SASKATOON CRIMINAL DEFENCE LAWYERS ASSOCIATION PROVINCIAL COURT COMMISSION for SASKATCHEWAN

Transcription

1 SUBMISSION of the SASKATOON CRIMINAL DEFENCE LAWYERS ASSOCIATION TO THE 2014 PROVINCIAL COURT COMMISSION for SASKATCHEWAN October 17, 2014 Contact Information: Saskatoon Criminal Defence Lawyers Association Inc. Attention: Andrew Mason, President Twenty-First Street East Saskatoon, SK S7K 0B4 Telephone: (306) Fax: (306)

2 SUBMISSION TO THE 2014 PROVINCIAL COURT COMMISSION of the Saskatoon Criminal Defence Lawyers Association I. BACKGROUND OF OUR ORGANIZATION The Saskatoon Criminal Defence Lawyers Association Inc. ( SCDLA ) was established in 1979 as a Non-Profit Corporation. It is made up primarily of criminal defence practitioners in the Saskatoon area, although we have members who attend from as far away as Meadow Lake Saskatchewan. Our members include Legal Aid lawyers as well as private defence counsel. The SCDLA serves as a forum for its members to discuss developments in criminal law and to share experiences and knowledge in relation to criminal law matters. From time to time the organization has taken public stands in relation to proposed changes in the criminal law. The goals of the SCDLA are to develop and maintain a strong criminal defence bar, to defend individuals rights vis-à-vis the state and to ensure that the Governments do not infringe those rights. The SCDLA is committed to advancing reasoned positions with the Government, the Law Society, the Judiciary and other organizations in respect of reform and improvements in the criminal law to protect the rights of accused persons. II. MANDATE OF THE COMMISSION The SCDLA recognizes the importance of this Commission to the administration of justice in this province. The members of the SCDLA have a particular perspective on the functioning of the justice system in general and of our Provincial Court in particular. We offer our submissions out of a sense of professional duty in relation to the administration of justice in our province.

3 Page 2 Section 38 of the The Provincial Court Act sets forth the mandate of this Commission: s. 38(1) A commission shall inquire into and make recommendations with respect to the following: (a) the salaries to be paid to: (i) the chief judge; (ii) an associate chief judge; (iii) judges other than the chief judge, associate chief judges and temporary judges, and (iv) temporary judges. (b) the remuneration to be paid to judges who perform administrative duties assigned to them pursuant to clause 8(f); (c) the allowances to be paid to judges who reside in the Northern Saskatchewan Administration District; (d) (e) (f) professional allowances; vacation leave; pension benefits and additional retirement benefits. The existence of this Commission follows naturally from the need to maintain an independent judiciary, which is essential in a free and democratic society. Provincial Court Judges are employed by the State but they also sit in judgment on matters to which the State is a party. So it is appropriate that the determination of Judges salaries, benefits and working conditions be made by an independent body this Commission. In July 2005, the Supreme Court of Canada examined the role of independent judges commissions such as this Commission. In The Provincial Court Judges Association of New Brunswick v. New Brunswick (Minister of Justice); Ontario Judges Association v. Ontario (Management Boards); Bodner v. Alberta; Conference Des Juges Du Quebec v. Quebec (AG), 2005 Supreme Court of Canada 44, [2005] 2 S.C.R.286. The Court stated at paragraph 14: 14 The Reference laid the groundwork to ensure that provincial court judges are independent from governments by precluding salary negotiations between them and avoiding any arbitrary interference with judges' remuneration. The commission process is

