Submission to the Saskatchewan Provincial Court Commission · 2 SPCJA Submission to the...

SSuubbmmiissssiioonn ttoo tthhee SSaasskkaattcchheewwaann

PPrroovviinncciiaall CCoouurrtt CCoommmmiissssiioonn

SSaasskkaattcchheewwaann PPrroovviinncciiaall CCoouurrtt JJuuddggeess AAssssoocciiaattiioonn

November 21, 2011

i SPCJA Submission to the Saskatchewan Provincial Court Commission November 2011

2011 Provincial Court Commission

November 2011 Submission of the

The Saskatchewan Provincial Court Judges’ Association

Table of Contents Page

Part I Introduction . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Part II Provincial Court Of Saskatchewan – An Overview . . . . . . . . . . . . . . . . . . . . . . . 2

A. Circuit Map . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1

Part III Mandate of the Provincial Court Commission . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Part IV Factors for Consideration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

A. The Trial Judges’ Role and Judicial Independence . . . . . . . . . . . . . . . . . . . . . . 13

1. Responsibilities of a Trial Court Judge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

2. The Provincial Court and Judicial Independence . . . . . . . . . . . . . . . . . . . . . 19

3. The Work of the Provincial Court. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22

i. Criminal Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

ii. New Offences and Legislative Requirements . . . . . . . . . . . . . . . . . . . . 25

iii. Criminal Division Workload . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

a) The Judicial Complement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

b) Crime Rate in Saskatchewan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .37

iv. Civil Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .40

v. Family Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .46

vi. Youth Criminal Justice Act Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . 47

vii. The Public We Serve . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

a) Unrepresented and Self Represented Persons . . . . . . . . . . . . . . . 49

b) First Appearances in Provincial Court . . . . . . . . . . . . . . . . . . . . . . .50

ii SPCJA Submission to the Saskatchewan Provincial Court Commission November 2011

c) Emotional Problems, Learning Disorders and Mental Health Disabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .51 d) Literacy Problems . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

e) Gladue Inquiries. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

f) French Trials and Interpreters. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

h) Spotlight in the Media. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

viii. Accessibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .57 B. Attracting the Most Qualified Applicants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .63

1. Tax Implications for Private Practitioners . . . . . . . . . . . . . . . . . . . . . . . . . 76

C. Economic and Market Factors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .78

1. Saskatchewan - Leading the Nation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78

2. Cost of Living in Saskatchewan. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .82

D. Salaries Paid to Other Trial Judges in Saskatchewan . . . . . . . . . . . . . . . . . . . . 84

E. Salaries Paid to Other Trial Judges in Canada. . . . . . . . . . . . . . . . . . . . . . . . . . 90 Part V Recommendations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .93

A. Salaries. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93

1. Puisne Judges. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93

2. Chief Judge, Associate and Administrative Judges . . . . . . . . . . . . . . . . . . . .94

3. Temporary Judge Remuneration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95

B. 100% Pension Indexing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96

C. Medical, Drug, Dental, and Eye Care Benefits. . . . . . . . . . . . . . . . . . . . . . . . . . 99

1. Full Time Judges. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .99

i. Enhanced Medical, Drug, Dental, and Eye Care Benefits. . . . . . . . . . . . . 99

ii. Flexible Health Care Allowance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99

2. Retired Judges. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100

D. Review Spousal/Survivor/Dependant Pension Benefits. . . . . . . . . . . . . . . . . 105

iii SPCJA Submission to the Saskatchewan Provincial Court Commission November 2011

E. Professional Allowance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106

1. Enhancing the Professional Allowance. . . . . . . . . . . . . . . . . . . . . . . . . . . . 106

2. Fund for Court Attire. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .106

F. Sabbatical for the Office of the Chief Judge . . . . . . . . . . . . . . . . . . . . . . . . . . .107

G. Legislative Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108

1. Increase the Retirement Age from 65 to 70. . . . . . . . . . . . . . . . . . . . . . . . 108

2. Senior Judges Program. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108

3. Indemnification Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108

4. General Legislative Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .109

Part VI Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .110

Part VII Summary of SPCJA Recommendations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .111

Part VIII Appendix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115

Part II A. Circuit Map

3.1 SPCJA Submission to the Saskatchewan Provincial Court Commission November 2011

4 or more visits/month 1 to 4 visits /month Up to 1 visit / month

1 SPCJA Submission to the Saskatchewan Provincial Court Commission November 2011

Part I Introduction

1. The mandate of this Provincial Court Commission is to make recommendations to the Minister concerning the appropriate remuneration for Judges of the Provincial Court of Saskatchewan (also referred to as the “Provincial Court” or the “Court”) for the three year period from April 1, 2012 to March 31, 2015. To assist the Commission with this task, the Saskatchewan Provincial Court Judges’ Association (hereinafter “SPCJA”) makes the following submissions.

2. Part II provides an overview of the Provincial Court of Saskatchewan and includes a map of the province which depicts the locations in the province where Judges of the Court regularly preside.

3. Part III discusses the mandate and contains an overview of the legal and legislative

framework and the role of judicial compensation commissions generally.

4. Part IV discusses the Factors for Consideration by the Commission including: A. The Trial Judges’ Role and Judicial Independence Describes the work of the Court. B. Attracting the Most Qualified Applicants1 Discusses the challenges faced by the Provincial Court in attracting the best applicants.

C. Economic and Market Factors Saskatchewan continues to experience a strong economy and promising future.

D. Salaries Paid to Other Trial Judges in Saskatchewan E. Salaries Paid to Other Trial Judges in Canada F. Remuneration of Senior Members of the Legal Profession2

5. Part V details the SPCJA’s recommendations to this Commission.

6. Part VI addresses the costs of preparing for and appearing before this Commission.

7. Part VII provides a summary of the SPCJA recommendations.

8. Part VIII is the Appendix which includes a number of the documents referred to in this brief.

1 Factors B. Attracting the Most Qualified Applicants and F. Remuneration of Senior Members of the Legal Profession are discussed together under B. 2 As above, Factors B and F are discussed under B.


Part II Provincial Court of Saskatchewan – An Overview3 Complement of 48 Judges

9. The Saskatchewan Provincial Court Judges Association (SPCJA) represents all Judges of the Provincial Court in Saskatchewan. There are 48 Judges4, resident in 13 Judicial Centers, holding Court in 66 additional circuit points across the Province for a total of 79 Court points.

10. The current average age of all Judges on the Court is 585. The average age at appointment of Judges currently on the Court is 47. The average age at appointment over the last 10 years has been increasing and is now at 50.6

11. The Chief Judge, two Associate Chief Judges and six Administrative Judges are responsible for the administration of the Court:

Chief Judge Carol A. Snell

Associate Chief Judge Clifford C. Toth Associate Chief Judge Marty D. Irwin Administrative Judges: Prince Albert – Judge Hugh M. Harradence Regina – Judge Murray J. Hinds Saskatoon – Judge Albert Lavoie Aboriginal Issues – Judge Gerald M. Morin Civil Division – Judge Robert D. Jackson

Security & Facilities – Judge Bruce D. Henning

12. The Provincial Court is a hard working court. As one might expect given the high volume of cases, the number of judicial centres and additional circuit points, the administrative demands upon the court and the individual judges charged with administration, is considerable. These administrative duties are carried out for the most part, over and above the judicial responsibilities of the individual Judge. The Judges are assisted in carrying out those administrative duties by staff persons in the Chief Judge’s Office in Regina (6), Saskatoon (2) and Prince Albert (1).7

3 More information about the Provincial Court is available on its website: www.sasklawcourts.ca 4 Judge Mary Ellen Turpel-Lafond and Judge David Arnot are on leave from the Court and not included in the total of 48 judges. 5 The average ages in this paragraph have been rounded up. 6 The Provincial Court Act requires a minimum of 10 years experience prior to appointment. Of the 48 judges, 13 are women. The SPCJA endorses the importance of working toward a judiciary which is representative of the people of Saskatchewan. See IV. B. Attracting the Most Qualified Applicants. 7 Regina staff: Executive Assistant to the Chief Judge, Executive Administrative Assistant, Administrative Assistant, Judges’ Secretary, Case Manager, Librarian, Registrar & Executive Legal Officer. Saskatoon staff: Case Manager and a Judicial Assistant.


Part II Provincial Court of Saskatchewan – An Overview . . . . . . . . . . . . . . . . . . . . . continued

13. In smaller centres, outside Regina, Saskatoon and Prince Albert, individual Judges carry out many of the administrative duties as the Administrative Judges appointed to Regina, Saskatoon and Prince Albert, including management of the court diary, day to day direction and support of court staff, and overseeing the format and content of court documents and procedures. The Court is highly dependent upon the individual initiative of these and all of the Judges for the administration of the Court.

14. The number of Judges has been fairly constant for the last 33 years. From 1979, immediately

following the establishment of the Court in 1978, to the present, the total complement has ranged between 41 and 49 and currently there are 48 Judges on the Court. In that same time frame however the workload, range and complexity of matters for judicial determination by Judges of the Provincial Court has increased dramatically.8

15. Under the direction of our Associate Chief Judges in Regina and Saskatoon, the Court

employs two articling students per year. Judges of the Provincial Court participate actively in education and community programs related to their work in Saskatchewan and across Canada.

Jurisdiction of the Court

16. The Provincial Court has jurisdiction over matters of criminal law in proceedings affecting

adults and in Youth Justice Court, affecting young persons, ages 12 to 17 inclusive. Judges outside Prince Albert, Saskatoon, and Regina also preside over family law matters of provincial jurisdiction. The Court has jurisdiction, throughout the province, over claims pursuant to The Small Claims Act up to $20,000.00.9

17. Outside the Judicial Centres of Regina and Saskatoon, prosecution of matters under The

Summary Offence Procedures Act, notably, matters under The Traffic Safety Act are presided over by Judges of the Provincial Court. For many years Justices of the Peace have presided in Traffic Court in Regina and Saskatoon.

18. In its 2009 Report the Provincial Court Commission noted: The Provincial Court plays a vital role in the administration of justice in Saskatchewan. Charged with the immense responsibility . . . it presides over the vast majority of criminal and civil claims in Saskatchewan. While its jurisdiction and workload in criminal and civil matters has consistently increased, it has responded to

Prince Albert staff: Judicial Assistant Some staff persons devote most of their time to secretarial assistance including the preparation of judgments. 8 See IV. A. 3. The Work of the Provincial Court. 9 Jurisdiction will be discussed in greater detail in The Work of the Provincial Court at IV. A. 3. i. to iv.


Part II Provincial Court of Saskatchewan – An Overview . . . . . . . . . . . . . . . . . . . . . continued the needs of the communities that it serves, implementing creative and forward thinking changes to the way in which it delivers justice.10

19. The Judges of this Court collectively possess a remarkable wealth of skills, experience and knowledge. Our Court is committed to the delivery of justice services that are accessible, affordable, and understandable to the public. Our Court has a rich history of implementing alternative, effective, and accessible methods of dispute resolution justice, discussed below. Restorative Justice and Therapeutic Courts and Approaches

20. Sentencing Circle Courtroom – Saskatoon Sentencing circles and conferences for adults and young persons are conducted in a courtroom designed for that purpose. In partnership with the Restorative Circles Initiative (RCI) conferences are routinely conducted in Youth Justice Court11 in Saskatoon.

21. Domestic Violence Treatment Courts – conducted in the Judicial Centres of North Battleford, Saskatoon, and Regina.

22. Drug Treatment Court – first established in Regina and recently in Moose Jaw.

23. As part of the development of the SPCJA’s hosting of the National Conference of the

Canadian Association of Provincial Court Judges in Regina this September, the SPCJA participated in the development by the National Judicial Institute, with the assistance of many partners, including the Law Foundation of Saskatchewan, and the Queen’s Printer of Saskatchewan, of a Guide to Therapeutic Justice: Problem-Solving in Canada’s Courtrooms. Diversity

24. Cree and Dene Court Circuits – Judge Morin, who is fluent in Cree, presides over a circuit

which stems from Prince Albert which is supported by Cree speaking counsel and court staff. Judge Bird, who is fluent in Dene, operates a circuit out of Meadow Lake in which Dene is routinely spoken.

25. French Language Courts - Three Judges of the Court are fluent in French and available to

preside over matters conducted in French.12

10 Page 11 of the Report. 11 Under the Youth Criminal Justice Act a conference may be convened to assist the Court in making any decision. 12 Judges: Lavoie, Beaton, and Plemel are bilingual.


Part II Provincial Court of Saskatchewan – An Overview . . . . . . . . . . . . . . . . . . . . . continued Criminal Trial Management

26. Initiated in Saskatoon and now being implemented in Regina, the Court directs a Case Manager in the scheduling of trials and assignment of judicial resources. This Court initiative has been highly effective in reducing time to trial and in promoting a more positive work environment for those delivering and receiving services.

27. Counsel Criminal Case Management – available in Saskatoon and Regina. It is designed to encourage early resolution and effective time management of trials.

28. Self-represented Criminal Case Resolution and Management – initiated in Saskatoon as a

project to assist self-represented persons who indicate that they wish to set a trial date. To our knowledge this is a first among Provincial Courts in Canada. It has resulted in a dramatic reduction of trial matters being set for self-represented and unrepresented persons. Province-wide Recommended Conditions

29. Many of the Judicial Centres have developed forms pertaining to routine orders of the Court. With the aid of a joint, SPCJA / Chief Judge’s Office committee, the members of the Court are working toward one set of standard conditions for recommended use throughout the province. The aim is to achieve consistency throughout the province, efficiency in the implementation from courtroom to community, simplification, and continuing judicial discretion.

Civil Case Management & Trial Simplification Initiatives

30. Civil Pre-trial Case Management and Settlement Conferences – initially available in Prince Albert, then Saskatoon and Regina; it is now available province-wide. This initiative has greatly reduced the number of matters proceeding to trial and has assisted the parties in becoming “trial ready”.13

31. Simplified Civil Trial Procedure - initiated in Saskatoon, it is designed to:

• guide self-represented litigants in the disclosure and trial preparation process, • achieve early resolution, and • simplify the presentation of evidence so that trials are conducted in a manner which is

friendlier to the self-represented litigant and results in a more effective and efficient presentation of the evidence.

13 Discussed further at, IV. 3. A. iv. Civil Jurisdiction.


Part II Provincial Court of Saskatchewan – An Overview . . . . . . . . . . . . . . . . . . . . . continued The Provincial Court Judges Chamber in Saskatoon has prepared an Information Package for Small Claims proceedings. It is intended that this package which includes samples and fill-in- the-blank forms will soon be made available on the Court’s website.

Access - Serving a Broad Geographical Area

32. The Court delivers service over long distances throughout the Province, travelling by land and air. Travel by airplane to circuit points has been routine for judges in the northern half of the Province for decades. Judges situated at the Judicial Centres of Meadow Lake, La Ronge, and Prince Albert, may only reach 15 of their circuit points by air. The total number of scheduled court sittings for these circuit points is 39 per month.14 Access - Video Court and Teleconferencing

33. The Provincial Court has participated in two other initiatives with a view to increasing timely access to our Court. Teleconferencing may be utilized for bail hearings and a variety of

routine counsel matters. A Protocol for Telephone Appearances by Counsel in Criminal Matters, implemented since the last Commission, is available on the Court’s website, referenced above.

34. Video conferencing is operational in Saskatoon from the Saskatoon Provincial Correctional Centre, Regional Psychiatric Centre and Kilburn Hall (Youth Facility). It is operational in Prince Albert from the Prince Albert Provincial Correctional Centre (Male Facility) and Pine Grove Correctional Centre (Female Facility). At this time an adult in custody in Prince Albert or Saskatoon may appear by video conference at the court points of: Prince Albert, Saskatoon, Pelican Narrows, Stanley Mission, and La Ronge. Additionally, prisoners housed at the Prince Albert Penitentiary may appear in court by video link with the Prince Albert Courthouse. This last initiative has allowed the Court to discontinue the practice of holding court at the Penitentiary. The recent renovation to the Regina Correctional Centre included the physical plans for video conferencing out of Regina as well. Observe the Provincial Court of Saskatchewan Firsthand

35. We invite members of the Commission to observe the Provincial Court at work. The SPCJA would be pleased to coordinate visits to urban, rural, and northern court points so the Commission may obtain a firsthand understanding of the Court.

14 See II. A. Circuit Map and for a discussion of the number of times judges travel to circuit points by air and by road and see IV. A. 3. viii. Accessibility


Part III Mandate of the Provincial Court Commission 36. The Provincial Court Commission has a unique task. This Commission is a constitutionally

required body whose duty it is to recommend levels of remuneration for Provincial Court Judges. The reason for the independent Commission process is rooted in the relationship between the judiciary and other branches of government and the fact that the judiciary is to be independent from political interference or involvement. Judicial Independence and Financial Security

37. In the watershed 1997 decision of the Supreme Court of Canada, the PEI Reference,15Lamer CJC outlined the three aspects of judicial independence: financial security, administrative independence, and security of tenure. According to Lamer CJC, a judicial compensation commission process is necessary to ensure financial security for judges. The Supreme Court of Canada reiterated, in a2005 decision r e f e r r e d t o a s Bodner,16 the meaning of financial security:

. . . financial security embodies three requirements. First, judicial salaries can be maintained or changed only by recourse to an independent commission. Second, no negotiations are permitted between the judiciary and the government. Third, salaries may not fall below a minimum level.

Commission Process – Objective, Independent, and Effective

38. In the PEI Reference, the Supreme Court of Canada identified that the Commission was to be objective, independent and effective in setting remuneration and benefits for the third branch of government—the judiciary. Commissions were entrusted with the task of making: . . . recommendations on judges’ remuneration by reference to objective criteria, not political expediencies. The goal is to present an objective and fair set of recommendations dictated by the public interest. . . 17

15 Reference re Remuneration of the Judges of the Provincial Court of Prince Edward Island; R. v. Campbell; R. v. Wickman; Manitoba Provincial Court Judges Association v. Manitoba (Minister of Justice), [1997] 3 S.C.R. 3. (PEI Reference) 16 Provincial Court Judges’ Assn. of New Brunswick v. New Brunswick (Minister of Justice); Ontario Judges’ Assn. v. Ontario (Management Board); Bodner v. Alberta; Conférence des juges du Québec v. Quebec(Attorney General); Minc v. Quebec (Attorney General), 2005 SCC 44, ( Bodner) 17 PEI Reference at paragraph 173.


Part III Mandate of the Provincial Court Commission . . . . . . . . . . . . . . . . . . . . . . . continued 39. Lamer CJC e laborated upon the independence of the Commiss ion process in

the PEI Reference:

The rationale for independence flows from the constitutional function performed by these commissions - they serve as an institutional sieve, to prevent the setting or freezing of judicial remuneration from being used as a means to exert political pressure through the economic manipulation of the judiciary. It would undermine that goal if the independent commissions were under the control of the executive or the legislature.18

40. In Bodner19, the Supreme Court also discussed the Court Commission process, writing:

It is a constitutional requirement that Commissions be independent, objective and effective. One requirement for independence is that Commission members serve for a fixed term which may vary in length. Appointments to a Commission are not entrusted exclusively to any one of the branches of government. The appointment process itself should be flexible. The Commission’s composition is legislated but it must be representative of the parties.

41. The Commission must objectively consider the submissions of all parties and any relevant factors identified in the enabling statute and regulations. Its recommendations must result from a fair and objective hearing. Its report must explain and justify its position.20

Commission Reports

42. The mandate of this Provincial Court Commission is to make recommendations for judicial

compensation effective April 1, 2012 to March 31, 2015. It is the SPCJA’s position that while past Commission reports in Saskatchewan and elsewhere are relevant to the Commission’s work, this Commission has an obligation to look at matters with fresh eyes because it has new jurisdiction over the matter. According to Bodner, a Commission report is not binding unless the enabling legislation makes it so.

43. The recommendations of the past four Provincial Court Commissions have been implemented by the Government (Bundon 1999, Vicq 2002, Barnard 2005, and Zakreski 2008) and this has resulted in a transparent and public process for the adjustment of salaries and benefits. The recommendations of these four previous Commissions have also been unanimous. These Commissions conducted their task based on evidence and objective factors, and a principled approach. This Commission is tasked with making 18 PEI Reference at paragraph 170. 19 Bodner at paragraph 16. 20 Bodner at paragraph 17.


Part III Mandate of the Provincial Court Commission . . . . . . . . . . . . . . . . . . . . . . . continued recommendations for compensation based on rational factors and not political arguments. In the context of the Commission’s role, the SPCJA invites this Commission to render a unanimous report where possible.

44. In some jurisdictions following the PEI Reference, although gratefully not in Saskatchewan, Commission recommendations were not fully implemented by governments. Judges’ associations (or association of justices of the peace) in the appropriate jurisdiction then challenged those government decisions based on the principles outlined in PEI Reference. Litigation arose in almost every jurisdiction across Canada. In the Bodner decision, the Supreme Court of Canada recognized that governments are not bound by Commission recommendations and can reject the recommendations in whole or in part based on a test of simple rationality.

The Importance of Commission Report Content

45. We have learned from the Bodner case and indeed all of the litigation across the country

about the failure of governments to implement judicial compensation commission reports. It is crucial to the integrity of the process for a judicial compensation commission to write a detailed report which contains specific recommendations supported with strong and well- articulated reasoning. A judicial compensation commission which supports each of its recommendations with full and detailed reasoning ultimately demands an equally reasoned response from government. In practice, it places a greater burden upon a government disinclined to follow the recommendations of the J u d i c i a l Compensation Commission and makes it less likely that those recommendations may be rejected on illegitimate grounds.

46. So as to ensure that the recommendations reached by this Commission receive full consideration, as has been the past experience in Saskatchewan, it is respectfully submitted that the report be clear, particularly regarding the following:

• The effective date of the recommendation (i.e., April 1, 2012 for remuneration); • The group or office to which any recommendations apply (current judges, retired

judges, etc.); and • The details of each aspect of the recommendations.

47. Reports which are clear and reasoned, are not only more likely to be implemented by

the Government, but also lessen the probability of different interpretations or misunderstandings by the parties as to what was meant by the recommendations.

48. The Government is not bound to implement your recommendations; however, past experience has shown high regard and fidelity by Government to the recommendations as an expression of an independent process conducted by fair-minded individuals.


Part III Mandate of the Provincial Court Commission . . . . . . . . . . . . . . . . . . . . . . . continued The Provincial Court Act

49. While The Provincial Court Act does not specify the factors the Commission should consider in making its determination, it may be guided by a review of factors available to or considered by other commissions charged with determining the salary and benefits of judges, from across Canada. The Act does set out the scope of the mandate of the Commission in section 38: 38(1) A Commission shall inquire into and make recommendations with respect to the following: (a) the salaries to be paid to: (i) the chief judge; (ii) an associate chief judge; (iii) judges other than the chief judge, associate chief judges and temporary judges; and (iv) temporary judges. (b) the remuneration to be paid to judges who perform administrative duties assigned to them pursuant to clause 8 (f); (c) the allowances to be paid to judges who reside in the Northern Saskatchewan Administration District; (d) professional allowances; (e) vacation leave; (f) pension benefits and additional retirement benefits. (2) A Commission may inquire into and make recommendations with respect to the following: (a) the support staff, facilities, equipment and security of the court; (b) the benefits to be provided to judges pursuant to regulations made pursuant to clause 65(d). (3) The salary recommended by a commission cannot be less than the salary being received by the judges on the day on which the report containing the recommendation is submitted to the minister. (4) No commission regulation respecting pension benefits or additional retirement benefits shall reduce a person’s benefits that accrued before the coming into force of the regulation.

50. Subsections 38(2) and (3) provide that a Commission cannot recommend that salary, pension, or other retirement benefit be less than that which the judges are currently receiving. Further, s.45(1)(b)(ii), of the Act specifies that the Government may not rollback the salary recommendations of a Provincial Court Commission below the national average


Part III Mandate of the Provincial Court Commission . . . . . . . . . . . . . . . . . . . . . . . continued paid to judges of provincial and territorial courts.

