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Rushing to Judgement on Judges’ Salaries

in Longread/Opinion by

In June 2019, an independent tribunal (“the Tribunal”) found that Newfoundland and Labrador Provinical Court Judges are entitled to a raise in remuneration—albeit with two years of a salary freeze. This week, the House of Assembly is debating whether to approve that raise and— predictably—everyone is freaking out. The debate began on Tuesday, June 16, 2020, and in my view was a total dumpster fire. Thankfully, the debate was adjourned so members could do some more reading and receive a briefing before from the Department of Justice before debate resumes.

This article sets out to inform the discourse that is surely to come. In this space, I aim to explain why judicial remuneration works in the way that it does and to argue that the House of Assembly have mismanaged the motion before it on whether to adopt the Tribunal recommendations in light of recent jurisprudence on the matter.

The Rule of Law

For starters, the judiciary is a critical branch of government. While the legislature passes our laws and the executive implements our laws, the judiciary enforces those laws. Not only do they enforce the laws, but they enforce them objectively in accordance with the rule of law. Politicians are susceptible to partisan winds and even personal preferences. In principle, judges do not (and indeed cannot) work this way.

The rule of law is a cornerstone of our democracy. One of its major aspects is that law is not to be applied arbitrarily. It basically holds that everyone is equal under the law and so is applicable to everyone in a uniform manner. Maurice Duplessis, Premier of Quebec from 1936 to 1939/1944 to 1959, learned this the hard way when he took away Frank Roncarelli’s liquor license because, among other things, he did not like his religion. The Supreme Court of Canada found in 1959 that because the Alcoholic Liquor Act did nothing to enable the Premier (Duplessis) to take such action, he had wrongfully caused the revocation of Roncarelli’s liquor license. The court reversed the decision and awarded damages. Technically, the Quebec provincial government had the ability to withdraw liquor licences, but they could only do so within its statutory grant of authority from the legislature. Taking the liquor license for reasons that had nothing to do with policy objectives behind the Alcoholic Liquor Act is a classic example of an arbitrary use of power contrary to the broad principle of the rule of law.

By way of a more recent example, the provincial government’s travel ban made secondary to the COVID19 pandemic has been the subject of significant controversy. In all of the discussion and media attention around that, it has been implicit that the courts will set things right, whatever “right” is (I offer no opinion on that in this space). That implication is an important one: where there is suspicion that politicians might have overstepped in its creation/application of laws, we trust the judges to impartially consider it and render their decision.

The impacts of the rule of law are of course much broader than discrete examples. Judges decide whether laws passed by duly elected officials are constitutional; they decide whether a person should be subject to criminal sanction inclusive of loss of liberty; they even decide what is in the best interests of our children when parents cannot agree to that themselves.

Yet, notwithstanding the gravity of their decisions and their impact on our lives, we rarely see judges in headlines due to any sort of misconduct. (Though, as with everything, there have been exceptions—feel free to google “Justice Camp”). In politics there is a scandal every week. The judicial branch? Hardly ever.

Why do you think that is? Why are we so confident that judges are not subject to political interference or private interests, particularly in a place where cynicism drips from our political discourse?

Judicial Independence and Financial Security

Answer: judicial independence. Judges may make decisions objectively and fearlessly without reprisal because of their independence. The system aims to remove any possible incentives to act contrary to the rule of law. Historically, this has largely worked.

In Valente v R, [1985] 2 SCR 673, the Supreme Court of Canada listed three essential conditions of judicial independence: (1) security of tenure; (2) financial security; and (3) institutional independence on matters of administration bearing directly on the exercise of its judicial function.

The Newfoundland and Labrador Provincial Court Judges Salary and Benefits Tribunal Report effectively oversees the second essential condition: financial security. In their decision—which everyone who opines on this matter publicly should read—they found there are three components to financial security:

(1) Tribunal members must balance judicial independence with the economic realities of the province;

(2) It is inappropriate for the judiciary to engage in any bargain with the provincial government;

(3) Judges’ salaries must stay above a basic minimum level such that the public confidence in the independence of the judiciary remains intact.