4 Page 3 an "institutional sieve" (Reference, at paras. 170, 185 and 189) - a structural separation between the government and the judiciary. The process is neither adjudicative interest arbitration nor judicial decision making. Its focus is on identifying the appropriate level of remuneration for the judicial office in question. All relevant issues may be addressed. The process is flexible and its purpose is not simply to "update" the previous commission's report. However, in the absence of reasons to the contrary, the starting point should be the date of the previous commission's report. Then at paragraph 17 the Court stated: The commission must objectively consider the submissions of all parties and any relevant factors identified in the enabling statute and regulations. Its recommendations must result from a fair and objective hearing. Its report must explain and justify its position. III. SUBMISSION ON THE REVIEW OF JUDICIAL SALARIES In R. v. Valente (1985) 2 S.C.R. 673, the Supreme Court held that judicial independence had three aspects: financial security, security of tenure and administrative independence. Every citizen has the right to be judged by an impartial tribunal: a tribunal that not only is unbiased but also appears to be unbiased toward or against any of the interested parties. Judicial independence is essential to judicial impartiality. Maintaining both the reality and the appearance of judicial independence is therefore essential if the public is to have confidence in the administration of justice. Provision for the financial security of judges must, therefore, strive to preserve and promote the independence of the judiciary. 1. Historical Comparisons In 1978, The Provincial Court Act did away with the Magistrate s Court and created the Provincial Court for Saskatchewan. In 1978, a Provincial Court judge s salary was $44,400.00

5 Page 4 per year compared to $45,000 per year for a federally-appointed District Court judge and $52,000 for a federally-appointed Superior Court judge. By 1985 a Queen s Bench judge was being paid $105,000 per year while a Saskatchewan Provincial Court judge was only being paid $71,000. A comparison of the salaries for Queen s Bench and Provincial Court judges since reveals the following: Year Queen's Bench Sask. Prov.Court Difference Percentage Judge s Salary Judge s Salary (QB-SPC) (SPC/QB) 1985 $105,000 $71,000 $34, % 1986 $115,000 $73,130 $41, % 1987 $121,300 $80,052 $41, % 1988 $127,700 $90,000 $37, % 1989 $133,800 $90,000 $43, % 1990 $140,400 $90,000 $50, % 1991 $147,800 $90,000 $57, % 1992 $155,800 $90,000 $65, % 1993 $155,800 $92,250 $63, % 1994 $155,800 $94,556 $61, % 1995 $155,800 $94,556 $61, % 1996 $155,800 $94,556 $61, % 1997 $165,600 $112,961 $52, % 1998 $175,800 $112,961 $62, % 1999 $178,100 $112,961 $65, % 2000 $198,000 $143,000 $55, % 2001 $204,400 $143,000 $61, % 2002 $210,941 $143,000 $67, % 2003 $216,600 $158,000 $58, % 2004 $232,300 $161,634 $70, % 2005 $237,400 $165,190 $72, % 2006 $244,700 $195,000 $49, % 2007 $252,000 $198,900 $53, % 2008 $260,000 $204,552 $55, % 2009 $267,200 $220,915 $46, % 2010 $271,400 $229,753 $41, % 2011 $281,100 $238,943 $42, % 2012 $288,100 $248,010 $40, % 2013 $295,500 $254,458 $41, % 2014 $300,800 $260,819 $39, % 1 These figures are from the office of the Commissioner for Federal Judicial Affairs.

6 Page 5 It is seen from the above table and the figures from 1978 that the difference between salaries of Saskatchewan s federally appointed judges and the salaries of the judges of Provincial Court has gone from $600 ($45,000 - $44,400) in 1978 to as high as $72,210 in 2005 and to $39,891 in 2014 ($300,800-$260,819). While we certainly commend the efforts of Provincial Court Commissions since 2005 to reduce the salary difference, we submit that no disparity is justified on the basis of qualifications or workload of our judges nor the importance/value of the work done by the Provincial Court. We submit that maintaining or increasing the current level of salary difference ($39,891) would not be in the interests of justice in Saskatchewan. We urge the present Commission to establish a salary schedule for the next three years that will further reduce or eliminate this disparity. 2. Qualifications and Workloads do not justify different treatment Over the past 30 years, the increase in the workload for the Provincial Court appears to have greatly exceeded the increase in work of the court of Queen s Bench. Provincial Court is the Court of first instance for all people charged with a criminal offence. Most of these criminal cases stay under within the jurisdiction of the Provincial Court. Some will require an election that they be tried in Provincial Court or that they be tried in the Court of Queen s Bench. This latter election will result in a preliminary inquiry at Provincial Court to determine if there is some evidence to send the matter on to a trial at Queen s Bench. Amendments to the Criminal Code over the last several years have resulted in fewer offences within the exclusive jurisdiction of the Court of Queen s Bench and more offences within the jurisdiction of the Provincial Court. In addition, new and innovative sentencing