51. Section 35(b) of The Provincial Court Act defines national average: 35(b) “national average” means the average of the salaries paid to judges of the provincial courts or territorial courts of the other provinces and territories of Canada, calculated as of the most recent occurrence of the date January 1;

52. If the Government chooses to not accept one or more recommendations of the Commission, the rollback provision provides: 45(1) After giving notice to the association and the commission pursuant to clause 43(b), the minister shall: (a) lay before the Legislative Assembly the report of the commission; and (b) move a resolution that the Legislative Assembly: (i) reject one or more of the recommendations in the report; (ii) where the report recommends a salary that is higher than the national average, fix a salary, in a manner that meets constitutional tests of judicial independence and in an amount that is not less than the national average, that is to be substituted for the salary recommended in the report; Six Factors to Consider

53. The SPCJA submits that six factors have been identified and frequently relied upon by previous Commissions as part of the rational and depoliticized process for arriving at salary recommendations. This Commission may find these instructive in its deliberations:

A. The judges’ role and judicial independence;

B. Attracting the most highly-qualified members of the bar to the Provincial Court;

C. Economic and market factors in Saskatchewan;

D. Salaries paid to other trial judges in Saskatchewan;

E. Salaries paid to other trial judges in Canada; and

F. Remuneration of senior members of the legal profession.


Part III Mandate of the Provincial Court Commission . . . . . . . . . . . . . . . . . . . . . . . continued

54. The SPCJA will make submissions in this brief and in its oral presentation with respect to the most pertinent factors. More specifically, it will make submissions relating to: salaries, pensions and benefits for full time sitting and retired judges, a flexible healthcare account, a senior judges program, enhancement of the professional allowance, a sabbatical for the position of Chief Judge, and a legislative review.

55. The SPCJA applies to reserve the matter of costs for future consideration, if necessary, noting that this has been worked out amicably between the parties in relation to previous Provincial Court Commissions.


Part IV Factors for Consideration A. The Trial Judge’s Role and Judicial Independence 1. Responsibilities of a Trial Court Judge

Role in Canadian Society 56. Mr. Justice Peter D.C. Cory, Supreme Court of Canada, at his Swearing-out Ceremony, May

14, 1999, discussed the role of the trial judge: In the endless struggle to achieve fairness for our Canadian society, it is the trial Judges that will have to carry the greatest load in this time of transition. It is the trial Judges who not only make the necessary findings of fact but who will represent to all their communities justice in the abstract and demonstrate fairness in their courtrooms. In these difficult times with every move and decision subject to intense scrutiny by partisan pressure groups, trial Judges will need the greatest patience and utmost courage.

57. The roles and responsibilities of trial court judges are many, but two functions exercised

daily in the Criminal Division of the Provincial Court can be particularly onerous:

• determining guilt, and • imposing sentence.

In the course of assessing trial evidence and determining whether the Crown has proven guilt beyond a reasonable doubt, a judge routinely makes findings of credibility about the testimony of witnesses for the Crown and very often the accused. If guilt has been established the judge must determine the appropriate sentence for the offending behaviour, very often for lengthy periods of time. It is a substantial public responsibility.

58. Society has changed dramatically over the past 34 years21 as has the role and

responsibilities of the judiciary. In one crucial aspect the judge’s function shall never change; judges must guard “the rule of law” and this may only be done by maintaining institutional and individual independence. Madam Justice McLachlin of the Supreme Court of Canada described this phenomenon in The Role of Judges in Modern Commonwealth Society22:

Judging is not what it used to be. Judges are more important now; Judges are more

criticized. And Judges face more difficult tasks than they ever have before faced in the history of the Commonwealth. If Judges are to meet those challenges they must be educated, competent and engaged. They must be prepared to work hard. But all this will be to little avail if the one quality which has always been required of a judge,

21 It has been over 33 years since the proclamation of The Provincial Court Act. 22 (1994) 110 LQR 260.


Part IV Factors for Consideration A. The Trial Judge’s Role and Judicial Independence 1. Responsibilities of a Trial Court Judge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .continued independence, is forgotten. In discharging its new role, the modern judiciary must fall back on the source of strength it has drawn upon over the centuries - its institutional and individual independence. It is this independence, coupled with integrity, which has

made the judiciary the important institution that it is. And on the broader political plane, it is this independence that guarantees respect for human rights and the rule of

law in the countries which we as Judges serve, and hence the advancement of all our peoples. The task facing Judges in the modern Commonwealth is not an easy one. But it is one of critical importance. If we fail, the rule of law will fail. It is as simple as that.23

The Impact of the Role

59. Retired Judge Lloyd Deshaye, appointed in 1975, who continues to sit as a “relief judge”,

reflected on the toll of bearing these responsibilities:

We are told that the public is increasingly more critical of the judges’ role and it is criticism we must endure, though at times it may be ill-informed. Recent studies show that a significant percentage of the public sees the judiciary as one of the weakest components in our system of justice. Perhaps the reason is that Judges are seen as being too ‘soft’ on crime. I believe we have to respect this viewpoint, though I do not think we should pander to it. The role of the judge is far more complex than gauging the public climate and reacting to it.

One of the most difficult aspects of our work is bearing the responsibility of judgment

and balance in all our undertakings. Our colleagues are serious professionals who are very sensitive to the impact of our work and the understanding that how we do it will, more than any other single consideration, affect our society’s opinion of the administration of justice. Virtually everything we say and every decision we make will be subject to some form of scrutiny, and from an often skeptical society.

Knowing this, Judges face a daunting task. They must always be seen to be fair, which

entails knowledge, resolve, understanding, patience and problem solving ability. There is also a high expectation of accuracy that is to be ‘right’ in every case, a physical and human impossibility. Facing this conundrum over time and constant exposure to difficult cases (some of them are hopeless) is probably the largest contributor to burn out. Judges, who by training, inclination and selection are required to be sensitive and of open mind, cannot help but be affected by the burden of trying to avoid error. . .

23 At paragraph 269.


Part IV Factors for Consideration A. The Trial Judge’s Role and Judicial Independence 1. Responsibilities of a Trial Court Judge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .continued I have seen colleagues over the years succumb to the effects of stress and burn out.

There have been tragic personal cases of alcoholism, break down and withdrawal. Not everyone is affected in the same way, but we know the impact of the work takes a real toll and can erode even the most resilient character over time.24

60. There have been many individual instances, when a judge’s security or that of the family has

been threatened, either through direct threats in court, or through mail or telephone calls. These facets of judicial life can at times weigh heavily on a judge and in turn on the Court.

61. Shortly after appointment, our colleague Judge Ross Green, reflected on his transition from practicing lawyer to judge, particularly with respect to the limits upon his ability to speak freely and publicly about matters of interest:

I’ve been a judge for a year and a half. Before being appointed, I wrote a weekly column for the Melfort newspaper, presented reflections frequently on CBC radio, and published articles - some light hearted but most related to the justice system - in a wide cross-section of publications. I spoke at a number of conferences on justice issues, and authored one book and co-authored another (both critiques of the justice system). For me, judicial life has meant a significant sacrifice in this part of my interest and experience. I am not nearly as free to do and say much of what I previously had in public. My comments on specific cases are limited to what I say in Court. My right to speak out on issues of public interest, although not completely muted, is now limited. Although I am happy to be a judge, the limit on my ability to express myself in public has been a sacrifice.25

Judgments for Several Audiences 62. The exercise of judicial duties requires judgment, and making clear the reasons for

judgment. Judgments must be prepared, having regard to the law, but just as importantly, so that it may be understood by the interested public. That public may include in:

• Criminal proceedings: the accused person, the lawyers, Crown and Defence Counsel the complainant(s) and his/her family and supporters, the general public, and the media.

24 August 2002. 25 September 16, 2005.


Part IV Factors for Consideration A. The Trial Judge’s Role and Judicial Independence 1. Responsibilities of a Trial Court Judge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .continued

• Civil or Family proceedings:

the parties, the lawyers, but more often for persons who are not trained legally.

Often the judge in civil proceedings must make findings of credibility and reliability and at the same time convey a message with a view to it governing future business dealings.

63. Judges welcome ongoing education and training. Often, however, there is little opportunity for education when a new legislative scheme comes into place and judges must reach an understanding of the new law while balancing the demands of trials, and pending oral and written judgments, and chambers applications. Judge Sheila Whelan remarked on the demands of judgment writing:

In the 15 years that I’ve sat in adult criminal, youth justice, and small claims court, the demand for judgment writing has increased dramatically. The expectation that reasons

be provided at every step of the decision making process is evident in statutory provisions, appellate reasoning and, judging by media reports, in the response of the public we serve.

We are more frequently asked to interpret complex legislation. The Youth Criminal

Justice Act and numerous ongoing amendments to the Criminal Code are illustrative of this responsibility, which falls principally upon courts of provincial jurisdiction. With the expansion of our jurisdiction in Small Claims Court the requirements for judgment writing increased once again. The issues are no less complex because the monetary limit is $20,000.

Many who appear in the Provincial Court are self-represented and this makes for the

added responsibility to provide effective procedural assistance in a system designed to be navigated by lawyers. The need for clear, thorough reasoning is particularly evident when one party is self represented and the other appears with counsel.

The Provincial Court is known for a fast-paced intensive workload and accessibility in

many venues in this province. We do not enjoy the same supports provided to other courts in this jurisdiction. Counsel do not routinely file briefs of law to support their positions. We have very limited research and secretarial assistance. I research and type all of my decisions. When making decisions affecting the many individuals who are remanded in custody, we must provide reasons promptly.


Part IV Factors for Consideration A. The Trial Judge’s Role and Judicial Independence

1. Responsibilities of a Trial Court Judge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .continued Judging On-call

64. Judging is not confined to the courtroom, nor 9 to 5 days. Judges are called upon to make decisions on a complex array of matters during and outside regular office hours when the courthouse is closed. Judge M.E. Lafond, on leave from our Court, described these responsibilities:

It is not uncommon to be called to make a judicial determination when “off-duty” because you are never really “off-duty” as a judge. For example, if a suspicious death

has happened in the evening hours, I might receive a phone call from the investigating sergeant in the middle of the night requesting that he come to my home with information to obtain a Criminal Code warrant to allow the police to collect blood or other substances as evidence from a place or person. Just as I would in my office during the daytime, I am called upon to review the information, the provisions of the Criminal Code and the case law in order to make a judicial determination of the application.

The same applies to emergency mental health warrants. There have been many occasions in the past 7 years when workers have brought distraught family members to my home in the late hours or on weekends in order to get an emergency order for psychiatric examination to prevent an individual from harming himself or others. In addition to the courtroom conduct of trials and proceedings, our judicial duties are

substantial. You realize the impact your work has on the lives of others, often in dire straits or emergency situations. You are also reminded that the burdens of judging are not only borne when wearing the robe, but also follow you out into the community. I know it is more demanding for judges in single judge court centres who have no colleagues with whom to share the load.26

Judging in the North

65. Judge Sid Robinson, who resides in La Ronge, Saskatchewan, discussed the challenge of maintaining an atmosphere of impartiality in the informal setting of a community hall at a northern circuit point:

A main challenge for a northern judge is to insure that everyone sees the day’s proceedings as being fair and impartial. Every comment or gesture that a judge makes 26 September 1, 2005.


Part IV Factors for Consideration A. The Trial Judge’s Role and Judicial Independence 1. Responsibilities of a Trial Court Judge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .continued

through the day makes a difference. This is, of course, true while court is in session. But it is equally true when court is not in session since the judge has no private

chambers to retreat to. Every interaction the judge has with police, lawyers, his or her clerk, accused persons and the general public is open to scrutiny. I like the open banter of a northern court room. But as judge, I always need to convey a sense that I have come to deal with serious matters in a careful and correct manner. I try to remind myself that nobody in the court party—particularly the judge—is ever truly “off camera” when out on circuit.

There is hardly a court day that someone does not approach me during a break with a

written message or verbal request regarding a case. It is not enough that I promptly refer these missives on to Crown and defence. I must be seen to refer them over to opposing counsel in the matter. Then, when the case is dealt with, I must make sure the public knows that I am only deciding the case on what I have heard in open court.

A northern judge cannot escape some interaction with prisoners when court is not in

session. In a northern court point, as in many southern rural court points, the prisoners will invariably be seated along a wall next to the judge. The judge will usually know many of the prisoners. It is my custom to greet old acquaintances seated near me in the prisoner row. I must, however, be careful not to give anyone the impression that I will give any prisoner preferential treatment. And I certainly do not want to have any individual prisoner build up false hope or fear from a greeting. Sacrifices

66. The Report of the 2008 Provincial Court Commission (hereinafter the Zakreski Report 2008) noted the “sacrifices” that come with the role of a judge27: Judicial duty involves exceptional sacrifices of a personal and professional nature. Judges are no longer permitted to have other sources of earned income, apart from the judicial salary. A judge's freedom of speech is limited, and conduct in and out of the courtroom is strictly monitored and subject to complaint. Actions and behaviour in private and in public can come under extraordinary scrutiny and comment. 27 At page 11.


Part IV Factors for Consideration A. The Trial Judge’s Role and Judicial Independence 2. The Provincial Court and Judicial Independence 67. The Zakreski Report 2008 also remarked on the vital role played by the Provincial Court in

in the administration of justice in Saskatchewan:

The Provincial Court of Saskatchewan plays a vital role in the administration of justice in Saskatchewan. This was recognized by previous Provincial Court Commissions. It is the busiest, most accessible, and dynamic Court in the Province. Charged with the immense responsibility for presiding in 86 far flung locations across this Province (13 judicial centres plus 73 circuit points28), it presides over the vast majority of criminal and civil claims in Saskatchewan. While its jurisdiction and workload in criminal and civil matters has consistently increased, it has responded to the needs of the communities that it serves, implementing creative and forward thinking changes to the way in which it delivers justice.29

68. The early magistrates in Saskatchewan, especially after 1905, intermeshed judicial, executive

and police functions, and were a far cry from today’s model of an independent, professional judiciary which is separate and distinct from the two other arms of government; the executive and legislative. The legal genealogy of the Saskatchewan justice system is one stemming from indigenous, fur trade and colonial traditions which have co-existed (often with conflict) since the outset.

69. The modern period of judicial independence is demarcated for our judiciary by the year 1978, when The Provincial Court Act was passed and the Provincial Court crystallized as a fully independent and equal judiciary having the same degree of constitutional independence as any other Court. Since 1978 the jurisdiction of the Provincial Court has been profoundly transformed through legislative and constitutional change. The federal and provincial governments have given this Court jurisdiction over a wide range of matters, including the most serious criminal determinations (i.e., designation of dangerous offenders, long-term offenders, etc.).

70. The constitutional reforms of 1982 (The Canadian Charter of Rights and Freedoms) transformed the nature of democracy in Canada; from a Parliamentary democracy to a Constitutional democracy and judges were given the responsibility by the people, through the Charter to safeguard against state intrusions upon human rights enshrined in the Charter, and if so to provide meaningful remedies where such intrusions occurred. This also

28 Since the 2008 Commission, the Provincial Court, in consultation with the Ministry of Justice, reviewed all of its circuit points and made adjustments based on a number of factors, including time to trial and hours of court operation. As part of this review some circuit points were also reassigned to other Judicial Centres. 29 At page 11.


71. Part IV Factors for Consideration A. The Trial Judge’s Role and Judicial Independence 2. The Provincial Court and Judicial Independence . . . . . . . . . . . . . . . . . . continued

transformed the day to day practice of criminal law and procedure in the courts across Canada, notably the provincial courts, as the court of first instance, and placed an enormous duty on the judiciary to review legislative and state action in individual cases.

72. For a number of years, there was a debate in Canada over whether the provincial courts were courts whose judges bore the entire bundle of responsibilities that derive from the notion of judicial independence.30 This debate was laid to rest in 1997 in the PEI Reference when the Supreme Court of Canada held that Provincial Court Judges must be afforded treatment by government which fully respects their judicial independence.31 This judicial independence was viewed by the Court as anchored in an unwritten norm, recognized and affirmed by the preamble to the Constitution. It is part of the very fabric of our constitutional order, inherent in the parliamentary traditions of the political system.

73. Judicial independence in Canada has been understood to have three basic components:32 • First, security of tenure; this means Judges are not to be removed from office by

political whim. • Second, financial independence; this means Judges must have the financial security

to do their job without outside influence or concern for their livelihood. Judges are not to be jacks-of-all trades but exclusively Judges and must be remunerated to allow them to be insulated from financial worry.

• Third, administrative independence; this means that in the administration of the Court, Judges must not be subject to political interference or working conditions which place their independent judgment in jeopardy.

74. Each of these components, woven together, represents a full expression of independence.

All three components are essential for judicial independence; it is not proper to consider one alone as more central than another. Provincial Court Judges require all three components for proper judicial independence. This submission will focus on the role of financial security.

30 See the review of the historical debate as described in the 1989 Manitoba Law Reform Commission Report, the Independence of Provincial Judges; and P. Russell, The Judiciary in Canada (1987). 31 Confirmed again in Reilly v. Alberta Provincial Court Chief Judge: “It is now settled that the Provincial Court and its Judges are entitled to judicial independence.” [2002] 4 WWR 92 (Alta. C.A.) (Confirming [2001] 1 WWR 55 (Alta.Q.B.). 32 Valente v. the Queen [1985] 2 SCR 673; confirmed in R v. Lipped [1991] 2 SCR 115.


Part IV Factors for Consideration A. The Trial Judge’s Role and Judicial Independence 2. The Provincial Court and Judicial Independence. . . . . . . . . . . . . . . . . . . . . continued

75. Financial security for Judges is a key component of judicial independence. Judges are best drawn from the most successful senior reaches of the legal profession. These lawyers have come to be recognized for possessing those qualities which make them suitable for judicial responsibility, including: broad experience, superior law related capabilities, and remarkable contribution to community. They have typically distinguished themselves by demonstrating leadership and independence in their professional life. In order to attract and retain lawyers from a pool of excellence, compensation and benefits must approximate that which they might expect to receive by continuing in the practice of law. For this reason consideration must be given to the salary of successful senior counsel in the profession.

76. When appointed judges are required to cease any outside income generating activity. Their salaries must provide security so that they can be comfortable, but also so they can maintain a lifestyle consistent with the senior ranks of the profession. The financial security they enjoy, while a benefit of the position, is not for the judges’ sake, but to ensure that their decisions are insulated from the blandishments of the wealthy or political actors who might penalize or attempt to influence their reasoning.

77. The Bundon Commission (1999) endorsed the following sentiments of the former Chief Justice of Canada, Justice Lamer on this point:

The rule of law, interpreted and applied by impartial judges, is the guarantee of everyone’s rights and freedoms...Judicial independence is not a perk of judicial office. It is a guarantee of the institutional conditions of impartiality.33

33 At page 7of the Report.


Part IV Factors for Consideration A. The Trial Judge’s Role and Judicial Independence 3. The Work of the Provincial Court

78. The workload for the Provincial Court is substantial and continues to rise. While the complement of judges has increased somewhat since the proclamation of The Provincial Court Act in 1978, it has not kept pace with the demands upon the Court.34 The Judges of the Provincial Court have managed the workload through flexibility, ingenuity and hard work.

79. In its 2009 Report, the Zakreski Commission recognized the increasing workload and reliance by the Federal and Provincial Governments upon the Provincial Court:35

• Parliament has imposed many entirely new duties on the Justice System, including:

numerous new offences, preventive peace bonds or recognizances, and a number of ancillary orders such as DNA warrants and sex offender registration.

• There has been a marked increase in the reclassification of offences which have

been consistently transferred to the Provincial Court.

• There has been a substantial increase in the monetary limit for property offences, which now start at under $5,000, which has resulted in most property offences being tried in the Provincial Court.

• There has been a movement of offences from the indictable category to the hybrid

classification. As a result of the amendments over the years, most offences in the Criminal Code have been brought within the absolute jurisdiction of the Provincial Court or are usually brought within the jurisdiction of the Provincial Court by a Crown election to proceed summarily or an accused person's election to the Provincial Court.

• The Provincial Court has had its jurisdiction expanded through federal statutes

which create offences assigned to the Provincial Court. Since the last Commission, there has been a continuing trend of the Government of Canada to create new offences and at the same time expand the jurisdiction of the Provincial Court.

• The Provincial Government has issued significant law reform initiatives which have

resulted in the Provincial Court having jurisdiction to try these offences.

• Two significant changes were introduced during the past three years which have impacted on the work of the Provincial Court. An amendment to the Provincial

34 The complement of the Court in 1978 was 35 and in 1979 it increased to 41. Since then it has vacillated between 41 and 49. It was 48 at the time of the last Commission. 35 Pages 11 to 13 of the Report.


Part IV Factors for Consideration A. The Trial Judge’s Role and Judicial Independence 3. The Work of the Provincial Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . continued

Court Act, creating a Civil Division of the Provincial Court of Saskatchewan 36, and a

Regulation pursuant to The Small Claims 1997 Act, which increased the Provincial Court's jurisdiction from $5,000 to $20,000.37

• It is becoming increasingly common in the Provincial Court for unrepresented or

self-represented persons (to appear)38 at all stages of proceedings, including bail, plea, sentence and trial. When this occurs it is crucial for the proper administration of justice that the courts are, and are seen to be: fair, accessible, and accommodating to all self or unrepresented persons. Trial Judges necessarily draw on their experience with people and knowledge of the law but most of all they need to be keenly perceptive as they endeavour to guide self and unrepresented persons through the unfamiliar territory of court proceedings.

• Judges who preside in the north, or at single judge judicial centres, bear additional

burdens associated with the remoteness of these points to which they must travel.

• It was reported to the Commission that the Provincial Court has been recognized as an innovative court citing such examples as: Sentencing Circles, Circle Court, Restorative Circle Initiative, Domestic Violence Treatment Option Court, Drug Treatment Court, Cree and Aboriginal Court.

i. Criminal Jurisdiction of the Provincial Court

80. Over the past 33 plus years, numerous legislative and policy decisions have systematically

increased the criminal jurisdiction of the Provincial Court of Saskatchewan, reduced the exclusive jurisdiction and workload of the Court of Queen’s Bench in respect of criminal matters and made the Provincial Court the dominant criminal trial court for the province.

81. The classification of offences under the Criminal Code is not well understood by members of the public. It has significance with respect to the maximum sentence which may be imposed and the mode of trial. Generally speaking, the more serious offences are “indictable” offences, and less serious crimes are “summary” offences. The term “hybrid” refers to those offences which can be prosecuted by way of summary conviction or by indictment, at the 36 Effective July 21, 2011, the Government of Saskatchewan repealed s. 8.1 of The Provincial Court Act which established the “Civil Division”; but it did not repeal any part of the civil jurisdiction of the Court. See The Provincial Court Amendment Act, 2010. 37 The Provincial Court Consequential Amendment Act, 2010, proclaimed in force July 1, 2011, amended The Small Claims Act, 1997, permitting Justices of the Peace, specifically lawyers, to perform judicial acts in Small Claims matters. This will be discussed further under IV. A. 3. iv Civil Jurisdiction. 38 Added.



i. Criminal Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .continued

Crown’s election and the choice is often made having regard to the seriousness of the factual circumstances or the previous criminal record of the accused person. There is a classification of offences, known as “indictable absolute jurisdiction provincial court” which must proceed in provincial court.

82. The maximum sentence of imprisonment for indictable offences varies depending on the seriousness of the offence and can be for: one, two, five, ten, or fourteen years or life imprisonment. Summary conviction offences generally carry a maximum sentence of imprisonment for six months. Hybrid offences, when prosecuted by way of summary conviction proceedings, more and more frequently carry maximum sentences greater than a sentence of six months, typically for eighteen months. Indictable absolute jurisdiction provincial court offences typically carry maximum sentences of two years and some drug offences (including possession for the purpose of trafficking and trafficking in cannabis marijuana under 30 grams) have maximum sentences of five years less one day.39

83. Mode of trial (Queen’s Bench with a Jury after a preliminary inquiry, Queen’s Bench without a jury after a preliminary inquiry or trial without a preliminary inquiry before a Provincial Court Judge) can be determined by the classification of the offence, the election of the Crown and the election of the accused person. Summary conviction offences and hybrid offences proceeded with summarily or indictable offences of absolute jurisdiction in the provincial court, all proceed to trial in the Provincial Court.

