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CBA intervenes in judicial compensation case at SCC

The CBA appeared before the high court as an intervenor for the third time on the issue, arguing for the larger principle of judicial independence.

SCC at night

On Dec. 9 the court heard two cases, one from Nova Scotia and the other from British Columbia, where the provinces had rejected the recommendations of their respective Judicial Compensation Commissions, but failed to provide reasons for that rejection.

“The constitutional principle of judicial independence demands that transparency, rather than secrecy, ought to guide judicial compensation proceedings,” the CBA’s legal team argued in its factum to the Supreme Court.

“Whether or not the government’s decision was ill-intentioned, a secret process reasonably causes the public to speculate about the government’s motivations and question whether the decision was political rather than objective.”

Doubts about judges’ financial security could compromise the public’s perception of the judiciary, the factum argues. “As it is a constitutional imperative that the public be able to satisfy itself that judicial compensation is not managed in a manner that undermines judicial independence, failure to do so must be the threshold where judicial compensation processes cease being neutral and become political.”

Earlier Supreme Court rulings established that avoiding the politicization of judicial finances is “part and parcel” of judicial independence, the factum notes, arguing therefore that disclosure in judicial compensation proceedings ought to be “presumptively complete.” Claims of cabinet confidentiality, they say, should be assessed in light of the “constitutional imperative” to depoliticize the judicial compensation process.

Guy J. Pratte, Nadia Effendi, Ewa Krajewska and Neil Abraham of Borden, Ladner Gervais in Toronto and Ottawa, appeared for the CBA on a pro bono basis.

The two earlier cases where the CBA intervened, known informally as PEI Reference and Bodner, together establish the framework for recommendations regarding judicial compensation. PEI Reference sets out the process by which judicial compensation ought to be determined in order to safeguard judicial independence. Bodner clarifies that there needs to be a “public and open process of recommendation and response” in order for the recommendations of the JCCs to have meaningful effect – the state may reject the recommendation, but must give rational reasons for doing so, reasons that are not meant to influence or manipulate the judiciary.

“In PEI Reference, the CBA started at first principles to explain why the process itself must flow from strict deferral to judicial independence,” the intervention proposal states. “In Bodner, the CBA applied those first principles in assessing the role of the JCC as the guarantor of that independence. In the present appeals, the question is how those principles inform disclosure obligations.”

In both the British Columbia and Nova Scotia cases, provincial court judges asked for a judicial review of the provinces’ decisions to reject recommendations by the JCCs. “These appeals do not concern the merits – that is, the ‘rationality’ – of BC’s and NS’s responses to the recommendations,” the BLG team writes. “At issue in these matters is the proper scope of the record on a judicial review of the state’s refusal to accept a JCC’s recommendations.”

In both Nova Scotia and British Columbia, the judges moved to have the report and recommendation to cabinet – which in B.C. was made by the Attorney General, and in Nova Scotia came from the Governor in Council – included in the record. In Nova Scotia, the judges also moved to include an affidavit written by the Hon. James H. Burrill, which provided information about the history of judicial compensation and related matters.

“The provinces opposed this disclosure asserting various privileges, as well as taking the position that the only pertinent record for the purpose of the Bodner framework is the final response by the government to the JCC’s recommendation.”

The Supreme Court of Nova Scotia ruled that the Governor in Council should produce its Report and Recommendation, minus any passages covered by solicitor client privilege. Smith J. admitted large portions of the affidavit after determining that it could be admitted if it was in support of the judges’ claim that the process had been marred by a lack of fairness.

The Nova Scotia Court of Appeal, upheld Smith J.’s decision in large part. It said the Cabinet submission, since it forms part of the factual foundation for the province’s refusal to accept the Tribunals’ recommendations, is clearly relevant under Bodner. It also found that more sections of the affidavit were relevant under Bodner. It allowed the cross-appeal in part and admitted more of the affidavit in evidence.

The British Columbia Supreme Court and Court of Appeal likewise ruled that the Cabinet submission was relevant to the judicial review.

The intervention proposal was approved after robust consultation with Branches, National Sections and Committees with a policy mandate, as per the CBA’s Intervention Regulation.