January 2015 - Scribbles

Limits of Judicial Power

The recent decision by Justice Greg Warner of the Nova Scotia Supreme Court raises questions regarding the limits of judicial power.

An application recently brought before the court alleged that the Warden of the Municipality of West Hants had violated the Municipal Conflict of Interest Act. The Applicant elector sought a ruling that there was a violation of the Act and also sought the removal of the Warden from his elected office. The court determined that there had been no violation of the statute. However, Justice Warner then engages in a commentary, not relevant to the decision of the court, regarding the actions of the Warden and the municipal council regarding the purchase of a parcel of land.

The judge is highly critical of both the Respondent and the council, stating they acted “improperly” and that their conduct was “inappropriate” by reason of “haste, secrecy, lack of due diligence and apparent excessive price paid”. However, the matter before the court was whether the Warden was in a conflict of interest by reason of his participation in a decision of the council. The actions of the council and the municipality, the decisions they made and the manner in which they carried on their business were never justiciable issues before the court.

In our system of government, we grant judges extensive power. But their power is limited to the questions we bring before the court. Neither the municipality nor its council or members were parties to the court application and they were not represented.

Here, the judge offers opinions on matters that were not before him to decide. The judge’s opinions in this regard are gratuitous and have no bearing on the ultimate decision. Moreover, the opinions are based on matters on which there was little or no evidence before the court precisely because these were not matters in issue that required the parties to provide evidence. For example, there were differing opinions as to the value of the land but experts were not called to give evidence or to be cross examined because the value of the land was not relevant.

The court room is not a bully pulpit for a judge to comment on social or political issues of the day. Things said by the judge as obiter (by the way) comments are not strictly part of a court decision and great care must be (and usually is) taken by our judges not to comment on matters unnecessary for the determination of the issue before the court. In some cases, such comments may suggest that the ruling of the court extends beyond the factual context of the case before the court and therefor mislead as the principle of the case may be taken out of context. In other cases, such as here, such comments may be very damaging to the reputation or character of a person. Such comments are problematic in circumstances where such are unnecessary to the determination of the question before the court and where there may be insufficient evidence before the court upon which to base such statements. Such statements have grave implications where the judge enjoys immunity for any civil action for such statements made ‘from the bench’. And because they are delivered by a judge in the course of his judicial duties and because the judge cannot be called to task for those comments, the public may not appreciate the distinction between the court decision and these obiter comments.

This case also highlights another area of concern with obiter comments by a judge. Our legal system, based on the Rule of Law, provides for a strict separation of powers as between elected representatives and the judiciary. Great care is taken to ensure that the limits of those powers are carefully observed. It is for example improper for a politician to call a judge regarding a matter before the court . Likewise it is improper for a judge to criticize the actions of an elected government. It is certainly not a judge’s role to criticize a policy decision of an elected government or ascribe unsubstantiated motives to the decision of an elected Council, particularly a unanimous decision. If an elected body – Parliament, the Legislature or Municipal council makes a decision, it is for the electors to pass judgment, not the judiciary. These decisions are part of the political process and it is well accepted that judges are most definitely not to be involved in politics.

No More Half Measures – Nova Scotia tax and spending reforms

Nova Scotia is in economic and demographic decline.

At the root of the problem are the public finances. Our taxes are too high. We can’t control our spending. Our present level of public services is unsustainable. Our provincial governments have been running serial deficits and have grown the public debt to a projected $15 billion. Interest on that debt approaches $1 billion annually.

It did not happen overnight. Nova Scotia has been a have-not province for decades, the recipient of grants from the federal treasury that now is almost $3 billion annually. This pays for what we cannot pay for ourselves — health care, education, social services.

We can rake over the history and there are lessons. The reality is that in a competitive world, Nova Scotia is not an attractive place to do business or to find a job.

We are overtaxed and over-regulated. Our political parties have failed us. They have contributed little in the way of public policy and regularly deliver mediocre candidates for public office.

Governments have failed us. There have been too many inept or timid MLAs and cabinet ministers. Some lacked ability, some the courage of their convictions. The “vision thing” has been lacking for a long time, but successive governments have not even been good stewards of the public purse.

The reason we are in this fix is failure of leadership. The answer to these problems is also leadership.

A notion of a unity government has been floated as if this will provide the answer. It is exactly the wrong approach. Such an approach entrenches mediocrity and reduces transparency.

We have a long-established system of democracy that is messy, but it works. We need a strong government with a positive articulated agenda. We need a strong opposition that will challenge government in a proactive and constructive fashion. This will be no bandwagon. There will be difficult decisions to take. It will hurt. Many people will be unhappy and upset. There will be more marches on Province House.

What must government do now?

We must reduce personal and business income taxes in Nova Scotia as well as sales taxes to well below the national average. This is essential in order to become competitive. Reducing taxes also creates jobs. If our youth cannot stay, then neither will immigrants come.

To reduce taxes, we must reduce spending. When spending is reduced, deficits are eliminated. When deficits are eliminated and public debt is managed, taxation can be reduced. Then government has the flexibility to act. The province can invest in targeted and essential infrastructure, research and development.

The provincial government needs to ensure that municipal taxation is restrained.

This will mean the encouragement of municipal amalgamation and the discouragement of municipal government extending its reach into areas that do not involve the delivery of essential municipal services. This requires oversight and legislation.

In order to gain control of spending, the provincial government needs to address in a comprehensive fashion the cost of public sector employees. Temporary restraint measures, such as wage or hiring freezes are only a stopgap measure.

The size of the public sector needs to be rationalized. Public-sector wage increases need to be constrained, not only within the limit of inflation but also within the limits of economic growth.

Ultimately, public-sector compensation should be tied to private-sector compensation. There is no logical reason for the taxpayers, as employer, to pay compensation to public sector employees beyond what the private sector taxpayer earns.

Public sector pensions require urgent address. In 2011, the provincial budget took a charge of $536 million to fund the underfunded public sector pension plan. This charge was largely responsible for the huge deficit of that year. This and previous similar periodic bailouts (costing hundreds of millions of dollars) to the public service and teacher pension plans are major contributors to our looming $15-billion accumulated debt.

The way government has permitted these plans to be funded has been grossly unfair to the general taxpayer. These unsustainable public sector defined benefit pensions must be abolished and replaced with accountable, self-funded, defined contribution plans which are common in the private sector.

We do not need to wait or consult for 10 years. These tax and spending reforms are really “Now or Never.”