Judicial compensation in Canada : an examination of the judicial compensation experience in selected Canadian jurisdictions 1990-2010
University of British Columbia
Master of Laws - LLM
The issue of judicial compensation is fundamentally marked by the challenge of balancing two constitutional imperatives: judicial independence, and the ability of governments to control public expenditures. This challenge is not a new one; it first emerged in the common law world with the development of an independent judiciary and remains to this day. In Canada, the strain between judges and governments over judicial compensation reached its apex in the mid-1990’s when government restraint measures freezing or reducing judges’ compensation were met with court challenges by provincial court judges. These challenges led to a seminal 1997 Supreme Court of Canada decision in which the Supreme Court attempted to reduce the strain in judge-government relationships by mandating a judicial compensation process (JCC) to determine all judicial compensation issues. However, the Supreme Court’s 1997 intervention was initially followed by even more judicial compensation litigation. Consequently, in a second intervention in 2005 the Supreme Court clarified the principles of the JCC process in the hope of achieving its original goal of reducing strain in judge-government judicial compensation relationships. This thesis examines the experience with judicial compensation in six Canadian jurisdictions between 1990 and 2010. Part I sets out the historical and jurisprudential context for judicial compensation in Canada. Part II offers a detailed examination of the judicial compensation experience in five provinces (British Columbia, Alberta, Ontario, Quebec and Nova Scotia) and the federal jurisdiction from 1990-2010, with particular attention to three periods: the first period preceding the Supreme Court’s first intervention mandating JCC’s in 1997, the second period occurring after this first intervention until 2005, and the third period arising after the Supreme Court’s second intervention clarifying the JCC process in 2005. These examinations consist of constructing a judicial compensation narrative for each jurisdiction and then quantitatively measuring changes in judge-government judicial compensation relationships in the three periods. In Part III this thesis concludes that the Supreme Court’s 1997 and 2005 interventions were ultimately followed by reduced tension in judge-government judicial compensation relationships, in marked contrast with the strain that characterized these relationships before the introduction of JCC’s in the mid-1990’s.
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