84. There is a large group of indictable offences, for which the accused can elect the mode of trial. If a preliminary inquiry is conducted in Provincial Court, very often the accused re- elects and returns to the Provincial Court Judge to enter a guilty plea and for sentencing. Fewer and fewer preliminary inquiries take place in Saskatchewan, due largely to improved Charter protected disclosure practices, disclosure being the main purpose for seeking a preliminary hearing. Legislative re-classifications and the choices of accused persons have also resulted in the vast majority of cases being dealt with in the Provincial Court without a preliminary inquiry.40

85. Another trend, increasing the workload of this Court is the movement of offences from the

39 Other examples of Indictable absolute jurisdiction offences: theft under $5,000, possession of stolen property under $5,000, fraud under $5,000 and mischief to property. 40 The overall policy goal was to streamline the criminal justice system so that more criminal cases could be dealt with in a single criminal court, namely, the Provincial Court. As a result of amendments over the years, most offences in the Criminal Code have been brought within the absolute jurisdiction of the Provincial Court or are usually brought within the jurisdiction of the Provincial Court by a crown election to proceed summarily or an accused person’s election to the Provincial Court.



i. Criminal Jurisdiction . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . .continued indictable category to the hybrid classification. The Crown is encouraged to elect to proceed

summarily in the Provincial Court because of the increased maximum penalty available for these hybrid offences. To avoid the time and expense, as well as inconvenience, indeed stress involved in two hearings, a preliminary inquiry followed by a trial, the Crown may elect to proceed summarily on these offences.41 Serious offences which have been moved from the indictable category, where the accused had an election42, to the hybrid where the Crown may proceed in Provincial Court, include: break and enter of commercial premises, possession of break-in instruments, being unlawfully in a dwelling, forgery, uttering a forged document, and assault causing bodily harm.

86. Parliament has been systematically expanding the jurisdiction of the Provincial Court. Over the last dozen years it has imposed many entirely new duties on the Justice System, including: numerous new offences, preventive peace bonds or recognizances, and a number of ancillary orders such as DNA warrants and sex offender registration. Invariably, these new offences and orders have been placed within the jurisdiction of the Provincial Court.

87. Since the last Provincial Court Commission, there have been numerous examples of new offences or changes in the penalty of existing offences which appear designed to encourage prosecution in the Provincial Court. ii New Offences & Legislative Requirements

88. In addition to the responsibility for federal and provincial criminal offences, the Provincial Court has had its jurisdiction expanded through other federal statutes which create offences assigned to our Court.

89. In the 2005 brief to the Provincial Court Commission, we catalogued 14 separate examples of federal legislation which added to the responsibilities of the Provincial Court in the preceding three years. In the 2008 brief we catalogued 17 further such examples of federal legislative changes and 1 example of a provincial legislative change that affected the responsibilities of this Court. These catalogues from the 2005 and 2008 briefs are included in the Appendix.

90. If experience bears out, new offences, some with minimum penalties, and legislation,

41 Including: sexual assault and forcible confinement. 42 If the maximum sentence for an offence is 5 years or more, an accused person has a Charter right to a jury trial. By increasing the maximum penalty available when the Crown proceeds by summary conviction, there is likely a reduced incidence of jury trials and proceeding in the Court of Queen’s Bench.



ii. New Offences and Legislative Requirements. . . . . . . . . . . . . . . . . . . . . . . . . .continued

requiring judicial interpretation, will impose a greater burden on the Court’s time and resources. The examples below, are illustrative of the almost certain impact upon the workload of the Court, most often resulting in an increased demand for legal research and judgment writing as well as case management and scheduling of applications and arguments which may arise at the: investigative, bail, trial, and sentencing stage of proceedings.

91. The following discussion illustrates the continuing trend of the Government of Canada to create new offences and at the same time expand the jurisdiction of the Provincial Court since the 2008 Provincial Court Commission. The many Bills affecting statutes to be applied by the Provincial Court are discussed in 3 categories: 1. Bills - Proclaimed in Force since November 2008, as at October 13, 2011,

2. Bills - Received Royal Assent But Are Not Proclaimed in Force,

3. An Omnibus Bill - Introduced But Has Not Received Royal Assent.

1. Bills Proclaimed in Force since November 2008, as at October 13, 2011:

92. a) Organized Crime and Protection of Justice System Participants Bill C-14, S.C. 2009, c. 22, - assent: 23.06.2009 - in force: 02.10.2009.

Three New Offences –One Minimum Sentence

s.244.2 – intentionally discharging a firearm - indictable offence - minimum sentence – 1st offence - 4 years - 5 years if firearm is restricted or prohibited or use is in connection with a criminal organization - minimum sentence - 2nd or subsequent offence - 7 years.

ss.270.01 & 270.02 – carrying, using or threatening use of a weapon or imitation or causing bodily harm to a peace officer while assaulting a peace officer - hybrid offence - if prosecuted by summary conviction - maximum 18 month sentence. s.270.02 – wounding, maiming, disfiguring, or endangering the life of a peace officer while assaulting a peace officer - indictable offence - maximum 14 year sentence.


Part IV Factors for Consideration A. The Trial Judge’s Role and Judicial Independence 3. The Work of the Provincial Court ii. New Offences and Legislative Requirements. . . . . . . . . . . . . . . . . . . . . . . . . .continued

Investigative Authorizations The offences listed above have been added to the list of offences which may be the subject of a wiretap authorization or a warrant for video surveillance.

93. b) An Act to amend the Criminal Code (identity theft and related misconduct) Bill S-4, S.C. 2009, c. 28 - assent: 22.10.2009 - in force: 08.01.2010. This Bill expanded upon the ambit of several offences, added new offences and made changes to sentencing: Three New Offences s.368.1 - make, repair, possess, buy, sell, import, or export, any material or thing used, or adapted or intended for used, by anyone to commit forgery – hybrid offence – if prosecuted by indictment - maximum 14 year sentence.

s.56.1(1) - possessing, transferring, procuring to be made, or selling an “identity document” – hybrid offence - if prosecuted by indictment - maximum 5 year sentence.

s.402.2 – theft or possession of another person’s identity information in circumstances giving rise to a reasonable inference that it is intended to be used to commit an indictable offence – hybrid offence – if prosecuted by indictment - maximum 5 year sentence. Some Sentencing Changes s.130 - personating a peace officer – was summary conviction – now a hybrid offence - if prosecuted by indictment - maximum 5 year sentence.

s.356 - mail theft – expanded ambit of offence – was indictable offence – now a hybrid offence.

Investigative Authorizations The offences above and other expanded offences under this Bill have been added to the list of offences which may be the subject of a wiretap authorization or a warrant for video surveillance.


Part IV Factors for Consideration A. The Trial Judge’s Role and Judicial Independence 3. The Work of the Provincial Court ii. New Offences and Legislative Requirements. . . . . . . . . . . . . . . . . . . . . . . . . .continued

94. c) Truth in Sentencing Act

Bill C-25, S.C. 2009, c. 29 - assent: 22.10.2009 - in force: 22.02.2010. Judicial Interim Release Hearings Judge to state in the record whether a prior conviction was the primary reason for denying release.

Sentencing Changes - Credit for Pre-sentencing Custody s.719(3) & (3.1) - Judge’s discretion to giving credit limited to 1:1, for actual days in pre-sentencing custody or up to 1.5 credit for each day in pre-sentence custody “if the circumstances justify it”. Two groups ineligible for enhanced 1.5 credit: (a) denied bail primarily due to a prior conviction, and (b) after release detained because had or were about to breach a condition of release, or were reasonable and probable grounds to conclude committed an indictable offence after release. Reasons, Warrants of Committal, and the Record s.719(3.2) & (3.3) - If credit granted judge to state reasons in the record and warrant of committal to state: amount of time spent in custody, the sentence that would have been imposed before credit, amount of the credit and the sentence imposed.

95. d) An Act to amend the Criminal Code (minimum sentence for offences involving trafficking of persons under age 18) Bill C-268, S.C. 2010, c. 3, in force on assent: 29.06.2010.

New Offence and Minimum Sentence s.279.011 - trafficking of minors - minimum sentence 5 years, 6 years if, in committing offence other specified offences (such as kidnapping, aggravated sexual assault) are committed.



3. The Work of the Provincial Court ii. New Offences and Legislative Requirements. . . . . . . . . . . . . . . . . . . . . . . . . .continued

96. e) Tackling Auto Theft and Property Crime Act

Bill S-9), S.C. 2010, c. 14, s.12 - in force on assent: 18.11.2010; Act, other than s. 12, in force: 29.04.2011. New Offences and a Minimum Sentence s.333.1(1) - stealing a motor vehicle – hybrid – if prosecuted by summary conviction – maximum sentence 18 months - if by indictment - maximum 10 year sentence and minimum 6 month sentence in the case of a 3rd or subsequent conviction.

s.353.1(1) - alter or remove the vehicle identification number of a motor vehicle, - hybrid offence - if prosecuted by indictment - maximum 5 year sentence.

s.355.2 - trafficking, transporting, exporting or importing any property or thing or the proceeds, knowing it was obtained by an indictable offence – if subject matter of s.355.2 or 355.4 offence - exceeding $5,000, indictable offence – maximum 14 year sentence – under $5,000 - hybrid – if by indictment – maximum 5 year sentence.

Investigative Authorizations Above offences created were added to list of offences that can form the basis for a wiretap authorization or a warrant for video surveillance.

97. f) Protecting Victims From Sex Offenders Act

Bill S-2, S.C. 2010, c. 17- assent: 5.12.2010 - in force: 15.04.2011. Expanded Mandatory SOIRA Orders – Judicial Discretion Eliminated

s.490.012(1) – The court’s discretion was removed; it shall order compliance with the Sex Offender Information Registration Act (“SOIRA Order”), when sentencing or making a finding of not criminally responsible.

Expanded List of Offences Requiring Mandatory DNA Orders List now includes sex related offences, except attempts.



3. The Work of the Provincial Court ii. New Offences and Legislative Requirements . . . . . . . . . . . . . . . . . . . . . . . . .continued

Note: potential Increase in Discharge Applications Provisions do not specify application when discharging offender - may be an increase in discharge applications for offences at the lower end of the spectrum, to avoid a SOIRA Order.

New Form – New Practices There is a new Form 52 for a mandatory SOIRA Order. It addresses: initial reporting; duration of reporting; purpose and use of information gathered; option of a termination order; and the consequences of non-compliance. New practices are required to ensure the offender knows the contents of the order.

Where Court Fails to Consider a Mandatory SOIRA Order s.490.012(4)(a) – The court is required within 90 days to set a hearing date to do so. It raises interpretation questions, e.g. if a hearing not set within 90 days.

New “Secondary Designated Offence” s.173(1) - indecent act – It is now a “secondary designated offence” under s.487.04 for the purposes of the DNA provisions in the Criminal Code.

New Hybrid Offence s.173(2) - exposing for a sexual purpose to person under 16 years – It was summary and is now a hybrid offence. If prosecuted by indictment there’s a maximum 2 year sentence and a mandatory DNA order.

Expansion of Absolute Jurisdiction of Provincial Court Judges

s.553 - failure to comply with orders or obligations or providing false or misleading information regarding the Sex Offender Information Registration Act.


Part IV Factors for Consideration A. The Trial Judge’s Role and Judicial Independence 3. The Work of the Provincial Court ii. New Offences and Legislative Requirements . . . . . . . . . . . . . . . . . . . . . . . . .continued

98. g) An Act to amend the Criminal Code (justification for detention in custody)

Bill C-464, S.C. 2010, c. 20 - in force on assent: 15.12.2010. s.515(10)(b) – secondary grounds for detention – wording changed such that protection or safety of the public is to include “person under age 18”.

99. h) Fair and Efficient Criminal Trials Act (mega trials) Bill C-2, S.C. 2011, c. 16 - assent: 26.06.2011, ss. 1 to 6, 7(2) and (4), 10, 11, and 14 to 16 in force: 15.08.2011; ss. 7(1) and (3), 8, 9, 12, and 13 in force: 24.10. 2011.

These provisions provide various management techniques for large trials.

100. i) An Act to amend the Controlled Drugs and Substances Act (methamphetamine

and ecstasy) Bill C-475, S.C. 2011, c. 14 - assent: 25.03.2011, s. 1 in force: 23.06.2011 (90 days after assent) s. 2 not in force as at October 13, 2011 – it contemplates other legislation coming into force.

New Offence

s. 7.1 - prohibits possessing, producing, selling or importing “anything” knowing it will be used to produce or traffic in methamphetamine or ecstasy. It is an indictable offence with a maximum 10 years less a day sentence.

101. j) Standing up for Victims of White Collar Crime Act Bill C-21, S.C. 2011, c. 6 - assent: 23.03.2011 - in force: 01.11.2011.

Mandatory minimum sentence and new obligations Fraud over $ 1 million - requires consideration of defined aggravating factors and there are new obligations regarding restitution orders.


Part IV Factors for Consideration A. The Trial Judge’s Role and Judicial Independence 3. The Work of the Provincial Court ii. New Offences and Legislative Requirements . . . . . . . . . . . . . . . . . . . . . . . . . continued

2. Bills - Received Royal Assent But Are Not Proclaimed in Force43

102. a) An Act to amend the Criminal Code (suicide bombings) Bill S-215, S.C. 2010, c. 19 - assent: 15.12.2010 - in force: on a day to be fixed by Order in Council.

103. b) An Act to amend the Criminal Code and another Act Bill S-6, S.C. 2011, c. 2 - assent: 23.03.2011 - in force: on a day to be fixed by Order in Council – It establishes early parole ineligibility for persons convicted of murder or high treason. It eliminates the faint hope of release after 15 years if serving life sentence for first degree murder.

104. c) Protecting Canadians by Ending Sentence Discounts for Multiple Murders Act

Bill C-48, S.C. 2011, c. 5 - assent: 23.03.2011, all but s. 6 and s. 10 in force: on a day fixed by Order in Council. It allows the parole ineligibility periods for multiple murders to be consecutive.

105. d) Response to the Supreme Court of Canada Decision in R. v. Shoker Act

Bill C-30, S.C. 2011, c. 7 - assent: 23.03.2011 - in force: on a day or days to be fixed by Order in Council. It provides statutory jurisdiction for sample demands in context of probation orders, conditional sentence orders (“CSOs”) and peace bonds (ss.810, 810.01, 810.1 and 810.2). Before the provisions can be implemented, provincial / territorial governments must address procedural aspects of sample collection, retention, use and destruction.

106. e) An Act respecting the mandatory reporting of Internet child pornography by persons who provide an Internet service Bill C-22, S.C. 2011, c. 4 - assent: 23.03.2011 - in force: on a day to be fixed by Order in Council.

43 As at October 13, 2011.



3. An Omnibus Bill - Introduced But Has Not Received Royal Assent.44

107. An Act to enact the Justice for Victims of Terrorism Act and to amend the State Immunity Act, the Criminal Code, the Controlled Drugs and Substances Act, the Corrections and Conditional Release Act, the Youth Criminal Justice Act, the Immigration and Refugee Protection Act and other Acts Bill C-10 - The “Omnibus Bill” CIF: Part 1 [Terrorism] – in force: on royal assent. Part 2 [Sentencing] and Part 3 [Post-Sentencing] in force: partially on royal assent and partially on a day or days to be fixed by Order in Council - Part 4 [Youth Criminal Justice] and Part 5 [Immigration and Refugee Protection Act] in force: on a day or days to be fixed by Order in Council.

The Omnibus Bill subsumes the following Bills, previously introduced in Parliament:

a) Bill C-213 – An Act to amend the Criminal Code (means of communication for child luring) b) Bill C-212 – An Act to amend the Criminal Code (luring a child outside Canada) c) Bill S-10 – Penalties for Organized Drug Crime Act –minimum sentences for various drug offences. d) Bill C-15, An Act to amend the Controlled Drugs and Substances Act and to make related and consequential amendments to other. Its provisions are contained in Bill S-10.

e) Bill C-4 – Sébastien’s Law (Protecting the Public from Violent Young Offenders) – Amendments to the Youth Criminal Justice Act, including re: sentencing and general principles, judicial interim release, adult and youth sentences, publication bans, and placement in youth custody facilities. It makes changes to definitions, including to: violent offence, serious offence, and serious violent offence. It requires police forces to keep records of extrajudicial measures used to deal with young persons. f) Bill C-16 – Ending House Arrest for Property and Other Serious Crimes by Serious and Violent Offenders Act – This Bill adds about 40 additional offences to the list of offences ineligible for a conditional sentence order.

44 As at October 13, 2011.



g) Bill C-23B – Eliminating Pardons for Serious Crimes Act – This bill makes comprehensive changes to the Criminal Records Act.

h) Bill C-39 – Ending Early Release for Criminals and Increasing Offender Accountability Act –This bill significantly alters the rules for parole eligibility. i) Bill S-7 – Justice for Victims of Terrorism Act – This bill creates a cause of action allowing victims of terrorism to sue perpetrators and their supporters; and amends the State Immunity Act so that foreign states cannot claim immunity from the jurisdiction of Canadian courts regarding actions that relate to their support of terrorism. j) Bill C-54 – Protecting Children from Sexual Predators Act – This bill amends the Criminal Code, imposing new or increased mandatory minimum penalties for specific sexual offences involving children; creates two sex-related offences regarding children: and allows for conditions prohibiting use of the Internet, as well as certain contact with individuals under 16 years of age, to be included in prohibition and recognizance orders. It expands the list of offences that may form the basis for such orders and prohibitions.


Part IV Factors for Consideration A. The Trial Judges’ Role and Judicial Independence 3. The Work of the Provincial Court iii. Criminal Division Workload

108. Workload, like accessibility, serves to demonstrate the importance of this Court to the people of this province. We suggest that the response of this Court to the high demands placed upon it is deserving of recognition. This is true with respect to all areas of Provincial Court jurisdiction: criminal law, family law, and civil law. While our civil jurisdiction has grown,45 criminal law jurisdiction continues to be the major occupation of this Court. The workload of the Court is immense and increasing steadily. The Provincial Court of Saskatchewan handles the vast majority of the total criminal matters associated with the operation of the Justice System in the Province.46

a) The Judicial Complement

109. The workload in the Criminal Division of the Provincial Court which is measured by “appearances” of individuals who stand charged with a criminal offence, continues to rise. It is a rather blunt measure of workload because an appearance does not discriminate as to the nature of the appearance which may include an adjournment in docket court, a bail hearing, preliminary inquiry, trial, or sentencing hearing. Each appearance represents one day so that a three day trial would be counted as 3 appearances. It is also somewhat dependent upon the efficiency of the justice system which in itself can be situation specific. However it remains a valid tool on a comparative basis. While appearances have risen dramatically, there has not been a corresponding rise in the judicial complement. Summaries of the total number of appearances, broken down by judicial centres from 1994 to 2010, may be found in the Appendix. The two charts on the next page demonstrate the continuing upward trend in workload and the relatively flat trend in the complement of judges.

45 See IV. A. 3. iv Civil Jurisdiction which discusses the increase in the monetary jurisdiction to $20,000 in 2007. 46 In the 2008 brief of the SPCJA to the Compensation Commission, 2007 appearance statistics for the Provincial Court were compared to the number of criminal cases tried in the Court of Queen’s Bench of Saskatchewan for 2007. The Court of Queen’s Bench heard 303 cases in total. Precise comparisons are not possible, having regard to the nature of the statistics available. The figure of 303 includes Criminal Jury trials (42), Criminal Non- Jury (220), and appeals from summary convictions in the Provincial Court (69). The figure of 220 Criminal Non- Jury trials includes guilty pleas where no trial was ultimately conducted in the Court of Queen’s Bench. Summaries of Court of Queen’s Bench statistics for 2007 and for the last five years were included in the 2008 SPCJA brief to the Compensation Commission.


Part IV Factors for Consideration A. The Trial Judges’ Role and Judicial Independence 3. The Work of the Provincial Court iii. Criminal Division Workload, a) The Judicial Complement. . . . . . . . . . . . . . . continued Provincial Court Criminal Appearances – 1994 to 2010 in Thousands47

338

520

641

756

378

533

639

781

414

577

650

0

452

578

707

0

505

601

730

00

100

200

300

400

500

600

700

800

900

110. Since 1994, the workload of this Court, measured in appearances, has increased by 131%, from 338,000 to 781,000. Since the creation of the Court, in 1978, the number of judges has remained relatively constant, ranging between 40 judges and 49, the current allotment being 48 as illustrated in the next chart48.

47 Appearance statistics derived from the Provincial Government’s program called “JAIN”. The Appendix provides data for the years 2004 to 2010. 48 Judge Dave Arnot and Judge Mary Ellen Turpel-Lafond are on leave and are not included in this calculation.


Part IV Factors for Consideration A. The Trial Judges’ Role and Judicial Independence 3. The Work of the Provincial Court iii. Criminal Division Workload, a) The Judicial Complement . . . . . . . . . . . . . . . continued Provincial Court Sitting Judges 1978 – 2011

b) Crime Rate in Saskatchewan

111. The crime rate in Saskatchewan has implications for the work of the Provincial Court. In 2009 and 2010, Saskatchewan reported the highest Crime Severity Index among the provinces, followed by Manitoba, British Columbia and Alberta.

112. In 2010, the police-reported violent crime severity rate was second highest in Saskatchewan, following only Manitoba. Regina and Saskatoon lead the nation having regard to metropolitan areas that were tracked.

113. The following tables taken from the July 21, 2011 release of Juristat: Police-reported crime statistics in Canada, 2010, catalogue no. 85-002-X, help to illustrate the challenges for the Court now and in the future. Note in the first table that from 2009 to 2010, while most other provinces saw a significant decrease in the Total Crime Severity Index and the Violent Crime Severity Index, Saskatchewan only experienced a 1% decrease in each Index.


Part IV Factors for Consideration A. The Trial Judges’ Role and Judicial Independence 3. The Work of the Provincial Court iii. Criminal Division Workload, b) Crime Rate in Saskatchewan . . . . . . . . . . . . continued

114. This table illustrates that in 2010, Saskatchewan had the highest Total Crime Severity Index among the provinces and that it had the second highest Violent Crime Severity Index, trailing Manitoba.49

Police-reported crime severity indexes By province and territory - 2010

Province & Territory

Total Crime Severity Index Violent Crime Severity Index

Index % change 2009 to 2010 Index % change

2009 to 2010 Newfoundland and Labrador 80.2 10 70.2 13

Prince Edward Island 66.0 0 42.1 -5 Nova Scotia 83.5 -1 84.5 -6 New Brunswick 69.0 -3 68.4 -5 Quebec 76.9 -6 76.5 -5 Ontario 65.0 -6 77.7 -5 Manitoba 127.8 -6 162.3 -8 Saskatchewan 148.2 -1 153.9 -1 Alberta 97.9 -8 98.1 -8 British Columbia 102.4 -7 102.1 -8 Yukon 171.2 -6 188.1 -6 Northwest Territories 340.2 6 325.2 0 Nunavut 345.7 3 505.7 4 Canada 82.7 -6 88.9 -6

49 Juristat article: Police-reported crime statistics in Canada, Released 2010, July 21, 2011, catalogue no. 85-002-X.


Part IV Factors for Consideration A. The Trial Judges’ Role and Judicial Independence 3. The Work of the Provincial Court iii. Criminal Division Workload, b) Crime Rate in Saskatchewan. . . . . . . . . .continued

115. The table below depicts the overall Youth Crime Severity Index, the Youth Violent Crime Severity Index and the Youth Non-violent Crime Severity Index. It helps predict the demand upon the Provincial Court in Saskatchewan in future. In 2 of the 3 measurements below, Saskatchewan has the highest Index. It is a close second to Manitoba in the Youth Violent Crime Index. All prosecutions pursuant to the Youth Criminal Justice Act proceed in the Provincial Court.50

Police-reported youth crime severity indexes By province and territory - 2010

Province and territory

Youth Crime Severity Index

Youth Violent Crime Severity Index

Youth Non-violent Crime Severity Index

index % change 2009 to 2010



Newfoundland & Labrador

76.5 -12 54.0 -1 93.7 -17

Prince Edward Island 67.3 -7 38.8 -22 89.1 -1 Nova Scotia 119.3 -3 110.0 5 126.4 -7 New Brunswick 97.6 -14 68.7 -24 119.5 -10 Quebec 65.4 -6 71.5 -4 60.7 -7 Ontario 82.9 -7 96.4 -3 72.6 -10 Manitoba 171.3 -13 200.5 -16 149.1 -10 Saskatchewan 235.2 -5 190.6 3 269.3 -8 Alberta 99.5 -4 89.1 -5 107.4 -3 British Columbia 70.6 -5 70.0 0 71.0 -8 Yukon 222.7 -26 171.7 -35 261.6 -21 Northwest Territories 427.0 -2 182.3 -17 613.3 2 Nunavut 449.3 -1 330.4 30 539.9 -11 Canada 90.5 -6 93.7 -4 88.0 -8 Note: Refers to youth 12 to 17 years of age who were either charged (or recommended for charging) by police or diverted from the formal criminal justice system through the use of warnings, cautions, referrals to community programs, etc. Data on the provincial and territorial youth crime severity indexes are available beginning in 1998. Source: Statistics Canada, Canadian Centre for Justice Statistics, Uniform Crime Reporting Survey.

