The Judges of the Provincial Court of Newfoundland v. Labrador, 2018 NLSC 224

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Newfoundland and Labrador Association of Provincial Court Judges v.

Newfoundland and Labrador , 2018 NLSC 224 Date : November 7, 2018 Docket : 201801G0934 Between: The Judges of the Provincial Court of Newfoundland and Labrador & Labrador as represented by the Newfoundland & Labrador Association of Provincial Court Judges, and The Honourable Judges Catherine Allen-Westby, Jacqueline Brazil, Gregory Brown, Lynn Cole, Timothy Chalker, William English, Colin Flynn, ROBIN FOWLER, Wayne Gorman, Phyllis Harris, Kymil Howe, Jacqueline Jenkins, John Joy, Patrick Kennedy, Mark Linehan, Michael Madden, Lori Marshall, Paul Noble, David Orr, kari ann pike, Harold Porter, Lois Skanes, Bruce Short, Wynne Anne Trahey, and James Walsh Applicants And: her majesty the queen in right of the province of newfoundland and labrador and the honorable andrew parsons, minister of justice and public safety and attorney general Respondents Before: Justice Alphonsus E.

Faour Place of Hearing: St. John’s, Newfoundland and Labrador Date(

s) of Hearing: June 26 & 27, 2018

Summary: The Provincial Court Judges sought a declaration of invalidity respecting certain provisions of the Provincial Court Act, 1991 , arguing that the timing of appointment of salary and benefits tribunals did not respect the constitutional obligation of the government to ensure judicial independence. The Application was dismissed, however the court recognized that the actions of successive governments, not the legislation, failed to meet the applicable constitutional norms. The Attorney General was directed to enter into discussions with the judges’

association on possible amendments to the Act to enhance the tribunal process. Appearances: Susan Dawes Appearing on behalf of the Applicants Rolf Pritchard, Q.C. and Jessica R. Pynn Appearing on behalf of the Respondents Authorities Cited: CASES CONSIDERED: Newfoundland and Labrador Association of Provincial Court Judges v. Newfoundland and Labrador, 2018 NLSC 140; Reference re:Remuneration of Judges of the Provincial Court (P.E.I.), (SCC), [1997] 3 S.C.R. 3; Provincial Court Judges' Assn.(New Brunswick) v. New Brunswick (Minister of Justice), 2005 SCC 44; Provincial Court Judges' Assn. of British Columbia v.

BritishColumbia (Attorney General), 2015 BCCA 136; Provincial Judges' Assn. of Manitoba v. Manitoba, 2013 MBCA 74; Ell v. Alberta, 2003SCC 35; PHS Community Services Society v. Canada (Attorney General), 2011 SCC 44; Provincial Court Judges’ Assn. of BritishColumbia v. British Columbia (Attorney General), 2016 BCSC 1420; Mackin v.

New Brunswick (Minister of Justice), 2002 SCC 13 STATUTES CONSIDERED: Provincial Court Act, 1991, S.N.L. 1991, c. 15; Provincial Court (Amendment) Act, 1991, S.N.L. 2015, c. 3; Judicial Compensation Act,S.B.C. 2003, c. 59; Provincial Court Act, C.C.S.M., c. 275; Provincial Court Act, R.S.N.B. 1973, c. P-21;

Loi sur les Tribunauxjudiciaires, R.L.R.Q., c. T-16; Controlled Drugs and Substances Act, S.C. 1996, c. 19; Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982,being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 REASONS FOR JUDGMENT Faour, J.: INTRODUCTION [1] The Applicants, Judges of the Provincial Court of Newfoundland and Labrador, as represented by their Association, theNewfoundland & Labrador Association of Provincial Court Judges (“Association”), seek an order in the nature of mandamus to compelthe Provincial government to launch the next independent tribunal process by which salaries and benefits for the judges are set.

Theyalso seek a declaration of constitutional invalidity with respect to a provision of the Provincial Court Act, 1991, S.N.L. 1991, c. 15(“Act”), affecting the appointment of such tribunals. Both prayers for relief are directed to getting the next tribunal process underwayforthwith, and to ensure that the recommendations of the tribunal address the chronic retroactive application of previous tribunal reportsin future. [2] This is the second application before me by the Association concerning the tribunal process.

The first was an applicationseeking judicial review of a resolution of the House of Assembly to reject the salary recommendations of the latest tribunal, chaired byBradford Wicks, Q.C. That application was granted, the portion of the resolution rejecting the salary recommendations was quashed,and implementation of the tribunal’s report was ordered. The decision is cited at Newfoundland and Labrador Association of ProvincialCourt Judges v.

