Response of the Government of Canada to the Report of the 2003 Judicial Compensation and Benefits Commission

Introduction

On May 31, 2004, the 2003 Judicial Compensation and Benefits Commission delivered its Report as required by the Judges Act. In its Response on November 30, 2004, the former Government accepted all of the Commission’s recommendations, except one which it accepted in modified form.1 Bill C-51, which was introduced on May 20, 2005, would have implemented the Response, died on the order paper when the House of Commons was dissolved on November 29, 2005.

On assuming office in early February 2006, the Minister of Justice, on behalf of the new Government, made it a priority to review the Commission Report and Recommendations in light of the constitutional principles and the statutory criteria that govern the process, discussed more fully below. The Government has accepted the recommendation of the Minister of Justice to move quickly to accept all of the Commission’s recommendations as proposed in Bill C-51, with the exception of the salary proposal.2 This Response will explain the reasons for the Government’s decision to depart from the Commission recommendation that judicial salaries increase by 10.8% effective April 1 2004. It will also provide the rationale for the proposed alternative increase of 7.25% effective April 1, 2004.

1. The Constitutional Framework of Judicial Compensation and Benefits

The establishment of judicial compensation is governed by constitutional principles designed to ensure public confidence in the independence and impartiality of the judiciary. At the federal level, s. 100 of the Constitution requires that Parliament, and not the Executive alone, establish judicial compensation and benefits following full and public consideration and debate.3

In addition to the protections of s. 100, the Supreme Court of Canada has established a constitutional requirement for an “independent, objective and effective” commission whose purpose is to depoliticize the process of judicial remuneration and thereby preserve judicial independence4. This applies to both federal and provincial judicial appointments. These judicial compensation commissions make non-binding recommendations to governments, and governments must publicly respond within a reasonable period of time. A government which rejects or modifies a recommendation must provide a justification for the departure that meets the standard of rationality.

In July 2005, the Supreme Court of Canada clarified the standard against which the reasonableness of a government or legislative response to a commission report will be assessed. In Bodner v. Alberta,5 the Court clearly acknowledged that decisions about the allocation of public resources belong to legislatures and to governments. Governments are entitled to reject or modify Commission recommendations provided:

  1. They have articulated a legitimate reason for doing so.
  2. The government’s reasons rely upon a reasonable factual foundation.
  3. It can be shown that, viewed globally and with deference to the government’s opinion, the commission process has been respected and the purposes of the commission – namely, preserving judicial independence and depoliticizing the setting of judicial remuneration – have been achieved.

Governments and legislatures are required to take the requisite steps to implement commission recommendations, as modified if necessary, with “due diligence and reasonable dispatch”. 6

In 1998, the Judges Act was amended to provide for a Judicial Compensation and Benefits Commission to be established every four years to inquire into the adequacy of judicial compensation and benefits. 7 The Judges Act establishes express criteria which govern the Commission’s consideration as well as that of the Government and Parliament in determining “adequacy” of compensation:8

  1. the prevailing economic conditions in Canada, including the cost of living, and the overall economic and financial position of the federal government;
  2. the role of financial security of the judiciary in ensuring judicial independence;
  3. the need to attract outstanding candidates to the judiciary; and
  4. any other objective criteria that the Commission considers relevant.

The Commission is required to Report with recommendations to the Minister of Justice within nine months of commencement. The Minister must table the Report in Parliament and must respond within six months of receipt.9 As indicated, the former Government responded in November, 2004, but did not table a Bill until May 2005. The Bill did not proceed beyond First Reading and subsequently died on the Order Paper.

2. Response of the Present Government

The Government is fully committed to the important constitutional principles that govern the establishment of judicial compensation. We recognize that significant time has already passed since the Commission Report and recommendations, and that the integrity and effectiveness of the Commission process require that we take the necessary steps to move this matter forward to Parliament as quickly as possible to complete the 2003 Commission process.