50 Juristat article: Police-reported crime statistics in Canada, Released 2010, July 21, 2011, catalogue no. 85-002-X.


Part IV Factors for Consideration A. The Trial Judges’ Role and Judicial Independence 3. The Work of the Provincial Court iv. Civil Jurisdiction New Provincial Jurisdiction Tied to Accessibility

116. The Government of Saskatchewan has recently passed amendments to the Northern Municipalities Act to expand the jurisdiction of the Provincial Court where the Court of Queen’s Bench is not as geographically accessible by providing for concurrent jurisdiction with the Court of Queen’s Bench for certain matters.

117. The legislation came into force on January 1, 2011, but the Regulations required to implement it have not yet been prepared. In addition to jurisdiction to deal with dangerous dog issues, the Provincial Court will now be permitted to determine the following:

• determination of compensation for damages caused by a permanent road closure; • appeal of an adjudicator’s decision respecting disputes over vehicle weight and route

designation that are harmonized between municipalities; • review of a building nuisance order and order that a person vacate a building subject

to a nuisance order; • applications from a council for direction with respect to petitions; • ruling with respect to a council’s ability to consider and vote on an issue where a

council member(s) has a pecuniary interest; • ruling with respect to a council member’s disqualification from a council and appeal

of a council resolution to declare a council member’s seat vacant; and • determination of compensation for damage to land or improvements as result of

public works.

118. In 2007 the jurisdiction of this Court in Small Claims Court increased to $20,000.00. The Provincial Court saw relatively gradual increases up to 2006:

1965 - $200.00 1973 - $500.00 1978 - $1,000.00 1983 - $3,000.00 1988 - $5,000.00

Increases in monetary jurisdiction proceeded rapidly, beginning in 2006:

2006 - $10,000.00 2007 - $15,000.00 November 1, 2007 - $20,000.00


Part IV Factors for Consideration A. The Trial Judges’ Role and Judicial Independence 3. The Work of the Provincial Court iv. Civil Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .continued

119. With these changes in jurisdiction, the notion that the Small Claims Court is a “small debt recovery court” is truly a thing of the past. Current practice In “Small Claims Court” reflects a dynamic, multi-purpose court, hearing a wide variety of cases which have steadily increased in size and complexity in recent years. This is partly due to the rapid yet long awaited increase in monetary jurisdiction from $5,000.00 in 1998 to $20,000 in November 2007.51

120. After an action is commenced in Small Claims Court, some matters proceed directly to trial (primarily motor vehicle accidents) but most actions are sent to case management conference, with a view to effecting a settlement or preparing the parties for trial. The statistics illustrate that the case management process, first begun in Prince Albert many years ago, and now available province-wide, has been very successful in resolving disputes and avoiding the societal and monetary costs of going to trial.

121. With the increase in monetary jurisdiction, have come a number of observations regarding claims in excess of $5,000.00:

- they are often related to more complex issues, - legal counsel are more likely to participate, - more court time is devoted these claims, and - disposition more often requires a written decision.

Typical claims over $5,000.00 pertain to: - wrongful dismissal, - negligence & misrepresentation claims against municipalities, - misrepresentation in real estate transactions, - breach of contract and negligence claims for repairs or workmanship, - consumer protection/sale of goods, - personal injury, and - insurance claims.

51 The Government recently amended The Provincial Court Act, permitting the appointment of justices of the peace, the intention being that justices may assist with Small Claims work. This approach is being experimented with in Regina where non-practicing lawyers, appointed as justices of the peace are retained to conduct case managements only. There is a history in the Provincial Court of Saskatchewan of relying upon lawyers, appointed as relief judges to assist with Small Claims work. This latter approach was phased out due to concerns about judicial independence which must not only be the case but appear to be the case.



122. Judge Donna Scott who presides in the Judicial Centre of Saskatoon, described the demands

of civil trial work: Typically, parties are self-represented, take their claims very seriously, and are often with limited understanding of the justice system or the laws that govern their dispute. I have multiple roles as a judge in these circumstances. I am an educator, providing the people who appear before me with information and guidance regarding the system and the trial process. I am, to a certain extent, their “advocate”, eliciting what I perceive to be the necessary evidence to prove or defend their claims, while maintaining impartiality. From what I hear, I must discern the legal issues and conduct legal research, without the benefit of legal counsel or written briefs of laws. Often, I am faced with emotional litigants, who require calming and raise security concerns. These challenges are compounded as the monetary jurisdiction of the Court increases. Many of the claims that I hear are similar to those heard in the Court of Queen’s Bench in nature and complexity, but they lack procedural or advocacy support which might benefit the parties and the judge.

I’ve found that written judgments are required for the majority of the trials. . . . I am constantly challenged to deliver what decisions I can from the bench to minimize the number of reserved, written judgments. There is an ongoing tension between providing a timely, oral decision and one that is written, reasoned, and more fully explained. The reward of being a Civil Division judge comes from being part of an accessible system of justice where the public can have the problems that arise in their everyday lives resolved in a timely and inexpensive way. (September 2008)

123. The move in Saskatoon to adopt a Simplified Trial Procedure was motivated, largely in response to the challenges of serving the self represented public through a traditional approach.



124. The following table illustrates for the years 2006 to 2010 inclusive, the number of claims issued in Saskatchewan for amounts of $5,000.00 and under, over $5,000.00, and in total. It is our understanding that this far exceeds the number of claims issued in the Court of Queen’s Bench of Saskatchewan.52 Small Claims Summons Issued in the Provincial Court from 200653 – 2010

52 In the 2008 brief of the SPCJA to the Provincial Court Commission we compared the civil case statistics in Small Claims Court to the civil case statistics available for The Court of Queen’s Bench, to illustrate the impact of the Provincial Court on the Saskatchewan public. In 2007 a total of 85 civil cases were tried in the Court of Queen’s Bench in Saskatchewan. Direct comparison of the statistics gathered in the Court of Queen’s Bench with those gathered with respect to the Provincial Court of Saskatchewan is not possible. There are many differences. A great deal of the work in the Court of Queen’s Bench is conducted in chambers and in pre-trial settlement conferences; indeed, family law represents a significant portion of the work in Queen’s Bench. 53. In 2006 the monetary jurisdiction increased from $5,000.00 to $10,000.00. In November 2007 it increased to $20,000.00. These statistics are compiled by Court Services, Ministry of Justice. See Appendix for full reports.


Part IV Factors for Consideration A. The Trial Judges’ Role and Judicial Independence

3. The Work of the Provincial Court iv. Civil Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .continued

125. The number of claims issued in 2011 in Small Claims Court for Saskatchewan, as at May 31,

2011 suggest that 2011 will be a record year for the issuance of claims: $5,000.00 and under 890 Over $5,000.00 429 Total 1,319

126. Civil case settlement/management was first implemented in the 1990s, in Prince Albert. It was taken up in Saskatoon and it is now available across the province.

127. The table below shows the number of case management conferences conducted from 2006 to 2010. The practice may vary from judicial centre to judicial centre. For instance, in Saskatoon, all matters are case managed, with the exception of institutional debts and motor vehicle collision claims. Direct comparsion of the two tables, above regarding the issuance of summons, and below regarding case managements is not possible; a number of matters are concluded without a case management, most often due to: default judgment, out of court settlement, or abandonment. The number of Case Management conferences conducted from 2006 to 201054

54 Statistics compiled by Court Services, Ministry of Justice. See Appendix for full reports.


Part IV Factors for Consideration A. The Trial Judges’ Role and Judicial Independence

3. The Work of the Provincial Court iv. Civil Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .continued

128. A high settlement rate is experienced and case management has proven to be equally as

important to the Court in insuring that litigants are “trial ready” and trial time is used effectively. Often a case management will be adjourned or continued before the same judge to facilitate disclosure, settlement discussions, and “trial readiness”.

129. The chart below endeavours to illustrate the success of the case management process in Small Claims Court. While motor vehicle claims which make a relatively small number of the total claims, do not proceed through case management and cases post case management may not proceed to trial for reasons other than settlement discussions; we believe that on the whole it is fair to attribute the very significant reduction in trials subsequent to case management, to that process. Number of summons, number of case managements and number of trial decisions In Provincial Court 2006 to 201055

2390

20511966 1975

2143

12621153

1054 1043 1044

468

214 206305 316

0

500

1000

1500

2000

2500

3000

2006 2007 2008 2009 2010

summons issued

case managements

trial decisions

55 Statistics compiled by Court Services, Ministry of Justice. See Appendix for full reports.


Part IV Factors for Consideration A. The Trial Judges’ Role and Judicial Independence 3. The Work of the Provincial Court v. Family Jurisdiction

130. The Provincial Court in Saskatchewan has concurrent jurisdiction with the Court of Queen’s Bench pursuant to The Child and Family Services Act and with respect to The Family Maintenance Act, 1997 in the areas of child support and family maintenance. This concurrent jurisdiction is not exercised by the Provincial Court in Regina, Saskatoon, and Prince Albert, where The Family Law Division of the Court of Queen’s Bench operates. Everywhere else in the province and in particular in more distant rural and northern locations where access to the Court of Queen’s Bench is affected by distances, this jurisdiction is exercised.

131. While the Provincial Court does not have jurisdiction in the area of custody and access to

children, it routinely, indirectly addresses the issue of access in the context of release conditions (bail) and sentence. Orders prohibiting contact with spouses/partners and children are addressed many times a day in the Provincial Court across the Province. With the development of domestic violence courts, in 3 locations (North Battleford, Saskatoon, and Regina, the question of contact with spouses/partners and children is given careful scrutiny and is frequently the subject of interim applications by offenders.

132. In the Provincial Court, innovation is endemic to the work. Nowhere has this been more

evident than in northern Saskatchewan. Judge Sid Robinson described an effective and innovative approach to resolving child apprehension cases which has become more prevalent over time: Our circuits handle child support and child apprehension cases. The northern approach to child apprehension matters is somewhat different than that used in other court centres. Over the past several years, with the introduction of Indian Child and Family Services agencies, there has been a move to dealing with child apprehension issues in a non-adversarial setting. The cases are dealt with in closed court with family workers and parents present to discuss possible outcomes. Often, there is neither an ICFS lawyer nor a lawyer for the parents in attendance. The judge must therefore be extra careful to insure that documents filed with the court are in proper order, and that parents’ rights are being respected. The judge must also be ready to engage in some careful diplomacy. However, the non-adversarial approach has real benefits in that it often resolves a matter without a long and hard fought trial. 56

56 September 2008.


Part IV Factors for Consideration A. The Trial Judges’ Role and Judicial Independence 3. The Work of the Provincial Court vi. Youth Criminal Justice Act Jurisdiction

133. The Provincial Court is designated as the Youth Justice Court and it handles virtually all matters prosecuted under the Youth Criminal Justice Act. All persons, alleged to have committed a criminal offence while aged 12 to 17 years inclusive, will be proceeded against under the Youth Criminal Justice Act. This includes prosecutions under the Criminal Code and the Controlled Drugs and Substances Act. There are a very limited number of offences and instances when a young person is entitled to an election and may elect to be tried by a Judge of the Court of Queen’s Bench, with or without a preliminary inquiry.57

134. The police-reported crime statistics discussed in Part IV. A. 3. iii. b) illustrate the significance of Youth Justice Court matters to the work of the Provincial Court in Saskatchewan. The appearance statistics available, discussed in Part IV. A. 3. iii., do not distinguish between adult and young person appearances.

135. Youth Justice Court occupies a significant amount of the resources of the Court. By way of illustration, in Saskatoon, a courtroom is set aside for Youth Justice Court docket and trials, 5 days a week. The docket can be very busy and often the public portion of the courtroom is full of family members, social workers, youth workers, and representatives from the Saskatoon Tribal Council and the John Howard Society, among other agencies.

136. The morning docket often spills over into the afternoon and most of the day can be taken up with sentencing and bail hearings. Reports are a typical source of information about young persons and sometimes there are many reports on the file of a youth, including:

• Presentence Reports58 • Judicial Interim Release Reports • Provincial Director Review Reports • Psychological and Psychiatric Reports • Medical Reports • Restitution Reports • Restorative Circles Initiative Conference Reports59 • Victim Impact Statements

57 An election to be tried in the Court of Queen’s Bench is available in those instances where the Prosecution is permitted to seek an adult sentence. Murder, attempted murder, manslaughter, and aggravated sexual assault are most typical. 58 In many instances, typically where a custodial sentence is at stake, a presentence report is required unless waived by counsel. 59 The Restorative Circles Initiative (RCI) is a Saskatoon program which provides facilitation and preparation for sentencing and other types of conferences mandated by the Youth Criminal Justice Act.


Part IV Factors for Consideration A. The Trial Judges’ Role and Judicial Independence 3. The Work of the Provincial Court vi. Youth Criminal Justice Act Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . continued

137. In Youth Justice Court judges must exercise considerable judicial agility in circumstances

where the parents’ wishes are not in keeping with the mandate of the Youth Criminal Justice Act, particularly when the youth is not represented by counsel, which is typical on the first appearance in custody. Consider the 14 year old who has assaulted his mother and is in custody. The mother may refuse to have him return home unless he agrees to a shopping list of conditions, some of which may be inappropriate. The judge must advise the youth of his rights including his right to counsel independent of parental involvement, supervise the position(s) being taken by the parent and Crown and may have to draw in resources to help resolve the family conflict. These exchanges typically occur in a very public, busy courtroom and often under time constraints.

138. The work in Youth Justice Court attracts a lot of attention from the public and frequently the media is in attendance. It can be very intense and highly charged emotionally. Very simply, everyone who works in this Court is exposed routinely to a great deal of background information about the young person and the victim or complainant. Very often the background of the young person is tragic and can seem relatively hopeless. Judges respond like other caring and responsible adults; we are concerned as members of the community for the young persons (often victims themselves) and the community against which they have offended.


Part IV Factors for Consideration A. The Trial Judges’ Role and Judicial Independence 3. The Work of the Provincial Court vii. The Public We Serve

a) Unrepresented and Self Represented Persons

139. Self or unrepresented persons are very common in the Provincial Court at all stages of criminal proceedings, including: bail, plea, sentence and trial. This is also true of litigants in proceedings commenced pursuant to The Small Claims Act, child protection and family maintenance proceedings.60

140. The Saskatchewan Legal Aid Commission provides representation to applicants who wish their services and who are eligible both financially and with respect to the range of services provided. Generally speaking, in the area of criminal law, Legal Aid does not provide representation:

• on the first and often subsequent appearances, depending on location • if the person is charged with a summary conviction offence61, and the Crown is

not seeking a period of incarceration, and • if the person is not financially eligible.

141. Routinely, on a daily basis in courtrooms throughout the Province, where prosecution of

adult persons are concerned we encounter:

• a great number of people who would prefer to have a lawyer but are not eligible for Legal Aid,

• applications for court-appointed counsel, where the person was denied Legal Aid and feels unable to represent him/herself, and

• self-represented persons who do not wish to have a lawyer.

142. It’s crucial to the proper administration of justice, that the courts are, and are seen to be: fair, accessible, and accommodating to all self or unrepresented persons. Appeal Courts, since the Charter, have placed increased emphasis on the responsibilities of the trial judge in this regard. Trial judges necessarily draw on their experience with people and knowledge of the law but most of all they need to be keenly perceptive as they endeavour to guide self and unrepresented persons through the unfamiliar territory of court proceedings.

60 See IV. A. 3. B. iv Civil Jurisdiction and IV. A. 3. v. Family Jurisdiction for further discussion of the challenges associated with the self represented (those who choose to represent themselves) and the unrepresented (those who would cannot afford a lawyer or do not qualify for Legal Aid or other legal assistance programs such as Classic [Community Legal Assistance Service for Saskatoon Inner City Inc.], available in Saskatoon.) 61 The trend toward summary conviction offences was discussed at IV. A. 3. ii. New Offences and Legislative Requirements.


Part IV Factors for Consideration A. The Trial Judges’ Role and Judicial Independence 3. The Work of the Provincial Court vii. The Public We Serve. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .continued

143. At any stage of criminal proceedings, self and unrepresented persons may be in jeopardy of incarceration or consequences which can have a serious impact on their lives, such as: missing a school or job opportunity, losing their home and belongings because they’re in jail, losing an operator’s license, or being prohibited from contact with their spouse/children.

144. Few criminal trials hold more surprises than that of a self or unrepresented person. While the judge routinely asks the prosecutor to outline its case for the benefit of the accused at the outset, the difficulty lies in not being intimately acquainted with the case yet seeking to ensure that the accused sufficiently appreciates and considers covering the important issues. The accused isn’t required to let the court know whether he/she will present defense evidence or explain in advance what the defense may be. It’s up to the judge to appreciate the issues from hearing the Crown’s case and assist the accused to the extent possible by explaining these issues so that he/she may choose to respond. It’s not always easy, as the evidence unrolls, for the judge to sort out the important evidence from the irrelevant so that effective direction may be provided. Drinking and driving trials can involve very complex issues and some not so obvious procedural steps, especially when there is a Charter issue, as there typically is. The onus of proving a Charter infringement lies with the accused. However, a trial judge must be alert to the possibility of Charter issues and raise them, even if the self or unrepresented accused does not. This must be done without advance knowledge of the facts and without the benefit of legal research.62

b) First Appearances in Provincial Court

145. In both adult and youth court proceedings few persons are represented by lawyers on their first appearance. When an accused person is in custody, he/she is rarely represented on the first appearance and sometimes this continues upon subsequent appearances. (The Court worker program does provide assistance to many adults in custody on first appearance in Saskatoon and other centres.) At this initial stage the Crown will indicate whether it is opposed to the release of the accused or agreeable to release on conditions. If the Crown is opposed to release, the accused is usually remanded in custody for a bail hearing (in Saskatoon to the next work day, in Regina to the second work day) and representation is provided at that time.

146. However, on first appearances, unrepresented persons frequently insist that they want to have a bail hearing that day, typically because they believe that their jobs are at stake.

62 See IV. A. 3.The Work of the Provincial Court viii. Accessibility, for a description of the Saskatoon Judicial Centre‘s response to the difficulties of the self represented and unrepresented accused person wishing to proceed to trial.



147. Often, when the Crown suggests release on conditions, or suggests release if the accused

pleads guilty to the outstanding charges, the court has the role of supervising the suitability of the proposal, in light of the accused person’s vulnerability. Unrepresented or self represented persons are often desperate for release and are not in the best position to dispute the conditions proposed by the Crown. This is especially so in Youth Justice Court. The judge must ensure that the apparent imbalance does not affect fairness.

148. The conditions imposed in an order for release can have significant implications for an accused and may involve restrictions which last months or years in relation to: residence, curfews, contact with others, alcohol consumption, treatment and reporting to a “bail supervision program”. Such incursions into an individual’s liberty, especially at the pre-trial stage when no guilt has been established, can be unduly onerous. The Court must balance the needs of society against the appropriateness of such conditions, having regard to the circumstances and ability of the individual to comply.

c) Emotional Problems, Learning Disorders and Mental Health Disabilities

149. Persons appearing in criminal proceedings can be in great distress, often with a myriad of problems that may affect their understanding and behaviour, both in the courtroom and with respect to their defense. These problems include: mental illnesses such as Bipolar Disorder and Conduct Disorder, learning disabilities such as Attention Deficit Hyperactivity Disorder, Fetal Alcohol Spectrum Disorder, drug and alcohol addiction and withdrawal, illiteracy, hearing impairment, cognitive impairment, depression, suicidal ideation and emotional distress. Many, especially those who may choose to run their own bail hearings, can be anxious, angry, and sometimes abusive and disruptive in the courtroom. Often enough these problems have contributed to the reason that they are unrepresented. They sometimes lack the insight necessary to appreciate the importance of having a lawyer and working with him or her.

150. The spring 2011 educational conference of the Provincial Court of Saskatchewan was dedicated to the concerns of mental health and learning disabilities. Comprehensive statistics are not available as to the incidence of such disabilities in the justice system in Saskatchewan. Anecdotally it seems that the numbers are increasing and that we are much more aware of these disabilities than we were even 15 years ago. Such concerns are routine in any docket. The Court has repeatedly discussed, as a court and in judicial centres across the province, the need for a mental health approach. Judges across the province wish to be aware of the presence of these disabilities, have some information about the implications for imposition of responsibility and know of resources that may best be applied to address the needs which have contributed to the offending behavior. Judges of the


Part IV Factors for Consideration A. The Trial Judges’ Role and Judicial Independence 3. The Work of the Provincial Court vii. The Public We Serve. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . continued

Provincial Court must necessarily access educational resources and practical resource information and acquire the appropriate skills so as to make just decisions affecting the lives of these individuals and the safety of the community.

d) Literacy Problems

151. The John Howard Society of Canada (Literacy and the Courts, Protecting the Right to Understand, The John Howard Society of Canada, 1996) has estimated that about 68% of offenders have limited literacy skills. Persons of limited literacy are further handicapped because, as the John Howard Society estimates, only about 25% of Canadians have sufficient skills to read legal documents and comprehend legal language and processes. (See: http://www.johnhoward.ca/search/: literacy - Challenges Faced by Criminal Courts in Canada Today.)

152. Persons who are illiterate do not readily say so and hence the reading and language comprehension of an individual is rarely known to judges or counsel, except in limited numbers at later stages of proceedings. People can be illiterate for many reasons, including as a result of learning disabilities, cognitive impairment and disrupted school experience. Unfortunately reliable data about the incidence of many of the difficulties which affect comprehension is limited. Literacy alone, even if it is assumed to exist in significant numbers, poses a barrier and a challenge to judges who seek to communicate effectively with self and unrepresented persons, or help them comprehend the case against them.

153. Often self represented persons will enter a guilty plea, sometimes against the advice of counsel, in circumstances where they don’t really accept responsibility for the offence or have an arguable defence. In these circumstances, the Court either cannot accept the guilty plea or must explain the potential defence. It is not uncommon in these circumstances for a judge to be challenged by the accused because he or she just “wants to be done with it”.

e) Gladue Inquiries

154. When conducting a sentencing hearing involving a person of Aboriginal ancestry who faces

the possibility of custody, the court is required to explore the unique circumstances of the accused person’s background as an Aboriginal person and explore alternatives to incarceration (R. v. Gladue, Supreme Court of Canada). In the absence of a presentence report, or defense counsel representations, the presiding judge may be quite challenged to elicit sometimes sensitive information directly from the self or unrepresented accused and then to determine if there are appropriate community alternatives to incarceration.

http://www.johnhoward.ca/search/



f) French Trials and Interpreters

155. The Honourable Judge Albert Lavoie discussed the challenges of meeting the Constitutional

requirements of bilingual trials. I was appointed to the Court in 1988. In addition to my normal sitting duties, I have had the honour of being bilingual and hearing all French proceedings in the Provincial Court. Of significance is the need that all requirements are met to ensure a totally bilingual process equivalent to proceedings conducted in English. The legal requirement for competent translators, bilingual judicial officers and prosecutors, unfortunately, has at times been a challenge for the system to meet. I have had to make a number of decisions in relation to constitutional requirements which were not easy, nor popular. The Provincial Court of Saskatchewan has always been proactive in trying to meet the multi linguistic and cultural needs of the citizens who appear before it. The Constitutional requirement of bilingualism is but one of those challenges. Of significance is how involved the hearing and conduct of a bilingual trial has become. Since most witnesses are usually unilingual, proceedings involve translation of all proceedings from French to English and vice versa. Experience has shown that the time required is usually double that required for a normal trial. In addition, for whatever reason, the demand for French trials has increased significantly in the last year. For example, throughout the province we now have ten weeks of French proceedings scheduled between November 17, 2008 and April 3, 2009. This recent increase, together with the creation of a number of specialty courts, will most certainly test the resources of the Provincial Court as never before.63

h) Spotlight in the Media

156. A great number of the matters heard in the Criminal Division of the Provincial Court across Saskatchewan are the subject of media attention. While always mindful of the public presence in the courtroom, the presence of the media, frequently not noted in an intense docket courtroom, can add a “tension” to the proceedings. The media presence can affect the behavior of the lawyers, the accused person, the complainant, and often interested members of their families and the community. In these circumstances it is especially important that the judge maintain balance and decorum in the courtroom which reinforces the proper administration of justice.

