Law Times

PAGE 6 u EDITORIAL OBITER By Glenn Kauth Governments mishandling suggestions on judges' pay R ecent moves by the federal and B.C. governments on judges' pay are raising concerns about judicial independence. On Feb. 17, B.C. Supreme Court Justice M.D. Macaulay criti- cized the provincial government for its handling of the issue in Provincial Court Judges' Association of British Columbia v. British Columbia (Attorney General). Then last week, the Canadian Bar Association issued a warning that the federal government is being disrespectful of the Judicial Compensation and Benefits Commission process by taking too long to respond to its recommendations. Both matters raised the issue of judicial independence. In the B.C. case, the association was seeking an order to force the government to produce a copy of a cabinet submission dealing with the judges compen- sation committee 's recommendations on judicial pay. After the commit- tee delivered its report in 2010, the attorney general suggested that the B.C. legislature reject seven of its recommendations. It passed the motion unanimously last year. At issue before Macaulay was the government's duty to articulate a legitimate reason for rejecting the recommendations that must, in the association's view, rest upon a reasonable factual foundation. The govern- ment, according to the association, merely invoked its so-called net-zero mandate for imposing a wage freeze on the public sector in general in rejecting the recommendations "without regard to the actual cost, ben- efit, fairness or reasonableness" of them. Also at issue was the government's obligation to disclose the cabinet submission analyzing the recommendations by a senior bureaucrat. The province argued it wasn't relevant and, even if so, was subject to public interest immunity. The issue at the federal level is different. According to the CBA, the COMMENT February 27, 2012 • Law Times minister of justice has failed to respond within the six-month legislated time frame to the federal com- mission's reports on judicial compensation in recent years. In the CBA's view, the government's actions undermine the notion of judicial independence. Judicial compensation is always a tricky issue, particularly at a time of austerity. While judicial inde- pendence requires careful navigation around politi- cal interference in setting judges' pay, the current economic and financial environment means fiscal considerations will play a bigger role. Of course, the rules surrounding recommenda- tions on judges' compensation, as is the case in British Columbia, often include some language around the government's ability to pay. As such, fair- ness requires that governments be fully transparent and respectful of the process in their decisions on a recommendation. That's essentially what Macaulay said this month and that's the approach both the B.C. and federal governments should take in the future. We may be facing looming financial pres- sures again, but that doesn't excuse governments in British Columbia, at the federal level or anywhere else in Canada from acting in ways that fully reflect the notion of judicial independence. — Glenn Kauth P rime Minister Stephen Harper's war on judges took a big hit earlier this month. He may not have noticed. If he did, he certainly hasn't talked about it. It didn't happen in Parliament. It came from Justice Anne Molloy of the Ontario Superior Court in Toronto at the end of one of the goofiest cases you'll ever read about. In the long term, the ruling may have lasting implications for the independence of the judiciary and Harper's mandatory jail sentences for crimes that don't require them. The issue goes back to Harper's 2008 law, the Tackling Violent Crime Act. In March 2009, Leroy Smickle was sitting in his underwear on a couch in his cousin's apartment in Toronto at 2 a.m. playing with a loaded revolver and bragging about his manly qualities into a webcam hooked up to his laptop. Smickle was waving his gun around and talking tough when, all of a sudden, the cops burst in. Smickle was so startled that his pistol flew out of his hands and fell on the floor. Luckily, the gun didn't fire when it hit the floor. It could have done serious damage. The police were kind. They quickly grasped what was going on. They arrested The Hill three years in jail for Smickle's crime. The cost to taxpay- ers would be $107,650 a year. That's a lot of money for a guy goof- ing off in his briefs on a sofa at 2 a.m. It wasn't even 26-year- old Smickle for being in possession of a loaded, prohibited handgun under Harper's violent crime law even though he hadn't committed any violent offences. Had he been holding an unreg- istered hunting rifle rather than a revolver, it wouldn't have been a crime at all. The cops