In several provinces, recommendations are partially binding or binding in certain circumstances. The legislature, the cabinet or some combination of those two institutions can be involved with final decisions.

The new process brought problems

The experience with the new commission process was disappointing from the outset.

Many provincial commissions recommended substantial salary increases to compensate for double-digit inflation, an increase in volume and complexity of cases and a desire to narrow the salary gaps between provincial and federal judges.

In most cases, governments rejected these increases. Appeals followed by judges’ associations in four provinces. Eventually, five appeals from four provinces were combined in the Bodner v. Alberta case decided in 2005.

The Bodner ruling upheld the right of governments and legislatures to reject or modify commission recommendations, but insisted on more solid grounds for doing so. The governments involved had claimed their constitutional and political responsibility for managing the public purse gave them the right to weigh factors differently than the commissions had.

In the PEI Reference case, the Supreme Court argued that remuneration decisions should not be based on political expediencies. In the Bodner case, it insisted that government decisions on compensation must meet the test of simple rationality, by which it meant logical arguments supported by objective facts. Both court rulings called for the “depoliticization” of the compensation process, meaning protection from decisions made to simply avoid voter backlash.

The opposite has happened.

Acrimony, conflict and litigation over compensation have intensified. Governments have taken a hard line on rising compensation, prompting judges in nearly every province to launch appeals. Unfortunately, the high-profile fights create cynicism about the commission process and risk bringing the judiciary into disrepute.

Governments arguments for their resistance have not been persuasive.

They insist that the principles of responsible government require that all spending originate with the Crown and be approved annually by the legislature. This means they must have the final word on compensation. However, when governments establish commissions with authority to make binding rulings, the principles of responsible government are inherent in the design of the compensation process.

This fact has been recognized implicitly in jurisdictions where the law provides for binding decisions in whole or in part and/or under certain conditions. A binding model recognizes the desirability of avoiding even the hint that judges will sacrifice professional judgment for a salary increase.

Another tendency among governments is to treat the courts as just another part of the public sector that cannot be exempt from budgetary restraint. This ignores the constitutionally protected status of courts and judges identified in the PEI Reference and the Bodner cases.

An expression of this tendency is to reject recommendations because commissions ignored the overall budgetary strategy of the government. But commissions are not required to consider budgetary strategies, which tend to be vague and shifting. The laws do require consideration of economic conditions and the financial circumstances of government. In general, commissions have been mindful of the affordability of their recommendations, and in recent decades modest increases have been the pattern.

Governments have never produced compelling evidence of how raises for judges affect spending on politically sensitive fields like health or education. Judicial salaries are a tiny part of total spending, and periodic raises are an even more minuscule component.

A related claim is that granting increases to richly compensated judges is unfair to other public employees and will ignite wage demands from public-sector unions. Evidence to support this claim has not been produced. Moreover, judges are not regular public servants. The Supreme Court has declared a constitutionally protected dimension to their employment.

Finally, governments have undermined the commission process by weighting factors differently than commissions do.

The real issue with judicial compensation is not constitutional or even monetary. Rather, it is political. It is all about the optics of adding to the salaries and benefits of judges already earning a fortune in the eyes of most voters.

The solution

Adoption of a binding commission model would avoid short-term, opportunistic political decision-making. Ontario has used a binding model for salaries since 1992, and there has been far less conflict and litigation than in other provinces. A binding model gives governments some political cover because they can argue they have no choice but to implement commission reports.

To create a greater appreciation for secure and appropriate remuneration for judges, another stage should be added to the commission process: Interim commission proposals should be created and published to give an opportunity to governments, judges and others to provide comments.

These two reforms would promote a commission process that is independent, transparent, fair, objective and effective, just as the Supreme Court envisaged back in 1997.

Photo: Supreme Court of Canada chief justice Richard Wagner speaks during the welcoming ceremony for Justice Sheilah Martin, in Ottawa on March 23, 2018. THE CANADIAN PRESS/Justin Tang


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