63 September 2008.



157. Judges are aware of the importance of expressing themselves thoughtfully. During a difficult

proceeding, there may be many applications and decisions to be made and for the judge that means taking extra care in explaining decisions so that they may be readily understood by the public as well as the accused person, the complainant, and the lawyers. When the case is receiving extra media attention there may also be the pressure to make a decision very quickly.

158. In any given week, many matters that come before the Provincial Court in Saskatchewan

may be the subject of articles in the local, often regional, and sometimes national news. Often the judge is named and not infrequently the story may include public discussion about the appropriateness of the decision. At times it can be difficult to set aside the attention received, especially when it becomes personal and negative.

159. The following list of articles on two separate days in the Saskatoon Star Phoenix newspaper

helps to illustrate the attention that this Court receives and more importantly the significance of proceedings in our Court to the Saskatchewan public.

January 14, 2011- Saskatoon Star Phoenix Newspaper:

o Baby Born At Courthouse: http://www2.canada.com/saskatoonstarphoenix/news/story.html?id=3ad5906d-d69e-4c79-9f35-da2de0db6393

o Drowned Baby’s Mom Pleads Guilty: http://www2.canada.com/saskatoonstarphoenix/news/story.html?id=29e6bfa8-7655-4cde-9944-90c81452680f&p=1

o City Resident Fined For Tax Evasion: http://www2.canada.com/saskatoonstarphoenix/news/story.html?id=32102543-ecac-4e26-9aa9-748509d4b599

o Not Guilty Verdict Stands: http://www2.canada.com/saskatoonstarphoenix/news/third_page/story.html?id=fe5a5802-8cd7-4c40-ac25-69a5b1ce549d&p=1

o Klein Held in Custody on Breach Charge: http://www2.canada.com/saskatoonstarphoenix/news/third_page/story.html?id=a82d25a9-f444-4f2e-ae8f-f179bbf210f1

http://www2.canada.com/saskatoonstarphoenix/news/story.html?id=3ad5906d-d69e-4c79-9f35-da2de0db6393

http://www2.canada.com/saskatoonstarphoenix/news/story.html?id=3ad5906d-d69e-4c79-9f35-da2de0db6393

http://www2.canada.com/saskatoonstarphoenix/news/story.html?id=29e6bfa8-7655-4cde-9944-90c81452680f&p=1

http://www2.canada.com/saskatoonstarphoenix/news/story.html?id=29e6bfa8-7655-4cde-9944-90c81452680f&p=1

http://www2.canada.com/saskatoonstarphoenix/news/story.html?id=32102543-ecac-4e26-9aa9-748509d4b599

http://www2.canada.com/saskatoonstarphoenix/news/story.html?id=32102543-ecac-4e26-9aa9-748509d4b599

http://www2.canada.com/saskatoonstarphoenix/news/third_page/story.html?id=fe5a5802-8cd7-4c40-ac25-69a5b1ce549d&p=1

http://www2.canada.com/saskatoonstarphoenix/news/third_page/story.html?id=fe5a5802-8cd7-4c40-ac25-69a5b1ce549d&p=1

http://www2.canada.com/saskatoonstarphoenix/news/third_page/story.html?id=a82d25a9-f444-4f2e-ae8f-f179bbf210f1

http://www2.canada.com/saskatoonstarphoenix/news/third_page/story.html?id=a82d25a9-f444-4f2e-ae8f-f179bbf210f1



o Man in Court on Murder Charge:

http://www.thestarphoenix.com/news/court+murder+charge/4120182/story.html?cid=megadrop_story

o RCMP investigating sudden death: http://www2.canada.com/saskatoonstarphoenix/news/local/story.html?id=698adba5-9811-41a0-8198-ffb1db7c7917

o Woman found guilty of failing to fill census: http://www2.canada.com/saskatoonstarphoenix/news/local/story.html?id=d660bb32-f747-4f9c-8f56-6d2deaf8f76c

o Man stabbed in parked car: http://www2.canada.com/saskatoonstarphoenix/news/local/story.html?id=f7f11133-25d9-4046-a56f-96be36b69a9d

o Car thefts down: RCMP: http://www2.canada.com/saskatoonstarphoenix/news/local/story.html?id=81f15494-4384-4af0-8c5a-e2738cb9095f

o Man avoids jail in assault case: (not available on line)

July 13, 2011- Saskatoon Star Phoenix Newspaper

o Police lay charges in girl’s abduction: http://www2.canada.com/saskatoonstarphoenix/news/story.html?id=1817da93-64d1-4daf-b75b-ad5faa96d697

o Police honour murder victim: http://www2.canada.com/saskatoonstarphoenix/news/story.html?id=293ff8f1-3d2b-4d0d-89a0-be9b90b8ade4

o Black Lake homicide victim friends with suspect: chief: http://www2.canada.com/saskatoonstarphoenix/news/story.html?id=0341321c-3c2c-4128-be08-1b3653e1cf4b

o Youth to be sentenced for attack: http://www.thestarphoenix.com/news/Youth+sentenced+attack/5093369/story.html

o Youths crash stolen car into tree: http://www2.canada.com/saskatoonstarphoenix/news/story.html?id=7b0fe610-3a5c-400f-bc41-1cc14f600469

o Man charged after hitting pedestrian: http://www2.canada.com/saskatoonstarphoenix/news/story.html?id=1e863571-c739-4683-ab35-bb0de8bd4569

o Pharmacy robbed by man with hatchet: http://www2.canada.com/saskatoonstarphoenix/news/story.html?id=ca5ecbdf-6efc-4ef3-a8d9-d5ae604ab4f3



http://www2.canada.com/saskatoonstarphoenix/news/local/story.html?id=698adba5-9811-41a0-8198-ffb1db7c7917

http://www2.canada.com/saskatoonstarphoenix/news/local/story.html?id=698adba5-9811-41a0-8198-ffb1db7c7917

http://www2.canada.com/saskatoonstarphoenix/news/local/story.html?id=d660bb32-f747-4f9c-8f56-6d2deaf8f76c

http://www2.canada.com/saskatoonstarphoenix/news/local/story.html?id=d660bb32-f747-4f9c-8f56-6d2deaf8f76c

http://www2.canada.com/saskatoonstarphoenix/news/local/story.html?id=f7f11133-25d9-4046-a56f-96be36b69a9d

http://www2.canada.com/saskatoonstarphoenix/news/local/story.html?id=f7f11133-25d9-4046-a56f-96be36b69a9d

http://www2.canada.com/saskatoonstarphoenix/news/local/story.html?id=81f15494-4384-4af0-8c5a-e2738cb9095f

http://www2.canada.com/saskatoonstarphoenix/news/local/story.html?id=81f15494-4384-4af0-8c5a-e2738cb9095f

http://www2.canada.com/saskatoonstarphoenix/news/story.html?id=1817da93-64d1-4daf-b75b-ad5faa96d697

http://www2.canada.com/saskatoonstarphoenix/news/story.html?id=1817da93-64d1-4daf-b75b-ad5faa96d697

http://www2.canada.com/saskatoonstarphoenix/news/story.html?id=293ff8f1-3d2b-4d0d-89a0-be9b90b8ade4

http://www2.canada.com/saskatoonstarphoenix/news/story.html?id=293ff8f1-3d2b-4d0d-89a0-be9b90b8ade4

http://www2.canada.com/saskatoonstarphoenix/news/story.html?id=0341321c-3c2c-4128-be08-1b3653e1cf4b

http://www2.canada.com/saskatoonstarphoenix/news/story.html?id=0341321c-3c2c-4128-be08-1b3653e1cf4b

http://www.thestarphoenix.com/news/Youth+sentenced+attack/5093369/story.html

http://www2.canada.com/saskatoonstarphoenix/news/story.html?id=7b0fe610-3a5c-400f-bc41-1cc14f600469

http://www2.canada.com/saskatoonstarphoenix/news/story.html?id=7b0fe610-3a5c-400f-bc41-1cc14f600469

http://www2.canada.com/saskatoonstarphoenix/news/story.html?id=1e863571-c739-4683-ab35-bb0de8bd4569

http://www2.canada.com/saskatoonstarphoenix/news/story.html?id=1e863571-c739-4683-ab35-bb0de8bd4569

http://www2.canada.com/saskatoonstarphoenix/news/story.html?id=ca5ecbdf-6efc-4ef3-a8d9-d5ae604ab4f3

http://www2.canada.com/saskatoonstarphoenix/news/story.html?id=ca5ecbdf-6efc-4ef3-a8d9-d5ae604ab4f3



o Man denied bail after high-speed chase: http://www2.canada.com/saskatoonstarphoenix/news/story.html?id=afca3055-a9cb-46d1-8792-0baa471fc452

http://www2.canada.com/saskatoonstarphoenix/news/story.html?id=afca3055-a9cb-46d1-8792-0baa471fc452

http://www2.canada.com/saskatoonstarphoenix/news/story.html?id=afca3055-a9cb-46d1-8792-0baa471fc452


Part IV Factors for Consideration A. Trial Judges’ Role and Judicial Independence 3. The Work of the Provincial Court viii. Accessibility

Northern Circuits

160. Judges who preside in the north, or at single judge judicial centres, bear additional burdens associated with the remoteness of the points to which they travel. Risky air travel, difficult winter ground conditions, and a demanding schedule, especially on the northern circuits can tax the hardiest of judges. Often travel difficulties result in delays in opening and closing court. Despite keeping late hours, judges often are unable to complete all scheduled matters and must adjourn them over to the next sitting or arrange a special sitting in that location. After a long day and later arrival home, the judge typically must make him/herself ready to do it all again the next morning, flying or driving to another remote point.

161. The circuit map depicted in this brief at: II Provincial Court of Saskatchewan – An Overview, helps to illustrate the extent to which the Provincial Court has established its sittings in order that it may be as accessible as possible to residents throughout the Province. The 66 circuit points covered from the 13 Judicial Centres64 are visited, depending on the need, sometimes several times a month. Many circuit points must be accessed by air, either because of road conditions, or the need to reach the court in a timely fashion. 17 of the Court’s circuit points are established on or in relation to First Nations and Aboriginal communities in the Province, 5 of which are Cree Court points.

162. Judges situated at the Judicial Centres of Meadow Lake, La Ronge, and Prince Albert, in addition to presiding in their base communities, fly to 15 different circuit court points, a total of 39 times per month, as follows:

@ Denotes First Nation and Aboriginal circuit court points. Meadow Lake – 3 resident judges - 17 fly-in court days per month: La Loche 8 Buffalo Narrows 3 @*Buffalo River 3 @ English River 1 Ile-a-la-Crosse 2

64 The total number of court points includes the 13 Judicial Centres and the additional 66 circuit points for a total of 79.


Part IV Factors for Consideration A. Trial Judges’ Role and Judicial Independence 3. The Work of the Provincial Court viii. Accessibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . continued

Meadow Lake has 8 additional circuit court dates per month to which they drive: Big Island Lake 3 Pierceland 1 Loon Lake 2 @Canoe Lake 1 Beauval 1 * To get to Buffalo River, they fly to Buffalo Narrows and then drive an hour on gravel road. La Ronge – 2 resident judges - 15 fly-in court days per month: @Fond du Lac 1 Stony Rapids 3 Wollaston Lake 2 Pinehouse 1 @Southend 2 Creighton 2 Cumberland House 2 @*Deschambault Lake 2 La Ronge has 2 additional circuit court dates per month to which they drive: @Stanley Mission 2 *There’s no air strip, so floats or skis are used and during freeze up and break up a helicopter can be required. Prince Albert – 6 resident judges - 7 fly-in court days per month: @*Pelican Narrows 5 @Sandy Bay 2 Prince Albert has 9 additional circuit court dates per month to which they drive: Big River 1 @Montreal Lake 2 Shellbrook 2 @Ahtahkakoop First Nation 2 @Whitefish First Nation 2 * Judge Morin: They leave for Pelican Narrows at 7:00 a.m., land in Sandy Bay, and then drive to Pelican Narrows 70 kms, (this stretch takes an hour because the road is poor). After court is concluded, they drive to Flin Flon (165kms) as there are no hotels nearby and they drive back to court the next morning.


Part IV Factors for Consideration A. Trial Judges’ Role and Judicial Independence 3. The Work of the Provincial Court viii. Accessibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . continued

Schedules may be affected by statutory holidays and do not include special sittings.

163. Judge Sid Robinson described a typical day on circuit out of the Judicial Centre of La Ronge: As one of two Provincial Court judges ordinarily based in La Ronge, my work is divided between La Ronge and an out-of-town circuit. My out-of-town court points currently consist of Stanley Mission, Fond du Lac, Stony Rapids, and Wollaston Lake. My clerk and I drive to court in Stanley Mission. We used chartered aircraft to fly to court in Fond du Lac, Stony Rapids and Wollaston Lake. On a travel morning, my clerk and I try to leave the La Ronge Court office by 8:00 a.m. or soon after. My clerk expertly packs up all the court documents for the community we are going to, digital recording equipment, a computer and portable printer, the court diary and a Bible. If things go well, she can get everything into three cases. My packing is simpler. I put my Criminal Code, some key provincial statutes, court notebooks, extra pens, my lunch and my court gown into a single briefcase. My clerk and I then travel to the airport 10 kilometres north of La Ronge to catch our flight. If the weather is good, the court party—consisting of me, my clerk, a Crown prosecutor, a Legal Aid lawyer, a Youth Worker and a Probation Officer—all board a Transwest plane for our destination. Sometimes, though, the weather is not good, and we have to decide whether to fly out or cancel court. Ideally, there is consensus on whether to go or stay home, but there is a tradition that the judge decides whether to cancel in marginal circumstances. If we have an experienced pilot, I simply go with his or her advice. I have, however, sometimes told younger pilots that we would stay on the ground rather than risk freezing rain or other hazardous weather. Depending on our destination, our flight times vary from between 30 minutes and 1 1/4 hours. When we land in a community, we need to get from the airport or float plane base to the local court facility. In Wollaston, we can walk from the strip to court. And in Creighton and Stony Rapids, we can rent vehicles. In our other court points, however, we must rely on the RCMP to transport us and our gear. The RCMP have always helped us in this regard graciously and without complaint. The court party’s arrival at court in an RCMP truck creates a huge optics issue. First, having the Crown, defence lawyers and judge arrive as a group can lead local citizens to believe that matters have been discussed and decided before court even starts. Secondly, arriving in a police truck can suggest that the court party is little more than



an arm of the RCMP. These impressions could hold anywhere. They can certainly hold in a Cree or Dene community where the niceties of our adversarial system are not well understood. I do what I can to let people know that I do not make deals before court and that I do not work for the RCMP. When we get to court, the first order of business is set-up. If the day starts well, the court room—usually a local hall—will have chairs and folding tables set out. But the court’s recording equipment, complete with four microphones, clerk’s laptop and document printer need to be hooked up. The clerk takes charge of this operation, but everyone tries to help. As someone once said, being part of the La Ronge Court party is “like being a roadie for a band with no coloured lights.”

164. Judge Robinson also described the challenges of meeting the demanding workload in isolated circuit points in northern Saskatchewan: To accommodate what seems to be an ever increasing volume of criminal charges, I and my colleague on the other La Ronge circuit must regularly overbook trial days. We will schedule anywhere from four to ten trials for a single day in the hope that many will be resolved by plea bargains. Then, when we arrive in a community on a trial day, we will usually find that a number of prisoners with new charges have been added to the day’s case list. The question then becomes one of what matters should get priority. Long-delayed trials or bail hearings? On a good day, things fall into place. On a bad day, one that will run past supper time, important cases will be bumped to another day or possibly dismissed because of the ongoing systemic delay. On such a day, the rule of law needs all the help it can get. Circuits Throughout Saskatchewan

165. In addition to the 15 fly-in circuit points, there are a further 51 circuit points to which Judges may drive up to 5 times per month. The total circuit schedule, fly-in 15 and 11 drive-in points for Meadlow Lake La Ronge and Prince Albert are outlined above. The following circuit court dates pertains to the remaining 10 Judicial Centres and are additional to the schedule in the 10 base communities: @ Denotes First Nation and Aboriginal circuit points. Estevan – 1 resident judge – 10 circuit court dates per month: Weyburn 5 Carlyle 4 Carnduff 1


Part IV Factors for Consideration A. Trial Judges’ Role and Judicial Independence 3. The Work of the Provincial Court viii. Accessibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .continued

Lloydminster – 1 resident judge – 5 circuit court dates per month: St. Wallburg 3 Onion Lake First Nation 2 Melfort – 2 resident judges – 11 circuit court dates per month: Nipawin 4 Tisdale 2 Carrot River 3 Wakaw 1 Hudson Bay 1 Moose Jaw – 2 resident judges – 1 circuit court date per month: Assiniboia 1 North Battleford – 3 resident judges – 7 circuit court dates per month: Unity 1 Biggar 1 Cut Knife 2 @Pelican Lake 1 Spiritwood 2 Regina - 10 resident judges – 13 circuit court dates per month: Fort Qu’Appelle 8 Indian Head 3 @Carry the kettle First Nation 1 Southey 1 Swift Current – 1 resident judge – circuit court dates per month: Shaunavon 1 per 2 months Maple Creek 1 Leader 1 per 2 months



Saskatoon – 12 resident judges – 18 circuit court dates per month: Kindersley 4 @Beardy’s & Okemasis First Nation 2 Blaine Lake 3 per 2 months Watrous 3 per 2 months Rosthern 2 Outlook 3 per 2 months Rosetown 3 per 2 months Humboldt 2 Wynyard – 1 resident judge – 10 circuit court dates per month: Punnichy 5 Rose Valley 3 Wadena 2 Yorkton – 3 resdient judges – 20 circuit court dates per month: Kamsack 8 Broadview 4 Canora 1 Melville 4 Moosomin 2 Esterhazy 1 Schedules may be affected by statutory holidays and do not include special sittings.


Part IV Factors for Consideration B. Attracting the Most Qualified Applicants Principles

166. The 1998 Alberta Commission Report, which recommended a substantial increase in salary, concluded that one of the key factors determining compensation was attracting candidates of the highest quality, and, once appointed, to motivate and retain those individuals for the duration of their career. The Commission wrote at pages 33-34:

We wish to emphasize that the importance of attracting highly qualified candidates to the bench ought not to overshadow the significance of two other fundamental principles in human resource management, motivating and retaining those individuals once appointed. If history and current practice is any guide, appointment to the bench is a long-term commitment, not a staging post. This statement remains valid, if not more significant today.

167. The Provincial Court of Saskatchewan attracts applicants from the legal profession who practice both in the public bar (i.e. prosecutions, crown corporations, legal aid) and the private bar (private practitioners). It is important for the future of the Court that it draw upon the most highly qualified applicants from all sectors of the profession. To attract the most highly qualified applicants from the private bar, the salary range and benefits offered must be commensurate with the expectations of potential applicants from the private bar. It is submitted that the salary experience and expectations of lawyers practicing in the public bar (prosecutions and legal aid) will simply not be as high as that group of successful senior trial lawyers in the private bar that this Court should be attracting.

168. The Canadian Bar Association has consistently raised concerns about attracting the best candidates; notably with reference in its submission to the 2005 Saskatchewan Provincial Court Commission to remarks by Chief Justice Bayda, as he then was, in his submission to the 1993 Provincial Court Commission, restated in part: It is axiomatic that not every lawyer who satisfies the law’s requirements for becoming a judge also satisfies society’s requirements for the lawyer’s becoming a judge. Society is demanding not merely judges but judges about whom its members should never need to complain. Society is demanding the ‘best’. . . . Therefore, as you engage yourself in the task of determining what is the appropriate salary for the judges of the Provincial bench during the next short while, I strongly urge you to do so not on the footing of what it takes to attract a long list of judicial candidates but rather on the footing of what it takes to attract a short list of the ‘best’ candidates.


Part IV Factors for Consideration B. Attracting the Most Qualified Applicants . . . . . . . . . . . . . . . . . . . . . . . . . continued

169. The Ontario Commission Report (1999) recognized that there is an “inequity and a significant disparity between the salaries of federal and provincial judges” and that this disparity will have the effect of discouraging highly qualified individuals from accepting an appointment to the Provincial Court. It is submitted that private counsel make conscious choices between the Court of Queen’s Bench and the Provincial Court based, at least in part, on the disparity in salary. The Commission found at page 46: Another factor that we think is important is the attraction of the Provincial bench to a cross section of the best men and women practicing at the criminal bar, now with some experience at the criminal bar. For many, appointment to the Provincial Division would see little, if any, increase in salary. For others, such an appointment would constitute a fall, in some cases a very sharp fall, in remuneration. What is absolutely essential is that the level of remuneration (including pension...), be set at such a level that it will be attractive, or at least not a disincentive, to the ablest men and women at the bar.

170. In its submission to the 2010 Report to the British Columbia Judges Compensation Commission, the Judicial Council of the Provincial Court of British Columbia65 discussed the importance of securing appointments of a very high caliber and therefore its interest in the Court’s capacity to attract the best lawyers in the province, and to retain the existing cadre of judicial officers. The Judicial Council revised its eligibility criteria in 2009 to require:

•• At least ten years in the practice of law. Those with less legal practice

experience are considered if they have a range of related experience. • Superb legal reputation and a professional record review from the Law

Society of British Columbia. • Experience in mediation or alternative dispute resolution. • Respect in the community. • Good health. • Appreciation of and experience with diversity. • Willingness to travel and to sit in all subject areas.

65 Membership in the Judicial Council of the Provincial Court of British Columbia is determined by the Provincial Court Act, R.S.B.C. 1996, Chapter 379: the Chief Judge, an Associate Chief Judge, the President of the Law Society of British Columbia or designate, the President of the British Columbia Branch of the Canadian Bar Association or designate, a third judge (by convention, the President of the Provincial Court Judges' Association), and four other persons: by long-standing convention, one is a judicial justice of the peace, three others, by practice of late: two practicing lawyers, and one senior partner in an international personnel firm.


Part IV Factors for Consideration B. Attracting the Most Qualified Applicants . . . . . . . . . . . . . . . . . . . . . . . . . . . . continued

171. To attract successful senior lawyers to the bench, the salary and benefits must be sufficient such that the prospective judge will not suffer a reduction in his or her standard of living upon taking an appointment.

172. Attracting applicants with experience in civil law, both litigation and solicitor’s work, is important to maintain a wide diversity of talent which includes the demands associated with the expanded jurisdiction under The Small Claims Act, now at $20,000.00. The nature and significance of this work will be discussed more fully in Civil Jurisdiction at III A 3. iv below. With the exception of one Judge in Regina, who presides exclusively over civil matters because of his years of experience in civil law and legislative review, the remaining Judges of the Provincial Court preside over all matters that come before them, including civil and criminal law. It is submitted that it is important to attract applicants who possess strong and diverse talents and expertise.

173. The 2003 Ontario Court Commission recognized the importance of attracting applicants from a pool of senior, able and experienced counsel and the disadvantageous salary position of the Provincial Court when competing with a federally-appointed trial court for that same pool of lawyers. It held that this was an important factor in support of an increase to base salary:

Our salary recommendations are intended to take into account that appointments to the bench come from a cross-section of lawyers practicing in different areas of law, throughout the province. The recommendations also recognize that, in Ontario, both federal and provincial appointments to the bench are likely to come from the same pool of senior, able and experienced counsel and, in this sense, the Ontario Court of Justice must “compete” with the Superior Court of Justice in attracting the ablest candidates. (Ontario Report, December 11, 2003, p. 26)

174. The 2002 Saskatchewan Provincial Court Commission commented upon the limited information available to it about the income of private bar lawyers. The Commission has concluded that this is an important segment of the pool of qualified candidates and the salary level for Provincial Court Judges should take this into account. Further, and although no reliable current data is available, the Commission is also prepared to assume that the income of high income earners in the private bar has significantly increased since 1997. On that basis we conclude that there are a significant number of private practitioners in Saskatchewan earning in excess of $200,000 per year.


Part IV Factors for Consideration B. Attracting the Most Qualified Applicants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . continued

175. The Provincial Court started 33 years ago from a position of near parity to federally appointed Judges but it has witnessed fluctuating disparity over time. This is discussed further at IV. D. Salaries Paid to Other Trial Judges in Saskatchewan.

