Standing up to the Court

The London Free Press
By Rory Leishman

Last week, Justice Minister Vic Toews recommended to Parliament a set of pay hikes for judges that would give Chief Justice Beverley McLachlin of the Supreme Court of Canada an immediate raise of $20,100 retroactive to April 1, 2004. In the opinion of Joe Comartin, the justice critic for the New Democratic Party, that’s not nearly enough. He fumed: “What we have here is another reflection of the contempt this government holds toward our judiciary.”

The mind boggles. Not so long ago the socialists of the NDP subscribed to the Marxian precept: “From each according to his ability, to each according to his needs.” Now they berate a Conservative cabinet minister for suggesting that the Chief Justice should be content with a 7.25-per-cent pay hike that will give her an annual income of $298,500.

The New Democrats are not alone in calling for heftier pay hikes of judges. The previous Liberal government accepted the recommendations in a May 2004 report by the independent Judicial Compensation and Benefits Commission that called for an immediate salary increase of 10.2 per cent for federally appointed judges. That proposal would give McLachlin a retroactive pay hike of $30,000.

Now the NDP insists that the Harper government should likewise endorse the commission’s recommendations. Toews disagrees. Given that federally appointed judges already have their salaries permanently indexed by law to inflation, he thinks that McLachlin and her colleagues on the Supreme Court of Canada should be content with an additional retroactive pay hike of 7.25 per cent.

In support of this proposal, Toews points out that even at the current rate of pay, there has been no lack of highly qualified applicants for vacancies in the federally appointed courts. And he contends that the commission’s recommendation of a 10.2-per-cent increase in judicial pay on top of inflation indexing is not “reasonable and generally proportional” to all the other economic pressures and legitimate fiscal demands upon the Harper government.

Underlying this dispute is disagreement over who should have ultimate responsibility for determining judicial pay. Toews has good reason to insist that it’s up to elected representatives of the people in Parliament inasmuch as Section 100 of the Constitution of Canada plainly states: “The Salaries, Allowances, and Pensions of the Judges of the Superior, District, and County Courts … shall be fixed and provided by the Parliament of Canada.”

Despite this explicit provision of the Constitution, the Supreme Court of Canada held in the 1997 PEI Judges Reference case that the government of Canada must establish an independent commission on judicial pay. The court also warned: “if the executive or the legislature chooses to depart from (the commission’s recommendations), it has to justify its decision -- if need be, in a court of law.”

With this decision, the unelected judges on the Supreme Court of Canada declared, in effect, that they have a right to determine their own pay. In support of this unprecedented assertion, the majority could cite nothing but the “underlying, unwritten, and organizing principles found in the preamble to the Constitution Act, 1867.”

In a stinging dissent in this case, former Justice Gerald La Forest contended that the Court has no authority to subordinate the express provisions of the Constitution to some unwritten principles lurking in the preamble. The express provisions of the Constitution are the Constitution, he insisted: “To assert otherwise is to subvert the democratic foundation of judicial review.”

La Forest is right. In conformity with the separation of legislative and judicial powers, the Supreme Court of Canada should respect the authority of Parliament under section 100 of the Constitution to determine the salaries, allowances and pensions of all federally appointed judges.
Moreover, in fulfilling this legislative responsibility, Parliament should stick with the reasonable increases in judicial pay proposed by Toews. If McLachlin and other judicial activists on the Supreme Court of Canada are not content with his generous offer of an additional $20,100 and $18,600, respectively, per year, they should quit.

In this way, Prime Minister Stephen Harper and Toews would have an opportunity to come up with some eminently qualified replacements who would respect the democratic foundation of judicial review, by upholding the plain language of the Constitution as originally understood.