Reilly: Professional allowances and judicial independence
On March 3, 2008, the Alberta Court of Appeal released a decision in the case of Reilly v. The Chief Judge of the Provincial Court of Alberta, 2008 ABCA 72, an interesting case that looked at whether the Chief Judge of the Provincial Court has the authority to approve or disapprove a particular use of the professional allowance belonging to a Provincial Court Judge in Alberta. The Court of Appeal also considered if each individual judge is entitled to use the professional allowance as he or she chooses, according to the principle of judicial independence.
In April 2000, each Provincial Court Judge in Alberta was allocated an annual professional allowance of $2500 for the purposes of “furthering his or her education by attending conferences and seminars, by buying books and material, and by maintaining memberships in judicial and professional organizations…as authorized by the Chief Justice.” The recommended professional allowance was established through the Provincial Court Judges and Masters in Chambers Compensation Regulation, AR 176/98 (“Compensation Regulation”), and included a number of conferences and seminars that were “pre-approved.” In order to obtain approval for a non-pre-approved expenditure, the judge must seek approval from the Chief Justice in writing and include the reasons why such an expenditure should be approved.
The appellant, Judge Reilly, was a member of the Provincial Court of Alberta. Following standard procedure, he requested approval to use his professional allowance to attend a conference in Switzerland that discussed alternative means of reducing violent political and social conflict. Judge Reilly was particularly interested in the administration of justice with respect to aboriginal peoples and the Stoney Nation specifically, which is located in Morley, Alberta. The Elder and several Chiefs of this reserve would be attending this conference as well, in an attempt to resolve conflict among the Chiefs. The Chief Judge denied his request, as the conference topics did not address law or the administration of justice. Nevertheless, Judge Reilly attended the conference at his own expense and later requested that the Chief Judge reimburse some of the expense using his professional allowance, however, this was rejected as well.
The appellant then applied for judicial review of the Chief Judge’s decision, however, this was dismissed on several grounds. While the chambers judge agreed that judicial independence is a public right, she was not satisfied that the use of a professional allowance formed part of a judge’s adjudicative function, finding that the use of this allowance did not interfere with judicial independence. Further, she concluded that the use of this allowance falls within the authority of the Chief Judge, rejecting the appellant’s claim that the authority of the Chief Judge is limited to concerns surrounding scheduling.
At the Alberta Court of Appeal, the central question surrounded statutory interpretation, and was phrased as “has the Chief Judge been granted the authority to vet the use of the professional allowance by individual judges?” The Court of Appeal considered the Chief Judge’s constitutional authority to make this decision, adhering to the legislative standard of review that would allow judicial intervention only on the grounds of jurisdictional error or if the Chief Judge’s decision was patently unreasonable.
In dismissing Judge Reilly’s appeal and upholding the decision of the Chief Judge, the Alberta Court of Appeal considered s. 91(5) of the Provincial Court Act, RSA 2000, c P-31, which conferred a general supervisory power over other judges and delegated additional powers by regulation to the Chief Judge. Section 4.1(1) of the Compensation Regulation provides that the professional allowance is to be used for specific purposes, “as authorized by the Chief Judge”, granting authority to the Chief Judge to approve or disapprove a proposed use of the professional allowance. In considering whether this compromised Juge Reilly’s judicial independence, the Court of Appeal applied the objective test of whether a “reasonable person who is fully informed of all the circumstances would perceive that the court was able to conduct its business free from the interference of the government or other judges”. The three essential characteristics of judicial independence are administrative independence, financial security, and security of tenure. Justice Paperny for the Alberta Court of Appeal agreed with the chambers judge in her decision that simply because a matter affects or is of importance to judges does not necessarily mean that the matter affects their judicial independence, as evident in this case. She explained:
In any event, the legislated standard of review precludes our intervention unless the decision is found to be patently unreasonable….Given the finding that the Chief Judge had the power to make the decision, there is nothing on this record to indicate that it was a patently unreasonable decision in warranting the interference of this Court.
After the decision was released, Alan Hunter, the lawyer for Judge Reilly, stated that he was considering filing for the right to appeal the decision to the Supreme Court of Canada (“SCC”) in an article by Joel Kom in the Calgary Herald [(5 March 2008) online: <www.canada.com/calgaryherald>]. Should this decision reach the SCC, the court would potentially face the task of reconsidering the jurisdiction of the Chief Judge in decisions involving the spending of Alberta provincial judges’ professional allowances, as well as if in denying certain expenditures constitutes interference with the right to judicial independence. If the SCC were to allow Reilly’s appeal and decide that decisions regarding the approval or disapproval of whether certain seminars and conferences qualify for professional allowance, the court could potentially open the door to allowing almost any public meeting to qualify as an eligible expenditure, which may draw attention away from the initial purpose of this grant, “to ensure that the public receives the benefit of a well-educated judiciary”, rather than “a financial benefit on individual judges.” Thus, the approval by the Chief Judge of such alternative uses of the professional allowance seems essential to ensure the proper and intended use of public resources.