Red Herrings in the Judicial Independence Ocean

© 2007 Karen Selick

This speech was delivered on November 30, 2007 at the Judicial Independence Conference
held at the University of Toronto Law School. If you wish to reproduce any part of it,
please view my copyright page, here.

It’s an interesting experience for me to be here at Flavelle House, because I was a student here at U of T Law School from 1973 to 1976. I always felt back then that I was a square peg in a round hole, which is why I haven’t been back, not even once, in the 31 years since I graduated.

Unfortunately, having listened to some of the other speakers here today, I’m forced to conclude that I am still a square peg in a round hole. So let me now proceed to demonstrate this.

There is only one fundamental condition necessary in order for judicial independence to exist. That is that judges be free from the fear of retaliation by the parties on the losing side of the court’s decision, or by anyone else whose interests are aligned with the losing parties. Only if they are free from retaliation can judges be impartial between the litigants, and it is judicial impartiality that is the ultimate goal of judicial independence.

There are 3 ways in which judges might experience retaliation:

•    physical violence
•    financial harm—for instance, a salary reduction; or
•    loss of job security—being removed from the bench, or not allowed to participate in future cases.

In Canada, fortunately, we have had very little reason to worry about physical violence. This has not been the case in other countries, where judges have had to worry about their personal safety after jailing powerful figures in organized crime, for instance.

But physical violence is the easiest of the three types of retaliation to deal with intellectually. The solution is straightforward—obviously, we must do everything in our power to protect judges from being physically harmed. But every citizen is entitled to that same protection in any event.

The other reason why physical violence is less of an intellectual challenge, at least in Canada, is that it comes almost exclusively from disgruntled individuals. It doesn’t come from the state. We don’t have warring political factions here that are continually seizing power in armed insurrections, and killing off the personnel hired by their predecessors. So in Canada, the threat of physical retaliation is not like the other two types of retaliation, both of which come from the state—the very same entity that is in charge of appointing judges and paying judges. So that’s all I’m going to say about physical retaliation because the other forms pose a much greater challenge and need more attention.

Let’s move on to financial security. This is an area where I think the discussion is fraught with red herrings and illogical arguments. The 1997 reference came about because provincial court judges in several provinces argued that across-the-board salary reductions affecting not only the judges but also other civil servants constituted interference in their judicial independence. To be blunt (and I always am) this argument is self-serving poppycock. The most egregious example of this argument was put forward in a 1993 case called Bisson v. Quebec*.   The judges there argued that when the Quebec government tried to discontinue their parking subsidies of $95 per month, it interfered with their judicial independence. They got a ruling (from one of their own, needless to say—how unbiased can that be?) that they were (in effect) constitutionally entitled to subsidized parking in order to maintain their judicial independence.

Now, one of the things I want to bring to your attention, because this is not widely known, is that in 1995 judges were at the top of the heap financially in Canada. Judges were the highest paid occupational group, beating out dentists, doctors, specialist physicians, businessmen, lawyers—everybody. This information comes from Statistics Canada and unfortunately, 1995 is the latest year I’ve been able to find. It may still be true—in fact, I would be very surprised it if were NOT still true, because judges have had huge salary increases since 1995.

But how can a salary cut affect the judicial independence of judges? Will it affect their impartiality in court? In a case involving the level of government that just handed them the pay cut, will they be tempted to alter their decision as a result of having less money in their pockets? Or will they be tempted to take bribes from litigants to make up for the missing parking subsidy?

Did the judges think this through before they made this argument? It’s a very unflattering reflection on themselves. Were they really saying that they could be corrupted by something as small as a $95-per-month parking fee?

And if they were confessing that they would alter their decisions because of changes in their pay, would every judge alter his decisions in the same direction? Let’s take criminal cases, for instance. If judges were miffed by a salary cut, would they become more lenient towards criminals as a way of “getting even” with the government? Or would they become tougher with criminals in an attempt to curry favour with the government and win back their former high salaries? My guess is that there would be as many judges in the first camp as in the second, so the net result would be quite unpredictable, or the two groups might simply cancel each other out.

