Month: December 2020

Recent Article of mine published in the Canadian Parliamentary Review.43n3e_20_printversion article

The final determination of compensation for judges by legislatures has created a constitutional threat to the independence of legislatures which has yet to be properly addressed.  All the litigation, and much of the academic focus, has been on the “rule of law” and the independence of the judiciary.  Little or no thought has been given to the constitutional functions of the legislature, the independence of the legislature or the basis for courts or others to interfere with decisions of the legislature.   Treating decisions of the legislature in the same manner as decisions of administrative tribunals, and against legal as opposed to constitutional standards, risks serious damage to the constitutional architecture and to the carrying out of constitutional functions by legislative bodies free from interference by the courts.

One would expect any case brought before the courts seeking “an order in the nature of certiorari quashing the motions of the Legislative Assembly”, “a declaration that the government response and the Legislative Assembly resolution did not conform to…the Act”, and “a direction to the Attorney General … as to the content of a new motion to be placed before the Legislative Assembly”, to raise serious parliamentary privilege concerns.  Such proceedings would usually be met by arguments that the court was being asked to question or impeach legislative proceedings and thereby interfere in them.  However, when the applications deal with judicial salaries there is no mention, let alone discussion or analysis, of these fundamental constitutional questions. The recent decision in Provincial Court Judges’ Association of British Columbia v British Columbia (A-G) 2020 BCSC 1264, from which the prayer for relief set out above is taken,  is just the latest example where the serious intrusion by the courts into the proceedings of a legislative assembly has taken place without any consideration of the constitutional privileges of the Assembly, its role and its independence from interference by the courts.  A review of all the jurisprudence cited and relied upon by the BC court reveals that in none of those cases was this issue raised or considered.  This is a serious omission which ought to concern all legislative and deliberative bodies, and those who elect them.  Without any reasoning or explanation for such intrusions into the functions of independent legislatures, the risk is that these cases will be used as precedents for further intrusions.

Before going further in my analysis, I am certain that some will point to the fact that the courts were considering and protecting the constitutional “principle” of judicial independence, so it was permissible them to effectively ignore “parliamentary privilege” and parliamentary sovereignty by directly questioning legislative proceedings, by way of judicial review.  But how can this be reconciled with the recent decision of the Supreme Court of Canada in Mikisew Cree,  where it was determined that even when constitutional “rights”, not mere “principles” , are at stake in parliamentary proceedings, the courts cannot question or impeach theses proceedings? There may be an analytical framework for justifications and exceptions to the constitutionally entrenched “absolute” privileges of legislative assemblies.  It is incumbent on courts to provide one. To date none has been given.

The Provincial Judges Salaries cases in the Supreme Court of Canada that determined that the establishment of judicial salaries could affect judicial independence. They therefore required a mechanism for determining salaries at arms length from government to be established.  The result in most provinces, including British Columbia, is a process involving a judicial salaries commission and a government response with the final determination made by the legislature.  The process starts with the establishment of a commission to determine salaries. The commissions usually are to examine relative judicial salaries in other jurisdictions, the salaries in the legal community from which judges are appointed, economic conditions such as inflation, and the ability of governments to pay.  The government is one of the main players in presenting evidence and analysis before the commission.  Based on evidence and argument, the commission issues a report indicating what it believes judges’ salary and benefits, including pensions, should be.   The government is then required to submit the report to the legislative assembly along with any government response to the report.  Often the government’s response is critical of the findings of the commission that did not accept the government’s position.  The legislative assembly then considers the report and the government’s response, finally determines what the salaries and benefits are to be and votes the necessary appropriations.

Those who are not satisfied with the decision of the legislature may then seek to have the courts review it.  The British Columbia case is indicative of the approach taken by lawyers and the courts to date.  The cases have all failed to recognize the constitutional role of the legislature and its members.  They treat the legislature as an administrative body making a legal decision.  They seek to have the courts apply standards of “reasonableness” and natural justice from the administrative law and judicial decision-making world to legislative decision-making.  But legislatures are not legal decision-making bodies in the judicial or administrative law sense.  As many Speakers have reminded legislative bodies, they may make laws but they neither interpret nor apply them.  They make legislative decisions through parliamentary processes.  They are bodies composed of both government and opposition members responsible for, among other matters, making decisions on proposed legislation, taxation and spending.  Their deliberations and processes are by nature political, partisan and unconstrained (except by internal rules).  The bases for making any particular decision cannot be and are not strictly constrained by statute law.  Even when a statute purports to apply to the internal workings of a legislative body, the courts have accepted that it is up to that legislature, and not the courts, to exclusively and without judicial interference determine if and how the law is to apply to its decision making (see Bradlaugh v Gosset (1884), 12 QBD 271, cited with approval in the Supreme Court in Canada (House of Commons) v Vaid 2005 SCC 30 paragraph 34).