The Tribunal members boiled all of that down to a simple but powerful statement: the executive cannot, or cannot be seen to be able to, manipulate judges. Financial security is a major aspect of the broader concept of judicial independence. The tribunal were therefore guided by the following factors in assessing judicial remuneration:

(1) The nature and importance of the work performed by provincial court judges and their unique role and responsibility in our society;

(2) The need to attract, motivate and retain the most highly qualified candidates from all areas of practice;

(3) Salaries of other relevant groups of society

(4) Increases in the cost of living

(5) The fiscal capacity of government in light of current economic conditions.

The Tribunal heard a ton of evidence, including expert reports on the cost of living and the province’s fiscal position, and put all of it in a blender.

The conclusion: given what judges are making in other Atlantic Provinces, given the increase in the cost of living, and yes, given the fiscal capacity of the government, the judges are entitled to a raise in years for the years 2019-2020 and 2020-2021, but that their salaries remain frozen for the years 2017-2018 and 2018-2019.

This is an objective decision. The Tribunal is in place to protect the rule of law, and the process is set up in such a way under the Provincial Court Act because it is basically acknowledged that a legislature is too drunk with political concerns to decide these things objectively on their own. That said, a legislature can justifiably reject a Tribunal’s decision where it has the proper rationale for doing so.

Government’s Response Must Be Rational

We have a reasonable basis to assess how a court would handle the legislature rejecting the Tribunal’s recommendations, because the current government tried exactly that a few years ago. In Newfoundland and Labrador Association of Provincial Court Judges v Newfoundland and Labrador, 2018 NLSC 140, the Supreme Court of Newfoundland and Labrador relied on Supreme Court of Canada precedent in articulating the following test for the rationality of government’s response:

(1) Has the government articulated a legitimate reason for departing from the commission’s recommendations?

(2) Do the government’s reasons rely upon a reasonable factual foundation?

(3) Viewed globally, has the commission process been respected and have the purposes of the commission—preserving judicial independence and depoliticizing the setting of judicial remuneration—been achieved?

The Supreme Court of Newfoundland and Labrador found in 2018 that our government did not meet the second and third aspects of the above test.

Reasonable Factual Foundation

On the second aspect, the Court said government did not adequately explain why freezing judges’ salaries represents an appropriate response to the problem it has articulated. This is where context is important. Based on comments in the House of Assembly, the increase of judicial remuneration will amount to approximately $400,000.00 in global additional expense per year. While the government will inevitably argue that COVID19 and falling oil prices mean they just cannot afford the raise in the event they bring this to court (which will ironically cost even more money), the evidence will show the government is giving pay increases to other civil servants, is paying for renovations in people’s homes to stimulate the economy, and has yet to cut any spending notwithstanding the new fiscal reality.

The result? Judges are being singled out. This won’t fly. As stated by our Court in 2018:

[180] The Government has failed on two of the three criteria set out in the Bodner decision.  On criterion number two, it has failed to engage appropriately with the reasoning of the Tribunal, and make a rational connection between the problem identified, the fiscal pressures facing the Government, and its proposed freeze of judges’ salaries.  It has singled out judges as the only group to experience a salary freeze for the years of the Tribunal period, 2013-2017.  It has not outlined a comprehensive program for expenditure reduction applying to all those paid from the public purse.  Demonstrating its failure to treat the judges either rationally or impartially, within two weeks of its resolution rejecting the salary recommendations, with great fanfare it approved a significant increase for medical interns and residents, using the same justification as that of the Tribunal—parity with the other Atlantic Provinces.

While the argument that the fiscal circumstances facing the province have changed dramatically is compelling, government tried that argument already after the infamous and dreaded Budget of 2016. As shown above, it did not work. The frailty of that argument is the least of our concerns, however, in light of the June 16, 2020, House of Assembly proceedings.

Preserving Judicial Independence and Depoliticizing the Setting of Judicial Remuneration

Earlier I said the House of Assembly debate on Tuesday, June 16, 2020 was a dumpster fire. I say so because on Tuesday, June 16, 2020, members of the legislature gave an impressive showing for how to fail the third aspect of the test for the rationality of government’s response: that is, depoliticizing the setting of judicial remuneration.

