On October 23, 2024 and February, 27, 2025, LASA hosted our Annual Historical Dinners in Edmonton and Calgary, respectively. We were delighted to welcome the Honourable Kent Davidson, Chief Justice of the Court of King’s Bench who spoke about the importance of judicial independence and improving court administration. He traced the struggle for judicial independence and shared his thoughts on its link with improved efficiencies in court administration.
Chief Justice Davidson brings an immense amount of experience to the Court of King’s Bench of Alberta. As a lawyer, the scope of his practice included construction litigation, commercial litigation, real estate litigation, labour and employment law, public inquiries, arbitration, mediation, insolvency, criminal law, and personal injury. He also brings substantial leadership experience to his new role. During his 36-year career as a lawyer, he spanned two law firms. He was at Lucas, Bishop, Bowker and White for 18 years. In 2001 he joined Miller Thomson LLP to head their Alberta Labour and Employment department. In 2014, he was elected the National Chair of that firm. He was appointed King’s Counsel in 2008.
Below is the text from his important speech given in Edmonton and Calgary:
I confess that ACJ Nixon’s invitation to speak to this august group instilled in me some discomfort – perhaps terror. As a matter of archival interest, I can tell you this: our extensive research tells us that my recent appointment represents the first time someone from Flin Flon, Manitoba has been appointed the Chief Justice of a Superior Court in Alberta, or I expect, anywhere. So there is that.
Yes, it is true: to speak to you tonight about matters academic and esoteric, you have invited a product of the Flin Flon public school division. Hapnot Collegiate (1976). Hope you enjoyed your meals. Flin Flon Is not known, of course, for its legions of academics; it is really more of a hockey town.
Now, that my hockey talent was exceeded by my academic potential tells you all you need to know about my hockey prowess. I was the first in my family not to be drafted into the NHL, which was a profound disappointment for my parents. I slunk out of town in shame to come west to Alberta. As I said at my swearing-in as a judge, my brothers (I have 3) have expressed little surprise that I would end up sitting on the bench.
I began my legal career at Stratton Lucas. At one time the Edmonton office of Bennett Jones, it eventually evolved into Lucas Edwards and Bishop, then Lucas Bishop and Fraser, and later became Lucas Bowker and White before transforming into Davis & Company, and now DLA Piper. I had the privilege of working alongside some exceptional lawyers there. It was a remarkable firm, and it continues to be, with a strong historical connection to Alberta.
In around 1985, Glynn Edwards departed the firm when Bennett Jones made a triumphant return to Edmonton and lured him away. I vividly recall running into Glynn as he was leaving the office with his box of personal belongings. I had always admired him and with a hint of pathos, I asked “Why, Glynn?” He replied, “I don’t want to be folding towels in a motel in Kelowna when I’m 65.” I got it. I think I learned a little about law firm economics with that exchange.
In April 2001, I was lured aways from the firm myself — by Bill Kenny and Bob Duke – to join another historic Alberta firm that was in the midst of making its own legacy. Along with Brian Tod, they led the old firm of Cormie Kennedy, which had since evolved into Cook Duke Cox Tod and Kenny. This firm had just merged with Miller Thomson, becoming one of Canada’s largest firms. I took on the role of Edmonton manager and was elected national chair by the partners in 2013. I served as the chair until my appointment. I also served as chair of the compensation committee for a decade – in deciding and defending the compensation awards for 200 partners over the years, I learned a few lessons about motivation, and choices.
Throughout my career, law firm management, finances and leadership have been an abiding interest of mine.
At its essence, managing a law firm is not all that complicated. As has been said, it is simply a matter of appeasing the narcissistic, avaricious, and ego-centric while building long term plans with myopic professionals. That of course, is too cynical. But there are a couple of maxims that I did keep in mind throughout. Firstly, almost any expense can be rationalized if some connection can be drawn between the expense and increase to the billable hours. The second thing is the lever of compensation: when you can grant significant raises, you can often placate the unreasonable if not the outrageous.