To treat legislative bodies as if they were administrative tribunals, requiring them to follow particular procedures and to consider matters in a particular way, improperly invites the courts to make decisions on the procedures used by the legislature, contrary to the Supreme Court of Canada’s decision in Mikisew.  Judicially reviewing the legislative assembly’s reasoning on substantive legal grounds is contrary to the Bill of Rights, 1689 and the decisions and reasoning cited in Vaid. Such review would be a failure to recognize the constitutional role and independence of the assembly which is fundamental to the constitutional architecture of Canada.

This is not to suggest that a final decision of a legislative assembly, either through enacting statute or by resolution, cannot be subject to judicial review on constitutional grounds.  In Canada, legislative bodies are constrained by the Constitution.  Review for jurisdictional error based on the division of powers has been a limit on legislatures since confederation, and constraints based on the Charter have been present since 1982.  Legislation and decisions that do not meet these standards have been negated or modified by the courts.  In such cases the courts have been careful to weigh the constitutional doctrine of parliamentary supremacy with the consitutional provisions at issue.  This weighing has taken various forms, all distinct from mere statutory interpretation and application.   Often other constitutional principles, actors and interests shape the jurisprudence of consitutional review, each in its own particular way.

What is at issue in the case of judicial compensation is the consideration of the degree to which the constitutional principle of judicial independence, and its subsidiary condition of financial independence, is a constitutional constraint on the decision-making capacity of legislatures, which is only limited by the constitution.  To restrict or overturn the decision of a democratically elected legislative assembly that has its constitutional roots in the doctrine of parliamentary sovereignty and political accountability is no trifling matter.  There must be good and justifiable constitutional reasons.  The role of independent legislatures is no less constitutionally important than judicial independence.  And its pedigree in the Westminster system of government is longer and more entrenched.

Balancing these constitutional concerns is not a simple legal exercise.  Because of our constitutional arrangements, the courts are given the final word on constitutional questions, including their own constitutional independence.  In considering questions concerning their own remuneration they must be hyper-vigilant not to be seen as self-serving or unaware of the constitutional roles and responsibilities of other constitutional actors.  Courts must not only consider the outcome of their decision, but also the messages conveyed by the court process followed and the reasons given for reaching the decision. Their decisions can have a lasting impact on other institutions including to the internal proceedings of those institutions. Further, their decisions can affect future litigation and the way it shape the constitutional relationship between the courts and legislatures

Courts and lawyers cannot, and should not, merely apply traditional legal standards and analysis to questions involving the intersection of constitutional principles.  To do so could have considerable unintended consequences.  What is required is a unique analysis applicable to each unique constitutional problem.  In this context what is required is the weighing of judicial independence with the constitutional functions and independence required of legislatures when exercising their responsibilities for budgets and public policy, including the integration of judicial salaries within the body politic and the constitutional framework.  The decision-making scope and responsibility of the legislature is different from that of any commission or outside entity.  In examining the decision of the legislative assembly the courts must  not only consider the principle of judicial independence, but also the principles of parliamentary responsibility, democratic representation, parliamentary and democratic accountability, parliamentary privilege and the role of legislatures to reconcile the independence of the courts with the executive’s fiscal and policy responsibilities.

Such interference by the courts in the processes and determinations of a legislature, in light of the recognized constitutional constraints set out in the Bill of Rights, 1689 and the jurisprudence of the Supreme Court, requires both careful analysis and explanation.  Canadians and their elected parliamentary representatives should know why the situation of judicial salaries requires such a departure from the constitutional underpinnings of Westminster democracy.  When constitutional principles intersect, constitutional analysis is required.  Treating legislatures as administrative bodies belittles both the central role of legislatures within the constitution and the constitution itself.

It may be that the courts will find constitutional fault with the decisions of the legislative assembly, but how and why they do so matters.