At the same time, the Government is firmly of the view that we have a responsibility to consider the Report and Recommendations of the Commission in light of the mandate and priorities upon which we have been elected. We have undertaken this review with all reasonable dispatch, and in light of the applicable legal standards including the statutory criteria established by Parliament. As we shall discuss, we have given particular consideration to the first and third criteria, which are: “1. the prevailing economic conditions in Canada, including the cost of living, and the overall economic and financial position of the federal government” and “3. the need to attract outstanding candidates to the judiciary”.

Before turning to a detailed elaboration of our response with respect to the Commission salary recommendation, some preliminary observations with respect to the Commission Report are warranted. 10 The Commission is to be congratulated for its efforts to encourage public participation and to engage in a full and transparent process of deliberation.11 The Commission has clearly conducted a thoughtful consideration of the relevant issues and produced a comprehensive and thorough report based on the evidence and arguments presented. This is critical to ensuring public confidence in the independence and objectivity of the process.

It is also clear that the Commission undertook a detailed assessment and analysis of data and information available with respect to the relevant comparators for establishing the overall adequacy of judicial compensation. This has been a perennial challenge with which all previous federal judicial compensation commissions have grappled. As successive commissions and governments have discovered, it is as much an art as a science. There is no readily available mathematical formula to apply and a high degree of well-informed judgement is ultimately involved.

As we shall discuss, ultimately the Commission formed its judgement based on compensation methodology involving a number of assumptions in relation to available comparators. It is the relative weight that the Commission gave to the various factors -- and to one particular assumption that appears to have been especially persuasive in its ultimate salary recommendation -- with which this Government does not fully accord. In essence we have arrived at a different judgement as to the manner in which various considerations should be weighed. We now turn to provide a more specific explanation for our response.


  • [1] The November 30, 2004 Response can be found at http://canada.justice.gc.ca/eng/rp-pr/cp-pm/cr-rc/jcbc2-cerj2/index.html The Commission’s recommendations are attached as Annex 1. The full Commission Report, entitled Judicial Compensation and Benefits Commission Report, May 31, 2004 (“Report”) can be found on the Commission’s web site at www.quadcom.gc.ca.
  • [2] The Government accepts Recommendation 16 relating to judicial representational costs, as modified by and for the same reasons as provided by the former Government, which may be found in its November 30, 2004 Response, under the heading “Recommendation 16, Representational Costs”.
  • [3] Constitution Act, 1867 , s. 100.
  • [4] Reference re Remuneration of Judges of the Provincial Court (P.E.I.) , [ 1997 ] 3 S.C.R. 3 (P.E.I. Judges Reference), para. 131.
  • [5] [ 2005] 2 S.C.R. 286.
  • [6] P.E.I. Judges Reference , para. 179.
  • [7] Judges Act, R.S. 1985, c. J-1, as amended (the “Judges Act”), s. 26 (1).
  • [8] Ibid., s. 26(1.1).
  • [9] Ibid., ss. 26(2), (6).
  • [10]The Commission was established on September 1, 2003. As required by the Judges Act, the judiciary and the Government each nominated one member of the Commission. Those two members nominated a third member to serve as Chair of the Commission. The three members, Chairman Roderick McLennan, Q.C., and Commissioners Gretta Chambers, C.C., O.Q., and Earl Cherniak, Q.C., were appointed by the Governor in Council to hold office for a term of four years on good behaviour. (www.quadcom.gc.ca).
  • The Commission sought and received written submissions, supported by expert and other evidence, from a broad range of interested persons, including representatives of the judiciary and the Government. Two days of public hearings were held in February 2004. The Commission heard submissions from representatives of the Government, the Canadian Judicial Council and the Canadian Superior Court Judges Association, and all others who chose to make oral submissions. In addition to the expert evidence provided in the various submissions, the Commission retained its own consultants to assist its deliberations.
  • [11] The Commission published a public notice inviting written submissions in 48 newspapers in Canada having national, regional and local coverage. The text of the public notice and the list of newspapers is found at Appendix 4 of the Commission Report, http://www.quadcom.gc.ca/archives/2003/rpt/appendix4.html. A list of submissions from organizations and individuals is found at Appendix 5 of the Commission Report, http://www.quadcom.gc.ca/archives/2003/rpt/appendix5.html.
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