Newfoundland and Labrador, 2018 NLSC 140 (“Wicks Tribunal Decision”). [3] This application looks ahead to the next procedure and future processes for setting remuneration and benefits for the judges. While the Association accepts the outcome of the last process, and the resulting judicial review decision, it has expressed concern thatthe ongoing problems, which it says have persisted since the establishment of the tribunal process in the early 1990’s, will continueunless corrections are made to the legislative framework.

Much of the Association’s submission relies on the same historical record ofinteractions between the judges and the government as set out in the Wicks Tribunal Decision. I will not repeat that history, but wouldinvite reference to that decision for the background.

[4] The Association has sought two remedies in this application. First, an order in the nature of mandamus directed to theMinister to immediately implement the next tribunal process. This was being sought to ensure that the next process was not delayedfurther. At the beginning of the hearing, both sides referenced a recent letter from the Minister to the Association with sufficientassurances on the next tribunal to satisfy the Association. Accordingly, the mandamus remedy was not pursued. [5] The second remedy sought is an order that a portion of the current legislation is constitutionally invalid.

The argument wasmade that it was necessary to ensure that future tribunals would not be plagued with the same delays and other dysfunctions as in thepast. The Wicks Tribunal Decsion [6] A review of the rationale for rejecting the resolution of the legislature may be useful in analyzing the Association’ssubmissions, and putting them into context. That rationale rested on the framework set out in two decisions of the Supreme Court ofCanada which underpins the tribunal process.

In Reference re: Remuneration of Judges of the Provincial Court (P.E.I.), (SCC), [1997] 3 S.C.R. 3 (“PEI Reference”) the Court found that the constitutional principle of judicial independence could only beprotected by an arms-length process which would hear evidence from those interested and make recommendations on salary andbenefits. In Provincial Court Judges' Assn. (New Brunswick) v.

New Brunswick (Minister of Justice), 2005 SCC 44 (“Bodner”), thecourt set out criteria for evaluating the response of the government to tribunal recommendations. [7] The tribunal process is founded on several principles governing remuneration and benefits for judges. First, judges are notpermitted to negotiate directly with the government on salary and benefits issues: See PEI Reference paragraph 186-87.

Second, thegovernment can only adjust salaries after prior recourse to the tribunal process, and justification on the basis that any negative adjustmentis part of a general fiscal measure applicable to the entire public sector, without singling out the judges. Third, reduction of salary, ifjustified on the other principles, cannot go below a basic minimum, to ensure judges’ independence is not threatened by inadequatecompensation: See PEI Reference, paragraph 174. [8] The PEI Reference focused on the tribunal process, and it affirmed that the process was to be non-binding on thegovernment.

That left the basis for evaluation of the response of the government somewhat ambiguous. In Bodner the court elaboratedand set out criteria for consideration of the response, at paragraph 31: 31. In the Reference, at para. 183, a two-stage analysis for determining the rationality of the government's response is set out. We arenow adding a third stage which requires the reviewing judge to view the matter globally and consider whether the overall purpose of thecommission process has been met. The analysis should be as follows:

(1) Has the government articulated a legitimate reason for departing from the commission's recommendations?

(2) Do the government's reasons rely upon a reasonable factual foundation? and

(3) Viewed globally, has the commission process been respected and have the purposes of the commission — preserving judicialindependence and depoliticizing the setting of judicial remuneration — been achieved? [9] Consideration of the first of the Bodner criteria in the Wicks Tribunal Decision, I found that the government’s focus on thefiscal difficulties facing the Province was a legitimate reason for its response to reject the salary recommendations. See Wicks TribunalDecision, paragraphs 84 et.seq.

However, I found that it failed to satisfy the next two criteria. [10] On the second, the government failed to draw a rational connection between the fiscal difficulties and the measures aimed atthe judiciary. There were no general measures affecting the entire public sector. The evidence considered in the decision supported aconclusion that judges were singled out as receiving differential treatment from all others paid out of public funds during the time of thetribunal’s mandate.

See Wicks Tribunal Decision, paragraphs 102 et.seq. [11] On the third, the government’s response failed to meet the constitutional norms applicable. Those norms require ademonstration of respect for the process in order to achieve the preservation of judicial independence and a de-politicization of theprocess. The government was found to have failed to meet this criterion in several ways. [12] First, the history of delays dating from the first tribunal in 1991 point to a lack of respect for the importance of the process.

