Stressed out, m’Lord?

 

For two days running the Toronto Globe and Mail has turned its reporting and editorial attention from the Afghan war and the trembles in our economy that inevitably follow any quivers south of the border, to an issue that should galvanize every true Canadian. There are not enough federally appointed judges. Perdition looms.

 

The superior courts of the nation are evidently creaking from a workload that threatens to crush these loyal and dogged foot soldiers in the pursuit of justice. ‘Burnout’ is imminent, say their publicists, masquerading as executive legal officers and other functionaries. One such agent, Paul Evraire of the Ontario Superior Court of Justice, told the Globe that…”the judges are suffering a great deal. I think that they all feel the pain.” Evraire did not advise as to whether visiting hours were limited to family.

 

Some years ago, the judges, using our Constitution as the weapon of choice, successfully established a neat reducto ad absurdum – judicial independence and big salaries were two inextricably linked principles. Pay us more and we are certain to be independent of the state. The judicial appointment czars then made such statements their own foundation garment when the judges’ pay came under public scrutiny– how will we ever secure qualified candidates unless they are well paid, perhaps to the levels that approach those available in the private sector? Who would ever apply otherwise?

 

There are two irrefutable lines that silence this bleating. The first is the sheer handsomeness of what judges are paid, salary and benefits combined. Every federally appointed judge receives about $225,000 as their annual stipend (indexed to inflation and subject to a quadrennial review). They have utter security of tenure; a judicial appointment is as impervious to fire as a house made of granite. They may retire to a full pension, itself fully indexed to inflation, after 15 years. They are entitled to 8 weeks of holiday, paid conferences and continuing education festivals. On death, the bereaved or even the cheerful survivors are entitled to their own pain easing annuity. There are many lawyers who have been practicing the requisite 10 years who could never approach such an income, including every Crown Attorney and government legal counsel in the country. A $50,000 raise at the least for a lot less work might be very attractive.

 

But best of all? A judge is accountable to no one once they leave the court room perch. Judicial independence is the freedom from the tyranny of a schedule, supervision, or any workplace rules when the judicial robes are hung at the end of a court room session.

 

Many lawyers seeking to be judges will undoubtedly take a cut in their take home pay packet if appointed. But isn’t that their choice? Is anyone making them leave the even more remunerative private practice of law? No; and who is likely to work harder, someone practicing in the confines of an environment with partners, overhead, lines of credit, client demands and all of the other constraints that are paradoxically constructed by ‘free’ enterprise, or the poor slave to judicial independence?

 

The team playing federal judges, we are breathlessly informed by the Globe, are giving up their non sitting weeks and chambers days to help out with the purported judicial crunch. Remember it is the judges, and no one else, who say that the current vacancies are a crisis, as opposed to simply a typically convoluted and poorly managed bureaucratic boondoggle. Has there ever been a true third party, transparent, and expert analysis of exactly how many hours a judge must work to typically discharge their duties? I have never seen one published. The well paid and insulated judiciary asks the public to accept their collective word. Perhaps they actually believe their own propaganda.

 

The government’s obstinacy in the filling of these judicial vacancies has also promoted a shibboleth that rivals that of ‘judicial independence’- more judges will mean greater access to justice for the public at large. We are told that lawyers are now so expensive that in some courts as many as 40% of the litigants are unrepresented, a circumstance that requires the presiding judge to take additional and very costly time to explain the law to these citizens. Newsflash to the judicial apologists – access to justice an inversely proportioned umbilical cord named legal fees. Legal fees are driven by market forces. Perhaps the various law associations can prevail upon their members to reduce fees, increase legal representation and thereby give the long suffering judges a break from the tedium and time consuming work of dealing directly with the public in their court rooms.

 

I do not question a well paid judiciary as a basic operating principle. Judges have great responsibility and work within an often tiny margin of error, live in the public eye like an acrobat performing without a net. The typical tax payer in this country is working more hours per week for about the same return as they did in 1990. Our federal judges seem to have nicely avoided that conundrum. How many judges can look themselves in their mirrors of their well appointed chambers, and say, “I am working harder now than I ever have in my entire career.”