R. v. Campbell

The Court -- The Alberta Provincial Judges’ Association (“Association”) has submitted a motion for directions relating to our decision in Provincial Court Judges (No. 1), [1997] 3 S.C.R. 3. In that case, the Court provided for, inter alia, a period of time ending on September 18, 1998 during which in effect judicial salary commissions in Canada were to be established. The Association’s motion for directions was submitted in accordance with the Court’s decision in Provincial Court Judges (No. 2), [1998] 1 S.C.R. 3, and the extension granted on September 15, 1998, [1998] 2 S.C.R. 443, the principal effect of which was to extend the transition period to the earlier of a further two months and the day Bill C-37 receives Royal Assent. Briefly stated, the motion for directions of the Association requests the Court to rule in principle on whether its findings in Provincial Court Judges (No. 1) require the Province of Alberta to pay the reasonable expenses of the Alberta judiciary incurred in participating in the commission process or in any proceedings which call upon the Province of Alberta to justify its decision not to accept one or more of the recommendations of the judicial salary commission.

Upon reading the submissions and supporting material of the parties and interveners, the Court is of the opinion that the motion for directions should be dismissed without costs in that it does not arise from the implementation of the judgment of the Court in Provincial Court Judges (No. 1) or in Provincial Court Judges (No. 2). In this respect, see the views expressed by Roberts J. in Newfoundland Assn. of Provincial Court Judges v. Newfoundland (1998), 160 D.L.R. (4th) 337 (Nfld. S.C.), at p. 372.

As was stated by the Chief Justice in Provincial Court Judges (No. 1), supra, at para. 173:

Although s. 11(d) does not require it, the commission’s objectivity can be promoted by ensuring that it is fully informed before deliberating and making its recommendations. This can be best achieved by requiring that the commission receive and consider submissions from the judiciary, the executive, and the legislature. In Ontario, for example, the Provincial Judges’ Remuneration Commission is bound to consider submissions from the provincial judges’ association and the government (Courts of Justice Act, Schedule, para. 20). Moreover, I recommend (but do not require) that the objectivity of the commission be ensured by including in the enabling legislation or regulations a list of relevant factors to guide the commission’s deliberations.

Although not constitutionally requiring the participation of judges or judges’ associations in the commission process (or litigation relating thereto), it is worth repeating that the Court in Provincial Court Judges (No. 1) decided that judicial compensation commissions were to be independent, effective and objective as described therein. Furthermore, Lamer C.J. at para. 287 stated:

Under no circumstances is it permissible for the judiciary to engage in negotiations over remuneration with the executive or representatives of the legislature. However, that does not preclude chief justices or judges, or bodies representing judges, from expressing concerns or making representations to governments regarding judicial remuneration.

The composition and the procedure established for hearings before the independent, effective and objective commissions may vary widely. So will the approach to the payment of the representational costs of the judges. In some instances the resolution of the payment of representational costs will be achieved by agreement. Often the commission will have to determine the issue subject to an appeal to the court. In those circumstances the position adopted in the reasons of Roberts J. in Newfoundland Assn. of Provincial Court Judges, supra, may be appropriate, a matter upon which we need not comment in this motion. Suffice it to say, whatever may be the approach to the payment of costs it should be fair, equitable and reasonable.