Notwithstanding many comments by previous tribunals, including Steele in 2006, Andrews in 2010, and Wicks in 2015, successivegovernments have failed to address what have become systemic delays. I agreed in that decision that the pattern of delay in appointmentof tribunals, the retroactive legislation to adjust the appointment dates and reporting deadlines, and the failure to respond to therecommendations of previous tribunals demonstrated a decided lack of respect for the process. Governments of both political stripesfailed to take the process seriously.

As a consequence, the recommendations of successive tribunals were always implementedretroactively, with the concomitant negative impacts on the judiciary. See Wicks Tribunal Decision, paragraphs 123 et.seq. [13] Second, the government used its fiscal circumstances as justification for rejection of the recommendations, and in so doingpresented economic data to support its position. The economic data and forecasts used did not address the period covered by themandate of the tribunal.

While the government argued the Province was facing a difficult fiscal situation, the government did notlogically connect the measures it sought to impose on the judges to the problem it was attempting to resolve. There were no system-widemeasures undertaken, and it appeared that the judges were singled out as the only group in the public sector to have their salaries frozenduring the four-year mandate of the tribunal.

[ 14 ] Delay was also a factor in the application of the economic and fiscal data to the recommendations of the tribunal. Economic conditions can change rapidly, and in this case, the use of data and forecasts related to periods of time outside the tribunal’s mandate meant that the data were not logically connected to the recommendations of the tribunal. At paragraph 143 of the Wicks Tribunal Decision I noted a comment from the British Columbia Court of Appeal in Provincial Court Judges' Assn. of British Columbia v. British Columbia (Attorney General) , 2015 BCCA 136 at paragraph 38 : 38.

A further concern is that if current data are to be used, why would the appellant not be entitled to have this Court look at the fiscal circumstances as they exist today? They show a much improved performance over what was predicted. There would be no end in sight to the process. [ 15 ] The third element of lack of respect for the process noted in the Wicks Tribunal Decision was the failure of the government to participate in a meaningful manner in the tribunal process, in particular on the issue of judicial pensions.

It attempted, on this issue as well as some others, to make a connection between pension policy applicable to judges with those existing in the public service generally. Those pensions were the subject of negotiations with the public sector unions.

It has been clear for some time that the process related to judicial compensation and benefits must not be based on collective bargaining in the public sector generally, and the government’s attempt to link the two was inappropriate at best, and disingenuous and disrespectful at worst. [ 16 ] Finally, in what I described as one of the most egregious aspects of the case, the response of the government and the legislature utterly failed in the goal of depoliticization of the process. On the contrary, the debate over judicial remuneration was played out in a partisan political manner in the legislature.

Both the government and the opposition were complicit in this exercise, and it served to ensure that the tribunal’s recommendations were debated in a manner which the tribunal process was designed to avoid. See Wicks Tribunal Decision, paragraphs 154 et.seq. [ 17 ] I have summarized these aspects of the case to point that delay was a significant element in the response of the government to the recommendations, but it was not the only one.

Disrespect for the process also arose from the use of economic and fiscal data which was not related to, or only partly related to, the tribunal mandate period, the apparent singling out of judges for salary measures unique in the public sector during this period, the failure of the government to meaningfully engage in the process on some, not all, issues, and the overt politicization of the process. This fact becomes important in assessing the nature of the remedy sought by the Association in this application. [ 18 ] The Association has focused on

section 28.2(1) of the Act . It reads as follows: 28.2(1). Notwithstanding

section 28.1, the tribunal shall review and report on salaries and benefits of judges and shall present its recommendations together with reasons to the minister not later than 4 years from the date of the last tribunal report. [ 19 ] In its submission it argues that there are problems with the process in this Province from the front end, the timing of the appointment of the tribunal, to the back end, the treatment given the tribunal’s recommendations by the government and the legislature. In this application, it has asked the court to focus on the front end.

In so doing, it seeks a declaration that this provision fails to respect the constitutional position of the judiciary by its lack of a specific time for appointment and reporting of a new tribunal. [ 20 ] The Association argues that the process put in place in this Province for determining remuneration and benefits for provincial court judges has been ineffective. It says that the current structure results in chronic delay. If one takes the mandate period of each tribunal as relevant to timeliness, then a problem becomes evident.

Not one of the previous five tribunals have been appointed or reported within the timelines set out in the legislation, without legislative amendments, most of which have had retroactive effect. The next tribunal, being more than one year behind its current mandate, from April 1, 2017 to March 31, 2021, continues the same pattern. [ 21 ] The Association has outlined its view of the consequences of chronic delay in its submissions. Those consequences include the following: 1. Uncertainty for judges and a loss of confidence in the tribunal process; 2.

