Law Times

PAGE 4 NEWS APRIL 21, 2008 / LAW TIMES Vast gap between judicial and fed proposals Continued from page 1 should caution Parliament that its consideration of the commission's report involves special constitu- tional considerations, which risk being endangered by a politicized approach and by making any links between judge's remuneration and the decisions they make," says the LT 1-4x3•Web Discount 4/16/08 10:41 AM Page 1 bar association's brief. "The whole notion of judicial independence is critical," says Guy Joubert, the incoming president of the bar association. "At the end of the day, a judge that is hearing a case should be hearing a case and rendering a decision in a completely impartial manner and not being consciously or unconsciously concerned about whether or not the government will be pleased or displeased with the decision," he tells Law Times. "The moment you have a situa- tion where you have judges sort of negotiating salary, or in salary dis- putes with government, you cre- April Specials 2007-2008 Edition Ontario Labour & Employment Legislation, Prepared in consultation with the law firm, McArthur Vereschagin & Brown LLP Visit our Web site and Save 20% www.canadalawbook.ca Pregnancy, the Workplace and the Law Melanie Manning Damage Control: An Employer's Guide to Just Cause Termination Second Edition Malcolm J. MacKillop, James G. Knight and Kerry Williams An Employer's Guide to Disability Management Neil Rankin ate a scenario where that negative perception can permeate." The bar association's submis- sion and the submission from the superior court judges association and the judicial council are replete with references to two key Su- preme Court of Canada decisions — Re Provincial Court Judges and Bodner v. Alberta — that underline the constitutional requirement for judicial independence and its rela- tion to judges' salaries. Pierre Bienvenu, lead coun- sel and author for the judicial submission, expressed the same degree of importance on the prin- ciple of judicial independence. "This is the beginning and the end in terms of what this process is all about," he tells Law Times. "It's about preserving judicial indepen- dence and enhancing that very im- portant constitutional principle." Bienvenu says the ideal gov- ernment response in that context would be its acceptance of the neutral compensation commis- sion's recommendations. The government must re- spond to the commission report by tabling legislation to enact the new salaries within six months of receiving the report. The vast gap between the gov- ernment and judicial proposals is based on three major areas: their different perspective on govern- ment finances and economic fore- casts, the salary levels of lawyers that should be used for comparison, and the performance bonuses that se- nior federal public servants receive. Salary levels of private-practice lawyers and the salaries received by deputy ministers have become the established standards for establish- ing salaries for federally appointed judges, as well as the government's spending room. But the government argues the ment's fiscal room in excruciating detail, noting the federal surplus for 2007-08 is forecast at $11.6 billion and its surplus the following fiscal year is forecast at $4.4 billion. "While Canada's economic fundamentals are strong, there are potential downside risks to which the government must remain at- tentive," counters the attorney general's submission. In the end, however, the main conflict between the two sides is based on the Conservative deci- sion to entirely ignore the last commission's salary recommenda- tions when it introduced its own proposals last year. That forced the judges associ- ation and the judicial council to respond with catch-up proposals in this round. "The association and council submit that the second (Conser- vative) response was, in essence, the expression of a newly elected government's disagreement, for political reasons, with a previous government's formal response to the (previous) report," says their submission. LT way to attract attention? Looking for an easier 'unregulated' System is Continued from page 1 "The court, the Crown, the de- fence, and/or any other parties in the case, are made aware of the use of an unaccredited interpreter," says Crawley. The judge hearing a case can take steps to ensure that the interpreter has the necessary abilities to hear it, he says, adding that a judge may decide to move a trial to a day when an accredited interpreter is available. Frank Addario, president of the Ontario Criminal Lawyers' Association, says Attorney Gen- eral Chris Bentley inherited the court interpreter problem from his predecessors. "His ministry has not moved with any apparent speed to rec- tify the problem," says Addario. "They have not made a remedial plan public, and what we learned from Sidhu was that the system is essentially unregulated." "The result of the absence of a it's easy. JobsInLaw_sail_quarter.indd 1 www.lawtimesnews.com 4/16/08 2:30:05 PM plan from the ministry, now go- ing into the third year, is that no one knows if there are one, 100, or 1,000 miscarriages of justice out there as a result of deficient, unconstitutional interpretation services," he says. The Supreme Court of Canada weighed in on the importance of s. 14 in the 1994 judgment R. v. Tran, a sexual assault trial involv- ing a Vietnamese accused. "The right of an accused who does not understand or speak the language of the proceedings to obtain the assistance of an in- terpreter ensures that a person charged with a criminal offence hears the case against him or her and is given a full opportunity to answer it," wrote the court. "This right is also intimately related to our basic notions of jus- tice, including the appearance of fairness, and to our society's claim to be multicultural, expressed in part through s. 27 of the Charter. "The magnitude of these in- judiciary limited its survey of law- yers' salaries to the higher incomes of counsel with larger firms in ma- jor urban centres, and says the pay- at-risk performance bonus system should not apply to judges. The government also argues that judges benefit from an array of allowances, health and dental plans, and attractive retirement conditions, including substan- tial government funding for a $168,000 annual pension annuity. The judges analyze the govern- terests favours a purposive and liberal interpretation and a prin- cipled application of the right to interpreter assistance under s. 14 of the Charter." Addario says there has been lit- tle litigation involving s. 14 since Tran, "because everybody seemed to understand what it required." Moustacalis said in a release, "I am concerned that so many people who put their trust in the admin- istration of justice in this province have suffered from incompetent interpretation. If you do not un- derstand the proceedings through competent interpretation, you are denied justice." LT

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