7 Page 6 legislation designed to take pressure off the penal institutions and parole system has created more work for the Provincial Court. It is apparent that the Provincial Court is the court of choice for the vast majority of criminal matters in Saskatchewan. Not only has the number of cases increased for the Provincial Court but the type of work demanded of the Provincial Court is much more complex than it once was. The Provincial Court judges introduced a set of ten practice directives in 2012 to assist counsel and clarify the processes in specific matters such as new rules for admitting evidence in preliminary inquiries, applications concerning the Canadian Charter of Rights and Freedoms, counsel and witnesses appearing by electronic means, court appointed counsel applications, and procedures for withdrawal of counsel. The Court has been dealing with new sentencing alternatives, special considerations in sentencing of Aboriginal accused, court appointed counsel applications, and issues relating to the balancing a victim s privacy interests with that of an accused s right to a fair trial. A variety of Criminal Code amendments have resulted in criminal cases becoming lengthier and more complicated. In recent years, the Provincial Court has been proactive in addressing the community s demand to improve access to justice, to determine the causes of offending behaviour and to come up with sentencing alternatives to effectively punish and deter the offender and protect society but also to address the root causes of this behaviour. In that regard, the Provincial Court has implemented such initiatives as Cree Courts (throughout the north), Domestic Violence Courts (Saskatoon and Regina), Drug Courts (Regina and Moose Jaw) and, most recently (2013) the Saskatoon Mental Health Court (Saskatoon). In addition to its responsibilities in criminal law matters, the Provincial Court also deals with offences pursuant to provincial legislation, small claims civil litigation, appeals, family law issues, income tax prosecutions,

8 Page 7 drug prosecutions, traffic court prosecutions, Tobacco Act prosecutions, Occupational Health and Safety cases and many other quasi-criminal matters. Our members are reporting that there has been a significant increase in the number of dangerous offender applications being brought in the Provincial Court. The recognition by the defence bar of the expertise of the Provincial Court in criminal matters part of the reason for this increase. Forty-nine Saskatchewan Provincial Court judges preside at 13 judicial centres and a further 67 Provincial Court circuit points through the province. They bring the court to the people. The Court of Queen s Bench, on the other hand, has 13 judicial districts and rarely ventures away from its judicial centres. For many, especially in the northern part of the province, travel to the nearest Queen s Bench judicial center can be difficult or prohibitive. The public is generally more familiar with Provincial Court and their Provincial Court judge. The proper and effective functioning of our justice system depends heavily upon legal counsel, both defence and prosecution, to determine how and where criminal matters are resolved. The wealth of experience and knowledge of Saskatchewan Provincial Court Judges in all aspects of sentencing is widely appreciated by members of both the defence bar and the prosecution bar. The fact that the workload of the Provincial Court in criminal matters greatly exceeds that of the Court of Queen s Bench is a good indication of the high regard that members of the defence and prosecution bars hold for the Judges of the Provincial Court. 3. Two-tier support for Saskatchewan s trial courts is not in the Public Interest. The Court of Queen s Bench may be a court of superior jurisdiction but this does not, in any way, mean that the importance and value of the work done by the Provincial Court is somehow inferior to that of the Queen s Bench. As a matter of principle, there is no reason

