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N.S. judge declares JPs' pay scheme unconstitutional

|Written By Michael McKiernan

A Nova Scotia Supreme Court judge has declared the pay scheme for the province’s justices of the peace unconstitutional.

A complicated formula links the JPs’ salaries to that of provincial court judges, which are in turn set by the government based on the recommendations of an independent tribunal. But in his Feb. 1 judgment, Nova Scotia Supreme Court Justice Gerald Moir concluded that was too much distance to guarantee judicial independence for the JPs.

“The Provincial Court Judges’ Remuneration Tribunal has no authority to, and does not, make recommendations on justices’ remuneration. Their process may be independent, objective, and effective as regards the judges. However, it is not ‘representative’ as regards the justices because they are not involved, it does not ‘objectively consider . . . submissions’ about the justices’ remuneration because it has no authority to do so, and its work is not ‘effective’ as regards the justices’ remuneration because there is no consultative report on that subject,” wrote Moir. “In short, the lynchpin is missing. Consequently, the independence of the justices is not assured. Therefore, the regulation setting remuneration for Nova Scotia’s presiding justices of the peace is unconstitutional.”

All of Nova Scotia’s presiding JPs work on a part-time basis, and make around $50 per hour when presiding in person, as well as approximately $16 per hour for time spent on call. The hourly rates are linked to 50 per cent of a provincial court judge’s annual salary by a complex calculation that Moir said he “cannot understand.” Provincial court judges are currently paid $157,000 annually.

The provincial government attempted to block the application by arguing judges are unable to sue the government, since justices of the peace act on behalf of the Crown when they exercise judicial functions.

“The Crown cannot sue itself. The present proceeding is an attempt to do just that,” said justice department lawyer Alex Cameron during arguments.

But Moir disagreed, noting that “none of the authorities say that a judge is precluded from suing the government.”

The province also challenged the standing of the Nova Scotia Presiding Justices of the Peace Association to bring the application on behalf of its members, but Moir agreed to grant the group public interest standing to bring the application.

The judge has suspended his declaration of unconstitutionality for 12 months to give the government a chance to decide about its next steps.


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