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Michael T. Mulligan: Justice depends on judges’ independence

Judicial independence is not a benefit for judges — it is a protection for the weak from the strong, the minority from the majority and everyone from the excesses of government. It is the foundation of the rule of law.

Judicial independence is not a benefit for judges — it is a protection for the weak from the strong, the minority from the majority and everyone from the excesses of government. It is the foundation of the rule of law.

In Canada, we are fortunate: Our judges are not functionaries of the government. In many parts of the world, this is not the case. You do not want to be accused of something politically unpopular in China, Russia or North Korea.

The threats to judicial independence in Canada are not envelopes of cash or promises of promotion contingent on decisions favourable to the government. There are, however, three trends that have eroded judicial independence over the past few years.

The first trend is a movement toward the resolution of disputes by adjudicators or tribunals rather than independent judges. In B.C., this has occurred with respect to most impaired-driving allegations and will soon be the case for strata disputes, some small-claims matters and traffic-ticket disputes. Having to produce evidence, answer questions and persuade an independent judge takes more time and resources than it does to complete a form.

While having a government employee or adjudicator make decisions based on written material or information produced on standardized forms certainly takes less effort than attending a courtroom, this is not an appropriate model for disputes where one of the parties is the government.

Where the issue being decided involves the government wishing to impose a penalty on a citizen, the only way to ensure a fair process is to have someone independent of the government decide the case. Efficiency at the expense of fairness is a cost not worth paying. For many people, the adjudication of a traffic ticket will be their only interaction with the justice system — we should ensure this is done fairly.

The second unfortunate trend has been provincial governments trying to adjust judges’ pay in a non-arm’s-length way.

It is not appropriate for judges to be negotiating with the government over their pay. This would create the most obvious of conflicts as judges decide cases involving the government. If you were having a dispute with your neighbour, you wouldn’t want it to be resolved by someone the neighbour was having a salary negotiation with.

To avoid this conflict, the provincial and federal governments have established judicial compensation commissions. These commissions are supposed to determine the salaries for judges independently based on things such as the salaries of senior lawyers and judges in other jurisdictions.

Ensuring that the salaries of different kinds of judges are similar is important from the perspective of judicial independence, as you don’t want judges to be making decisions with one eye on the possibility of a promotion to a different court that pays more.

Most unfortunately, the B.C. government has, on more than one occasion, refused to abide by the decision of the judicial-compensation commission. The result has been an unseemly dispute over pay for judges that has lasted several years.

The third trend, pursuant to policies of the previous federal government, has been a trend toward legislation that required judges to make orders and impose sentences that do not involve the exercise of any judicial discretion. In the criminal-law context, this has included mandatory minimum jail sentences, orders that victim-fine surcharges be paid by poor people in every case and that DNA samples be provided upon conviction for various offences.

If consequences like these are automatic, it should be transparent that they are being imposed by operation of law and not by a judge in any meaningful sense.

Requiring judges to impose mandatory jail sentences or to order impoverished people to pay victim-fine surcharges cloaks these legislative decisions with an undeserved appearance of judicial approval. This process undermines judicial independence in an insidious way — it requires judges to make orders that are, in some cases, manifestly unjust.

Judicial independence requires both the reality and appearance of independent decision-making. Requiring judges to impose penalties that are unjust unfairly undermines confidence in the independence of judges and the administration of justice.


Michael T. Mulligan is a Victoria lawyer.