It is in this latter maxim (the power of compensation) that is a critical difference between law firm management and Court Leadership. At the Court, the Chief Justice has no such tools. Measuring productivity is – to put it mildly – challenging. There is no empirical measure of effort, there are no financial returns, and no way to compare expenses to assess the wisdom of investments. And, of course, all judges receive the same salary, regardless of their individual contributions. There is no time recording. Each judge is independent, accountable only to Parliament and their own conscience.
However, there is one measure to which we can look to determine collective productivity: throughput. The greater the throughput, the better the public’s return on its investment in the judicial system. In this regard, the task of managing any enterprise is the same: identifying the means to enhance productivity and increase the return. But in the context of the Court, even when the means to enhanced productivity and efficiency are obvious, there are significant impediments to implementing them.
Just prior to my appointment as Chief Justice, I was a director at the Canadian Superior Court Justices Association, where I chaired the Judicial Independence Committee. In that role, I commissioned a survey of judges on perceived threats to judicial independence. The survey revealed that judges fundamentally understand the importance of judicial independence to a modern democracy, and they are protective of it. Disturbingly, however, they are concerned that the lack of resources for Superior Court judges undermines judicial independence and renders them less productive. And that is where I would like to focus my remarks today; that is, the ongoing quest by Canada’s superior courts for greater independence, so we all might have a better understanding of the state of judicial independence in the 2020s. And I would like to link that understanding to the issue of judicial productivity – to demonstrate that judicial independence is not only essential to the furtherance of our democracy, but also necessary to achieve greater efficiency in the administration of justice.
This being a Legal Archives speech, I am going to start with a very old photograph.
This dour bunch is the first judiciary of the Supreme Court of the North-West Territories: the predecessor to Alberta and Saskatchewan’s Provincial Superior Courts, in 1897. Also included are the Sheriff, at left, and the Clerk of the Court, on the right, although you would be hard pressed to distinguish them from the judges. For those unable to grasp the obvious: this 1897 photo does not reflect a model of diversity. More to the point of today’s presentation, I feel confident in my belief that none of these gentlemen had ever heard of a flexible work schedule, a social media policy or a respectful workplace complaint.
The second photo was taken in January 2023: prior to my appointment as Chief Justice, but close enough. I am the 4th speck from the left in the second last row. This is what the Court of King’s Bench looks like today. I think the service dog on the right tells you part of the story. His name is Byron by the way. This is a modern, diverse Court. A vastly more complex organization, with human resource, scheduling, and technology issues that those judges in the first picture could never have dreamed of. About half of our puisne judges are women. The Court boasts former presidents of the Law Society of Alberta, managers of the Crown Prosecution Service, government lawyers, defence lawyers, business lawyers, and dozens of former managing partners of law firms of all sizes. Each of the organizations from which these judges hail is, likewise, increasingly modern and complex.
Today’s judges are more educated, more experienced, more business focussed than they have ever been. Trained in business and leadership, they bring to their role as judges not just legal skills, but business acumen. But the current budgetary and administrative arrangement between the Court of King’s Bench of Alberta and the Government of Alberta – has little regard for this broader experience. Like that first photograph, the current relationship is a relic of a simpler time and fails to account for the managerial and administrative skills that contemporary judges bring to the table. Indeed, it is a model that subjugates Courts to management by those with much experience in the magical incantations of government speak, but rather little experience in driving productivity in a modern organization.
This is the “executive model” of Court governance, where the leadership of the Court is divorced from the management of the organization – where major decisions in respect of the Court’s direction and management reside with the Minister.
Canadian courts have increasingly come to recognize problems with the executive model and have through the decades sought to give real meaning to judicial independence. For nearly 50 years, academics and judges have asserted that judicial independence necessitates greater control by Courts over their resources and administration. I maintain that not only is such important for the health of our modern democracy, it is the surest way to drive the highest possible return to the public for its investment in the administration of justice.
Concerns about judicial independence in Canada, including issues of administrative control over court budgets and operations, started gaining traction among the judiciary in the late 1970s and early 1980s; coincidentally around the time that the District Court of Alberta merged into the Supreme Court of Alberta Trial Division to become the Court of Queen’s Bench of Alberta, and not so coincidentally around the time the nation was engaged in the grand project of reimagining our constitution.