An adverse impact on the morale of judges, accentuated by the fact that for many judges, no practical option exists to resign and return to practice. At the age of most judges, they have lost a client base by their appointment, and it would be difficult to re-establish a practice. In addition, they would be precluded from practicing in any area of law related to their work on the bench; 3. While no evidence has been submitted to support its conclusion, it suggests the delay can have a negative impact on the ability of the court to attract high-quality candidates; 4.

Delay sets the stage for intervening circumstances to provide additional motivation for the government to reject any recommendations; 5. An impact on judges considering the time of retirement. In the past, retired judges were not given retroactive benefits if they had retired before the finalization of tribunal recommendations; and,

6. Where non-salary benefits are concerns, some may not be amenable to retroactive application. [ 22 ] I agree with the potential consequences of the manner in which the current process operates. The problem for the judiciary is that judges have very little ability to affect or change the process. They can only make submissions to a tribunal. They cannot bargain directly with the government. They cannot go public, and appeal over the heads of the government to the general population. They are not permitted to enter into the political forum.

The process is totally within the control of the government. [ 23 ] In Bodner the Supreme Court noted, at paragraphs 11-12, the rationale for the tribunal process, and the corrosive impact of the dysfunctions which appear to exist: 11. Compensation commissions were expected to become the forum for discussion, review and recommendations on issues of judicial compensation. Although not binding, their recommendations, it was hoped, would lead to an effective resolution of salary and related issues.

Courts would avoid setting the amount of judicial compensation, and provincial governments would avoid being accused of manipulating the courts for their own purposes. 12. Those were the hopes, but they remain unfulfilled. In some provinces and at the federal level, judicial commissions appear, so far, to be working satisfactorily. In other provinces, however, a pattern of routine dismissal of commission reports has resulted in litigation. Instead of diminishing friction between judges and governments, the result has been to exacerbate it.

Direct negotiations no longer take place but have been replaced by litigation. These regrettable developments cast a dim light on all involved. In order to avoid future conflicts such as those at issue in the present case, the principles of the compensation commission process elaborated in the Reference must be clarified. [ 24 ] The Manitoba Court of Appeal commented in Provincial Judges' Assn. of Manitoba v. Manitoba , 2013 MBCA 74 at paragraph 201 : 201. In order for this process to work, both parties had to participate meaningfully and diligently in the process.

If the Government did not take the process seriously, the judges had no real recourse. Their choices were to wait until the next JCC or to take the Government to court. [ 25 ] These comments are reflected in the Wicks Tribunal Decision wherein I found that the actions of the government over many years had rendered the process in this Province ineffective and inefficient.

In the latest tribunal process, a degree of politicization of the process has crept in. [ 26 ] On the issue of delay, the experience of the most recent tribunal demonstrates the increasing discordance between the date of reporting and the period of the mandate. For example, the Wicks Tribunal’s mandate was to make recommendations for the period April 1, 2013 to March 31, 2017.

The three member panel was appointed in December, 2014, some three months following the date which by statute it was required to report. (To correct that delay the legislature passed an amendment to the Act : see Provincial Court (Amendment) Act, 1991 , S.N.L. 2015, c. 3). It reported in December 2015. Its recommendations were dealt with by the legislature in May, 2016. The previous application was brought in mid-2016 and was not heard until the end of that year.

Even if the Wicks Tribunal Decision had been issued within six months, the recommendations would not have been finally determined until after the expiry of the mandate period. [ 27 ] The Association also makes the point that, as happened in the government’s response to the Wicks Tribunal recommendations, rejection was based on updated information that was not available for submission during the Tribunal process.

That information would not have been available but for the delay caused by the government itself in appointing the Wicks, and past tribunals. [ 28 ] I accept that there have been many dysfunctional aspects to the way the government has managed the process. I accept that the process may be inefficient, frustrating for the judges, and contrary to good management of judicial human resources. I also accept that these factors may diminish the quality of candidates who seek appointment to the bench, although I have no evidence to support this speculation.

But is it a threat to independence? [ 29 ] The Association has argued that the deficiencies which it has identified go to the constitutional obligation of the government to ensure the process is respected, effective, and depoliticized. In my previous decision, I found that by its conduct during the most recent tribunal, and by the delays in previous tribunals, the government had failed on all three counts.

