BarTalk August 2004
Volume 16, Number 4

By Michael Van Klaveren, President, BC Crown Counsel Association

The B.C. Crown Counsel Association (BCCCA), incorporated as a Society in 1991, represents Crown Counsel in B.C. with respect to the terms and conditions of their employment and all other matters of professional interest. Since 1991 the BCCCA has sought to achieve fair compensation for Crown Counsel but we are now reaching a crisis point as a result of the Attorney General’s February 12, 2004 rejection of the Taylor Report. The effect of this rejection was the imposition of a new contract expiring March 31, 2005, which included no increases in compensation.

What is the Taylor Report? It is an arbitration panel report which includes recommendations for the settlement of a new contract for Crown Counsel. In that report, dated January 14, 2004, Colin Taylor, QC, the Chair, recommended that B.C. Crown Counsel be given an average salary increase of 13 per cent over three years. The result would have been an increase in starting salaries from $49,782 to $56,000, and an increase in the top salary level from $123,864 to $140,000. (Approximately 80 per cent of Crown Counsel currently earn less than $97,000 and only 13 prosecutors earn over $107,000.) The Report also dealt with other recommendations including seniority and classification levels.

The panel’s majority (two out of three) referred to the B.C. Government’s announcement, during its February 2003 budget release, that it would not give pay increases to public servants “unless a justification could be made for the increase as a market adjustment” and found that there was “an identifiably clear and irrefutable case to be made for a market adjustment for Crown counsel.” They noted that although public service settlements in 2003 contained no general wage increases it was ‘irrefutable’ that B.C. Crown Counsel had fallen behind their counterparts, being Crown Counsel in Ontario, Alberta and the Department of Justice (Federal Prosecutors) in Vancouver. In finding these other Crown Counsel to be comparables, they followed the reasoning of Donald Munroe, QC whose report had been the basis for the settlement of the last contract, effective April 1, 1998-March 31, 2003. Munroe in turn followed the reasoning of Stephen Owen, QC an earlier arbitrator.

The Taylor Report arose as part of a settlement process agreed to with government to end a withdrawal of services by Crown Counsel in 2000. This process was contractually specified to “contribute to the orderly, constructive and expeditious settlement of terms and conditions of employment” and “promote the independent, impartial and professional exercise by Crown Counsel of their responsibilities under the Crown Counsel Act.” This settlement process included the securing of an independent expert to conduct a comparative study of Crown Counsel compensation across Canada. Failing a negotiated settlement, (as occurred here) the process called for an arbitration panel to assess the comparative study, in conjunction with the government’s fiscal constraints, and provide recommendations for a new contract.

The BCCCA agreed to be bound by the panel’s decision no matter what. The government was not bound, but was allowed to reject the recommendations only by filing a “reasoned response” by the Attorney General on behalf of government in the Legislature.

Prosecutors put their faith in this settlement process and in the Attorney General’s ability to act objectively and fairly in considering the panel’s recommendations but their faith and morale have been shattered by the Attorney General’s response rejecting the Taylor Report. Crown Counsel assert that the Attorney General’s response is not a “reasoned response” as it does not adhere to the specified context of the settlement process. The Attorney General treated the panel’s report as simply a submission to him which he was free to accept or reject.

The Attorney General rejected comparisons with other prosecutors in comparable jurisdictions maintaining that prosecutors’ compensation should be determined by comparing it with that of “other members of the B.C. Public Service.” With respect, this does not make sense. The government has made national comparisons when dealing with doctors, nurses, teachers, university presidents, deputy ministers and health care support workers. Why should prosecutors be treated any differently? The answer is clear: because we were below comparable entities in comparable jurisdictions the comparison wouldn’t support the desired result and therefore that oft-relied-upon comparison was uniquely inappropriate for us.

The Taylor Report is a moderate, temperate report that fell well within the expectations of both the BCCCA and the government. We call upon the government to implement the Taylor Report and properly resource the Crown Counsel office. It is the right thing to do. Prosecutors have consistently sought an independent process and have always agreed to be bound by such a process in advance regardless of the result. Why will the government not do the same as they have when dealing with other sectors? Surely, the government should have no difficulty in accepting the judgement of reasonable and respected citizens such as Messrs. Owen, QC, Munroe, QC and Taylor, QC. The alternative is simply unacceptable.

This article was published in the August 2004 issue of BarTalk and is subject to the copyright by the British Columbia Branch of the Canadian Bar Association, 2004, all rights reserved.