The Provincial Judges Reference at 10: The Hollow Promise of Remuneration Commissions

Ten years ago, the Provincial Judges Reference had a mixed reception. It was variously hailed as a novel use of unwritten constitutional principles and a boon for judicial independence, and chided as an act of naked self-interest by a group of judges who took judicial law-making to a whole new level. In the years since, it has been the subject of countless media reports, several volumes of academic commentary, and an Honorable Mention in a recently published list of the Supreme Court’s top Charter decisions.

The Provincial Judges Reference marks its tenth anniversary next Tuesday. Its implications for big-picture issues such as judicial power and unwritten constitutional principles have been debated almost ad nauseum. There have been few attempts, however, to assess whether it has achieved what the Supreme Court then described as its principal goal – the depoliticization of long-standing battles over judicial compensation.

In its judgment, the SCC demanded that provinces and the federal government establish independent remuneration commissions to make recommendations about judicial salaries. A decade later, the ruling hardly seems to have had the desired effect. Several provinces were slow to establish remuneration commissions. And when finally forced to do so, many dragged their heels in response to commission recommendations, while others engaged in what has been described as “a pattern of routine dismissal of commission reports.” The result? Remuneration commissions have themselves become the subject of steady stream of litigation that has kept Canadian courts busy for much of the last decade.

What’s more, the debate is no longer just about judicial compensation. A recent Canadian Judicial Council report concluded that the remuneration debate has in fact boiled over, and hindered the ability of governments and the judiciary to work together on other fronts. According to this line of argument, tensions over remuneration have contributed to what the CJC describes as “the erosion of mutual trust between the government and judiciary on matters of court administration.” In turn, this decline may help to explain what one of the study’s authors has described elsewhere as “showdowns between Chief Justices and Attorney Generals over courthouse closures, budgets, building safety, labour relations, security and information technology, library facilities and even parking.” Further, it may help to explain why chief justices and government officials have recently engaged in several highly public spats over everything from legal aid to the appointment process.

To its credit, the Supreme Court has recently acknowledged the problem. In Provincial Court Judges Association of New Brunswick (2005), a unanimous SCC admitted that the initial Provincial Judges Reference “has not provided the anticipated solution.” Indeed, the judges went even further, noting that “[i]nstead of diminishing friction between judges and governments, the result has been to exacerbate it.” They proceeded to lay-out a new approach, which maintains the basic remuneration commission model, but seemingly makes it easier for governments to rationalize departures from the recommendations put forward by those commissions.

It remains to be seen whether the Supreme Court’s latest foray into the ongoing debate will achieve that which the Provincial Judges Reference sought to achieve a decade ago. Early indications, however, suggest that little has changed. In July, a New Brunswick judge announced a legal challenge to legislation which rejected a report by a majority of the province’s remuneration commission, in favour of recommendations by the minority. And just last month, the Canadian Superior Courts Judges Association announced that it will seek amendments to the federal Judges Act to compel the federal government to respond sooner to commission recommendations. The demands follow a three-year long, bitter battle between the federal government and federally-appointed judges, which ended last year with the latter receiving far less than what a remuneration commission had recommended.

Developments like these hardly sound like the hallmarks of a depoliticized process. On the contrary, they sound more like the latest plot twist in a saga that began a decade ago, and has no apparent end in sight.