2006 ALBERTA JUSTICES OF THE PEACE COMPENSATION COMMISSION FOR THE PERIOD APRIL 1,2003 TO MARCH 31,2008 SUBMISSION OF JOHNATHAN H. B. MOSS SITTING JUSTICE OF THE PEACE IN TEE PROVINCE OF ALBERTA C/O 5TH FLOOR PROVINCIAL COURT HOUSE 323 6 AVE. S.E. CALGARY ALBERTA PH (403)297-3685 INTRODUCTION When I refer to the Association, I will be referring to the Alberta Association of Sitting Justices of the Peace. These submissions speak only to matters as they affect the Sitting Justices of the Peace, and should not in any way be construed as being submissions in regard to Presiding Justices of the Peace, nor as a reflection on the actions of any other person or organization. Although the Association is comprised of nearly all of the Sitting Justices of the Peace in Alberta, its submission does not represent the unanimous view of its members. Only 3 members of the Association are full time judges; the bulk of the matters that come into our Courts are dealt with by part time Judges. Economic factors such as housing, inflation and the cost of goods are different in Edmonton than in Calgary, and are different than in Medicine Hat or Grande Prairie. In making its recommendations, the Commission may well be obligated to determine that different levels of remuneration may be required by the Sitting Justices of the Peace than are required by the Presiding Justices of the Peace. TEtE ROLE OF THE COMMISSION The Commission is well aware of its obligations and duties and the relevant criteria. The hndamental purpose of this Commission is to ensure that the judiciary is not only independent, but is visibly independent. It is an instrument to protect the public and to satis@ the public that should they be required by the state to appear in a court room that their case will be heard by an independent impartial arbiter. The Commission represents the means by which the government and the judges interact in an open and transparent process on matters of pay to ensure that the public can be cofident that the judiciary is not beholden in any way to the government of the day. It is meant to replace the unacceptable system in which Judges and Government would meet behind closed doors and hash out an agreement. The Supreme Court in ~odner' affirmed the principle of The P.E.I. reference case2 "134 Second, under no circumstances is it permissible for the judiciaiy - not only collectvely through representative organizations, but also as individuals - to engage in negotiafions over remrcneratc'on with the mcutive or representatives of the legr'shre Any such negotiahahons would be fundamenidly at odds with judicial independence. As I ' Provincial Court Judges' Assn. of New Brunswick v. New Brunswick (Minister of Justice); Ontario Judges' Assn. v. Ontario (Management Board); Bodner v. Alberta; Conference des juges du Quebec v. Quebec (Attorney General); Minc v. Quebec (Attorney General), 2005 SCC 44,  2 S.C.R. 286, herein referred to as "Bodner" Ref re Remuneration of Judges of the Prov. Court of P.E.I.; Ref re Independence and Impartiality of Judges of the Prov. Court of P.E.I., [I9971 3 S.C.R. 3 explain below, salary negotiations are indelibly political, becmse remuneratr'on from the public purse is an inherently political issue: Moreover, negotia-ons would uhdermine the appearance of judicial independence, because the Crown is almost always a party to criminal prosecutions before prmvincialcourts, and because salary negotiations engender a set of expectatr*onsabout the behm'our of parties to those negotiations which are inim0caltojudcial independence: When I refer to negotiations, I utilize that term as it is traditionally understood in the over labour relations content Negotiaaaaons remuneration and benefits, in colloquial terms, are a form of "horse-trading': l%eprohibition on negotiations therefore h e s not preclude qressions of concern or representatr'ons by chief justices and chief judges, and organizations that represent judges, to governments regarding the adequacy of judicial remtcnerati~n."~ (Italics and emphasis added) In the present case there are far too many indicia of negotiations to refbte the perception of a lack of independence. If the Commission relies on these Joint Submissions it will be endorsing the very thing it is set up to guard against. This Commission has the following power: (10) The Commission may on application direct the Minister and the Association to produce documents not subject to privilege. I respectfblly request that the Commission require the Minister and the Association to produce all minutes, records, notes, e-mails, voice recordings within their possession pertaining to meetings and discussions between the Minister and the Association regarding the Joint Submission, specifically including the President's Report to the 2006 Annual General Meeting of the Association. I have reason to believe that such production would leave the clear impression of direct negotiations, in a labour-relations or any other sense of the word between the Government and the Judiciary. Further the very composition of this Commission and its duration