It was well understood at the time that the British North America Act of 1867 was, when compared to constitutional documents in the United States, Australia and France, for example, remarkably thin on the subjects of judicial power and judicial independence. A 1978 version of the Constitutional Amendment Bill would have gone some way to remedy this, containing sections that would have constitutionally enshrined the judicial independence and given the Supreme Court of Canada a constitutional foundation. For reasons that are well beyond the scope of my talk today, those proposed sections never made their way into the Constitution Act 1982.
Nevertheless, the issues of judicial independence and administration have remained very much alive. In August 1979, the Canadian Superior Court Judges Association, passed a resolution advocating for studies and measures to ensure judicial authority over court administration. And in November 1980, in an address to the Canadian Association of Provincial Court Judges, Chief Justice Bora Laskin said:
“Budget independence does not mean that judges should be allowed to fix their own salaries; it means simply that the budget should not be part of any departmental budget but should be separately presented and dealt with… [The Minister] … should do this is as a conduit, and yet as one able to support the budget after its preparation under the direction of the Chief Justice or Chief Judge and the chief administrative officer of the Court. So, too should the Court, through its Chief Justice or Chief Judge and chief administrative officer, have supervision and direction of the staff of the Court and of the various supporting services such as the library and the Court’s law reports. [Emphasis add]”
In January 1981, Chief Justice Jules Deschenes of the Superior Court of Quebec was appointed to lead a research project co-sponsored by the Canadian Judicial Council, the Canadian Judges Conference, and the Canadian Institute for the Administration of Justice. His report, titled Masters in their own house: A study on the independent judicial administration of the Courts, was delivered in September 1981.
The Deschenes Report was both controversial and unusually direct, arguing that judicial independence requires courts to have greater judicial control over budgets and administration. It addressed head-on many of the objections that we hear to this day. These include the claim that judges will be drawn into the day-to-day headaches of administrative work; that they will be required to engage directly with legislators in budgetary committees; that they will end up involved in labour disputes and, perhaps the most commonly heard objection, that “judges do not make good administrators”. I will not spoil the Report for you, knowing that you are all about to rush out to secure a copy, but to all these objections, Chief Justice Deschenes offered answers, some of which have become more compelling with the passage of time.
He also identified a host of difficulties that are spawned by administrative subordination of the judicial to the executive branch of government, which are as concerning now as they were then. Indeed, they sound like my email inbox. His list of problems (he listed 10) included these:
- Difficulty in obtaining the necessary staff;
- Inadequate premises;
- Problems with office supplies, photocopies;
- Inadequate security.
It is often said – fairly – that government is where good ideas go to die, and so it was with many of the recommendations in the Deschenes Report. The Report has had more impact in Australia where several jurisdictions built upon the Deschenes Report recommendations to develop new models of self-governing courts. In Canada, while other issues surrounding judicial independence, such as remuneration and tenure, were addressed through litigation over the ensuing years, questions around administrative and budgetary control have never been satisfactorily resolved.
In Valente v The Queen [1985] 2 SCR 673, for example, the Supreme Court outlined the three key elements of judicial independence: financial security, security of tenure, and administrative autonomy.
For the provincial superior courts, the first two imperatives fall within the purview of the Federal Parliament and have been adequately addressed through the provisions of the Judges Act. There is a mechanism for the payment of salaries to Judges and the regulation of their expenses. It sets out the secure terms for sitting Judges as well as annuity entitlements on retirement. It also establishes a commission to monitor and make recommendations concerning salary and benefits. So security of tenure and security of income – two of the fundamental pillars of judicial independence are now securely in place.
The third imperative, administrative autonomy, remains trickier. It has proven more vexing and elusive. Unlike the first two pillars, it falls more within the purview of the Provincial Legislature. Chief Justice Dickson, who sat on the Valente decision expanded on his views on administrative independence in a 1985 speech to the Canadian Bar Association Annual Meeting where he said:
“Effectively, the financial and administrative requirements of the judiciary for the dispensing of justice are in the hands of the very ministers who are responsible for defending the Crown’s interests before the courts. This ambiguity must be eliminated… Preparation of judicial budgets and distribution of allocated resources should be under the control of the chief justices of the various courts, not the ministers of justice. Control over finance and administration must be accompanied by control over the adequacy and direction of support staff.” In 1992, Professor Martin Friedland of the University of Toronto prepared another study on the subject. His report, A Place Apart: Judicial Independence and Accountability in Canada, was published in 1995.