There’s another way to look at this. If civil service salaries are being cut across-the-board and judges are included, this could be seen as a stick being used to beat them with. But if salaries are being cut across the board and judges are exempted—or worse yet, given a raise—could this not be seen as a carrot being handed to judges to make them favour the state in disputes that come before the courts? A bribe, in effect?

Anyhow, it has now become the practice for judges’ salaries to be determined by independent bodies.

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. So there is no way for an independent body to determine the “right” salary.

Ordinarily, it is supply and demand that determines price. That’s why we have the famous paradox that water, which is absolutely crucial to human life, is extremely cheap, while diamonds, which most of us can do without, are very expensive. It has nothing to do with the importance or the utility of the object, only with the quantity that’s available relative to the demand. Diamonds are scarce, so they are expensive. Water is plentiful, so it’s cheap. But prices sometimes change. If you were stranded in the desert and you had nothing to drink, and someone came along and offered to sell you some water, you’d be willing to pay a lot more for it there than you would if someone offered you the same bottle of water right now in this room. Again, it’s the scarcity and the alternatives available to the consumer that matter.

Quality also affects prices. You pay more for an exotic bottled water from France or Italy than you do for water out of a Toronto tap, because you it has different qualities– different minerals, or a different level of purity. But within the separate markets for each of these different commodities, it is again supply and demand that determines price.

So how does this tie in with judges’ salaries? From my observation, the Judicial Compensation & Benefits Commission generally looks at every factor under the sun except supply and demand, and except quality, which are the factors they should be looking at. Instead, they focus on the red herring arguments made by the judges.

First, the judges argue that you should set the compensation high enough to attract the “cream of the crop”, namely the top litigation lawyers practicing in Canada’s largest cities.

But you can’t assume that the top lawyers in private practice would necessarily make good judges. It’s a very different type of job. Top-earning lawyers achieve their success by possessing various qualities or advantages that are not necessarily needed or even desirable in judges. These may include a sense of showmanship, or good strategic skills. Sometimes top lawyers get where they are because of social connections. Often they’re very aggressive—even intimidating. All of these are qualities which I would argue may make worse judges, not better judges.

What you need in a judge is a comprehensive knowledge of the law, an analytical disposition, and a calm demeanor. These qualities are probably found more often in academics than in practitioners. Or maybe in solicitors, as opposed to barristers. But the professors I checked with aren’t making anywhere near as much money as judges make. And I don’t think many solicitors are, either. So you don’t need enormous salaries to attract the kind of people you need.

Another argument judges make is that the independent body should compare the salaries of judges to those of Deputy Ministers in the civil service.   This is like comparing sasquatches to unicorns. Neither of them have any connection to the real world. There is no objective basis to determine what a civil servant should be paid. There are no market signals. Taxpayers are compelled to “purchase” their services and pay their salaries whether their existence is helpful or harmful to the country. Are they doing a good job or a bad job? Who can tell? Their salary levels are entirely arbitrary, and any comparison to them is meaningless.

Another illogical thing the independent salary commissions assume is that all judges should be paid the same amount. But not every judge is equally good at the job. Some are efficient and decisive; others are ditherers. Some write many judgments every year. Some write virtually nothing. Believe me, if you check the legal databases to see how many decisions various judges have written in a given year, you’ll find a huge spectrum. Some judges may get appealed and overturned more often than others. Some are just so unpleasant or unpredictable that when their name shows up at the top of the motions docket, everyone tries to adjourn to another day.

So what’s the solution?

Well, first of all, we have to give up this notion that financial independence for judges means that they need to be the highest-paid group in the country. People earning less than a quarter of a million dollars a year can and do recognize and fulfill a duty to be impartial. Small claims court judges do it. Arbitrators do it. Sports referees do it. News reporters, editors and broadcasters do it.

Secondly, we need to give up the notion that all judges have to earn the same amount of money. That’s unfair to the good ones and a huge temptation to goof off for the bad ones.