The government has addressed some of these concerns by its recent response to the decision, and its agreement to proceed with the next tribunal in short order. [ 30 ] I believe, however, there is a significant gap between deficiencies which are frustrating, inefficient and lead to poor management of judicial resources, on the one hand, and harm to judicial independence on the other.

Notwithstanding my finding that the process has not been sufficiently respected, when one considers the whole process, including the process of judicial review, the result, albeit not in accordance with the wishes of the judges, or of good management practices, has been an amelioration in salary and benefits for judges. There has been no restriction or diminishing of the judicial role by any action of the government. None of the evidence submitted by the Association convinces me that judicial independence has been threatened by the terms of the statute.

On the contrary, the recent process, including the judicial review and the subsequent response of the government, when taken together, appear to have affirmed independence. [ 31 ] However, an affirmation of independence at the end of the process does not erase the potential damage to the constitutional principle which may arise when the process is disrespected, ineffective, and is also politicized.

In the long term, such actions by the government can reduce respect for the judiciary, which could have a detrimental impact on the application of the rule of law, and may diminish judicial independence. [ 32 ] The issue for this proceeding is whether I should declare the impugned provision in the legislation unconstitutional. In the Wicks Tribunal Decision, I said, at paragraph 150:

150. Notwithstanding the progress made on salary and benefits, I believe the history discloses a systemic delay that has diminished the effectiveness and credibility of the process. The legislation is not to blame. While it does not require that a Tribunal be appointed as of a certain date, it does require that the report be delivered not less than four years from the last report . (

Section 28.2(1) ) The judges argued that the very practical effect is that one delay has a compounding effect on subsequent processes. The failure to apply economic and fiscal data to the period of the tribunal, in my view, shows a lack of respect for the process. In that way, the Government’s response falls short of meeting its constitutional obligations. [emphasis added] [ 33 ] The Association is seeking a remedy wherein I would declare the provisions of the legislation governing this process invalid as failing to satisfy the constitutional requirements for the preservation of judicial independence.

While I have found that the legislation itself can satisfy the constitutional obligations, the conduct of successive governments does not satisfy the requirements of respect for, efficiency and de-politicization of the process. [ 34 ] The Association presents two arguments to support its view that the declaration should issue. [ 35 ] First, the model in this Province fails to connect the timing of the appointment of the tribunal with the timing of the preparation of the report and further, that no specific dates are provided. Most other jurisdictions in Canada have taken a different approach.

All other jurisdictions require that tribunals be appointed at fixed intervals. They all provide a specific period within which to submit a report. Because the appointment of the tribunal is tied to the date of the last report, where there is one delay, it is compounded in successive tribunal processes. [ 36 ] Second, the absence of specific dates make it difficult to hold governments to account. It points to the failure of any tribunal in the past 28 years to have the process conclude on time. I identified this as a problem in the Wicks Tribunal Decision. [ 37 ] These two arguments focus on the issue of delay.

Delay has been one significant cause of a lack of respect for the process. However, the other factors identified in the earlier decision were, in my view, also quite significant. Those issues arose at the back end of the process, in the response of the government to the tribunal’s recommendations: the failure of the government to articulate a rational connection between the stated problem, the fiscal difficulties, and the response to the tribunal’s recommendations; and the overt politicization of the process during the debates in the legislature.

These two aspects of the government’s response, in my view, are at least equally problematic in preserving judicial independence as the issue of delay. [ 38 ] The Association has indicated it wishes to focus on the front end of the process, and I accept that it may be useful to address the question of delay. It makes the argument that the legislative model in this Province is out of step with those in other jurisdictions. It says that

section 28.2 of the Act contributes to the problem of delay. It does not set specific dates for the appointment of a tribunal. It argues that it is insufficient to tie the reporting to the date of the last report. It also submits that the provision in this Province is unique in Canada. By way of comparison, the following

summary of four other jurisdictions presents models that are quite different. [ 39 ] In British Columbia, the Judicial Compensation Act , S.B.C. 2003, c. 59 directs that a Judicial Compensation Commission (“JCC”) shall be appointed on March 1, 2016, and thereafter on the same date every third year (section 2). The JCC is directed to report by October 1 of the year of appointment (section 5). [ 40 ] In Manitoba, the Provincial Court Act , C.C.S.M., c. 275 directs the appointment of a JCC on April 1, 2002, and thereafter on the same date every third year following (section 11.1(2)).