A Place Apart was very well received by governments, judges, and the public. Like Chief Justice Deschenes, Professor Friedland was convinced that the executive model of Court Administration should be reimagined. He pointed out, in what may double as the thesis statement for my presentation today, that it is desirable to give the judiciary greater control over their working conditions, on the theory that “people work more effectively if they have control over their work environment.”
Alas, as with the Deschenes Report, however, Professor Friedland’s recommendations on court administration went largely unheeded. The Supreme Court of Canada revisited judicial independence in Reference Re Remuneration of the Provincial Court (P.E.I.), [1997] 3 SCR 3. That decision dealt primarily with issues surrounding remuneration, but its reasoning extends beyond financial security. Chief Justice Lamer emphasized the importance of institutional independence, noting the “constitutional imperative that, to the extent possible, the relationship be depoliticized”. Depoliticization requires that courts be free from political interference and economic manipulation by other government branches. This logic extends beyond remuneration, and the reasoning for independent pay commissions to safeguard financial security also applies to ensuring administrative autonomy.
The Canadian Judicial Council refused to give up. In a 2003 Judge’s Day speech in Montreal, then Chief Justice Beverly McLachlin mentioned that a CJC subcommittee had been formed to – once again – identify the standards of administrative control that courts should exercise in order to satisfy the requirements of judicial independence. The result, published in 2006, was the Alternative Models of Court Administration report. One member of that subcommittee was the then Chief Justice of Alberta, Catherine Fraser. The 2006 CJC Report reiterates now familiar themes and makes several concrete proposals. Among other things, it says:
- Canada has fallen behind peer jurisdictions such as Australia in innovations in court administration… the deficiencies of the executive model continue to impair the ability of courts to fulfill court administration goals and objectives.
- There is a compelling constitutional rationale for changing the executive model of court administration in Canada to a model or models which feature a greater degree of judicial autonomy.
- The optimal model of court administration would be one which provides the judiciary with autonomy to manage the core areas of court administration while ensuring (by the carefully considered use of an independent commission) that the authority of the political branches over resource allocation is not used arbitrarily.
There have been some positive developments over the years. By 2006, some Chief Justices in British Columbia, Ontario, and in Alberta, at the Court of Appeal, had entered into agreements with their respective provincial governments delegating authority over certain areas of court administration decision-making; for instance, control of expenditures within a specific portion of the court administration budget, or supervision of certain court staff. Amendments to the Judges Act and an Accord between the Chief Justice of Canada and the Minister of Justice have strengthened the institutional independence of the Supreme Court of Canada.
In April 2013, the Court of King’s Bench of Alberta joined this small group, gaining some control over staff working directly with Justices, dividing administration into King’s Bench Judicial and King’s Bench Operations. However, this autonomy has fallen short, offering only an illusion of independence. The Court acquired “functional control” over certain areas, such as the executive team (including the Executive Director, Chief Legal Counsel, Scheduling, and Judicial Assistants). But classification and pay remain shackled to the government’s pay grid. The Court faces staffing vacancies and lacks control over clerks, administrative staff, and their management—all crucial to judicial work. Additionally, judges’ security is outside the Court’s management.
In ceding control to the Court of the Court’s own executive team, the government has surrendered only the sleeves of its vest. It has not provided the Court with the tools needed to drive productivity and enhance efficiency. The same reasons for granting control over this limited portion of the Court’s operations and budget should justify expanding it. King’s Bench Operations and all staff, fundamental to the Court’s business, should be under the Court’s direction. Staff essential to the operation of the Court are appointed by and report to the Minister of Justice, who oversees their training, evaluations, promotions, and salaries. They look to the Minister for guidance and career advancement. Additionally, most staff belong to a public service union, further complicating allegiances. These are the types of concern articulated by Justice Deschenes 50 years ago. A truly independent Court would see its Chief Justice directing all Court staff. As it stands, the lines of authority are unclear, and the Court’s operations are not beyond the Minister’s control. This is not to say that the Minister is exercising actual control to the Court’s detriment. The Government, and particularly the current minister, has been resolutely respectful. But the Minister could do so, and that alone is a threat to judicial independence.
