A B.C. Supreme Court judge has quashed motions of the B.C. legislature rejecting recommendations for raises for provincial court judges.
Now, the issue of raises goes back to the legislature for reconsideration.
The 2019 Judicial Compensation Commission issued a report on Oct. 24, 2019. Such work is part of regular compensation reviews.
“The Supreme Court of Canada held that governments are constitutionally bound to participate in compensation commissions for the determination of judicial salaries as a replacement to negotiations,” Justice Neena Sharma said in her April 3 decision.
Sharma said the commission noted that determining judges’ salaries brings into focus two fundamental constitutional principles: judicial independence and the legislature’s responsibility to authorize all public spending.
The province had suggested salaries of $275,400 for 2020-2021, $280,908 for 2021-2022 and $286,526 for 2022-2023. Respectively for those years, the Provincial Court Judges’ Association of British Columbia had suggested $310,000, $316,200 and $322,524.
After four days of hearings and submissions, the commission recommended $287,000 for 2020-2021, $297,000 for 2021-2022, and $307,000 for 2022-2023.
Those are raises of 6.3 per cent in the first year and three per cent in each of the following years.
Sharma noted judicial independence is fundamental to the rule of law and democracy. She said judicial independence protects the separation of powers between the branches of the state, the integrity of our constitutional structure and promotes public confidence in the administration of justice.
Further, she explained, that guarantee of independence is maintained by:
- security of tenure, which exists where judges’ tenures are immune to discretionary or arbitrary interference by the executive or other appointing authority;
- financial security, whereby judges’ compensation is established by law, insulating it from arbitrary executive interference; and,
- administrative independence, which requires a tribunal to have institutional independence regarding matters directly relating to the exercise of its judicial function.
As such, commissions are established to review compensation. However, with legislatures controlling the purse strings, review recommendations frequently come into conflict with budgets.
But, as Sharma said, it is a process that must be depoliticized due to the nature of judges’ functions.
“I do find a holistic view of the B.C. government’s participation in the commission process and the response does not accord with a depoliticized approach to judicial remuneration,” Sharma said.
Part of the government’s response to the increases had to do with the COVID-19 pandemic. It argued the review’s recommended increased was out of step with the current economic situation and financial position of the province.
The association, however, alleged the government used the pandemic as a smokescreen to obscure the true reason the salary recommendations were not accepted. The association asserted it was to keep the increase of judges’ salaries in step with the 2019 mandate applicable to the unionized public sector.
“(The government) argued that the two per cent annual pay increases found in the 2019 mandate were reliable markers creating a reasonable benchmark for judicial salaries,” Sharma said.
“I do find that the attorney general placed undue emphasis on the similarity of its proposed increase and the increase contained in the 2019 mandate,” Sharma said.
The judge also noted most government employees can engage in collective bargaining while judges are constitutionally prohibited from doing so.
Looking at the number of factors in play, Sharma said, “there can be little doubt that the B.C. government was in a difficult position.”
However, Sharma said, the commission was in no place to know the pandemic impacts when it released the 2019 report.
The judge noted a Supreme Court of Canada comment that B.C. routinely dismisses commission reports.
“I do find the history of governments' treatment recommendations from previous commissions raises a serious concern,” Sharma said.
“It is not a history that demonstrates the B.C. government typically accepts judicial compensation commission recommendations," she said.
The government has not yet responded to a Glacier Media request for comment.