The JCC must report within 180 days of appointment (section 11.1(20)). [ 41 ] New Brunswick’s Provincial Court Act , R.S.N.B. 1973, c. P-21 requires the appointment of a Judicial Remuneration Commission (“JRC”) before September 1, 2016, and thereafter on the same date every fourth year following (section 22.02(1.1)). By

section 22.021(1) it must report within 9 months. [ 42 ] In Quebec, the

Loi sur les Tribunaux judiciaires , R.L.R.Q., c. T-16 mandates the appointment of un comité de la rémunération des juges on April 1, 1998, and thereafter on the same date every third year (Art. 246.32). Under Art. 246.43 the Committee must report within 6 months. [ 43 ] It appears that, for the most part, all other provinces follow a similar pattern. The Association submitted that this Province is an outlier in the constitution and timing of the appointment of its salary and benefits tribunal. As far as delay is concerned, it says

section 28.2 is the root of the problem. [ 44 ] In addition, it makes the point that there is nothing in the legislation which would tie the work of a tribunal to the period of the mandate. In fairness, however, it appears none of the other provinces address this latter issue. [ 45 ] While the Association has focused on the deficiencies of the legislation, I do not believe that is where the problem lies, although another legislative model may minimize the difficulties.

The problem has been that successive governments of different political stripes, going back to the 1990’s, have failed to show sufficient respect for the process to meet the constitutional obligations set out in the PEI Reference and Bodner decisions of the Supreme Court. [ 46 ] With specific reference to this application, the participation of the government must respect the process, ensure its effectiveness, and de-politicize the setting of judicial remuneration ( Bodner , paragraph 31 ).

The delays which have been endemic to the successive tribunals since 1991 have neither respected the process, nor ensured its effectiveness. [ 47 ] One other matter must be considered before deciding this application. Governments have the authority to propose changes to legislation at will. The experience of the past five tribunals demonstrates this fact clearly. Notwithstanding that the appointment of successive tribunals has always been after the time indicated by the legislation, successive governments have introduced legislation to retroactively validate the late appointments.

That has been the experience, and I am uncertain how amendments which would address the problems in

section 28.2 could avoid the same fate. This is one of the factors I must consider when deciding how best to respond to this application.

[ 48 ] The Association has submitted authorities that it says provide the basis for a declaration of constitutional invalidity. In Ell v. Alberta , 2003 SCC 35 , the court dealt with Alberta legislation reforming the qualifications and appointment of justices of the peace. Those already in the system argued that it affected their independence. The Trial court and the Court of Appeal agreed, and struck down provisions as related to incumbents.

The Supreme Court of Canada reversed the lower courts, and indicated that the legislation, enacted in good faith for the purpose of reforming the law, was valid and should not be struck down. While the issue of a declaration of invalidity was raised as within the jurisdiction of the court, the circumstances did not warrant such a remedy. [ 49 ] The next case cited was a little more helpful to the Applicants. In PHS Community Services Society v.

Canada (Attorney General) , 2011 SCC 44 (the “ Insite ” case) a safe injection site had been established in Vancouver to provide medical services to intravenous drug users. The nature of the services provided involved the administration of drugs otherwise prohibited by the criminal law and the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”). A former Minister of the federal government had provided an exemption to permit the site to operate legally.

The Court acknowledged, at paragraph 112, that the Minister had a broad discretion to issue an exemption. [ 50 ] When a subsequent Minister revoked the exemption, several parties challenged that action as contrary to the Canadian Charter of Rights and Freedoms ,

Part I of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (“ Charter”) . The revocation left the site exposed to the operation of the criminal law and the CDSA . The reasoning of the Court distinguished between the validity of the legislation and the actions of the Minister. The Court discussed the difference beginning at paragraph 116: 116. The main issue, as the appeal was argued, was the constitutionality of the CDSA itself. I have concluded that, properly interpreted, the statute is valid. This leaves the question of the Minister's decision to refuse an exemption. . . .

The claimants pleaded . . . that, if the CDSA were valid, the Minister's decision violated their Charter rights. The issue was raised at the hearing and the parties afforded an opportunity to address it. . . . . [The claimants] should not be denied a remedy and sent back for another trial on this point simply because it is the Minister's decision and not the statute that causes the breach when the matter has been pleaded and no unfairness arises. 117. The discretion vested in the Minister of Health is not absolute: as with all exercises of discretion, the Minister's decisions must conform to the Charter . . . .