Then we have to look at the vestigial market signals that do exist in the judicial selection process, because there are some on the supply side:

•    first, how many good candidates are still applying for judicial appointments and being left on the shelf,
•    second, how many existing good judges are quitting because the salary is too low and they want to go back into private practice so they can earn more, and
•    third, when we do appoint new judges, how many of them are taking a cut in pay vis-à-vis their former life, and how many are getting an increase?

According to the Departmental Performance Report for the Office of the Commissioner for Federal Judicial Affairs (2005 – 2006) (the latest year for which figures are available), the Advisory Committees assessed 750 candidates for federal judicial appointments in that single year. There are only 1,039 federally appointed judges in all of Canada. If the average judge stays on the bench for 15 years, then they would need about 70 new ones per year. But 750 people have their applications in every year for these positions—ten times the number needed. There must be many, many individuals among them who would make very good judges.

And I’ve never heard of any judge quitting because the salary was too low and he wanted to go back to private practice.**

Out in my neck of the woods, Eastern Ontario, any lawyer who gets a judicial appointment thinks he has died and gone to heaven as far as salary, vacation and pension are concerned, because most of them in private practice, or as academics, or as Crowns haven’t got a hope in hell of earning what a judge earns.

So when the independent bodies look at judicial salaries again, they should take these factors into account and think about whether a raise is really necessary to attract a supply of good judges. I would argue that it’s not—and that in fact, in a logical universe, many or possibly most judges would be earning far less than they are today.

But I have an even more unusual suggestion to make—one that goes even further towards making judges genuinely independent of government both in terms of their salaries, and in terms of their appointment, and in terms of their job tenure. Here it is.

Let anyone who meets certain educational qualifications be a judge, and in effect “hang out their shingle”. Anyone who passes the judge’s exam with whatever grade we choose—say, a mark of 75 percent—gets his name on the panel of judges in his community. When a judge is needed for a trial, or a motion, or a settlement conference, or even an appeal, counsel for the opposing parties have to put their heads together and pick a judge or judges from the panel. The judges get paid an hourly rate for the time they spend preparing for and hearing the case. During the time they are not being judges, they can practice law.

I’m sure there are people out there thinking, “But that will never work.” Wrong. It already does work. It works in mediation and arbitration. It works in Small Claims Court, where judges are paid by “piecework” as opposed to a salary, and the judge is free to practice as a lawyer in between judging jobs. The only feature that doesn’t apply is that we don’t let Small Claims Court litigants choose who their judge will be.

But for judicial independence purposes, my proposal has some real advantages. Judges would not be beholden to the state, because the state would not control how much they work. They themselves will determine how often they are called upon to don their judicial robes, by impressing their fellow lawyers with their knowledge of the law, their ability to analyze facts and evidence, their creativity in fashioning fair solutions, their efficiency in getting cases dealt with, their demeanour towards both counsel and litigants, and above all their impartiality. Because if the system requires the parties to agree on the judge, then it will be crucial for judges to have a sterling reputation for impartiality in order to get any judging gigs.

This system would also eliminate the chronic, aggravating debate over how judges are appointed, and whether or not there is a political component to the appointments—because anybody could become a judge, regardless of political affiliation, simply by scoring 75 percent (or whatever the figure is) on the judge’s exam.

It would also, in my view, improve the quality of the judiciary. To make money at this, judges would have to work at it. If they weren’t knowledgeable, if they were indecisive ditherers, if they were inefficient or ineffectual, if they were loose cannons, or if they had known biases against certain types of litigants, then adversaries on the opposite sides of the case would never agree to employ them.

So that’s my suggestion, and I welcome any questions or comments.

- END -

* Bisson v. Quebec (Attorney General) (1993) 13 L.W. 1323-006 (Quebec Superior Court, Frappier J.)

** After I delivered this speech, one lawyer in the audience approached me privately and told me the name of a former judge who had indeed quit after a couple of years and had gone on to work in a private mediation firm.

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November 15, 2009