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Government ordered to rethink judges' pay

Jul 13 2012

A B.C. Supreme Court justice has thrown the issue of judges' compensation and salaries back to the government and legislative assembly.

On Thursday, Justice Malcolm Macaulay quashed a May 31 resolution in the B.C. legislature that rejected recommendations by the 2010 Judges Compensation Commission to increase provincial court judges' salaries and benefits.

Macaulay found the government's response to the commission's report was not legitimate or rational and did not respect the constitutional process that preserves judicial independence.

The commission had recommended that provincial court judges not get any salary increase until 2013 because of expected provincial deficits in 2011 and 2012, but recommended a cost of living increase in 2013-14, when the government plans to balance the budget.

Barry Penner, then the attorney general, called the recommendations unfair and unreasonable.

Standing by its "net-zero mandate," the legislature set the judges' salary increase at zero.

The Provincial Court Judges Association of B.C. filed a civil suit against the Attorney General in October.

In his 35-page judgment, Macaulay stressed that in B.C., the legislature is responsible for determining judges' salary and benefits.

Judicial remuneration does not require cabinet or the attorney general to take an active role.

But in this case, he found, cabinet played an important role. After receiving a submission from the attorney general, cabinet developed the government response to the commission report.

"The legislative assembly accepted and thereby, in my view, clearly adopted the response as its basis for departing from the recommendations of the commission," Macaulay said.

He noted that an affidavit by Neil Reimer, a senior analyst in the Ministry of Justice, shows that Reimer and numerous other government staff spent many hours preparing detailed cost estimates of the commission's recommendations. Reimer then drafted a detailed submission to cabinet for the attorney general's consideration and signature.

"The cabinet briefing document, signed by the attorney general, evidenced, at best, a lack of good faith commitment to the constitutional process. At worst, it is a deliberate information shell game," Macaulay said.

Provincial court judges make $231,138 a year.

The brief estimated the cost of accepting all of the salary and benefit recommendations over the threeyear period would be $6.867 million for the judges alone, and $13.840 million when groups whose compensation is tied to their salaries were included. The brief estimated the judicial salary increase in 2013 would be 6.12 per cent.

Macaulay concluded that the government did not pay attention to the evidence of the commission. The net-zero mandate cannot trump constitutional obligations, he said.

"No party, including the provincial court judges, disagreed that judges must share the burden of economic downturns but that does not entitle government to avoid real involvement in the constitutional process for determining the salaries and benefits of judges," Macaulay said.

"Instead, the primary concern of government throughout appears to have been to avoid the potential impact of accepting recommendations on other public sector bargaining units."

Minister of Justice and Attorney General Shirley Bond released the following statement: "We are disappointed that government's position - which would have held the line on judges' salaries - was not upheld in court. We will now take the time to carefully review the decision in full before making any further comments."

ldickson@timescolonist.com

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