If the Minister's decision results in an application of the CDSA that limits the s. 7 rights of individuals in a manner that is not in accordance with the Charter , then the Minister's discretion has been exercised unconstitutionally. [ 51 ] The Court declined to strike down the legislation prohibiting drug injection sites, but was prepared to find that the Minister’s actions were contrary to the constitutional protections in the Charter . While this case does not support the remedy proposed by the Association, it does provide some guidance. Analogous to the current case, the court may decide that

section 28.2 meets the test of validity, but that its application by successive governments has not met the requisite constitutional standard. When a government fails to respond in a constitutionally valid manner, the court, on judicial review, may reject the government’s position. [ 52 ] The Insite case is interesting in the context of the case before the court. There, in the context of a single, not ongoing, breach, the court felt it could direct the Minister to grant the exemption. It was the Minister’s action which breached the Charter , not the legislation.

The court declined to declare the legislation invalid, whatever its deficiencies. That case may stand for the proposition that where constitutional principles are in issue, the court has a broad discretion to craft a remedy short of a declaration of constitutional invalidity. [ 53 ] In effect, the result in the Wicks Tribunal Decision was similar to that in the Insite case. While I found the government’s response to the tribunal’s recommendations wanting, the remedy was directed to the actions of the government, not the legislation.

No other authority provided to me would support a declaration that the legislation itself is invalid for failure to meet the constitutional standards. [ 54 ] This is not to say that the process mandated by the legislation could not be improved. As noted above, it does not provide a structure within which governments can be held accountable for meeting timelines or the broader constitutional norms. I do not believe a declaration of invalidity is appropriate, given my earlier comments that the legislation, on its surface, meets the standard.

In the Wicks Tribunal Decision, the government’s response to the tribunal recommendations was addressed in a manner that would be consistent with the Supreme Court’s decision in Insite . Accordingly, I believe it is open to me to decide that

section 28.2 meets the test of validity, but that its application by the government does not meet the standard. [ 55 ] In the Insite case, Chief Justice Mclachlin discussed the court’s authority to craft an appropriate remedy for an analogous situation, at paragraph 144: 144. The claimants asked for a declaration that the impugned provisions be struck down. Given my conclusion that s. 4(1) of the CDSA , considered with s. 56 , is constitutionally valid, no remedy lies under s. 52 of the Constitution Act, 1982 .

Where, as here, the concern is a government decision that is inconsistent with the Charter , s. 24(1) applies and allows the court to fashion an appropriate remedy: … [ 56 ] I believe the same considerations apply here. The right of the public to a court that is independent is contained in

section 11(

d) of the Charter , which reads: 11. Any person charged with an offence has the right . . . (

d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal; [ 57 ] Judicial independence being protected by the Charter , the court has the authority to craft an appropriate remedy where government action threatens the underlying constitutional values. That remedy must bear a logical connection to the problem.

[ 58 ] The Association claims that the government’s handling of the tribunal process in a manner inconsistent with the constitutional norms continues. It argues that, in particular, the delays associated with the process, and the stated reasons for delay, demonstrate disrespect for the process. I do not disagree, but when I consider the reasons for rejecting the government’s response to the Wicks Tribunal, there were other factors which raise serious questions about the commitment of governments, past and present, to ensure the process protects judicial independence. I have already noted the following: 1.

Delay occasioned by the government in appointing tribunals has, over the 28 years since the process was established in legislation, meant that the reports and recommendations have always been retrospective. There needs to be more coherence in time between the tribunal’s deliberations and report and the period of the application of its recommendations: Wicks Tribunal Decision at paragraphs 123 et.seq. 2. Delay has also meant that the evidence on economic forecasts submitted to the tribunals has been outdated by the time the government considers its response: Wicks Tribunal Decision at paragraphs 137 et.seq. 3.

The government’s response to the Wicks tribunal’s recommendations failed to articulate a rational connection between its fiscal difficulties and its proposal to freeze judges’ remuneration: Provincial Court Judges’ Assn. of British Columbia v. British Columbia (Attorney General) , 2016 BCSC 1420 , at paragraph 82 , cited in the Wicks Tribunal Decision at paragraph 146. 4. The government drew inappropriate connections between the tribunal process and collective bargaining throughout the public service: Wicks Tribunal Decision at paragraph 127. 5.

The overt politicization of the process in the formal response of the government submitted to the legislature, and during the debates in the legislature: Wicks Tribunal Decision at paragraph 157. [ 59 ] Addressing some of these issues may be difficult, but each of them detracts from the ability to meet the government’s constitutional obligations vis a vis the judiciary.

Any remedy should attempt to improve on these difficulties. [ 60 ] Both sides in their oral submissions before the court agreed that over the years the Association has made numerous proposals to the government in respect of legislative changes to improve the tribunal process. It was agreed that there has been no direct response by any government about amendments to the legislatively mandated process.

