Response of the Government of Canada to the Report of the 2011 Judicial Compensation and Benefits Commission

I. Background

The establishment of judicial compensation is governed by constitutional provisions and principles designed to ensure public confidence in the independence and impartiality of the judiciary. At the federal level, s. 100 of the Constitution Act, 1867 requires that Parliament, rather than the Executive, fix judicial compensation and benefits. Judicial compensation and benefits are established by the Judges Act. However, in Reference re Remuneration of Judges of the Provincial Court (P.E.I.), [1997] 3 S.C.R. 3, the Supreme Court of Canada held that before any changes are made to judicial compensation, the adequacy of judicial compensation must be considered by an "independent, objective and effective" commission.

Section 26(1) of the Judges Act provides for the establishment of the Judicial Compensation and Benefits Commission every four years. The Commission's mandate is to inquire into and make recommendations regarding the "adequacy" of judicial compensation and benefits of federally appointed judges.

Section 26(1.1) of the Judges Act provides that the adequacy of judicial compensation and benefits is to be considered in light of the following criteria:

  1. the prevailing economic conditions in Canada, including the cost of living, and the overall economic and current 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 must report to the Minister of Justice within nine months and the Government must respond publicly to the Commission's report and recommendations within six months of receipt of the Report (s.26(7)). Although Commission recommendations are not binding, the Supreme Court of Canada held in Bodner v. Alberta, [2005] 2 S.C.R. 286, that a government that proposes to reject or modify a Commission's recommendations must provide a rational justification for so doing, based on the following three stage test:

  1. Has the government articulated a legitimate reason for departing from the commission's recommendations?
  2. Do the government's reasons rely upon a reasonable factual foundation? and
  3. Viewed globally, has the commission process been respected and have the purposes of the commission - preserving judicial independence and depoliticizing the setting of judicial remuneration - been achieved?

The current Commission (the "Levitt Commission") was convened on September 1, 2011 and is composed of Brian Levitt (Chair, appointed by the other two nominees), Paul Tellier (Judicial nominee) and Mark Siegel (Government nominee). The Levitt Commission delivered its Report to the Minister of Justice on May 15, 2012 and the Report was tabled in Parliament on May 17, 2012. A list of the Commission's recommendations follows the Response.

By way of summary, the Commission made the following salary and benefits recommendations:

  1. Recommendation 1 and part of Recommendation 3: no salary increases for the judiciary above statutory indexing for the Quadrennial Period (April 1, 2012 to March 31, 2016). (Pursuant to s. 25 of the Judges Act, judicial salaries are automatically indexed every April 1 based on the Industrial Aggregate Index ("IAI").).
  2. Recommendations 2 and 6, and part of Recommendation 3: the judges of appellate courts receive a salary differential of 3% above the current judicial salary in order to reflect the importance of their role and functions, and receive a judicial annuity based on that salary, including if the judge later accepts appointment to a trial court.
  3. Recommendations 4 and 5: all retirement benefits currently enjoyed by chief and associate chief justices be extended to the 3 senior northern judges, who perform the functions of chief justices for the territorial courts.
  4. Recommendation 7: the senior family law judge in Ontario receive the same representational allowance of $5000 as all Ontario senior regional judges.

The Commission also made certain recommendations regarding process (Recommendations 8-11).