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Top judge says judicial independence requires that SCC, other courts control their own budgets

Monday, February 11, 2019 @ 9:36 AM | By Cristin Schmitz

All courts should be able to control their own budgets, Chief Justice of Canada Richard Wagner tells The Lawyer’s Daily in the most forceful and clear expression yet of the judicial branch’s resolve to obtain more financial and administrative independence from the other two branches of government.

Chief Justice Wagner disclosed that the Supreme Court of Canada is itself in current talks with the federal government to gain more financial and management control within the court. (See also story from a wide-ranging interview marking his first year as top judge here.)

“We want more independence,” the chief justice declared. “Here at the Supreme Court we have a very good relationship with the Justice Department, and we are on the verge of obtaining more independence in terms of management,” he said in an exclusive interview.

“I think that will be continued under the new Minister of Justice” David Lametti, he observed. “The purpose is to facilitate things, and to be able to properly, and in a responsible manner … obtain our funding as easily as possible.”

Since he was appointed the country’s top judge Dec. 18, 2017, Chief Justice Wagner has been examining how to strengthen judicial independence in Canada, including how chief justices can improve the public’s access to justice, combat undue court delays and otherwise enhance their courts’ efficiency in the face of the executive’s ability to unilaterally turn down reasonable budget requests from courts.

Richard Wagner

Chief Justice of Canada Richard Wagner tells The Lawyer’s Daily judges should determine what courts need to function properly.

“I think we should be proud of what we have accomplished in Canada — we have a very independent judiciary — but to make sure that it continues, I think we have to have control over our budget,” the chief justice explained. “If you allow a government or parliament to decide, in lieu of the courts, what they need, then there is a power of the executive or parliament [over] the judiciary. That’s not good, because the judiciary must be independent, and should not be prejudiced by unwarranted demands by the government.”

Chief Justice Wagner’s comments build on remarks almost three years ago by his predecessor, Beverley McLachlin, who told the Canadian Bar Association (CBA) that “there is a compelling constitutional rationale for changing the executive model of court administration in Canada — whereby court administration is provided by the federal and provincial public services — to models that feature a greater degree of judicial autonomy.”

At that time, the Canadian Judicial Council — the federal judicial disciplinary and policy-making body now chaired by Chief Justice Wagner—also resolved to reinvigorate its now 16-year-old project whereby its 39 member-chief justices agreed to seek more administrative and budgetary control from the federal and provincial governments so that they could improve their courts’ service to the public.

For the Supreme Court of Canada, more administrative autonomy, and independence from the executive, would mean, for example, changing how the highest court gets the funds it needs to operate. Currently budgetary and other funding proposals by the Supreme Court’s registrar must be approved first by the minister of Justice, and then surmount another hurdle, Treasury Board approval. “Should we go through the Treasury Board? Or only the Justice minister?” the chief justice remarked.

The top court has had some struggles in the recent past to preserve its management autonomy, for example successfully resisting a bid by the previous government to have the Supreme Court turn over its information technology purchases to a federal agency, Shared Services Canada —  a proposal the court saw as threatening its institutional independence.

It’s “obvious,” however, that the executive and legislatures must retain a measure of budgetary control because those government branches are ultimately accountable to the public for the courts’ funding, the chief justice said.

“That being said, there are ways to get as much independence as possible,” he remarked.

Paul Crampton

Federal Court Chief Justice Paul Crampton

For example, the chief justice lent his support to Federal Court Chief Justice Paul Crampton’s recent proposal to the federal justice minister, deputy minister and senior officials at the Department of Justice (DOJ) that would see the proposed budget of the Courts Administration Service (CAS — the registry for the Federal Court, Federal Court of Appeal, Tax Court and Court Martial Appeal Court) assessed by a new expert advisory body — modelled after the independent quadrennial commission that makes recommendations to Ottawa on federal judges’ compensation.

