Summary

Keywords

Constitutional law - Constitutional law — Judicial independence — Judicial remuneration — Government departing from compensation commission’s recommendations on salary and benefits — Whether disagreement with the weight accorded by compensation commission justified the Legislative Assembly’s decision to reweigh factors — If so, whether set salaries are pure matter of discretion and political judgment — Whether parliamentary debates should be considered when assessing rationality of response to compensation commission recommendations when legislative assembly is decision-maker — Whether compensation commission process is being respected and its purposes achieved.

Summary

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Acting under the authority of the Judicial Compensation Act, S.B.C. 2003, c. 59, British Columbia’s Judicial Compensation Commission (“JCC”) made 16 recommendations concerning the three years beginning on April 1, 2017, in a report to the Attorney General of British Columbia and the Chief Judge of the British Columbia Provincial Court. The first recommendation was for an increase in salary that would result in the salary of the puisne judges of British Columbia’s Provincial Court ranking fourth among the provinces. The JCC based that recommendation on British Columbia’s financial position and economic conditions, and its population, size and budget. The recommendation would also bring the salaries into the range of senior leadership in the public sector, and would go some way toward closing the gap between the salaries of Provincial Court judges and Superior Court judges.

When the JCC report was brought to the Legislative Assembly, the Attorney General moved that it accept most of the JCC’s recommendations, but proposed alternate salary increases and an alternate resolution of one other matter. He attached the Government’s Proposed Response to the Report of the 2016 Judicial Compensation Commission in Respect of Provincial Court Judges (“Government’s Response”) as an appendix to the motion. Following the Attorney General’s comments, the Opposition’s Justice Critic said, “Generally, it is understood that the result will often not be what the recommendation is that comes from the independent panel”, and he referred to judges as “part of our most arms length civil service”. Before and after those comments, the Attorney General referred to the need to respect judicial independence, and counsel for the Attorney General acknowledged that those comments were incorrect, but the errors were not corrected by the Attorney General before the Legislature voted. The Legislative Assembly unanimously passed the motion.

The Provincial Court Judges’ Association (“PCJA”) filed a petition for judicial review. The chambers judge quashed the motion, declared that the resolution did not conform with the Act, and remitted the Government’s Response to the Legislative Assembly for reconsideration. The Court of Appeal allowed the appeal and dismissed the government’s cross appeal. It set aside the chambers judge’s decision and the petition of the Provincial Court Judges.