In short: the third aspect of judicial independence – administrative or institutional independence — is not fully secure. Administrative Independence is fundamental to the constitutional imperative of Judicial Independence. Without it, the other two pillars (security of tenure and independently established compensation) can only support an unstable platform. To emphasize the point, to better ensure judicial independence, the constitutional platform needs to be supported by institutional independence.
To this I would add that adequate funding is as crucial as control over the Court’s budget. There is a compelling argument that inadequate funding violates the constitutional principle of judicial independence. In other words, regardless of who controls the budget, it remains the province’s responsibility to furnish all necessary human, financial and material resources to superior court judges.
As intricate as court management may be, it is not beyond the ken of contemporary judges. As mentioned earlier, many judges have held senior leadership positions in highly complex organizations. I commented glibly about the management of lawyers. Of course, lawyers are not monolithically fixated on income. They are complex personalities. They are driven as much by professional fulfillment, and duty, and honour as anything else. Their management and leadership require delicacy, tact, respect, and a deep understanding of our collective experience as legal professionals. Judges are no less complex. Judicial productivity, like lawyer productivity, requires deft management and timely support. Judicial productivity should be a dominant expectation of the public and of a financially responsible government. Should court management be entrusted to an anonymous administration that is disconnected from the day-to-day needs and objectives of the court? Or should management be placed in the hands of judges skilled in modern management and leadership? Who might best assess the adequacy of Court budgets? And who is best placed to determine how scarce resources might be most efficiently allocated? The answer is that the Court must be at least an equal partner in its own financial and administrative management.
Despite years of effort, despite reams of academic guidance, despite litigation which clearly delineates the constitutional imperative of institutional independence, we remain mired in the executive model of Court management with the judiciary remaining subordinate to the executive. This relationship belies the notion of equality among the three levels of government, one of the key principles of our parliamentary democracy.
If an appeal to democratic principles is not persuasive, then surely the imperative of productivity will resonate with those seeking greater efficiency in the administration of justice. Placing decisions into the hands of competent front-line managers is sure to yield a better return on public investment. Of course, with enhanced discretion comes enhanced accountability. Judges do not shirk from that. And there are certainly mechanisms known to government that can give comfort there – like the commission structure designed to protect the other two pillars of judicial independence.
As my fellow judges and I sit in Edmonton today, in a building that is decades beyond its obsolescence, without modern amenities efficient Court operations demand, we are years away from maneuvering the mysteries of Treasury Board for a new facility. We are understaffed and under supported because inflexible terms of employment and ossified classification rules impede the hiring of the support needed by sophisticated professionals. Our security rests in the hands of individuals who are disconnected from the risks, and we are dependant on government largesse for the most basic of supplies. I cannot help but believe we can do better. This cannot be what equality looks like. Adequate resourcing and independent assessment of sufficiency would help secure the judiciary’s institutional independence.
Recently, the Lady Chief Justice of England and Wales, gave a speech at the Lord Mayor’s annual dinner for His Majesties Judges in London. Baroness Carr of Walton-on-the Hill made this plea:
“The point is in essence a simple one: the cost of justice is not the same as its value. And its worth to individuals, to the economy, to society as a whole, goes well beyond the numbers. Investment in the courts and tribunals is one that repays very many dividends. There is a price in a future without it”.
The ideas I have discussed are not new. The debate has raged for years. But the consequences of imperfect independence are becoming more dire as resources become more scarce. And more real. The current government has committed to critical investment in some areas. The commitment to the full digitalization of Court records is a vital investment in Court infrastructure that will bring much needed modernity. The Government is also making strides in restructuring family law, though its retreat from a unified family court is lamentable. These investments in the administration of justice are laudable. They are just sporadic and sometimes random. But now is the time to invest in the independence of the judiciary – and to recognize that the Court is perfectly competent to manage its affairs – independently, as contemplated by the constitution, and more efficiently as the public is right to expect.