“I think that’s a very good idea, and I think that every court should be able to control their budget,” Chief Justice Wagner said.

He pointed out that the quadrennial commission on judicial pay and benefits was put in place for the same reasons — to preserve the independence of the judiciary, i.e. avoid the government exerting pressure on judges, using the government’s control over the public purse strings.

“Of course at the end of the day, government or Parliament could decide otherwise” than to follow what a new statutory advisory body recommends on the CAS’s proposed budgets, the chief justice acknowledged.

“But at least there is some kind of independent body which will look at the situation and will make recommendations independently of the legislative body.”

Under Chief Justice Crampton’s proposal — which aims to constrain the executive from unreasonably denying the four federal lower courts the resources they need to function and carry out their constitutional role —the federal government would have to explain publicly if it were to reject budget requests from the CAS that had been independently vetted and approved by an independent expert body as legitimate, reasonable and justified.

Although the federal Justice minister has supported the CAS’s proposed budgets in recent years, the Treasury Board has repeatedly denied the four bilingual courts their multimillion-dollar requests to replace their crumbling IT structure, and to enable them to translate their judgments in the required timely fashion.

In an exclusive interview, Chief Justice Crampton told The Lawyer’s Daily the new independent budget mechanism he proposes reflects the fact that the judiciary is a separate branch of government and therefore funding requests from the CAS should not be treated by Treasury Board as though they are coming from a government department — particularly since the four courts the registry serves are responsible for holding the executive to compliance with the law and Constitution (80 to 90 per cent of the Federal Court’s files involve the federal government, often as a defendant).

He has met in recent months with the deputy minister and minister of Justice to propose that the government introduce legislation to create such a body.

“We’re actively pursuing it,” he said. “It’s a very real issue. I just can’t imagine that if any case involving judicial institutional independence ever ultimately does get to the court, that the current process is going to escape fairly critical observation,” he said.

“The issue of our budget is an issue of administrative institutional independence. So far, the jurisprudence in the area of judicial independence has largely been developed in respect of the independence of the individual judge, so the judge has to have financial security, security of tenure etc.,” he explained. “But the courts have not said very much ever about institutional independence, and I think, if and when a case does come along — and it’s only a question of … when, as opposed to whether. … I think the current process by which we literally go ‘cap in hand’ to the executive branch, and then the executive branch can say ‘Yes’ or “No’ without any transparency — without [the public having] any knowledge of what we requested, why it was refused, I would have to think is going to be the subject of some commentary that is not going to be extremely flattering for our democracy,” Chief Justice Crampton observed. “I think a democracy needs to have an independent judicial branch that is able to establish its priorities.”

Chief Justice Crampton said the constitutional imperative for the institutional independence of the judicial branch applies in the context of the individual courts, as well as in the context of the cash-strapped CJC, whose activities in support of its statutory mandate have been constrained over the years by inadequate funding.

“Constitutionally, at the end of the day the executive branch does have the final word on budget … requests that are put before Parliament,” Chief Justice Crampton remarked. “But at least if we had checks and balances, in my view … [it ]would be a good start in terms of helping to strengthen not just the judicial branch of government but our ability to do our job, including ensuring that the other branches respect the rule of law.”

He suggested it is preferable to examine the problem now, rather than when there is a serious breakdown in court services due to budget constraints (Prior to a cash infusion in the 2018 budget to support the Federal Court’s “program integrity,” Chief Justice Crampton had been considering, as a last resort, reducing the court’s sittings to four days a week).

“We have an opportunity right now to fix the current inadequate process, and I think it makes sense to do that in an environment where we’re able to look at these issues dispassionately, and not necessarily linked to any crisis,” he remarked. “To say that there’s no need to do anything is to pretend that a very real problem doesn’t exist. And that’s just not acceptable.”

Photo of Chief Justice of Canada Richard Wagner by Roy Grogan
Photo of Federal Court Chief Justice Paul Crampton by Cristin Schmitz