may cast a shadow over its recommendations. The legislation had called for a 3 member Commission, as in 2003, and was shortened to a one day Commission as a result of the agreement for a Joint Submission. The optics are that there were private discussions, an agreement was reached, that then and only then was the Commission changed to 1 member fi-om 3 members, and it was determined that all submissions would be made on a single day. After this Agreement was reached, the Association hired counsel, paid for by the government in order to give the illusion of some degree of "arm's length". A review of the history of the Orders in Council establishing this Commission in conjunction with the records of meeting between the Association and the Government will confirm the same. ibid It is the obligation of this Commission to act independently, and to make recommendations based on the evidence before it. The challenge of the Commission is to do so in such a way that the remuneration recommended ultimately by the Commission will satisfy the public that this branch of the Judiciary is independent. The Supreme Court has held that direct negotiations result in a Court which lacks independence. The purpose of this Commission would fail if the results were the product of those negotiations. THE STARTING POINT Bodner clearly states that the starting point of this Commission is the report of the last Commission. (1) The Nature of the Comvensation Commission and Its Recommendations 14 The Reference laid the groundwork to ensure that provincial court judges are independent fkom governments by precluding salary negotiations between them and avoiding any arbitrary interference with judges' remuneration. The commission process is 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 identieing 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 "update7' 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. 15 Each commission must make its assessment in its own context. However, this rule does not mean that each new compensation commission operates in a void, disregarding the work and recommendations of its predecessors. The reports of previous commissions and their outcomes form part of the background and context that a new compensation committee should consider. A new commission may very well decide that, in the circumstances, its predecessors conducted a thorough review of judicial compensation and that, in the absence of demonstrated change, only minor adjustments are necessary. If on the other hand, it considers that previous reports failed to set compensation and benefits at the appropriate level due to particular circumstances, the new commission may legitimately go beyond the findings of the previous commission, and aRer a carehl review, make its own recommendations on that basis. 16 It is a constitutional requirement that commissions be independent, objective and effective. One requirement for independence is that commission members serve for a fixed term which may vary in length. Appointments to a commission are not entrusted exclusively to any one of the branches of government. The appointment process itself should be flexible. The commission's composition is legislated but it must be representative of the parties.4 The proper starting point is the recommendations of the previous Commission. It is a starting point only, but it is the o starting point. This Commission must then decide & whether other factors should move it up or down. This Commission should very carefully consider those recommendations of the previous Commission, and especially should give great weight as the result was unanimous and the result of extensive independent submissions. While you are not bound by them, you are required to consider the comparators used, the factors and the results, and they should be of some guidance to you. The fact that the government can now trump with impunity whatever you decide should not be a factor. You must not decide what the end result WILL be, but what the proper compensation SHOULD be. THE PROPER COMPARATORS I would submit that the only proper comparator is the salaries given to other members of the Judiciary. We are a court, plain and simple. Despite the designation as "Sitting Justice of the Peace" and the nominal title of "Commissioner", what we do is judge. We perform almost the identical function as did the Provincial Court Judges prior to the implementation of the program in 1991. We are members of the Provincial Court of Alberta, like the Judges of the Criminal Division, the Family Division and Small Claims. Even though what each of those courts does is different, we all perform the same function, to decide without fear or favour based on the legally admissible evidence before us. To the individual whose family pet is at risk of a destruction order or to the victim of a vicious dog attack, to the breadwinner whose driving licence and employment are at risk, to the defendant who sacrifices a half day of work to wait in a long lineup to enter a not guilty plea and another half day to conduct the trial of a $20.00 parking