Finally: I would like to say some closing words about this organization and some of the people here tonight, and some who are not able to be. In my 45 years in the profession, this might be my second attendance at a Legal Archives Society dinner. I may have, in the last 45 minutes, established the wisdom of my many absences. For 45 years, I have supported the organization financially and have sent students and young lawyers in my stead – because I could. I was always laser focused on the future and not the past. But with age, comes a profound appreciation for history. So, as I confessed when I began, I was terrified of the prospect of coming before you tonight – because of the gravity and weight and respect of this organization and its importance to our profession – and the importance of our legal history to my life, having now (45 years after starting law school) lived so much of it.
What comes before is important. We are, like the common law we serve, defined by our predecessors in practice and at the bench. Just as those who come after will be defined by what contributions we will make in the fleeting years of our service to the public.
I have had the good fortune to have watched, litigated against, negotiated with, and learned from many legendary figures – I think of Joe Stratton (former Bennett Jones partner who established Stratton Lucas in Edmonton in 1974); and my friend and mentor Gerry Lucas – 40 years as a Vice Chair of the Alberta Labour Relations Board and revered law firm leader. Bill Code, of photographic memory and inimitable style; Alan Hunter, relentless and prepared, a lawyer’s lawyer; John Hope, independent and sage; Bob White, as skilled a cross examiner as we have known; Rod McLennan, pre-eminent counsel with a resounding voice that made him seem a man bigger than the profession; John Weir, a powerful orator; Phyllis Smith, literally a lawyer’s lawyer. Other Advocates of skill, imagination, and tenacity who refined the art that had been given them by their forebearers – like Don Cranston (universally respected and adored), Norman Pollock (whose early departure cut short his path to greatness, but whose skill was widely appreciated). Cecilia Johnstone, whose contributions to the profession and the bench still resonate. They have all passed now. But I knew them, and I am the better for it. Their records; their contributions, are I suppose now archival. But their influence lives in the hundreds, if not thousands of lawyers who benefitted from their tutelage and examples.
There are of course, so many others who have made tremendous contributions to the law in this province. Many of them are in this room tonight. Chief Justice (retired) Catherine Fraser cut a wide swath in her brief 15 years or so as a lawyer. She was a force. And as a judge there can scarcely be said to have been another of greater influence on the law in Alberta. Bryan Kickham, Gordon Mckenzie, David Stratton, Bob Duke, David McCalla, Elizabeth Johnson – all are retired now from the profession they built. And of course, the gentleman, Don Bishop, is here tonight whose civility, tact, grace and practical wisdom reflected the best honourable tradition of the Bar. I knew them well and worked with them. The profession misses them as much as it benefitted from their service.
And of course there are legends who toil still. The indefatigable former Chief Justice Wittmann was a remarkable leader. Today he still works, and golfs, but mostly works. And of course, Supreme Court Justice Mary Moreau, who preceded me in this office but who sits now as one who will shape our history and whose contributions to the profession and society are likely to exceed any or all of those who have come before.
I consider my brushes with all these folks and all of you as a gift and a privilege.
It is very seldom that we as lawyers or judges talk about what we do. We are far more likely to proclaim what we are. The profession, like the law it serves, evolves because it has been respectfully nourished and cared for by generations of devoted, skilled craftspeople. I can say from my perch on the dais, the profession remains comprised of highly skilled professionals, perhaps differently skilled that those that have come before, but earnest, honest and hardworking. You can see the reflections of the great barristers in them. And appointments to the Bench, present company excluded, have been of the highest quality. Like their forebearers, they too will carry the traditions of the profession and lead the fight for the rule of Law.
All of which is to say that I am very grateful for your invitation to speak tonight. Having been brought to reflect on the importance of legal archives, I realize that I have, unknowingly, unwittingly, perhaps reluctantly become one – a reality I think not to be dreaded, but profoundly appreciated.
LASA thanks all those who attended the Edmonton and Calgary Historical Dinners for their support that helps continue the work of preserving and promoting Alberta’s legal heritage. Most of all, LASA thanks Chief Justice Davidson, who accepted our invitation, and entertained everyone.