must have had a grand time telling the story back at the station. But it wasn't so funny for Smickle, who faced a mandatory three years in prison despite the fact that he had neither threatened or harmed anyone nor had he been the least bit violent. But Molloy had no choice. The Harper law is clear that it's Law Times LT Masthead.indd 1 Richard Cleroux Smickle's gun. It was his cousin's. At the same time, there was no one else around. Smickle certainly wasn't about to charge out at 2 a.m. in his briefs and rob somebody on the street. Molloy decided that Harper's law violated Smickle's constitutional rights and decided then and there to strike down the law's mandatory provision for a three-year jail term. "To impose such onerous pun- ishment would, in my view, be grossly disproportionate to what Mr. Smickle deserves for a single act of bad judgment and foolishness," Molloy wrote. But she could hardly let him walk. He deserved some type of punishment or he might be back on Thomson Reuters Canada Ltd. One Corporate Plaza, 2075 Kennedy Rd., Toronto, ON • M1T 3V4 Tel: 416-298-5141 • Fax: 416-649-7870 • www.lawtimesnews.com Group Publisher ................... Karen Lorimer Editorial Director ................... Gail J. Cohen Editor .............................. Glenn Kauth Staff Writer ....................... Kendyl Sebesta Staff Writer ................... Michael McKiernan Copy Editor ..................... Katia Caporiccio CaseLaw Editor .................. Adela Rodriguez Art Director .......................Alicia Adamson Account Co-ordinator ............... Catherine Giles Electronic Production Specialist ........Derek Welford Advertising Sales ............... Kimberlee Pascoe Sales Co-ordinator ................... Sandy Shutt ©2012 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without writ- ten permission. The opinions expressed in articles are not necessarily those of the pub- lisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times disclaims any war- ranty as to the accuracy, completeness or cur- rency of the contents of this publication and disclaims all liability in respect of the results of his webcam to record a sequel. Molloy wrote that "a reasonable person, knowing the circumstanc- es of this case, and the principles underlying both the Charter and the general sentencing provisions of the Criminal Code, would consider a three-year sentence to be funda- mentally unfair, outrageous, abhor- rent, and intolerable." Molloy sentenced Smickle to a year in jail, but as he'd already been in custody for seven months, she cut it down to five months. Just so there was no confusion and every- one understood exactly what she was doing, Molloy noted that s. 12 of the Charter of Rights and Freedoms provides that everyone has the right not to be subjected to cruel and unusual punishment. She explained that it's difficult to justify inflicting cruel and unusual punishment on an individual meet an overall legislative objective of general deterrence. Molloy added that "some flex- ibility is required to deal with those exceptional circumstances where the imposition of a mandatory Law Times is printed on newsprint containing 25-30 per cent post- consumer recycled materials. Please recycle this newspaper. any action taken or not taken in reliance upon information in this publication. Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd., 2075 Kennedy Rd., Toronto, ON, M1T 3V4 • 416-298-5141 clb.lteditor@thomsonreuters.com CIRCULATIONS & SUBSCRIPTIONS $175.00 + HST per year in Canada (HST Reg. #R121351134) and $265.00 for foreign addresses. Single copies are $4.00 Circulation www.lawtimesnews.com 2/7/12 3:32 PM to minimum sentence would run afoul of the Charter." Harper can appeal. That's his right, but it's now more than a week later. Harper and his justice minister, Rob Nicholson, still haven't made up their minds on what they'll do. It's a tricky issue given the timing. Their omnibus crime bill is going through the Senate right now. It's full of all kinds of mandatory sentences for non-violent crimes, including the proposal for a month in jail for kids caught growing six marijuana plants in their mother's basement. If Harper loses his appeal, the matter could go all the way to the Supreme Court of Canada. The government might have to rewrite his entire omnibus crime legislation. That would never do. Imagine the embarrassment. As for Molloy, a medal from one of the bar associations would be nice. LT uRichard Cleroux is a free- lance reporter and columnist on Parliament Hill. His e-mail address is richardcleroux@rogers.com. inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times One Corpo- rate Plaza, 2075 Kennedy Rd. Toronto ON, M1T 3V4. Return postage guaranteed. 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