ticket these cases are extremely serious, and there is a demand for the same consideration and independence as the civil disputants in a small claims trial, or the accused in a Provincial Criminal trial. In fact the differences between the trials, powers and obligations in a trial in the Provincial Court, Civil Division (Traffic) and those heard in the Criminal Division of the same Court are probably less than the differences between the Criminal Division and Small Claims. The sheer volume of cases before our Courts, and the regularity with which we hear evidence fiom the same witnesses adds to the gravity of our position. More people form their impression of the Justice system fiom our Courts than from any other. They expect Bodner and deserve to see independent, competent and impartial Judges. No other comparator comes close to what we do. OTaER FACTORS In determining the remuneration, some thought must be given to the value of 2003 dollars paid years later, likely in 2007. Some number to compensate for interest and lost opportunity cost should be calculated such that the 2003 figure is accurate in spending power in 2007. A party ought not to gain a financial advantage by reason of the use of capital as a result of delay, nor should a party be deprived of the use of that capital. Although there is a requirement of 5 years of experience the fact of the matter is that the positions are filled by persons with much more extensive experience. I am aware of no appointments with less than 10 years experience. Several of us will be entering our 1 7 ~ year in this position this year. The real test for the qualification is the de facto requirement. If 5 years were all it takes, why is the much more experienced lawyer always chosen? If 5 were as good as 20, one would expect that some with 5 years would be appointed on occasion. As far as the need to attract qualified candidates, the mere fact of sufficient applicants tells little other than the prestige of the Court. In fact, I would venture to say that many would take the work for much less, and some for fkee, simply because of the nature of the post, but the fact that someone with the minimum requirements is willing to be a Supreme Court Judge for free tells little of the effect of the salary on the quality of the candidates. Another factor which directly affects the appropriate level of compensation lies in the commission process itself, and is illustrated by the results of the Commission which led to the Bodner decision. The power to reject a Commission's Report lies only with the Government. The Judiciary has no recourse should the Commission rule against its submissions in whole or in part. In Bodner, that commission made unanimous recommendations which were rejected by the Government. The purpose of the Commission is to satisfy the public that the Judiciary is financially independent. Therefore in order to protect the Commission's recommendations, the Judiciary was required to initiate judicial reviews, and being successfbl, appeals to every other level, also successfbl, and ultimately to the Supreme Court of Canada. The net result was a decision by that Court to change the law, and an Order for costs against the individual judges. The Supreme Court of Canada has added a cannon to the sledgehammer held by the Government in these proceedings, and effectively estopped any fbture court challenges by individual Judges. Remembering that we are predominantly part time the cost and risk of judicial review is far too great for any individual. The Commission ought to be empowered to protect its own decisions, or provision made for an automatic judicial review in the event that a Government rejects a unanimous report. CONCLUSIONS In order for the commission process to evolve it is important that this commission recognize on the record that there have been negotiations, or that there has been the appearance of negotiations, and that the Commission process requires a transparent process, fully open to the public and that negotiation with respect to financial remuneration is completely unacceptable. I urge this Commission to categorically reject the Joint Submission as tainted by the negotiations or the appearance of negotiations. I urge that this Commission affirm by its recommendationsthat every Court requires the same degree of independence, and that to treat this court as less worthy than the Provincial Court Criminal, Family and Small Claims is inherently illogical, and dangerous to the perception of the Court as independent. I urge that the Commission use the comparators and the results of the prior Commission to guide it in its determination and to adjust the Report of the 2000 Justices of the Peace Compensation Commission, by adjusting those findings upward or downwards based on a review of the proper comparators. I urge that this commission recommend that the unanimous recommendations of the Commission as to remuneration be binding, and that the cost of protecting the recommendations through judicial review be borne by the Commission itself All of which has been respectfully submitted.