176. Given that the Provincial Court and the Court of Queen’s Bench in Saskatchewan have the same qualifications for appointment66 and that the judges of both courts exercise very similar functions, certainly requiring the same skills and depth of experience, the SPCJA respectfully submits that the gap must remain at the lowest amount possible to ensure the most highly qualified members of the bar are attracted to the provincial court judiciary. The Challenges

177. It has in fact been very difficult for the Provincial Court of Saskatchewan to attract the senior members of the private bar to the judiciary, while the Court of Queen’s Bench, in many of its appointments, has successfully attracted, senior partners from major Saskatchewan law firms.67

178. The Judges of the Provincial Court bring a diverse wealth of experience. Many have prior experience with either: Legal Aid, the Provincial or Federal Crown, other public service, or private practice and a good number have a background in two or all of these areas of practice. In keeping with the contention that salary must be in line with the expectations of successful senior counsel in private practice, consider the type of practice in which our Judges were engaged at the time of appointment. It may be argued that the complement of our Court does not reflect the diversity of practice among practicing lawyers in Saskatchewan. Indeed, as the data will show, the number of applicants to the Court from private practice is low having regard to the number of eligible lawyers practicing in Saskatchewan.

66 The Provincial Court Act requires a minimum of 10 years experience prior to appointment. Of the 48 judges, 13 are women. The SPCJA endorses the importance of working toward a judiciary which is representative of the people of Saskatchewan. 67 This difficulty is discussed further below in this Part IV. B.


Part IV Factors for Consideration B. Attracting the Most Qualified Applicants . . . . . . . . . . . . . . . . . . . . . . . . . continued The Data

179. Of the 48 active Judges currently on the Court, 25 were appointed from private practice. Of those appointed from a form of public practice, the greatest proportion came from the Crown. The breakdown is depicted in the chart below: At date of appointment, the 48 Judges currently of the Provincial Court were engaged in work with: the Crown, Legal Aid, the Public Service, or Private Practice

13

7

3

25

0

5

10

15

20

25

Crown Legal Aid Public/Other Private

48% of the Judges were appointed from the Crown, Legal Aid, and Public Service or Other. 52% were appointed from private practice. A comparison of this data with data from the Law Society of Saskatchewan December 31, 2010 Annual Report demonstrates that the distribution of appointments by type of practice is not representative of lawyers by type of practice in Saskatchewan generally.


Part IV Factors for Consideration B. Attracting the Most Qualified Applicants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . continued

180. The chart below depicts data regarding applications to the Provincial Court by type of practice for the years 2007 to 2010.68

The statistics may demonstrate an increased interest in 2009 and 2010 after an increase in the salary of Provincial Court Judges was made public in 2009. It should be noted that 7 of the applicants in 2010 had applied previously. Applicants to Judicial Council for appointment to the Provincial Court by type of practice

31

30

7

13

3

14

6

36

10

6

14

5

35

0

5

10

15

20

25

30

35

40

2008 2009 2010

CrownLegal AidPrivateOtherTotal

181. Over the course of 3 years, there were 78 applicants, which may be distributed by type of practice as follows:

• 33% from the Crown, • 13% from Legal Aid, • 40% from the Private Bar, and • 14% from Other areas or practice.

68 An application to Judicial Council is maintained for 3 years. This data was provided by the Chief Judge’s Office of the Provincial Court. The Chief Judge is a member of the Judicial Council.



180. It is important to also note gender distribution of the number of applicants meeting the

minimum requirements of Judicial Council:

• Of the 78 applicants to Judicial Council, 29% were female and 71% were male.

181. The Judicial Council for the Provincial Court of Saskatchewan is an independent statutory body continued by s.53 of The Provincial Court Act, S.S. 1998. The membership of the Judicial Council is prescribed by statute to include:

(a) the Chief Justice of Saskatchewan, or a judge of the Court of Appeal designated by the Chief Justice of Saskatchewan, who shall be chairperson; (b) the Chief Justice of the Queen’s Bench, or a judge of the Court of Queen’s Bench designated by the Chief Justice of the Queen’s Bench; (c) the chief judge, or a judge designated by the chief judge; (d) the president of the Law Society of Saskatchewan or a bencher or former bencher of the Law Society appointed by a resolution of the benchers; (e) not more than two other persons appointed by the Lieutenant Governor in Council after consultation by the minister with the chairperson of the council and the chief judge;

(f) two judges elected by the judges at a meeting of the court en banc. 182. The Judicial Council is known by most as the body which receives and considers

applications from lawyers who are seeking an appointment to the Provincial Court bench. It is an extremely important role since it is an independent body whose clear responsibility is to assess candidates solely on the basis of merit.

183. In addition, the Judicial Council is charged with: receiving and investigating, where necessary,

complaints against a judge which allege misconduct or incapacity. Council is to address any other matters that the minister requests it review and it may also report on, consider and make recommendations with respect to any mater that the Council considers appropriate.



184. While not expressly stated in the legislation, it is considered the responsibility of Council to

ensure that persons recommended as appropriate for appointment to the Provincial Court meet the high standards that one would expect for such an important position. To that end, the Council has adopted a list of required attributes to focus their attention on the relevant skills. Council considers the application in detail, and in addition makes inquiries about the applicant of those who would be in a position to assess their capabilities from observing them in their practice. Judicial Council has arrived at 17 attributes to guide the approval process:

• A minimum level of educational achievement; • Professional training and experience including mediation and alternative dispute

resolution; • Breadth of view and maturity; • Tolerance, compassion and sympathy; • An understanding and knowledge of the democratic process; • Capacity to grow and to develop intellectually and professionally; • Age and health; • Stability of character and judicial temperament; • Wisdom and common sense; • Ability to solve legal issues; • Peer judgments; • Community perception; • Good work ethic; • Sensitivity to cultural diversity; • Demonstrated dedication to public service; • Good listening, and oral and written communication skills; • Good administrative and computer skills.



185. The distribution of appointments and applications to the Court may be compared with the

distribution of lawyers in Saskatchewan among the same 4 categories: Crown, Legal Aid, Private, and Other areas of practice. The data in the chart below, obtained from the 2010 Annual Report of the Law Society of Saskatchewan69, identifies 1692 practicing lawyers and students-at-law by type of practice. Placement of 1692 practicing lawyers and students-at-law, by type of practice 2010

186. Having regard to the number and distribution of lawyers practicing in Saskatchewan, the

number of applicants to the Court, overall, and from private practice, is quite low. The number of approved applicants, (40) over 3 years as of 2010, does not compare well with the number of practicing Saskatchewan lawyers who would likely be eligible for appointment. 852 lawyers fall within the age 41 to 60 age groups.70

69 The Executive Director’s Report in the Law Society Annual December 31, 2010 Report is in the Appendix. 70 852 is a conservative number as lawyers between the ages of 60 and 65 would be eligible as would a number under the age of 40.

0.40% 0.60%5.20%

10.50%

17.70%

65.50%

0.00%

10.00%

20.00%

30.00%

40.00%

50.00%

60.00%

70.00%

Courts University Legal Aid In-House &Crown

Govt &Pros

Private



The age of practitioners in the province shows a bulge in the age groups from 41 to 60. 55% of

practitioners fall within this range.71

187. This data may also be compared to the average age of Judges of the Provincial Court. The current average age on the Court is 58. The average age at appointment for all Judges on the Court is 47. The average age of appointment over the last 10 years to this Court has been increasing; it is 50. The breakdown along gender lines is: 25% female, 75% male. 71 Taken from the Executive Director’s Report of the Law Society of Saskatchewan Annual Report, dated, December 31, 2010.

Between ages 24 to 30 31 to 40 41 to 50 51 to 60 60 & up

Male 65 185 213 379 176

Female 73 163 149 111 20

Totals 138 348 362 490 196



188. The 2010 Annual Report of the Law Society of Saskatchewan also provides data about the

number and size of law firms in Saskatchewan, summarized as follows:

Number of firms with 1, 2 to 5, 6 to 10, 13 to 17, and 20 to 86 lawyers

193

95

197 6

0

20

40

60

80

100

120

140

160

180

200

1 2 to 5 6 to 10 13 to 17 20 to 86

189. Of the 25 Judges who were in private practice at the time of their appointment, we understand that two came from the pool of “larger firms”, defined to mean, 13 or more lawyers. By way of illustration a firm of 13 or more lawyers would include the following Saskatchewan law firms72

, all but one or two of which have been in existence for a substantial number of years, certainly in the 33 years since the proclamation of The Provincial Court Act in 1978:

72 List of firms taken from The Canadian Bar Association Saskatchewan Branch Legal Directory and Day Planner 2010 – 2011.


Part IV Factors for Consideration B. Attracting the Most Qualified Applicants . . . . . . . . . . . . . . . . . . . . . . . . . continued 1. Balfour Moss LLP, 2. Cuelenaere Kendall Katzman & Watson, 3. Gerrand Roth Johnson, 4. Kanuka Thuringer LLP, 5. MacPherson Leslie & Tyerman LLP, 6. McDougall Gauley LLP, 7. Merchant Law Group 8. Olive Waller Zinkhan & Waller LLP, 9. Robertson Stromberg Pedersen LLP 10. Mckercher LLP 11. Scharfstein Gibbings Walen & Fisher LLP, 12. Stevenson Hood Thornton Beaubier LLP, 13. Wallace Meschishnick Clackson Zawada, and 14. Woloshyn & Company.

190. On the other hand, a significantly greater number of Judges appointed to the Court of Queen’s Bench and the Court of Appeal over the last three decades were practicing in “larger firms” at the time of appointment. We estimate that of the 12 Judges of the Court of Appeal (including supernumerary judges), 4 came from a “larger firm”, 6 were elevated from the Court of Queen’s Bench, and 2 were appointed from public service positions.

191. Of the 40 Judges of the Court of Queen’s Bench (including supernumerary judges), 24 accepted appointments from “larger firms”, 2 were elevated from the Provincial Court, 2 were appointed from public service positions and the remaining 12 came from smaller firms. The size of a firm is not necessarily indicative of income and this factor alone is not indicative of competence or area of expertise, but we submit, based on the experience in Saskatchewan over the last 30 years, that it is somewhat indicative of the type of practice and income.

192. There are similarities between this factor; Attracting the Most Qualified Applicants and the last factor, Remuneration of Senior Members of the Legal Profession, and in light of that they have been covered together in this section of the brief. The SPCJA will address these matters further in oral argument.


Part IV Factors for Consideration B. Attracting the Most Qualified Applicants . . . . . . . . . . . . . . . . . . . . . . . . . continued

193. Here are some interesting comparative figures derived from the foregoing: Private Practice

• Members of the Court from private practice 52% • Members of the Law Society in private practice 65.5%

Public Practice

• Members of the Court from public practice 48% • Members of the Law Society in public practice 33%

Large Firms

• Members of Provincial Court from large firms 4% • Members of Court of Queen’s Bench from large firms 60%

Applicants to the Provincial Court

• Actual Applicants to the Provincial Court 2007-10 78 • Lawyers practicing in Saskatchewan aged 41 to 60 years 852


Part IV Factors for Consideration B. Attracting the Most Qualified Applicants 1. Tax Implications for Private Practitioners

194. Lawyers engaged in private practice may incorporate and access tax planning, an advantage not available to judges. This is relevant to the question of attracting the most qualified applicants. Already challenged to attract the most qualified senior lawyers, having regard to salary; the Provincial Court faces a further challenge. A lawyer who is incorporated and utilizes the tax planning opportunities available to him or her will be aware of a further differential in net salary.

195. The SPCJA asked Virtus Group, Chartered Accountants, to prepare a discussion paper regarding the tax planning opportunities available to professional corporations. That paper is included in the Appendix. The Executive Summary of this Report provides in part: The primary tax planning opportunities available to an incorporated lawyer are the ability to receive personal compensation in the form of wages or dividends, split income with a spouse or adult children and defer personal income tax on income in excess of the amount required for living expenses. An incorporated lawyer who chooses to receive only dividends from their professional corporation will pay less tax than an unincorporated lawyer or judge earning the same amount of income in the form of a salary. . . Income splitting allows a lawyer with a spouse or adult children to reduce their overall tax liability by shifting income from the lawyer who is in a higher tax bracket to adult family members in a lower tax bracket. . . An incorporated lawyer earning income in excess of the amount required for living expenses can defer the personal level of taxation by retaining and investing the excess income in their professional corporation, thereby reducing the amount of income taxed at the individual level. . .


Part IV Factors for Consideration B. Attracting the Most Qualified Applicants 1. Tax Implications for Private Practitioners . . . . . . . . . . . . . . . . . . . . . . . . . . . . continued

196. The Executive Summary provides a table which summarizes the tax situations of a

salaried judge and a lawyer who receives only dividends from his/her professional corporation: Family Income after Tax, CPP and EI

Sample tax situations

Income Before Tax

Judge

Lawyer

Difference

Income earning spouse, two children $300,00 $194,891 $222,558 $ 27,667 Income earning spouse, no children 300,000 192,291 206,516 14,225 Non-income earning spouse, two children $250,000 $160,727 $194,685 $ 33,958 Non-income earning spouse, no children 250,000 158,127 180,579 22,452 No spouse and no children 250,000 154,949 164,149 9,200


Part IV Factors for Consideration C. Economic and Market Factors 1. Saskatchewan - Leading the Nation

197. The prevailing economic conditions in Saskatchewan and the financial condition of the Government of Saskatchewan are rational factors for consideration by this Commission in considering adjustments to salaries and benefits paid to judges.

198. The SPCJA submits that this Commission should consider Saskatchewan’s strong economy, bright economic future, and sound financial health in determining what constitutes fair and reasonable compensation for Provincial Court judges.

199. Saskatchewan has been a “have province” since 2008, not having received an Equalization payment from the Federal Government since the 2007/2008 fiscal year. Ontario was a “have” province, at the time of its 2008 Commission, having begun to receive an Equalization payment in the 2009/2010 fiscal year. British Columbia ceased to receive Equalization payments in the 2007/2008 fiscal year. Alberta, also has not received an Equalization payment since 2007/2008. As was the case in the SPCJA submission to the 2008 Commission, the salaries of the Provincial Courts of British Columbia, Alberta, and Ontario continue to be relevant comparators. However, the Province of Saskatchewan has a much more positive economic future than either British Columbia or Ontario and may be more favourably compared with Alberta, which has been a “have” province since at least 2005 and which, according to economic reports, is enjoying a more robust economy than Ontario and British Columbia.73 The Saskatchewan Advantage

200. The Honourable Ken Krawetz, Deputy Premier and Minister of Finance, subtitled the 2011- 12 Saskatchewan Provincial Budget: The Saskatchewan Advantage, and had this to say about Saskatchewan’s economic outlook: Saskatchewan is blessed with many advantages as we open the 2011-12 fiscal year. We are expected to lead the country in economic growth, our population continues to grow and our employment picture remains bright. Both the national economy and global markets for our commodities are making real strides in recovering from the downturn of a year ago, both of which spell greater prosperity for our citizens in the months ahead.

73 See RBC Provincial Outlook dated September 2011 in the Appendix.


Part IV Factors for Consideration C. Economic and Market Factors 1. Saskatchewan - Leading the Nation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . continued In that regard, we are a different place from most other provinces in Canada. Where many others will bring down deficit budgets this year, we are delivering another balanced budget. Where other provinces will struggle to maintain public programs, we will enhance health, education and social services supports. And while other jurisdictions will see total debt loads go up as a result of financial pressures, Saskatchewan’s debt will fall, and with it the cost of financing debt. This is more than just an accounting concept. It means more money available to meet the needs of Saskatchewan people, whether that’s building hospitals and schools or investing in improved educational outcomes for our least advantaged citizens. Saskatchewan is blessed with so many advantages – our abundant natural resources, our beautiful pristine environment, our sense of community, our unique prairie lifestyle, and our greatest advantage of all – Saskatchewan people. All of this together adds up to the Saskatchewan Advantage.74

201. In May 2011, the Government of Saskatchewan announced an upgrade to its credit rating by Standard and Poor’s to AAA. The agency says: "The upgrade was warranted because of low and declining debt burden, rebounding economy, strong liquidity and moderate support from the federal government." The news was welcomed by Deputy Premier and Finance Minister Ken Krawetz, who said the upgrade confirms the province's healthy fiscal position outlined in the recent "Saskatchewan Advantage" budget. Standard & Poor's concluded: "The province's operating after capital results will continue to improve with the strengthening economy and operating revenue growth and that liquidity will remain strong."75

74 Minister’s Message, Saskatchewan Provincial Budget 11-12 The Saskatchewan Advantage, Budget Summary. 75 http://www.gov.sk.ca/news?newsId=a7f64faa-9409-481a-be18-2b136eaafc31

http://www.gov.sk.ca/news?newsId=a7f64faa-9409-481a-be18-2b136eaafc31


Part IV Factors for Consideration C. Economic and Market Factors 1. Saskatchewan - Leading the Nation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . continued

202. In its September 12, 2011, news release, The Royal Bank of Canada forecast that

Saskatchewan would lead the nation in economic growth: SASKATCHEWAN LEADS ECONOMIC GROWTH IN CANADA: RBC ECONOMICS TORONTO, September 12, 2011 — Saskatchewan is poised to be the provincial leader in economic growth through to 2012, according to the latest Provincial Economic Outlook report released today by RBC Economics. Thanks to gains in agricultural and potash production, Saskatchewan’s GDP is forecast to grow 4.3 per cent in 2011 and 4.1 per cent in 2012.76

203. Indeed on September 30, 2011, the Chief Economist for the Royal Bank, Paul Ferley, addressed the Regina Chamber of Commerce, about which the following was reported in the Regina Leader Post: Sask. poised for economic growth . . . If anything, RBC's forecast of 4.1 per cent gross domestic product (GDP) growth in 2012 might be a little conservative, based on recent reports of more multibillion-dollar potash projects in the works, Ferley added.

He was referring to BHP Billiton Ltd.'s recently announced plans to build five new mines in the province like BHP's proposed Jansen project near Lanigan, which would be the largest potash mine in the world at eight million tonnes per year.

"Then there's the second round boost in spending that that entails," Ferley said. "You start enlarging some of these operations, or opening new mines, there's issues in terms of road access, housing for workers, support facilities for the families of these workers. All that infrastructure needs to be put in place, so that adds to capital expenditures.”77

204. Mr. Ferley was further noted to comment upon poor employment growth in the first half of 2011, in Saskatchewan, stating:

With all of the positive economic indicators in the province right now, Ferley said he was "a little bit surprised by employment weakness in the province."

Employment growth had fallen to below zero in the first half, but bounced back to 3.9

76 September 12, 2011 RBC News Release: Saskatchewan leads economic growth in Canada: RBC economics 77 By Bruce Johnstone, Leader-Post October 1, 2011, Published in Saskatoon Star Phoenix October 1, 2011.


Part IV Factors for Consideration C. Economic and Market Factors 1. Saskatchewan - Leading the Nation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . continued

percent year-over-year growth in July, Statistics Canada says.

"Given anecdotal evidence in terms of capital spending and a strong grain harvest, I just can't see this weakness in employment continuing. It's a bit of an anomaly," Ferley said.78

205. In September, 2011, Saskatchewan had the lowest unemployment rate in Canada, at 4.6%.79

206. The RBC Provincial Forecast, dated September 12, 2011, subtitled: Saskatchewan; Basking in the Sunshine, and the Regina Leader Post report of the Bank of Montreal forecast titled: “Sask to lead in GDP growth in 2012, may be found in the Appendix to this brief.

207. Finally, note the Conference Board of Canada News release dated May 5, 2011, reported by Enterprise Saskatchewan80: MAY 5, 2011 — SASKATCHEWAN MAJOR CITIES TOP ECONOMIC GROWTH IN 2011 The Conference Board of Canada released a report today that indicates Saskatoon and Regina will have the first and third highest economic growth rates in the country in 2011.

Saskatoon is forecast to have a 4.1 per cent increase in economic growth, the highest among major Canadian cities. Regina is expected to have a 3.1 per cent growth rate, ranking third in the study.

"Increased economic activity in mining and energy will benefit the Saskatoon and Regina economies," Enterprise Minister Jeremy Harrison said. "Saskatchewan has the edge over other regions of Canada, and our resources are creating not only advantages for business, but making us an attractive place for investors."

According to the report, Saskatoon, Edmonton and Regina are predicted to average the highest economic growth rates from 2012 to 2015.

"With potash sales rising and a strong oil and gas industry, Saskatoon and Regina are major service locations that supply goods and expertise," Harrison said. "We are encouraged that this positive trend will continue over the next three years, creating jobs, increasing investment and providing opportunities for local businesses."

78 Ibid 74. See Appendix for RBC’s Provincial Outlook published September 2011. 79 The Daily Statistics Canada, Catalogue 11-001-XIE (Français 11-001-XIF) ISSN 1205-9137, Friday October 7, 2011, Labour Force Survey. 80 http://www.enterprisesaskatchewan.ca/Default.aspx?DN=d7102bee-1bd0-4abe-998d-110e3f934a92


Part IV Factors for Consideration C. Economic and Market Factors 2. Cost of Living in Saskatchewan

208. It is important in principle and in practice that the cost of living in Saskatchewan be considered by this Commission. Chief Justice Lamer, who wrote the majority decision of the Supreme Court of Canada in the PEI Reference, discussed the significance of the need for Commissions to be sensitive to the cost of living and thereby avoiding the erosion of salary due to inflation. 174 Finally, and most importantly, the commission must also be effective. The effectiveness of these bodies must be guaranteed in a number of ways. First, there is a constitutional obligation for governments not to change (either by reducing or increasing) or freeze judicial remuneration until they have received the report of the salary commission. Changes or freezes of this nature secured without going through the commission process are unconstitutional. The commission must convene to consider and report on the proposed change or freeze. Second, in order to guard against the possibility that government inaction might lead to a reduction in judges' real salaries because of inflation, and that inaction could therefore be used as a means of economic manipulation, the commission must convene if a fixed period of time has elapsed since its last report, in order to consider the adequacy of judges' salaries in light of the cost of living and other relevant factors, and issue a recommendation in its report. Although the exact length of the period is for provincial governments to determine, I would suggest a period of three to five years.81

209. The Judges of the Court of Queen’s Bench, indeed all Judges coming under the jurisdiction of the Judges Act82 and Judges of the Ontario Court of Justice83 receive cost of living adjustments to their salaries, by operation of governing statute. The words of caution in the PEI Reference, have somewhat protected federally appointed Judges given the Government of Canada’s inaction in refusing to implement the last federal quadrennial Judicial Compensation and Benefits Commission.

210. The cost of living (often referred to as COLA,), to which this submission refers, was defined in the Vicq Commission and adopted by the subsequent Barnard Commission as follows: This amount should be adjusted by the increase in the Saskatchewan Consumer Price Index (CPI) as measured between January 1 and December 31 in each calendar year immediately preceding the adjustment date of the salary . . . This adjustment shall never be less than zero.

81 PEI Reference, [1997] S.C.J. No. 75, at paragraph 174. 82 Judges Act, R.S.C., 1985, c. J-182 s.25. 83 Courts of Justice Act, R.S.O. 1990, Chapter C.43, s.45.


Part IV Factors for Consideration C. Economic and Market Factors

2. Cost of Living in Saskatchewan. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .continued

211. The British Columbia Judges Compensation 2010 Commission Report addressed the importance of allowing for the cost of living. In its recommendations it made the following comment:84

However, the Commission observes that Supreme Court Justices’85 salaries are

statutorily indexed against the eroding effects of inflation and is of the view that Provincial Court Judges’ salaries should be similarly protected.

84 At page 33 of the Report. 85 This is a reference to the Justices of the Supreme Court of British Columbia.


Part IV Factors for Consideration D. Salaries Paid to Other Trial Judges in Saskatchewan

212. The level of remuneration and benefits paid to other trial court Judges of other courts in Saskatchewan is a vital factor for consideration. Comparable Qualifications and Responsibilities

213. Judges of the Provincial Court and the Court of Queen’s Bench are all trial judges, have the same education, required years of standing at the bar before being entitled to appointment, and apply substantially the same set of legal procedures and materials to determine disputes. It is our respectful submission that the trial judge working in the same market (i.e., Saskatchewan) is the most comparable labour force group, and hence the most logical point of comparison when determining levels of remuneration for judges of the Provincial Court of Saskatchewan.

