Docstoc

Moss submission

Document Sample
Moss submission Powered By Docstoc
					    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, [2005] 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.

				
DOCUMENT INFO