Independence Be With You

The application of the principle of judicial independence, as the Supreme Court has developed it, to ordinary judges of provincial, federal, and superior courts is clear enough. But the extension of its protections to other judicial officials, such as deputy judges, masters, or prothonotaries still causes friction between the judiciary and the “political branches.” A recent decision of the Supreme Court of Nova Scotia, Nova Scotia Presiding Justices of the Peace Association v. Nova Scotia (Attorney General), 2013 NSSC 40, is illustrative. The presiding justices of the peace―”those justices who hear and determine cases, such as the trials of some charges under provincial legislation” (par. 1)―formed an association to represent their concerns about their pay and working conditions. The justices are now paid at an hourly rate tied, according to a rather convoluted formula that has not changed in a decade, despite the changes in the justices’ jurisdiction, to the salary of provincial court judges. The association sought to have this legislative scheme declared unconstitutional as a violation of the principle of judicial independence. It has succeeded.

As a preliminary matter, the government argued that that judges could not sue the Crown, because they were its delegates. The Crown, at common law, is the font of justice; judges are merely its representatives, its judicial alter ego. So they cannot sue it, since this would be equivalent to the Crown suing itself. Not so, said the Court. The Crown wears many hats, as it were (this lame joke is my own; don’t blame Justice Moir for it):

 A constitutional monarchy limits the Crown’s involvement with each of the three branches of government.  And, the limits are different for each.  So different, that the Crown who is a component of Parliament cannot be univocally equated with the Crown who is the head of government in the sense of the executive, and neither can be univocally equated with the Crown who has a symbolic relationship with the judiciary. (Par. 24)

Furthermore, “the constitutional requirement for an independent judiciary is inconsistent with the notion that judges function as delegates of any entity associated with the government, the executive branch” (par. 25).

The government’s theory seems quite absurd to me. If taken seriously, it would prevent a judge from suing the government even if the government, for whatever reason, fails to pay his salary! But there is another conceptual flaw in it. Although the Crown is named as a respondent, because it is the executive’s job to defend the constitutionality of legislation, a suit for a declaration that a statute or regulations are unconstitutional is hardly equivalent “suing the Crown” in any ordinary sense.

The government also raised a second preliminary objection, arguing that the Association had no standing. The Court agreed that it had no personal interest at stake, the issue being the judges’ pay, not anything the Association is owed. But, applying the Supreme Court’s recent ruling in Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45,   it granted the association public interest standing, holding that the case presented a serious justiciable issue, that the association had a genuine interest in the proceedings, and that its suit was a reasonable and effective way of bringing the issue before the court. On this point, Justice Moir writes that

Parties to hearings before justices have a direct interest in a justice’s independence. … [T]he government suggests we wait until a party becomes informed about the justice’s remuneration and chooses to mount a challenge based on lack of independence.  One could wait rather a long wait.  In the meantime, one has to be concerned that the justices have taken a public position that seriously calls into question their ability to determine cases with the required independence. (Par. 51)

This paragraph shows both the promise and the danger of the expanded public interest standing under Downtown Eastside. The promise is that a point of constitutional significance can now be raised by a group with knowledge of and expertise in the relevant area, even if it has no “personal stake” in raising it. A person with such a stake might lack the resources to raise the argument effectively (as was the case for sex workers in Downtown Eastside) or the point might be so obscure that few ordinary litigants or even lawyers would be aware of it―that, Justice Moir seems to suggest, is the case here. The danger is that interest groups might be able to manufacture their own constitutional challenges even though no “real” person actually cares about them. The people should be free to “sleep on their rights” if they are so inclined. But with public interest standing, someone is always going to be awake. So it is in this case, where the supposed beneficiaries of judicial independence, the litigants (or more specifically here, the accused)―not the judges!―did nothing to assert the violation of their rights, and a pressure group with a stake in enforcing the rights of others decided to do it.

On the merits of the case, the government argued that since the justices’ compensation was tied, after a fashion, to the salary of provincial court judges, which salary was set following a constitutionally compliant procedure (recommendations by an independent commission followed by reasoned response by the government), the requirements of judicial independence were satisfied for the justices too. The Court rejected that claim. Tying the salary of one group of judicial officials to those of another is not enough. There is no necessary relationship between the work of justices of the peace and that of provincial court judges. The commission recommending salary increases and working conditions for the latter has no mandate to look at the situation of the former; its recommendations have nothing to do with justices of the peace. Judicial independence, as the Supreme Court held in Reference re Remuneration of Judges of the Provincial Court (P.E.I.), [1997] 3 S.C.R. 3, requires an independent commission to make recommendations as to salary and other benefits of judges. Since there is no meaningful input from such a commission in the case of justices of the peace, their independence is not respected.

That sounds right to me. One can of course criticize the Supreme Court’s expansive―and expensive―view of judicial independence, but it is, for better or worse, the law of the land. And surely, not entirely for the worse. In this case, it is true that the way the justices’ pay was determined bordered on the irrational, yet the government manifestly had no inclination to do anything about it.

As for the remedy, the Court grants a declaration of unconstitutionality, suspended for 12 months to allow the government to come up with a constitutional alternative. But it denied the Association’s request for an order for retroactive compensation:

this misses the point that special processes for judicial remuneration are to protect judicial independence, not judges.  Judicial independence cannot be restored retroactively. (Par. 119)

Indeed.

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