214. Judges of the Provincial Court of Saskatchewan are competent to make decisions to commit an individual to an indeterminate sentence (dangerous offender determinations) and apply the same Constitutional instruments (i.e., Canadian Charter of Rights and Freedoms) and the same body of common law relating to contracts, torts and other commercial and private law areas, when deciding civil disputes.

215. It is submitted that there is no rational argument in support of a disparity in compensation as between judges of the Court of Queen’s Bench and the Provincial Court. A federally appointed judge, whether presiding in a trial court or an appellate court, is compensated the same. Indeed there is no financial incentive for a judge to choose one level of court over another when submitting an application and a federally appointed judge has the flexibility to move from one level of court to another. It is important to the future of the Provincial Court that salary be removed as a disincentive. Provenance and Legacy of the Provincial Court in Saskatchewan

216. In 1978, when The Provincial Court Act was proclaimed, Judges of this Court were paid a salary nearly equal to that of a federally-appointed trial judge. The remuneration and benefits levels were seen at that time to be comparable to those in the District and Queen’s Bench courts in the 1970's. This policy of the Government of Saskatchewan is reflected in a number of important sources. In 1974, at the request of then Attorney General Roy Romanow, a Supreme Court of Canada Judge, the Honourable Emmett M. Hall, C.C., Q.C., was engaged to review the courts. Justice Hall recommended similar treatment between federal and provincial Judges (at that time “magistrates”):

The status of the Provincial Court has to be raised in the public estimation. Its true worth must, of course, come from the quality of its work; from a bench staffed with


Part IV Factors for Consideration D. Salaries Paid to Other Trial Judges in Saskatchewan. . . . . . . . . . . . . . . . . . . .continued

competent, knowledgeable Judges of high personal integrity, with court experience and

a knowledge of the law and the ability to apply it fairly and humanely. The judge must have an adequate salary and security of tenure - in other words, judicial independence to the same degree as federally appointed Judges of the District Court.

I can see no reason why they [magistrates] should be treated differently. They are Judges doing judicial work of equal importance to the public and in many areas having concurrent jurisdiction, particularly in criminal law, with the Judges of the District Court and Queen’s Bench Courts.86

217. After this seminal report in 1974, the Magistrates’ Court was transformed into the Provincial Court. The District Court and Court of Queen’s Bench were merged on July 1, 1981. In a critical report to the Saskatchewan Treasury Board on August 28, 1980, the Honourable Roy Romanow, Q.C., then Attorney General, noted that the Magistrates Act of 1963 had designated magistrates as Judges and these Judges “had their salary set at the District Court level. In other words, Provincial Judges then received 100 percent of the salary set in federal legislation for District Court Judges, in recognition of their equal value and role.” Disparity in Salary

218. In 1978, a Provincial Court Judge’s salary was set at $44,400. The federally-appointed District Court Judge earned $45,000. A federally-appointed Superior Court Judge earned $52,000. There was parity; meaning, close proximity in levels of remuneration for Judges in Saskatchewan. This was in keeping with the original vision, as expressed by then Attorney General Romanow. The SPCJA urges this Commission to implement a salary for Provincial Court Judges which prevents further widening of the salary differential between the two Courts. In this regard the SPCJA is mindful that the federally appointed judges will be entering into a Judicial Compensation process early in 2012 which will set their benefits and salary for four years beginning in 2012. Disparity Interferes With Ability to Attract the Best Applicants

219. In its 2010 Report to the British Columbia Judges Compensation Commission the Judicial Council of the Provincial Court of British Columbia, the body responsible for screening, interviewing and determining eligibility for appointment to the Provincial Court in that province, demonstrated that the Provincial Court of British Columbia was in effect, in

86 Report of the Survey of the Court Structure in Saskatchewan, December 23, 1974,The Honourable Emmett M. Hall, C.C., Q.C., p. 21.



competition with the Supreme Court of British Columbia for the same pool of potential candidates. The Report details the number of applicants and their characteristics from 2004 to 2009. It noted that the highest number of applicants, a relatively modest number at that, occurred in 2007 and 2009, the years that a significant salary increase was recommended and then implemented for the Provincial Court of British Columbia.87

220. The Report discusses factors which may influence qualified candidates to apply for appointment to the Provincial Court or the Supreme Court and deduces that it is likely losing applicants to the Supreme Court: [37] The Council perceives it to be likely that the Court is losing applicants to the Supreme Court, whether because of the lower remuneration, the shorter pension accrual period, the greater prestige associated with the Supreme Court in traditional legal circles (particularly in the larger downtown Vancouver firms), or because the candidate is simply attracted to the different work and judicial "style" in the S upreme Court. This likelihood would also seem to be supported by the fact that at any given time, members of the Provincial Court have outstanding applications to the Supreme Court. As to the latter category, while some applicants are motivated by a simple desire for change, increased remuneration is considered to be a significant factor.

221. The Report concludes that compensation should not be allowed to exacerbate a problem with attracting qualified candidates to the Provincial Court88.

[38] A significant widening of the gap in remuneration levels can only exacerbate the problem. If it is in the public interest for the Court to attract and retain outstanding applicants, and to compete with the Supreme Court in doing so, there must be competitive earnings and benefits. That is particularly so having regard to the relative prestige of the two offices. These issues apply particularly to well- seasoned private practitioners with a breadth of experience, who are not well represented in the Provincial Court pool.

222. Quite reasonably, the Judicial Council Report concludes that judicial compensation

must be reasonable not only to attract but to maintain commitment to the Provincial Court.

87 For data on the characteristics of the applicants, read paragraphs 20, 21 and 31 of the Report, found in the Appendix of this brief. 88 See IV. B. Attracting the Most Qualified Applicants for further discussion of the qualifications necessary for appointment to the Provincial Court.



[39] The role of Provincial Court Judge is a crucial one, requiring talented, creative and resilient individuals at the peak of their legal careers. Judicial compensation must be reasonable not only in order to attract such people, but to maintain their commitment and enthusiasm, and to reinforce the dignity and importance of the office. Disparity Not Justified Based on Different Role of Courts

223. It has been said that a salary disparity between the provincial and federal Judges can be sustained based on “judicial hierarchy” because the Court of Queen’s Bench is superior to the Provincial Court and has a more important role to play in the administration of justice. The functional reality of adjudication in Saskatchewan today is such that both courts apply the same adjudicative skill, legal traditions, and evidence law, and exercise a great deal of concurrent jurisdiction.89

224. It is submitted that compensation of judges appointed provincially, based upon a form of “judicial hierarchy” does not take into account that among federally appointed judges, “a judge is a judge” and is compensated in the same way, whether he/she is a trial court judge or an appellate court judge. The preferable approach, it is suggested, is that all judges be compensated based on the principle that “a judge is a judge".

225. Professor Peter Russell of the University of Toronto observed that paying “lower court” Judges less, as a recognition of a system of judicial hierarchy, amounts to a double standard, which is inappropriate to the proper administration of justice.90

The traditional practice of paying Judges of the so-called lower courts much less than the Judges of the intermediate and superior courts of the provinces may appear logical when the judicial system is viewed as a hierarchy. But the problem with translating this hierarchy of courts into a hierarchy of salaries is that we do not want the quality of justice to be hierarchically arranged. The quality of adjudication is likely to bear some relationship to the remuneration of the adjudicator. Commentators on our judicial system never tire of observing that most Canadians who experience the quality of justice at first hand do so in the lower courts. Accepting lower standards here in the courts used most often by Canadians from lower-income brackets, is a significant source of social injustice in Canada.

89 Judge Seniuk, formerly Chief Judge Seniuk, reviewed the status of the Provincial Courts in an article co- authored with Professor Noel Lyon, “The Ambiguous Status of the Provincial Court,” published in the Canadian Bar Review (1999). 90 Russell, supra, p. 157



226. As far back as 1989, the New Brunswick Judicial Compensation Commission found the

disparity between provincial and federally-appointed judges’ salaries to be unjustifiable. That Commission said the different salary treatment could not be “justified on the basis of different responsibilities or different qualifications.”

While we do not accept the principle of direct linkage to the salaries of superior court judges, we cannot overlook the fact that the differential between the salaries paid to Provincial Court Judges and those paid to federally appointed Judges in New Brunswick is the legitimate source of considerable unhappiness, perhaps even of demoralization, on the part of the Provincial Court judges. The salary ‘gap’ has widened considerably in recent years, while the relative responsibilities of Provincial Court Judges have increased. In 1975 the salary ‘gap’ was $11,000. As of April 1, 1989, it has widened to $58,000, subject to the recommendations of this Commission. Unless irreparable damage is to be done to the morale of New Brunswick’s Provincial Court judges, and to the prospects of attracting high quality candidates to the Provincial Court, the ‘gap’ must be narrowed . . .

The New Brunswick Commission recommended substantial increases to redress the disparity.91

227. The 1991 Judicial Compensation Committee of Manitoba found that the work of provincially appointed Judges could not be distinguished in terms of importance from that of federally appointed judges, and that the most compelling argument in favor of parity was the role and function of the Provincial Court judges:92

Of all the issues before us, the most contentious is the question of parity with federally appointed Judges. A number of Commissions, committees and tribunals have examined compensation for Provincial Judges since the inception of this level of court. The issue appears to have been addressed in every instance and conclusions have varied. Provincial Governments have always opposed the notion and the Judges have always advocated it.

The most compelling argument in favor of parity is the role and function of Provincial Judges. It is difficult to underestimate the importance of their task. Arguably their role is just as important in our society as that of federally appointed Judges. The Provincial Court deals primarily with rights of persons and questions of liberty, whereas Superior Courts, to a significant extent, deal with questions of property. Contained in a report

91 1989 New Brunswick Commission Report, p.8. 92 Manitoba, Report and Recommendations of the Judicial Compensation Committee, 1991 (June 7, 1991 (Chair: D. Baizley), at pp. 14-15.



such as this, concepts such as “liberty” and “rights of persons” are rather antiseptic. In reality however, the consequences of many of the day to day decisions of Provincial Judges to individual citizens cannot be minimized. The need for persons with judicial temperaments, who have the necessary legal skills and the ability to administer justice carefully and appropriately is no less pressing in the Provincial Court than in any other court.

In the Committee’s view, although their work is in some respects different than federally appointed Judges, the Provincial Judges should not be distinguished in terms of importance or contribution to our society.

228. Similarly, the 1991 Saskatchewan Provincial Court Commission found that it could not distinguish, having regard to importance, between the work of provincially and federally appointed courts.93

The Commission accepts without reservation the importance of the Court as the primary deliverer of justice in Saskatchewan. The Commission finds it impossible to make comparative evaluation between its work and that of other courts. How can one ever measure the work of a Court which deals primarily with the liberty of the subject! It cannot be said to be of lesser or greater importance than of other Courts, because other Courts also exercise roles of great importance. Superior Courts traditionally played a supervisory role over provincial courts, but that jurisdiction is diminishing. What can properly be said is that all Courts play fundamentally important roles in the well-being of our society.

The Commission is also conscious of the fact that the Provincial Court is the one with which most citizens will come into contact. Most people do not have matters heard before the Court of Queen’s Bench. It is even less likely that they will bring a matter before the Court of Appeal. However, most people at some time will appear before the Provincial Court. It is that Court which will affect the public’s ideas of law, order, justice and fairness. Its influence is pervasive.

93 Report of the 1991 Saskatchewan Provincial Court Commission, pp. 9-10.


Part IV Factors for Consideration E. Salaries Paid to Other Trial Judges in Canada

229. A relevant factor in the determination of salary levels is the salary paid to other provincial court judges, or territorial court judges (judges with the same or similar substantive jurisdiction) in Canada.94 It is our respectful submission that this Commission may evaluate this information in its determinations regarding salary, as this factor has been considered in the past.

230. Such an analogy is rational if national standards are considered to be compelling in Saskatchewan. However, if national standards paid to provincial court judges are compelling, so too are national standards for federal judicial compensation. These are intertwined in our respectful view.

231. As discussed in IV. C. Economic and Market Factors, Saskatchewan is in a very sound economic position when compared to the rest of Canada. Indeed, since the 2008 Provincial Court Commission, our economic standing has adjusted upward in relation to Ontario, British Columbia and Alberta, the three provinces that we believe to be our closest comparators. The SPCJA submits that these three provinces continue to be the most appropriate comparators.

232. The SPCJA respectfully submits that the reference to national average in The Provincial Court Act does not refer to this concept in terms of a rational basis for setting salaries for independent salary commissions. Rather, it protects a “floor” for judicial salaries in the scenario where a Government might attempt to reject the recommendation of a Commission and offer a level of remuneration which falls below national average. In our respectful view, this is not instructive to the task before you, but rather a political insulation down the road should the Government depart from a Commission’s rationally determined and non-political recommendations.

233. The salaries paid to provincial and territorial judges elsewhere in Canada have been accepted as a relevant factor in reviewing salaries by some Court Commissions, and in certain jurisdictions this has been legislated95. There are significant difficulties with relying on simple calculations of national average as not all provinces and territories are on the same timetable—some are in retroactive situations, and there are two standards in operation: first, the salary recommended by independent court commissions, and the salaries as implemented by governments. 94 Discussed in Mandate of the Provincial Court Commission, at II of this brief, The Provincial Court Act provides, as a safeguard to the Commission process, that territorial and provincial courts are included in the definition of “national average”, and that the Government may not reduce a Commission’s salary recommendation to below the national average. See 35(b) and 45(1)(b)(ii) of the Act. 95 In Manitoba, see: s.11.1(1) of The Provincial Court Act C.C.S.M. c. C275 and in Prince Edward Island, see: s.3 of Provincial Court Act, Chapter P-25.


Part IV Factors for Consideration E. Salaries Paid to Other Trial Judges in Canada . . . . . . . . . . . . . . . . . . . . . . . . . continued

234. For the purposes of your deliberations as an independent salary commission, it is our respectful submission the recommendations of commissions be relied upon rather than a rollback that might have been imposed, or which is subject to ongoing judicial review and/or political discussion with the judiciary.

235. There is a further complicating factor in obtaining an accurate view of judges salaries elsewhere in Canada. Several jurisdictions subject the judicial salary to an automatic annual adjustment based upon the Industrial Aggregate Index or the Consumer Price Index on the 1st of April of each year. These figures are not available until the end of 2011, thus projections must be estimated for April 1, 2012. It is respectfully submitted that a 2.5% CPI or IAI increase might be projected, as a modest prediction for the purposes of analysis.

236. The SPCJA oral presentation will present further information regarding judicial salaries, providing specific details of remuneration levels in each province and territory based on commission recommendations, timing of increases, salary implementation, and pending litigation.

237. It is submitted that the salaries paid to provincial court judges in the 3 provinces of Alberta, British Columbia and Ontario can be considered analogous on rational terms with that of Saskatchewan. With respect to those jurisdictions, the following benchmarks are of note.

238. Further, having regard to the discussion in IV. D. Salaries Paid to Other Trial Judges In Saskatchewan, it is our submission that this Commission consider the salaries paid to Judges of the Court of Queen’s Bench in Saskatchewan in arriving at the appropriate remuneration.

239. The current salary of Saskatchewan Provincial Court Judges as at April 1, 2011 is: $238,943.00/annum.

240. In the table that follows, two averages are provided:

• The average of our 3 most comparable provincial neighbours: Alberta, British Columbia, and Ontario, and

• The average of the 3 provinces of Alberta, British Columbia and Ontario and the Court of Queen’s Bench in Saskatchewan.


Part IV Factors for Consideration E. Salaries Paid to Other Trial Judges in Canada . . . . . . . . . . . . . . . . . . . . . . . . . continued Average of 3 Comparable Provincial Court Salaries & Average Including Queen’s Bench Salaries, Projected to April 1, 2012 and 201396

Province Salary April 1,2011 Salary April 1, 2012 Salary April 1, 2013

Alberta $ 257,550.00 $ 263,988.00 $ 270,588.00

British Columbia $ 231,138.00 $ 231,138.00 $ 248,473.00

Ontario $ 262,113.00 $ 268,665.00 $ 275,381.00

Average (Salary / 3) $ 250,267.00 $ 254,597.00 $ 264,814.00

Queen’s Bench $ 281,100.00 $ 288,127.00 $ 295,330.00

Average (Salary / 4) $ 257,975.25 $ 262,979.50 $ 272,443.00

96 Basis for Figures: 1) Actual salary figures where commission reports have been accepted and implemented. 2) Commission recommendations where reports are out and no response yet received from Government. 3) Implementation figures where Government unilaterally implemented salaries different than Commission recommendations 4) Any projections were made on a conservative annual COLA of 2.5%


Part V Recommendations A. Salaries 1. Puisne Judges

241. The SPCJA submits that an increase in base salary is appropriate and that this Commission determine that increase having regard to the most pertinent factors discussed in this brief:

• Attracting the Most Qualified Applicants • Economic and Market Factors • Salaries Paid to Other Trial Judges in Saskatchewan (Court of Queen’s Bench) • Salaries Paid to Other Trial Judges in Canada

It is respectfully submitted that the salary for the Judges of this Court be set as follows:

Annual COLA (estimated at 2.5%/yr) plus 5% over 3 yrs

April 1, 2011 Actual $238,943.00

April 1, 2012 (COLA+ 2%) $249,695.00

April 1, 2013 (COLA + 2%) $260,932.00

April 1, 2014 (COLA + 1%) $270,064.00 242. Specifically it is submitted that this Commission recommend that the salary increase be

implemented by the Government of Saskatchewan, as follows:

i. For the period April 1, 2012 through March 31, 2013: the base salary of $238,943.00 be adjusted by the increase in the All Items Saskatchewan Consumer Price Index (CPI), as measured by the average annual increase between January 1, 2011 and December 31, 2011, that this adjustment not be less than zero, and that the resulting figure be further adjusted upward by an additional 2%.

ii. For the period April 1, 2013 – March 31, 2014: the base salary of the preceding period be adjusted by the increase in the All Items Saskatchewan Consumer Price Index (CPI) as measured by the average annual increase between January 1, 2012 and December 31, 2012, that this adjustment not be less than zero, and that the resulting figure be further adjusted upward by an additional 2%.

iii. For the period April 1, 2014 – March 31, 2015: the base salary of the preceding period be adjusted by the increase in the All Items Saskatchewan Consumer Price Index (CPI) as measured by the average annual increase between January 1, 2013 and December 31, 2013, that this adjustment not be less than zero, and that the resulting figure be further adjusted upward by an additional 1%.


Part V Recommendations A. Salaries 2. Chief Judge, Associate, and Administrative Judges

243. The Report of the 2008 Provincial Court Commission adopted a joint recommendation regarding the salary position of the Chief Judge, Associate Chief Judges and the Administrative Judges as follows: B. Issues Jointly Agreed Upon for Implementation

(i) Chief Judge, Associate Chief Judge, Administrative Judge

(a) The Chief Judge of the Provincial Court receive a salary of seven and one-half (7.5) percent greater than the amount paid to judges other than the Associate Chief Judges and Administrative Judges for each year in the position of Chief Judge.

(b) The Associate Chief Judge receive a salary of five (5) percent greater than the amounts paid to judges other than the Chief Judge and Administrative Judges for each year in the position of Associate Chief Judge.

(c) The Administrative Judges receive a salary of two and one-half (2.5) percent greater than the amounts paid to judges other than the Chief Judge and the Associate Chief Judges for each year in the position of Administrative Judge. This recommendation was implemented by the Government. It is submitted that this Commission adopt the same percentages with respect to any upward salary adjustment that may be recommended.


Part V Recommendations A. Salaries 3. Temporary Judge Remuneration

244. The Report of the 2008 Provincial Court Commission recommended and the Government of Saskatchewan implemented the following:

Effective April 1, 2009, remuneration for Temporary Judges be based on a formula of 1/220 of the salary paid to a full-time judge. This Commission concludes that remuneration of Temporary Judges should be based on a formula of 1/220 of the salary of a full-time judge as a result of examining sitting days available in a year calculated as 366 days less 30 days vacation, less 12 days statutory holidays, less 104 weekend days and recommends this change.

The SPCJA submits that remuneration of Temporary Judges, described herein also as

“Relief” or “Senior” Judges, be continued on this basis.


Part V Recommendations B. 100% Pension Indexing

245. The SPCJA submits that the Saskatchewan Provincial Court pension be fully indexed to 100% of the Saskatchewan Consumer Price Index (CPI).

246. The 2002 Vicq Commission recommended and the Government implemented indexing of pensions for judges who retired after April 1, 2003. Section 14.1(2) of The Provincial Court Compensation Regulations provides that annually, from 2004 onwards, a retired judge’s pension will be increased to reflect 75% of the increase in the cost of living according to the Saskatchewan Consumer Price Index (CPI), provided that the increase in CPI does not exceed 5%. Any increase in the CPI over 5% is only offset by 50%. Briefly, here are the formulas:

If the CPI is 5% or less, the following formula is used: Increase = Current Pension x 0.75 x CPI If the CPI rises more than 5%, the following formula is used:

Increase = [Current Pension x 0.75 x 0.05) + [Current Pension x .05 x (CPI - 0.05)]

A Majority of Other Judicial Plans provide 100% Indexing

247. The following chart shows how poorly Saskatchewan’s indexing compares with the indexing of other judicial pensions. The 2009 Alberta Judicial Compensation Commission recommended 100 % indexation for Judges of the Alberta Provincial Court97.

Jurisdiction Rate of Indexation Federal jurisdiction (s.96 judges) 100% of Canada CPI Yukon 100% of Canada CPI Northwest Territories 100% of Canada CPI British Columbia Discretionary by Trustees but 100% indexing

Alberta 60% of AB CPI (100% recommended by Commission) Saskatchewan 75% of Saskatchewan CPI up to 5%, and 50%

Manitoba 66.7% of Canada CPI Ontario 100% of Canada CPI Quebec 100% of CPI for the Province of Quebec Nova Scotia 100% of Canada CPI up to 6% New Brunswick 100% of Canada CPI up to 5% Prince Edward Island 100% of Canada CPI up to 6% Newfoundland & Labrador 60% of CPI to max. indexing of 1.2%

97 Pages 44 to 45 of the Report.


Part V Recommendations B. 100% Pension Indexing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .continued 248. The SPCJA submits:

• Pensions payable to all retired judges should be indexed to 100% of the cost of living. • Indexing should not be capped in a given year such that an increase in CPI over 5% is

only offset by 50%. • All retired judges should have the same benefits with no arbitrary cut-off based on

the date that the benefit came into effect. • Retired judges should have the same benefits as sitting judges, insofar as the effect

of the cost of living on income.

249. Given the strictures, imposed by s. 11 of The Provincial Court Act98, upon the ability of judges to earn income, judges are limited in their ability to draw upon other methods of hedging against inflation. This, together with other aspects of retirement, can act as a disincentive to retirement.

250. William Fyles, then Chairman of the Public Service Superannuation Board wrote a memo to

employees concerning pension indexing, dated January 17, 1974

Let me tell you that wages and pensions are the two most important things in an employee’s career, in that order. . . And indeed they should, because once you become a pensioner, you are just another tax payer with a single voice, and the possibility of convincing a Government that your pension is inadequate, for whatever reason, is unlikely to produce anything more than futility and disappointment. . . For this reason it is considered of prime importance that something be written into . . . to assure present pensioners, and indeed future pensioners, that their earned pension is not going to be eroded and shrunk due to the ever-spiraling increase in the cost of living.

251. The SPCJA echoes the remarks of Mr. Fyles; his concerns expressed in 1974, remain surprisingly true in 2008. The SPCJA is very conscious of the position of our retired colleagues. 98 S.11(1) No judge shall practice, or actively engage in, any business, trade or occupation unless he or she is authorized to do so by the council.


Part V Recommendations B. 100% Pension Indexing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .continued

252. The following tables help to illustrate the loss of purchasing power over time, at inflation

rates of 3% and 5% for every $1,000 of pension:

Loss of Purchasing Power for Every $1,000 of Pension if Inflation is 3%

Years from now

Purchasing Power Required 3% Actual @ 75% Shortfall

10 $1,344 $1,249 $95 15 $1,558 $1,396 $162 20 $1,806 $1,561 $246 25 $2,094 $1,744 $350

Loss of Purchasing Power for Every $1,000 of Pension if Inflation is 5%

Years from now

Purchasing Power Required 5% Actual @ 75% Shortfall

10 $1,629 $1,445 $184 15 $2,079 $1,737 $342 20 $2,653 $2,088 $565 25 $3,386 $2,510 $876

253. The Supreme Court of Canada has repeatedly reminded us that one of the cornerstones of

judicial independence is financial security and the SPCJA believes this proposal is one of the pragmatic ways that this may be achieved.