In the 2018 decision quoted above, Justice Faour took considerable time to quote Hansard and then admonish politicians on both sides of the aisle for politicizing the process. This led him to conclude that government failed to respect the process and avoid politicization. This, together with government’s failure to raise a reasonable factual foundation for departing from the Tribunal’s recommendations, meant it lost its case. The judges received their pay increase and government likely spent tens—if not hundreds—of thousands in legal expenses.

The lawyer for the Provincial Court judges must have been salivating if she was watching yesterday’s debate. To give you a flavour, Ches Crosbie asked what message they would be sending to the public to give judges a raise right now? Crosbie even went so far to say that many judges are his friends and he does not think they would mind if their raise were rejected. The former comment speaks to a politicization of the process, but the latter comment suggests some sort of bargaining process between the legislative branch and the judicial branch on remuneration. That flies directly against second component of financial security that mandates it is inappropriate for the judiciary to engage in any bargaining, direct or indirect, with the provincial government.

In the words of Justice Faour at paragraph 167 of the Supreme Court of Newfoundland and Labrador decision (emphasis added):

The process is supposed to be outside politics because Judges are specifically prohibited from being part of a political debate, or to negotiate with the Government in a process that would be inherently political.  The tribunal process was designed to ensure that the setting of their salaries and benefits would not become part of that debate.

Jim Dinn went so far to say that because the Tribunal members consisted of lawyers, that somehow meant they were not objective. He went on to say that he wished teachers’ salaries were set by a panel of teachers because “man, the contracts we would have gotten”. Not only does this fundamentally misunderstand the Tribunal process, he effectively alleged the Tribunal members were in a conflict of interest. (The Tribunal members, by the way, are not Provincial Court Judges. The court that hears judicial review applications are totally distinct Supreme Court Justices. This particularly argument was just way out of left field.)

Helen Conway-Ottenheimer said the provincial court judges would probably appreciate not having the “spotlight” put on them by getting a raise right now. This is effectively a statement that provincial court judges are worried about political optics, which is completely contrary to the principles of judicial independence. In the event Ms. Conway-Ottenheimer were correct, this would ironically support the opposite conclusion she invited the legislature to make: that provincial court judges are too concerned with political optics thus their financial security ought to be strengthened so to eliminate that dynamic.

Kevin Parsons said that if he were given the choice between giving judges a raise and giving more funding to the Kids Eat Smart Foundation, he would choose the latter. This is a blatantly political comment. In the words of Justice Faour at paragraphs 162 and 164 of the Supreme Court of Newfoundland and Labrador decision:

Pitting judicial salaries against other important Governmental services is an inappropriate politicization of the tribunal process.

[164] Again, the debate in the House, in a highly charged political environment, pitted the recommendations of the report against other expenditures.  It is not appropriate to compare the two, and it certainly is not appropriate to play off the positions of the political parties which now occupy opposite sides of the House.

Making matters worse, judicial remuneration headed off Question Period on Wednesday June 17, 2020, when Ches Crosbie asked Minister Parsons if he had the support of caucus for the motion to concur with the Tribunal’s recommendations in respect of judicial remuneration. This probably means Crosbie was tipped off that there was some discontent about the motion in the Liberal benches—that is about as political as political gets. (Full disclosure: I am as Liberal as they come, but if any Liberal members were swayed by Tuesday June 16 session of the legislature, they have made a serious error.)

The sad irony is that as Members of the House of Assembly pushed for government to reject the Tribunal’s recommendations under the guise of saving money, they were actually doing massive damage to any case the government might have had in defending any rejection of the Tribunal’s recommendations at the Supreme Court of Newfoundland and Labrador level.

There is Hope

Thankfully, the House did not vote on the matter on Tuesday. Instead, the matter was adjourned so that Members of the House of Assembly could read Justice Faour’s decision depicted above, as well as receive a briefing from Department of Justice officials.

Unfortunately, the damage may already be done. While there may be a reasonable rationale to abandon the Tribunal’s recommendations, Tuesday’s House of Assembly session did not give rise to such a rationale. We will see if rationality will prevail when the motion returns to the floor of the House of Assembly.

John Samms is a lawyer practicing at Stewart McKelvey in St. John’s and formerly worked in the Premier’s Office. He also teaches “Law, Governance and Public Policy” as well as “Constitutional Law” at the Department of Political Science at Memorial University. He is presently the Co-Chair of the Liberal Party Leadership Committee.

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