© 1997 Karen Selick
A Proposal for Judicial Independence
An edited version of this article first appeared in the March, 1997 issue of Canadian Lawyer.  If you wish to reproduce this article, click here for copyright info.


 A Modest Proposal for Judicial Independence

Provincial court judges have been on the warpath for the last few years.  In several provinces, they’ve suffered pay cuts.  In others, their pay has been frozen.  Now they’re assailing our common sense with the argument that these salary setbacks compromise their judicial independence.  Aw, c’mon, guys and gals.  Don’t you think that’s a bit of a stretch? 

Some of their complaints approach the ludicrous.  In Quebec, for example, judges argued that their judicial independence was compromised when their subsidized parking privileges were revoked.   How did this affect their impartiality in court, I wonder?   Did they yearn to avenge themselves on the government that day by letting violent criminals go free instead of putting them in jail?  Did they hanker to retaliate against the provincial treasury by imposing lower fines than usual?  Or did they consider imposing heavier fines, hoping the extra revenue would permit the province to restore their perk?  Worse yet, were they tempted to accept bribes from defendants to cover their extra parking expense? 

The judges don’t seem to realize what an unflattering portrait they paint of themselves with these arguments.  Just give us a few thousand dollars more a year, they seem to be saying, and we promise to be unbiased.  Otherwise…well, we can’t answer for what we might do. 

They also don’t seem to realize how easily their argument could be turned against them.  If their independence can be compromised by a salary rollback, why not by an exemption from an across-the-board salary rollback?  Couldn’t the immunity from a menacing stick be interpreted instead as a carrot?   Couldn’t provincial governments be accused of trying to curry favour with judges by sparing them from the cuts facing everyone else on the payroll? 

The judges say their concern about judicial independence is intended to protect the public, not themselves.  Provincial governments often appear before the courts as prosecutors in criminal cases or as intervenors in constitutional cases.  Judges must not be suspected of favouring the government over other litigants. 

This argument would be a lot more convincing under different circumstances.  If judges were really unprincipled enough to allow the size of their salaries to sway their decisions, their current disgruntlement would more likely translate into bias against, rather than for, the provincial governments.  Let’s see if they raise this protecting-the-public argument the next time they’re offered a raise.

The judges have suggested that some independent mechanism be established to set their salaries, free from the interference of provincial legislatures or cabinets. One possibility they’ve mentioned is fixing provincial judges’ salaries at a percentage of federal judges’ salaries.   Another is establishing an independent  commission to pronounce the magic number. 

The problem is that there’s no such thing as the "right" salary for a judge, just as there is no "right" income for accountants or aerobics instructors and no "right" price for computers or cabbages.  Supply and demand determine prices— sometimes rising, sometimes falling--for those occupations and commodities that have many suppliers and many customers.  Quality also affects prices.  The provincial courts are local monopolies that don’t charge for their product, don’t lose business no matter how bad a job they do, and don’t have to show a profit.  When it comes to controlling costs, they are adrift at sea without a compass.  Who can say with certainty that judges’ salaries shouldn’t sometimes fall, just like the price of computers?

The best we could do would be to examine the vestigial market signals that do exist for this occupation: entry into it, and departure from it.  If there are still dozens of qualified applicants for every advertised job opening (all willing to be impartial between the province and other litigants), and if incumbent judges aren’t quitting in droves to return to their law practices, the salary is probably in the right ball park. 

It’s not enough to compare judges’ incomes to the best lawyers’.  Judges have many compensating advantages:  shorter hours, long paid vacations, a pension plan, group insurance benefits, greater prestige, job security, no worry about professional negligence, no hassle about collecting bad debts and--in Quebec, at least—subsidized parking (yes, the privilege has been restored).

There is another solution that would solve both the salary problem and the judicial independence problem.  Judges needn’t be on salary at all.  Lawyers who want to be judges could get training and certification at their own expense.  The court house would place their names on a panel. When a judge was needed, litigants would jointly select one.  The judge would be paid an hourly rate for the time spent working on the case.  Between cases, judges would practise law.

Judicial independence would be assured, because one party or the other would never agree to anyone who showed the slightest hint of bias.  Even the appearance of judicial independence would improve.  Judges could no longer be seen as minions of government, since they would have alternative sources of livelihood .

The system would provide continual feedback on remuneration levels.  If hourly rates were fixed too low, judges would drop off the panel or turn down long assignments.  Too high, and the panel would be swamped.

Who would hate this idea?  Existing provincial court judges, naturally.  But as the saying goes, "No-one should be judge in his own case."

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June 15, 2000