254. The SPCJA asks this Commission to recommend that pensions payable to all retired judges, regardless of date of retirement, be fully and automatically indexed to 100% of the cost of living, utilizing the Saskatchewan CPI.


Part V Recommendations C. Medical, Drug, Dental, and Eye Care Benefits 1. Full Time Judges i. Enhanced Medical, Drug, Dental and Eye Care Benefits

255. The SPCJA seeks the formal endorsement of the principle that the Judges of the Provincial

Court receive the same medical, drug, dental, and eye care benefits as and when they are made available to the executive branch of the provincial government civil service.

256. While the Government of Saskatchewan has followed the practice for some time, of

providing the Judges of this Court with the same enhancements as are received by the executive branch of the civil service, this practice has not been routinely implemented or in a timely fashion. By way of illustration, there was a lag of approximately a year before a $100.00 per annum increase to the $200.00 per annum eye care allowance was made available to the Judges of the Court.

ii. Flexible Health Care Allowance

257. The executive branch of the civil service has been in receipt of a “flexible health care allowance” in the sum of $780.00 for a number of years. The Judges of the Court were recently advised of this fact by Assistant Deputy Minister, Ministry of Justice and Attorney General.

258. The SPCJA seeks the formal endorsement of the principle that the Judges of the Court receive a flexible health care allowance in the sum of $780.00 per year, on the principle that the executive level of the civil service of this Province enjoys this benefit.


Part V Recommendations C. Medical, Drug, Dental, and Eye Care Benefits 2. Retired Judges

259. The SPCJA submits that health care benefits, including medical, drug, dental, and eye care, should be extended to retired judges. The vast majority of our retired judges perform an essential service for the justice system of this province, working as “Relief Judges”. The medical, drug, dental, and eye care benefits they received as full time judges are not extended past retirement. Benefits Available to Government Retirees and Other Judges in Canada

260. Currently individuals retiring from the executive of the Government of Saskatchewan are able to continue their coverage into retirement. This is accommodated by an agreement between Group Medical Services (GMS) and the Provincial Government. The insurance premium is partially offset by a subsidy provided by the Government. The spouse of the retired member is also extended coverage under this plan.

261. Queen’s Bench Judges in Saskatchewan, upon reaching eligible retirement age, may become supernumerary judges and in that capacity they enjoy all of the continued benefits of a fulltime judges: life insurance, health and dental benefits, at no cost until the mandatory final retirement age of 75 years.99

262. In Alberta, British Columbia, New Brunswick, and Ontario, where there exist a Part- time or Senior Judge Program, medical, drug and dental benefits are continued on the same basis as for full time sitting judges. Background

263. A judge who retires from the Saskatchewan’s Provincial Court may ask to be re- appointed by Order in Council pursuant to s.18 of The Provincial Court Act as a “temporary judge” also known as “Relief Judge” or “Senior Judge” and he or she may work and be paid on a per diem basis. Relief Judges do not receive any medical, drug, dental or eye care benefits. Unlike the Queen’s Bench Judges who work supernumerary, Relief Judges do not continue to receive the benefits that they enjoyed prior to retirement.

264. A judge may remain in office until age 70 and in that event extended health care benefits continue to the judge and his or her spouse. A judge however, who chooses to retire at age 65 or earlier, having achieved earlier eligibility based on a combination of age plus years on

99 Federally appointed judges are eligible, post retirement, to participate in the Public Service Health Care Plan and the Pensioners' Dental Services Plan (See the Judges Act s.43.1(2)).


Part V Recommendations C. Medical, Drug, Dental, and Eye Care Benefits

2. Retired Judges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . continued

the bench, even should he or she continue to work as a relief judge, will not receive health benefits of any kind.

265. The average age of judges on the Court is 58. The average age of appointment has been rising from 47 overall to age 50 in the last 10 years. A significant number of judges do not retire at the earliest eligibility. While private plans are generally available to individuals upon retirement, there may well be issues of qualification, coverage, and cost. A number of factors influence the decision to retire and whether to continue after retirement to assist the Court as a “relief judge”. Very simply, the availability of benefits is a significant factor which should not, in the interests of the Court, be a factor at all. Under the present arrangement, when we’re most likely to need and utilize a good health care plan, it may not be available.

266. Most judges, upon retirement choose to work as relief judges. Currently there are 11 judges who have retired and are actively accepting relief judge assignments. A review of the list of Judges who retired from the Court since 1995 reveals the following:

• 27 retirees were eligible/available to sit as Relief Judges. • 24 of the 27 retirees applied for and sat for various periods as Relief

Judges. • 3 of the 27 chose not to apply for or sit as Relief Judges.

All other retirees were not considered as eligible/available as they moved from the province upon retirement or chose not to sit as a relief judge for medical reasons. Relief Judges are Vital

267. Relief Judges are vital to the Court’s ability to meet its ongoing commitments and this has been the case for many years. It is with the assistance of these retired Judges that the Court is able to facilitate vacation and education leave as well as other sometimes pressing demands such as illness or bereavement leave. This is particularly so for judges who so for judges who preside in one or two judge, relatively remote judicial centres. The strategic assignment of relief judges has enabled the Court to address “time to trial” concerns that arise from time to time in areas of the province where the workload proves to be exceptionally heavy.100 Several of our current relief judges sit in excess of 70 days a year.

100 The appearance statistics contained in the Appendix indicate an increasing rate of appearances throughout the

province.




268. The potential need for Relief Judges in any given year arises out of the following: Potential Annual Sitting Days Relief Judge Requirements Sitting Days Vacation 6 weeks for each judge – 24 sitting days x 47 sitting judges101 1128 Education Leave 10 days for each judge – 8 x 47102 376 Sick Leave103 On average 328 sick days per year 328 French Language Training 3 Judges are away for 4 sitting days each per year 12 Total Potential Annual Relief Judge Sitting Days 1,844

269. In fact as the chart below illustrates, the Provincial Court endeavours to limit the number of sitting days that Relief Judges are required by forecasting a “fall-through” rate. This can be a very challenging process.104 The chart below illustrates the number of days per year that relief judges were engaged from 2003 to 2012.

101 This is a conservative estimate based on Fridays being a day for essential dockets and trial

continuations. There are 48 judges but the Chief Judge does not sit on a regular basis given the administrative demands of the position.

102 Again a conservative estimate as many educational programs encompass weekends. 103 This figure represents a 5 year average of actual sick days taken for the fiscal years 2005/06 - 234, 2006/07 -

583, 2007/08 - 345, 2008/09 – 192, and 2009/10 - 287. The number of available sitting days per year per judge is 220 so this average represents a 1.5 FTE. This is based upon the 2008 Provincial Court Commission Report recommendation . . . that remuneration of Temporary Judges be based on a formula of 1/220 of the salary of a full-time judge as a result of examining sitting days available per year calculated a s: 366 days less 30 days vacation, less 12 days statutory holidays, less 104 weekend days.

104 In Saskatoon a case manager, under the supervision of the Administrative Judge, manages scheduling for all criminal and civil matters including assignment of judges. This has improved upon the “forecast” process immeasurably.




0100200300400500600700800900

1000

Provincial Court Relief Judge Sitting Days - 2003/04 to 2011/12

*In 2008/09 there was a critical shortage of relief judges because of the number of Temporary Judges who reached 75 the previous year(s). It is fortunate that the sick days were low that year at 192.

270. It is in the interests of the proper administration of justice and in the interest of all members of the Court that the medical coverage received by our fulltime judges be extended into retirement, thereby helping to insure the health and availability of our relief judges.

271. In principle these benefits should also be received by judges that have already retired and that their spouses also receive coverage so that he or she may maintain membership in the plan in the event of the death of a retired judge. Proposal

272. The SPCJA proposes that the existing level of extended medical, drug, dental and eye care benefits currently provided by Great West Life to full time judges should be continued to the age of 75 for all judges who are working full time at the date of retirement105. More specifically, it is suggested that up on ret i rement jud ges b e 105 Chief Judge Snell has implemented a protocol permitting judges to work in the relief capacity to age 75. There is no age limit specified in The Provincial Court Act.



2. Retired Judges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . continued a l lowed t o maint a in th ei r current med ica l , d ru g , d ent a l and eye care coverage wi t h Great West L i f e or an in surer of th e Go vern ment ’s cho ice wi t h a sh ared 50/ 50 cost . ( Jud ges payin g 50% of t he in suran ce p remium and Govern ment p ay in g 50% of t he in su ran ce premiu m.)

273. Wh i le th e p roposed su bs id y b y t he Go vern ment wo u ld b e greater than t hat p rovided t o ret i red execu t ive go vern ment emp lo yees , t he SPCJA su bmits th at th i s i s ap prop r ia te g iven t he con t inu ed serv ice p ro v ided b y re t i red jud ges in the i r cap aci t y as re l ief jud ges .


Part V Recommendations D. Review Spousal/Survivor/Dependant Pension Benefits

274. There are a number of anomalies in the present Judges’ statutory pension which need to be addressed. It is urgent that these anomalies be reviewed and resolved. Here are two illustrations which require clarification:

• If a retired judge’s spouse dies and that judge enters into a new spousal relationship,

does the new spouse acquire spousal survivor benefits?

• If a judge retires without a spouse and then enters into a spousal relationship, does that spouse acquire spousal survivor benefits?

The SPCJA seeks this Commission’s direction that the Judges and Government enter into a thorough review of spousal, survivor and dependant pension benefits.


Part V Recommendations E. Professional Allowance 1. Enhancing the Professional Allowance and 2. Fund for Judicial Robe

275. The SPCJA proposes that the Judge’s Professional Allowance be increased from $3,500.00 to $4,000.00 per year, on the basis that the Judges of the Court will allocate $350.00 of that increase to a specific judicial robe replacement account, which will be administered through the Office of the Chief Judge with accounting assistance from Court Services. The remaining $150.00 will go directly to the professional allowance of each judge.

276. Currently, the Judges of the Court receive a complete set of court apparel upon appointment. Thereafter the individual judge is responsible for replacement of the robe, shirts, tabs, waistcoat, and skirt/slacks and he or she may claim for reimbursement of these items from the professional allowance

277. It is expected, given current prices, that a fund of $350.00 per year will allow replacement of the judicial robe, alone, for each judge once every 5 years. Judges will continue to bear personal responsibility for replacement of all other court apparel.

278. Judges of the Court receive a professional allowance so as to pay for incidental expenses which are deemed to be fit and proper for the execution of her or his office. The Chief Judge’s Office administers this allowance and has established a guide for permitted expenditures.

279. Expenses incurred in one year may be carried over to another year and they very often are. As one might expect the sum of $3,500.00 may be easily exhausted on any one of some of the items listed above, notably attendance at an educational conference.

280. The Judges of the Court last received an increase to the Professional Allowance from $3,000.00 to $3,500.00, effective April 1, 2006. The intention at that time was that increase would allow judges’ greater flexibility to purchase new court apparel when needed. Regrettably, that has not been entirely successful. This is due in part to the expense of court apparel, particularly the judicial robe, and some of the other items on the permitted expenditure list.

281. In Alberta, British Columbia, Yukon, Northwest Territories, Prince Edward Island and New

Brunswick provincially appointed judges may replace all of their court apparel on an as needed basis at no personal cost and they need not seek reimbursement through their professional allowance. In Ontario replacement of all apparel is provided every 7 years. The policy in the remaining provinces of Manitoba, Quebec, Newfoundland and Labrador and Nova Scotia varies.


Part V Recommendations F. Sabbatical for the Office of the Chief Judge

282. The SPCJA proposes that the Office of the Chief Judge be granted a sabbatical for a modest period of 3 months, to be taken after the completion of his or her term as Chief Judge on the understanding that he or she will be returning to the position of a puisne judge.

283. Common in an academic setting, generally the purpose can be for, research, renewal, and adjustment from an administrative post and return to regular academic responsibilities. In the Provincial Court setting, a sabbatical would be for the same purpose, most importantly: study, renewal and adjustment.

284. The term of office of a Chief Judge is 7 years. A Chief Judge, upon completing his or her term continues to be eligible to work as a puisne judge, provided he or she is of eligible age. Indeed it may be personally very important to return to work as a puisne judge, for a variety of reasons which may include pension eligibility.

285. The primary role of a chief judge is administrative. This means that over the course of 7 years, many changes may have taken place in the law, both substantively and procedurally, about which he or she may not have full familiarity. Having regard to the discussion at IV. A. iii. 2. New Offices and Legislative Requirements, it is not difficult to appreciate the need to “catch up” on changes to the law.

286. With the Office of the Chief Judge comes the responsibility of leadership in many things affecting the work of the Court and colleagues on the Court. It can be very important for the sake of the judge returning as a pusine judge as well as the judge assuming the responsibilities of the Office, that there be a transition period.

287. There are 5 provincial court jurisdictions where Chief Judges may receive a sabbatical:

• Ontario - All administrative judges receive a 3 month sabbatical on the end of their terms.

• Quebec - A judge who has held the office of chief judge, senior associate chief judge or associate chief judge for at least 7 years is entitled to a leave with pay to be devoted to studies, research or other compatible legal activity. The leave is 1 year for the chief judge and 6 months for an associate chief judge.

• Yukon – All judges may access study leaves once every 4 years for a period of 4 months and in that event will receive salary at the rate of 2/3rds.

• Northwest Territories – All judges may take a sabbatical once every 6 years and receive 70% of their annual salary.106

• Prince Edward Island – All judges may be granted a 1 year sabbatical after 7 years. 106 In the Northwest Territories there are a number of other criteria not specified here.


Part V Recommendations G. Legislative Review

288. The SPCJA The SPCJA seeks this Commission’s direction that the Judges and Government enter into a thorough legislative review of The Provincial Court Act which will specifically address:

• Increasing the Retirement Age from 65 to 70, • Senior Judges Program, • Indemnification,

1. Increase the Retirement Age from 65 to 70 289. The other provincial court jurisdictions in Canada have the following retirement ages:

• Alberta – 70 with one year extensions to age 75 • British Columbia – age 75 • Manitoba – no retirement age limit • Yukon – age 65 • Northwest Territories – age 75 • Ontario – age 65 with one year extensions to age 75 • Quebec – age 70 • Prince Edward Island – age 65 • Newfoundland and Labrador – age 70 • Nova Scotia – age 70 • New Brunswick – age 75

Saskatchewan’s retirement age is 65 with one year extensions to age 70.

2. Senior Judges Program 290. The discussion under Part V. C. 2. Medical, Drug, Dental and Eye Care Benefits for Retired

Judges, serves to demonstrate the importance of having a comprehensive Senior Judges Program for Judges of the Court who choose to retire but wish to continue to serve on the Court on a part time basis. Comprehensive Senior Judges, Part Time or Supernumerary Judges Programs exist in: Alberta , British Columbia, and New Brunswick. Each of these plans include benefits for those judges. 3. Indemnification Agreement

291. The Province of Newfoundland and Labrador provides for indemnification of the Judges of the Provincial Court. It is a relatively common protection for persons who fill a public office.


Part V Recommendations G. Legislative Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .continued

Indemnification necessarily must address, in addition to a basic commitment to indemnify, among other issues:

• Identification of the types of matters to which it would apply, • The extent of the indemnification, e.g. legal fees and choice of counsel, and • A dispute resolution process.

4. General Legislative Review 292. The SPCJA further submits that a general legislative review of The Provincial Court Act would

be appropriate in these events.


Part VI Costs

293. The SPCJA respectfully requests an opportunity to file briefs and address the Commission at a future date regarding the costs of its participation in the Commission process. The previous 3 Commissions did not require decisions on the issue of costs as the parties were able to settle the matter. It is anticipated that the matter would be resolved outside the Commission process once again. However, out of an abundance of caution, we ask that the Commission reserve this matter for further deliberation, if required.


Part VII Summary of SPCJA Recommendations

294. This section contains a summary of the recommendations of the SPCJA, which have been identified by the section number in the brief where the full submission may be found.

A. Salaries

1. Puisne Judges

295. It is submitted that this Commission recommend that the salary increase be implemented by the Government of Saskatchewan, as follows: i. For the period April 1, 2012 through March 31, 2013: the base salary of $238,943.00 be adjusted by the increase in the All Items Saskatchewan Consumer Price Index (CPI), as measured by the average annual increase between January 1, 2011 and December 31, 2011, that this adjustment not be less than zero, and that the resulting figure be further adjusted upward by an additional 2%. ii. For the period April 1, 2013 – March 31, 2014: the base salary of the preceding period be adjusted by the increase in the All Items Saskatchewan Consumer Price Index (CPI) as measured by the average annual increase between January 1, 2012 and December 31, 2012, that this adjustment not be less than zero, and that the resulting figure be further adjusted upward by an additional 2%. iii. For the period April 1, 2014 – March 31, 2015: the base salary of the preceding period be adjusted by the increase in the All Items Saskatchewan Consumer Price Index (CPI) as measured by the average annual increase between January 1, 2013 and December 31, 2013, that this adjustment not be less than zero, and that the resulting figure be further adjusted upward by an additional 1%.

2. Administrative Allowances for Chief Judge, Associate Chief Judges and Administrative Judges

296. The SPCJA submits that the administrative allowances for the Chief Judge, Associate

Chief Judges and Administrative Judges remain at the same percentages as established by the Zakreski Commission, namely:

• Chief Judge – 7.5% • Associate Chief Judges - 5%, and • Administrative Judges - 2.5%.


Part VII Summary of SPCJA Recommendations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . continued

3. Temporary Judge Remuneration

297. The SPCJA submits that no formula adjustment is necessary regarding the temporary judges also known as relief or senior judges as this occurs by operation of law on the basis of a daily rate of 1/220th of the salary of a puisne judge. B. 100% Pension Indexing

298. The SPCJA submits that the Saskatchewan Provincial Court pension be fully indexed to 100% of the Saskatchewan Consumer Price Index (CPI) and that:

• Pensions payable to all retired judges be indexed to 100% of the cost of living, • Indexing not be capped in a given year such that an increase in CPI over 5% is only

offset by 50%, and • All retired judges to have the same benefits with no arbitrary cut-off based on the

date that the benefit came into effect.

C. Medical, Drug, Dental, and Eye Care Benefits 1. Full Time Judges i. Enhanced Medical, Drug, Dental and Eye Care Benefits

299. The SPCJA seeks formal endorsement of the principle that the Judges of the Provincial Court

receive the same medical, drug, dental, and eye care benefits as and when they are made available to the executive branch of the Provincial Government civil service.

ii. Flexible Health Care Allowance

300. The SPCJA submits that the Judges of the Court receive a flexible health care allowance in the sum of $780.00 per year, on the principle that the executive level of the civil service of this Province enjoys this benefit. 2. Retired Judges

301. The SPCJA submits that the existing level of extended medical, drug, dental and eye care benefits currently provided by Great West Life to full time judges should be continued to the age of 75 for all judges who are working full time at the date of retirement. It is specifically submitted that up on ret i rement ju dges be a l lowed t o maint a in th e ir curren t med ica l , d ru g , dent a l an d eye care coverage


Part VII Summary of SPCJA Recommendations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .continued wit h Great West L i f e or an in su rer o f th e Go vern men t ’s ch oice with a sh ared 50/50 cost . ( Jud ges and Go vern ment each pay ing 50% o f the in su ran ce p remiu m) D. Review Spousal/Survivor/Dependant Pension Benefits

302. The SPCJA seeks this Commission’s direction that the Judges and Government enter into a thorough review of spousal, survivor and dependant pension benefits. E. Professional Allowance 1. & 2. Enhancing the Professional Allowance & Fund for Judicial Robe

303. The SPCJA submits that the Judge’s Professional Allowance be increased from $3,500.00 to $4,000.00 per year, on the basis that the Judges of the Court will allocate $350.00 of that increase to a specific judicial robe replacement account, which will be administered through the Office of the Chief Judge. The remaining $150.00 will go to the judge’s existing professional allowance. F. Sabbatical for the Office of the Chief Judge

304. The SPCJA submits that the Office of the Chief Judge be granted a sabbatical for a period of 3 months, to be taken after the completion of his or her term as Chief Judge on the understanding that he or she will be returning to the position of a puisne judge. G. Legislative Review

305. The SPCJA submits that this Commission’s direct that the Judges and Government enter into a thorough legislative review of The Provincial Court Act which will specifically address:

• Increasing the Retirement Age from 65 to 70, • Senior Judges Program, • Indemnification, • Addressing a comprehensive Senior Judges Program, and

which includes a general review of the Act.


Part VII Summary of SPCJA Recommendations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .continued VI Costs

306. The SPCJA respectfully requests an opportunity to file briefs and address the Commission at a future date regarding the costs of its participation in the Commission process. It is anticipated that the matter would be resolved outside the Commission process. However, out of an abundance of caution, we ask that the Commission reserve this matter for further deliberation, if required.


Appendix Attracting Applicants 1. June 18, 2010 Submission of the Judicial Council of British Columbia’s to the British Columbia Provincial Court Judges’ Compensation Commission and Appendix. 2. Executive Director’s Report, Law Society of Saskatchewan Annual Report December 31, 2010. 3. Tax Planning Opportunities Involving Professional Corporations, A Discussion Paper, Prepared by: Alan Koop, CA,

Crime

4. Juristat article: Police-reported crime statistics in Canada, Released 2010, July 21, 2011, catalogue no. 85-002-X. Economy 5. Sask. poised for economic growth - Province will likely lead nation - Bruce Johnstone, Leader-Post October 1, 2011 - Published in Saskatoon Star Phoenix October 1, 2011 6. RBC Sept 12 2011 Report and News Release 7. RBC Economics Research Provincial Outlook September 2011 8. Sask. to lead in GDP growth in ’12- Bruce Johnstone, Leader-Post October 13, 2011. 9. The Daily Statistics Canada, Catalogue 11-001-XIE (Français 11-001-XIF) ISSN 1205- 9137, Friday October 7, 2011, Labour Force Survey. 10. Equalization Payments – Department Of Finance Canada - Federal Support to Provinces and Territories: www.fin.gc.ca

Legislative Changes

11. 2005 SPCJA Brief - Federal legislative changes 12. 2008 SPCJA Brief – Federal legislative changes Workload 13. Appearances in Provincial Court province-wide - 1995 to 2004 14. Appearances in Provincial Court province-wide - 2001 to 2010 15. Small Claims Statistics 2006 16. Small Claims Statistics 2007 17. Small Claims Statistics 2008 18. Small Claims Statistics 2009 19. Small Claims Statistics 2010

http://www.fin.gc.ca/

SPCJA Submission to the Saskatchewan Provincial Court Commission November 2011

Appendix

Attracting Applicants

1. June 18, 2010 Submission of the Judicial Council of British Columbia’s to the British Columbia Provincial Court Judges’ Compensation Commission and Appendix. 2. Executive Director’s Report, Law Society of Saskatchewan Annual Report December 31, 2010. 3. Tax Planning Opportunities Involving Professional Corporations, A Discussion Paper, Prepared by: Alan Koop, CA,

Crime

4. Juristat article: Police-reported crime statistics in Canada, Released 2010, July 21, 2011, catalogue no. 85-002-X. Economy 5. Sask. poised for economic growth - Province will likely lead nation - Bruce Johnstone, Leader-Post October 1, 2011 - Published in Saskatoon Star Phoenix October 1, 2011 6. RBC Sept 12 2011 Report and News Release 7. RBC Economics Research Provincial Outlook September 2011 8. Sask. to lead in GDP growth in ’12- Bruce Johnstone, Leader-Post October 13, 2011. 9. The Daily Statistics Canada, Catalogue 11-001-XIE (Français 11-001-XIF) ISSN 1205- 9137, Friday October 7, 2011, Labour Force Survey. 10. Equalization Payments – Department Of Finance Canada - Federal Support to Provinces and Territories: www.fin.gc.ca

Legislative Changes

11. 2005 SPCJA Brief - Federal legislative changes 12. 2008 SPCJA Brief – Federal legislative changes Workload

13. Appearances in Provincial Court province-wide - 1995 to 2004 14. Appearances in Provincial Court province-wide - 2001 to 2010 15. Small Claims Statistics 2006 16. Small Claims Statistics 2007 17. Small Claims Statistics 2008 18. Small Claims Statistics 2009 19. Small Claims Statistics 2010

http://www.fin.gc.ca/

Submission to the Saskatchewan Provincial Court Commission · 2 SPCJA Submission to the...

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