9 Page 8 Provincial Court Judges should receive less remuneration than Queen s Bench Judges. We submit that an attitude that perpetuates significantly different salaries and different levels of support for judges of the two courts is ultimately harmful to the interests of justice and is not in the public interest. In 1974, the Honourable Emmett Hall of the Supreme Court of Canada, at the request of Roy Romanow, then Attorney General for Saskatchewan, reviewed the Court system in this province. Mr. Justice Hall wrote a report 2 in which he stated (at page 21): The status of the Provincial Court has to be raised in the public estimation. Its true worth must, of course, come from the quality of its work; from a Bench staffed with competent, knowledgeable judges of high personal integrity, with Court experience and a knowledge of the law and the ability to apply it fairly and humanely. The judge must have an adequate salary and security of tenure in other words, judicial independence to the same degree as federally appointed judges of the District Court. I can see no reason why they (magistrates) should be treated differently. They are judges doing judicial work of equal importance to the public and in many areas having concurrent jurisdiction, particularly in criminal law, with the judges of the District Court and Queen s Bench Courts. We submit that these words of one of Saskatchewan s most eminent jurists are as applicable today as they were in Justice must be blind to the status, financial or otherwise, of a person standing before law. This is a fundamental principle of the rule of law. The converse of this principle is equally important: there is one system of justice for all. All litigants have the right to have their cases heard by judges possessed with the same general level of skills, legal knowledge and expertise, whether the judge is with the Provincial Court or the Court of Queen s Bench. If it is made to 2 Hall, Emmett M., Report of the Survey of the Court Structure in Saskatchewan and Its Utilization Done Pursuant to Order-in-Council Dated April 6, 1973, available at Univ. of Sask. Law Library: KF8700.ZB6H

10 Page 9 appear to members of the public that we have a two-tiered level of justice because there is a twotier pay scale between federally and provincially appointed judges, there is a serious risk of eroding this principle. For the reasons set forth by the late Justice Emmett Hall, we submit that perpetuation of a two-tier system for remuneration and institutional support for Saskatchewan s two trial courts is not in the interests of justice and, therefore, not in the public interest. 4. Attracting qualified members of the bar to the Provincial Court Bench It is in the interests of justice that we attract the ablest members of the private and public bar of the province to become judges. The Ontario Commission Report of 1999 recognized, What is absolutely essential is that the level of remuneration (including pension ), be set at such a level that it will be attractive, or at least not a disincentive, to the ablest men and women at the bar. Provincial Court judges must be assured a salary level sufficient to attract highly qualified members of the bar. This includes candidates from both the private and public bars. Saskatchewan society is more complex and multi-cultural than it was a generation ago. Governments and laws are more complex. Courts of first instance produce important decisions that guide and shape our communities. We require qualified, respected, respectful, and dedicated judges who are able to draw on knowledge of the law, broad life experience and a depth of understanding of human behavior to make sound, timely, and well-reasoned decisions. The Provincial Court must be able to attract such persons to the bench. There are sacrifices that lawyers must make in moving from private practice to the Bench. A lawyer must sever ties with his or her clients, withdraw from political life, and exercise care and discretion in community and personal affairs. Accepting a judicial

11 Page 10 appointment may entail financial sacrifices as well. Judges must dissolve any business and financial connections they had before their appointment and cannot make any new ones or follow many business opportunities while on the Bench. Accordingly, judges do not have the same flexibility of investment and the same ability to seek financial opportunities as lawyers in practice. The compensation and benefits accorded a Provincial Court judge should recognize this reality. 5. Tying judicial compensation to the province s fiscal capacity A discussion of wage and benefit parity requires some comment on the argument that the economic capacity of Saskatchewan relative to Canada should be a factor in determining compensation for Saskatchewan Provincial Court judges. The argument has been made that a Provincial Court judge in Saskatoon should not be paid as much as, for example, a Provincial Court judge in British Columbia or Ontario because Saskatchewan has less fiscal capacity than B.C. or Ontario. In light of the strong economic conditions in Saskatchewan compared to other provinces in Canada, that argument can no longer be made. According to the latest figures the current nominal GDP per capita of Saskatchewan is now $72,159 per year whereas for B.C. it is $47,591 and for Ontario it is $49, The nominal GDP per worker in Saskatchewan is $145,092 compared to $95,133 for BC and $99,427 for Ontario. The SCDLA submits that the goal of all provincial governments, Saskatchewan included, should be to eliminate the differences in judicial compensation between provinces and between levels of courts.

