Attorney General David Eby is reviewing a court order to turn over normally secret cabinet documents on provincial court judges’ compensation to the judges themselves.
But the decision by the B.C. Supreme Court ordering Eby to produce the document the government relied on to decide compensation for provincial court judges is raising questions about the true impartiality and independence of the judiciary.
“Some people are going to say it’s good, old-fashioned self-interest, dressed up in big words like independence of the judiciary,” said Michael Prince, the Lansdowne Professor of Social Policy at the University of Victoria.
“I think, for a lot of the public, this is going to be both mystifying and annoying. People are struggling with affordability, poverty, housing and homelessness. These processes are always awkward. But should the judges have an automatic right to appeal on the grounds that it’s in the public interest that the cabinet documents be disclosed? Or is it just in the judges’ interest?
“What is the broader public interest being served here for cabinet secrecy to be challenged and compromised? What’s the harm that’s happening to the judiciary?”
People might also find it odd that disputes between the judiciary and the government are heard before a judge, Prince said. “If this decision holds, it puts government decisions in the future over a barrel,” he said.
The government has until the end of the month to appeal the order.
In October 2016, the attorney general and the chief judge received the 2016 report by the Judicial Compensation Commission recommending changes to the salaries, allowances and benefits of provincial court judges from April 1, 2017 to March 31, 2020.
On Oct. 25, 2017, Eby introduced a motion in the legislature rejecting two and accepting eight of the recommendations. Opposition justice critic Andrew Wilkinson, now B.C. Liberal leader, supported the government motion, which passed unanimously in the legislature.
The government rejected the commission’s recommendation that judges’ salaries be increased by 11.48 per cent to $281,251 by April 1, 2019. It also rejected a recommendation to pay 100 per cent of the judges’ costs for participating in the compensation commission process.
Instead, the government proposed an increase to judges’ salaries of 7.02 per cent over three years to $270,00 by April 1, 2019. The legislative assembly also required that a formula in the Judicial Compensation Act should apply to the cost to judges.
In June, the Provincial Court Judges’ Association applied to the court to quash the government motion and declare that the government’s response did not conform to the standards of the Judicial Compensation Act, which embodies the constitutional principle of judicial independence.
Master Leslie Muir found no evidence that “any harm would flow from production of the document.” She concluded that the document should be produced to ensure transparency in the process.
The government argued that granting the order would result in routine production of cabinet submissions in every future application for judicial review regarding judicial remuneration.
Victoria lawyer Chris Considine explained that the commission is an independent tribunal, appointed every three years to provide a report.
“It listens to both government and the judges, and receives written and oral submissions in a hearing-type setting. It then provides a series of recommendations in its report, which go to both the judges and the attorney general,” said Considine.
The government normally reviews the recommendations, then provides its position to the legislature.
“Quite often the recommendations are accepted,” said Considine, who sat on the commission twice. “Ours were accepted both times.”
It’s significant that Eby and Wilkinson acted in agreement. The unanimous vote in the legislative assembly represents the decision of the people, said Prince.
While Muir seems to be making the order on the issues of transparency, there are other values, such as respect for elected officials and respect for the legislature, he said.
The judgment also raises constitutional issues.
“What about the next environmental issue or LNG or Kinder Morgan or First Nations?” said Prince. “This would set a precedent, and cabinet behaviour could shift.
The judges seem to be saying they won’t know if cabinet and the legislature acted in good faith unless they see the cabinet submission, Prince said.
“Is the government trying to exert political pressure on the judges? Isn’t this a pocket-book issue about a very well-paid, very important, well-educated group, which provides a critical function for our democracy?” he asked.
“The onus seems to be on government to prove they acted in good faith if they decide to reject one or more recommendations from this commission. It’s not really a balancing act of different principles. It’s leaning toward the judiciary in the name of protecting its independence.”
