Judicial pay ruling shows how the Supreme Court of Canada has become a law unto itself
The London Free Press, January 16, 2001
By Rory Leishman
Whatever happened to the impartiality of the judiciary? Reasonable Canadians might well ponder that question in light of the extraordinary letter that Chief Justice Beverley McLachlin of the Supreme Court of Canada wrote to Justice Minister Anne McLellan on December 1, demanding quick action on a pay increase for the judiciary.
Any cabinet minister who wrote a letter to a judge, demanding quick action on an impending judicial decision would be fired, and properly so, for compromising the reputation of the courts for independence and impartiality. Why should it be any less improper for a judge to write a letter to a cabinet minister demanding prompt action on an executive decision that might well end up in the courts?
At issue in McLachlin's letter to McLellan was the government's response to the package of salary and benefit hikes for superior court judges recommended by the Judicial Compensation and Benefits Commission on May 31. Section 26(7) of the Judges Act requires the Minister of Justice to respond publicly on behalf of the Government of Canada within six months of receipt of the Commission's report.
In her December 1 letter, McLachlin warned McLellan that the ministerial response was one day overdue. For the Chief Justice of Canada to issue such a warning to a minister of the crown shows an amazing lack of discretion. If McLellan's response to the commission had become a matter of litigation before the Supreme Court of Canada, how could McLachlin suppose that any reasonable person would retain confidence in the impartiality of the Court?
As it is, McLellan officially disclosed on December 13 that the Chretien government had accepted the commission's recommendation of a salary hike for judges of 11.2 per cent. She denies that McLachlin's letter had anything to do with the timing or the content of this announcement.
Regardless, McLachlin has good reason to be pleased. Under the terms of the settlement, her salary will jump to $254,000, up from $230,200. In addition, her allowance for travel and expenses will rise to $18,750, up from $10,000.
Few other Canadians, inside or outside the public service, can expect so generous a hike in pay and benefits this year. In a written submission to the commission, the government originally proposed a salary increase of 5.7 per cent. So why did McLellan end up agreeing to 11.2 per cent?
She had no choice. Under terms of the Judges Act, McLellan must accept the recommendations of the judicial pay commission, unless she can demonstrate to the satisfaction of the courts that she has "reasonable justification" for proposing some alternative pay package to Parliament.
Why did the honourable members of Canada's once supreme legislative assembly tie the hands of the minister in this way? Legally, they, too, had no choice. A majority of the Supreme Court of Canada ordered them to change the law.
Under the pretence of affirming the independence of the judiciary, the Court declared in Reference Re Remuneration of Judges, 1997, that, one, the government must create and consult "an independent, objective and effective," pay and compensation commission for judges before changing or freezing the pay of superior court judges, and, two, that neither the government nor Parliament can modify the recommendations of the commission without some reasonable justification acceptable to a court of law.
The independence of the judiciary has been a principle of parliamentary democracy since the Act of Settlement of 1701, yet suddenly in 1997, the Supreme Court of Canada purports to discover that independent pay commissions are essential to upholding judicial independence. In a stinging dissent, former Justice Gerard La Forest pointed out that there is no justification in history, law or precedent for this arbitrary and self-serving ruling.
If only out of regard for its own dignity, Parliament should firmly reject the extravagant 11.2-per-cent salary hike for superior court judges recommended by the commission and appropriate no more than the reasonable 5.7-per-cent increase originally proposed by McLellan. What would the Supreme Court of Canada then do? Issue bench warrants for the arrest of recalcitrant MPs and consign them all to prison on charges of contempt of court?
Actually, that would be all to the good. At least, most Canadians would then finally understand that we are now living in a judicial dictatorship |
