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Top court’s decision underscores both independence and flexibility

Thursday, October 27, 2016 @ 8:00 PM | By Cristin Schmitz

Quebec justices of the peace — whose jurisdiction and pay were unilaterally cut by their province 12 years ago — regained some ground at the Supreme Court in a nationally important judgment that still leaves governments room to create, abolish and reform judicial posts in the public interest — including the potential flexibility to hire new judicial recruits at pay rates below that of the incumbents.

The top court’s 9-0 decision Oct. 14 interprets and applies, for the first time, the principle of judicial independence, and its guarantee of financial security, in the context of broad judicial reform. The ruling may be seen as a partial win, at the level of legal principle as well as on the ground, for Quebec, and as potentially helpful to other governments seeking to reform their justice systems — or make other changes — in a manner that affects judicial remuneration.

At the same time, the Supreme Court also vindicated, in part, a constitutional attack by more than 30 appellant Quebec justices of the peace (JPs) and their association on a 2004 Quebec law which abolished the job of JP as it stood at that time. The law replaced the old office with two new types of JPs — including a lower-paid, more-limited-jurisdiction office called “presiding justice of the peace” (PJP) — without the government referring the PJPs’ new compensation package to a timely review by an independent judicial pay commission.

The Supreme Court held the Quebec law unconstitutional insofar as it did not provide for retroactive review of the new post’s remuneration by a review committee “months” after the new appointments, rather than the three years stipulated by the province’s Courts of Justice Amendment Act. (The new office was created in 2004, but review of the JPs’ pay and benefits was barred before 2007).

To that extent the top court overturned the Quebec Court of Appeal below, which had ruled there was no constitutional violation, essentially because the provisions were part of a reform that resulted in the creation of a new judicial office and the level of remuneration for that new office was high enough to guarantee the PJPs’ independence.

The Supreme Court’s “message is pretty clear that governments should not take the pretext of a reform to reduce the remuneration of judges,” commented the appellants’ counsel, Raymond Doray of Montreal’s Lavery, de Billy. “If we let the government behave the way that it did, that means that it could create a new court and new bench, with more or less the same jurisdiction, and reduce their remuneration — which would be a way to bypass the constitutional requirements” that judicial remuneration must by reviewed by independent commissions (or committees) with authority to make recommendations to the government.

Under the challenged new law, the six incumbent JPs who became PJPs lost their jurisdiction to do bail reviews and try summary conviction Criminal Code matters, but kept their same annual pay of $137,280 frozen for what turned out to be about a decade, while the new recruits appointed as PJPs in 2005 were paid $90,000, or more than 34 per cent less: Conférence des juges de paix magistrats du Québec v. Quebec (Attorney General) 2016 SCC 39.

The top court rejected the JPs’ arguments that the constitutional principle of judicial independence, which guarantees the judiciary’s financial security, barred the province from appointing new JPs at lower pay than the old JPs’ pay, and from putting the PJPs into the pension plan for government managers, instead of into the more advantageous pension plan for provincial court judges (which takes into account that jurists usually only go to the bench in their 40s or 50s).

However, the Supreme Court did agree with the JPs that when governments create a new judicial office they must also strike an independent pay commission to review the judiciary’s remuneration. The court held that must generally happen within “months” of the new appointments being made, but rejected the appellants’ position that a commission must make recommendations as to proper remuneration before the government sets the compensation and makes appointments to the new office.

“While the financial security guarantee of judicial independence requires committee review prior to any changes to the remuneration of a judicial office, we have concluded that prior review is not required when a judicial reform results in the creation of a new judicial office,” Justices Andromache Karakatsanis, Richard Wagner and Suzanne Côté wrote in their joint reasons for judgment. Rather remuneration for a new judicial office can be reviewed by a committee “retroactively within a reasonable time after the appointments,” the Supreme Court held, “even where those appointed to the new judicial office were transferred from a previous judicial office.”

Doray told The Lawyers Weekly his clients are very pleased the Supreme Court went on to order a remedy that requires a judicial pay committee to revisit the PJPs’ remuneration. The judgment orders a review of the salaries of all PJPs for the period between 2004 and 2007 “only”—taking into account “all factors bearing on remuneration, including the remuneration of the previous judicial office.” Depending on the review’s outcome, it could spur significant retroactive payments and pension improvements for the PJPs.

The Quebec government did not respond to a request for comment by press time.

Thomas Curry of Toronto’s Lenczner Slaght, counsel for the intervener Association of Justices of the Peace of Ontario, said the ruling is important for his client’s divisional court review of unilateral changes the Ontario government wants to make to JPs’ benefits before independent review, as the Supreme Court has confirmed “the requirement for a prior review by an independent remuneration commission.”

The JPs’ multi-pronged judicial review of the Ontario government’s refusal to fully implement last year’s recommendations for the period 2011- 2015 by a majority of the sixth Justices of the Peace Remuneration Commission also challenges the province’s rejection of modest salary increases recommended by the commission. “We say the province’s response did not meet the legal requirement for rationality because the province disagreed that the work of the JPs had become more complex, in a way that ignored the commission’s majority finding,” Curry said.

He noted by e-mail the Supreme Court’s judgment breaks new constitutional ground by providing guidance to governments seeking to implement reforms by creating new judicial offices. “It is clear now that when a new judicial office is created, all aspects of remuneration must be reviewed within a reasonable time, generally measured in months,” he said. “Sitting judges are entitled to additional protections, such that a review before the implementation of changes to remuneration is required.”

Brendan Crawley, a spokesman for Ontario’s Ministry of the Attorney General, said by e-mail the top court accepted Ontario’s submissions that a government is entitled to set the initial remuneration of a new judicial office, so long as a remuneration commission reviews that remuneration within a reasonable time, as well as that judicial officers can be members of a public service pension plan, so long as any proposed changes to that plan are subject to review by a remuneration commission before they are applied to judicial officers. “As the court noted, justices of the peace in Ontario are members of a public service pension plan, as well as a supplemental plan which provides additional benefits adapted to the specific characteristics of judicial office,” Crawley said.

In declaring invalid the law’s transitional provisions for setting and reviewing JPs remuneration (ss. 27, 30 and 32), the Supreme Court pronounced for the first time on: whether and when compensation committee review is necessary after a new judicial office is created; whether sitting judicial officers transferred to a new office must be treated differently; and what qualifies as a “new judicial office.”

The three-year gap between when the new office was established in 2004, and the earliest date at which the JPs’ remuneration could be reviewed in 2007 (which coincided with a scheduled review for provincial court judges), “contravenes the constitutional requirement that the initial remuneration of judges occupying a new office must be reviewed by a remuneration committee within a reasonable time after their appointment,” Justice Karakatsanis, Wagner and Côté concluded. “There are no compelling reasons why a review could not proceed well before 2007. None were offered.”

Quebec adopted the law six months after the Quebec Court of Appeal struck down the existing system of JPs because some JPs were subject to removal, and thus their independence was not guaranteed.