It is also notable that there have never been face-to-face discussions between the Association and the government about the process. [ 61 ] I acknowledge that there is a prohibition on any direct negotiation on salary and benefits between judges and the government. However, there is no prohibition on an association of judges discussing with the government how the process may work better to protect the constitutional values of judicial independence. I believe it may be appropriate to order that such discussions take place, with a view to addressing some or all of the issues which have been identified.

Such a direction is consistent with the role of the government to protect and ensure the independence of the judiciary. In Mackin v. New Brunswick (Minister of Justice) , 2002 SCC 13 , the court noted a positive obligation on the government at paragraph 60: 60.

Thus, the need to ensure that the process is depoliticized imposes negative and positive obligations on the legislative and executive branches because not only must they refrain from using their financial powers to influence judges in the performance of their duties, but they must also actively protect the independence of the judiciary by enacting appropriate legislative and institutional instruments. [ 62 ] While the government, through the Attorney General, has a positive obligation to address deficiencies in the process, the court is ill-equipped to engage in providing policy direction, nor does it have the authority to usurp the roles of the legislative and executive branches.

The Court’s role is to rule on whether the constitutional obligations have been met. In this decision, and in the previous Wicks Tribunal Decision, deficiencies in the process have been identified. I believe that is the extent of the legitimate authority of the Court. I have found that the legislation itself is constitutionally valid, so that a declaration of invalidity would not be appropriate. I have also found that the state action arising from the statutory regime has been wanting.

If there are changes to the legislation which might address some of the difficulties, then it seems to me there is an obligation on both the Association and the government to consider them. [ 63 ] The judges, through their Association, have, on a number of occasions, made suggestions for legislative amendments. Based on the submissions of counsel, I believe the government acknowledges its duty to protect the constitutional values of an independent judiciary. It should be a simple matter for both sides to exchange ideas on how to improve the legislation.

Conclusion [ 64 ] The Association representing the judges has sought a declaration of constitutional invalidity respecting

section 28.2 of the Act . I have found that such a remedy is inappropriate. However, I have acknowledged some of the difficulties which have arisen as a result of the management of the process by successive governments. I agree that repeated actions by the government over some 28 years have breached the constitutional obligation to protect the independence of the judiciary.

In light of the fact that there have never been face-to- face consultations between the two sides, I believe it is appropriate to order that the Association and the government, through its Attorney General, engage in discussions about improvements to the tribunal process so that the difficulties which have been identified can be minimized in the future.

[ 65 ] The Association sought a declaration that the “current design of the Tribunal process, including particularly

section 28.2(1) of the Act , is unconstitutional and of nor force and effect.” I have found that the legislation is not the problem, but the actions of this government, and previous governments, have not satisfied the constitutional obligation to protect the independence of the judiciary.

I have also acknowledged that the deficiencies in the response of successive governments have been wanting. [ 66 ] I suggest that discussions between the Association and the Attorney General consider the comments in this decision, in the Wicks Tribunal Decision, as well as the jurisprudence which has arisen, starting with the decisions of the Supreme Court of Canada in the PEI Reference in 1997, and in Bodner in 2005. It would also be appropriate to consider whether the legislative models in other jurisdictions may provide some insight into improving the process in this province.

The objectives of the discussions should be to prepare amendments to the legislation which would have the effect of ensuring regular and predictable appointment of Tribunals, a specific time for the submission of a report, prospective application of the recommendations of the Tribunal, and parameters to govern the response of the government to the recommendations. Disposition [ 67 ] The application for a declaration of invalidity with respect to

section 28.2 of the Act is dismissed. [ 68 ] The Attorney General, or his designate, is directed to enter into discussions with the Applicants, as represented by the Association of Provincial Court Judges, with the objective of considering amendments to the legislation respecting the salaries and benefits tribunal established under the Act , such discussions to consider: 1. Comparable legislation in other jurisdictions and whether a different legislative model may be appropriate in this jurisdiction; 2.

How to avoid the delays in the appointment and reporting of the tribunal, and the response to the recommendations of the tribunal by the legislature; 3. Mechanisms to minimize the potential for politicization of the tribunal process, and its consideration by the government and the legislature; and, 4. Other matters which either party may wish to propose to ensure that future tribunal processes are respected, effective and depoliticized. [ 69 ] Either party has leave to address the court on the issue of costs. _____________________________ Alphonsus E. Faour Justice