12 Page 11 CONCLUSION - Judicial Salaries The SCDLA submits that there is no reason based on judicial qualifications or workload that can justify a significant disparity between levels of compensation and benefits for judges of the Court of Queen s Bench and the Provincial Court. Provincial Court judges and judges of the Court of Queen s Bench have an equally important a role in the administration of justice in this province. Perpetuation of a two-tier system for remuneration and institutional support for judges of the Provincial Court carries the danger of creating a perception of a two-tier system of justice in Saskatchewan. The Provincial Court must attract the most qualified members of the bar to become judges. A lower level of compensation for Provincial Court judges works against this goal. The fiscal capacity of Saskatchewan relative to other provinces does not lead to lower compensation levels for Provincial Court judges than for Queen s Bench judges. For all these reasons, we submit that it is not in the interests of justice, and therefore not in the public interest, to perpetuate a material disparity between Provincial Court judges salaries and benefits and those of the Court of Queen s Bench. The goal should be to achieve parity. Respectfully submitted this 17th day of October, 2014 by and on behalf of the Saskatoon Criminal Defence Lawyers Association. Andrew Mason, President SCDLA 3 See Capeluk, Evan, CONVERGENCE ACROSS PROVINCIAL ECONOMIES IN CANADA: TRENDS, DRIVERS, AND IMPLICATIONS, (Centre dor the Study of Living Standards, Ottawa) May 2014 at p. 26 (the chart at page 26 is contained in Appendix I to this brief).

13 Table 1: Provincial Disparities for Select Economic Variables, Canada and the Provinces, the Most Recent Year Economic Variable Nominal GDP Per Capita (Current Dollars) Real GDI Per Capita (2007 Chained Dollars) Real Average Market Income (2011 Constant Dollars) Real GDP Per Capita (2007 Chained Dollars) Real Average Total Income (2011 Constant Dollars) Average After-tax Income (2011 Constant Dollars) Nominal Personal Income Per Capita (Current Dollars) Nominal Personal Disposable Income Per Capita (Current Dollars) Nominal GDP Per Worker (Current Dollars) Nominal GDP Per Hour Worked (Current Dollars) Real GDP Per Worker (2007 Chained Dollars) Real GDP Per Hour Worked (2007 Chained Dollars) Year Canada Province Non-Weighted Weighted Prov. Avg. NL PE NS NB QC ON MB SK AB BC SD CV SD CV Income ,177 52,673 65,964 37,966 40,473 41,726 44,428 49,940 45,971 72,159 80,516 47,591 14, , ,975 47,886 59,449 34,411 36,918 37,581 40,743 46,255 42,107 63,187 73,204 45,000 12, , ,700 62,340 58,100 52,800 53,800 52,100 55,500 69,400 61,600 69,600 88,400 62,100 10, , ,636 46,605 53,808 33,544 37,936 37,233 40,617 45,856 43,120 54,244 74,488 45,204 11, , ,000 72,030 70,600 64,600 63,900 62,900 65,300 79,100 69,900 77,800 95,400 70,800 9, , ,000 60,710 59,700 55,000 53,900 54,200 54,200 66,500 58,400 65,200 78,800 61,200 7, , ,505 35,982 33,938 30,480 33,922 33,431 34,439 37,814 34,392 37,682 47,529 36,197 4, , ,706 28,824 27,370 24,700 27,298 27,089 26,644 29,902 27,619 30,583 37,856 29,176 3, , Productivity , , ,711 76,195 84,296 89,764 89,815 99,427 92, , ,096 95,133 26, , ,904 93, ,675 67,321 79,012 80,097 82,110 91,297 86, , ,233 90, , Labour Market Unemployment Rate (%) Employment Rate (%) Educational Attainment (%) Participation Rate (%) Working-Age Pop. (15+) (%) Working-Age Pop. (15-64) (%) Composite Indices of Well-being Index of Total Per Capita Stocks of Wealth Security Index Index of Economic Wellbeing Equality Index Index of Total Per Capita Consumption Flows Human Development Index Fiscal Capacity Fiscal Capacity (Current Dollars) ,258 8,427 12,657 5,794 6,304 6,137 6,922 7,909 6,875 11,007 12,729 7, , Note: The non-weighted CV is calculated by dividing the standard deviation (SD) by the non-weighted average of the provincial values then multiplying by 100. The weighted CV is calculated by dividing the weighted SD by a weighted average of the provinces and then multiplying by 100. This weighted average does not include the territories (i.e., not the same as the 'Canada' column of Table 1).