Response of the Government of Canada to the Report of the 2021 Judicial Compensation and Benefits Commission
This is the Response of the Government of Canada to the Report of the sixth Judicial Compensation and Benefits Commission, submitted to the Minister of Justice of Canada on August 30, 2021. The Government’s Response is issued pursuant to subsection 26(7) of the Judges Act.
The Government wishes to thank the Chair of the Commission, Ms. Martine Turcotte, and the two returning Commission Members, Ms. Margaret Bloodworth and Mr. Peter H. Griffin, for their commitment to this important public interest process. Their engagement with the participants and the process, as reflected in their thorough analysis of the evidence and submissions placed before them, evinced the thoughtful and rigorous approach with which they fulfilled the weighty responsibility placed on them. What is more, they did so while also managing a process that was indelibly marked by the effects of the COVID-19 pandemic. The Commission’s first act, immediately on appointment, was to consider and grant the joint request of the Government and the judiciary (including the prothonotaries of the Federal Court) to postpone the start date of its inquiry from June 1, 2020 to December 1, 2020. The participants were grateful for the Commission’s exercise of this authority under subsection 26(3) of the Judges Act. By granting the requested postponement, the Commission recognized the “disruption within and around the administration of justice and workplaces coupled with the need of the parties to best place their respective positions before the Commission to assist it in its inquiry” (Ruling Respecting Request for Deferral of Commencement Date of June 1, 2020).
Such a postponement was but one of several unprecedented aspects of this Commission’s process. All stages were carried out virtually, including the two days of hearings held in May 2021 that were broadcast for the first time on YouTube, an implicit acknowledgment of and dedication to the public interest nature of this process. The Government is grateful for the flexibility and diligence of the Commission members and those who provided them with support over the months of their inquiry, despite the ongoing uncertainty and unpredictability created by the pandemic.
This is the Government’s response to the sixth full process of the Judicial Compensation and Benefits Commission, first established in 1999 pursuant to then-recent amendments to the Judges Act. Every response since the Government’s response to the 1999 Commission has included an overview of the context in which judicial compensation is established. The Government believes it is again appropriate to do so not as a routine litany, but rather as an intentional focus on the purpose of the process. The Judicial Compensation and Benefits Commission is a manifestation of one of the protections constructed around the constitutional principle of judicial independence, which the Supreme Court of Canada has found to be “the lifeblood of constitutionalism in democratic societies” and a principle that is fundamental to maintaining public confidence in the administration of justice (The Queen v. Beauregard,  2 S.C.R. 56 at 70).
At the federal level, section 100 of the Constitution Act, 1867 requires that Parliament, rather than the Executive, fix the compensation and benefits of superior court judges. Compensation and benefits for these judges are established in the Judges Act; since 2014, the Judges Act also provides for the compensation and benefits of the prothonotaries of the Federal Court, judicial officers to whom the protections of judicial independence also apply.
In Reference re Remuneration of Judges of the Provincial Court (P.E.I.),  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, effective, and objective” commission.
Subsection 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 as well as the prothonotaries of the Federal Court. Subsection 26(1.1) of the Judges Act provides that the adequacy of their compensation and benefits must be considered in light of the following criteria:
- the prevailing economic conditions in Canada, including the cost of living, and the overall economic and current financial position of the federal government;
- the role of financial security of the judiciary in ensuring judicial independence;
- the need to attract outstanding candidates to the judiciary; and
- any other objective criteria that the Commission considers relevant.
The Commission must report to the Minister of Justice within nine months of beginning its inquiry (subsection 26(2)), and the Government must respond publicly to the Commission’s report and recommendations within four months of receipt of the Report (subsection 26(7)).
The current Commission (the “Turcotte Commission”) began its inquiry on the postponed start date of December 1, 2020, and delivered its Report to the Minister of Justice on August 30, 2021. The Report contained eight recommendations: three having to do with salaries (Recommendations 1-3), four in relation to existing or newly-proposed allowances payable to judges and/or prothonotaries (Recommendations 4-7), and a final recommendation related to data-collection in anticipation of the inquiry of the seventh Commission, whose statutory start date is June 1, 2024 (Recommendation 8). A full list of the Commission’s recommendations is included at the end of this Response.
The Government accepts all recommendations of the Turcotte Commission. As outlined further below, the Government also takes the opportunity to offer observations and comments on not only the issues that the Commission addressed through specific recommendations, but also in regard to other issues that arose over the course of its inquiry.
Salaries (Recommendations 1-3)
The Commission recognized the actual salaries as of April 1, 2021 in Recommendation 3. With regard to salaries generally, it recommended that “[j]udges’ salaries should continue to be adjusted annually on the basis of increases in the Industrial Aggregate Index [IAI], in accordance with section 25(2) of the Judges Act.” This recommendation continues the existing statutory annual adjustments, declining the proposals put forward by both the judiciary (i.e., 2.3 percent increases in salary in the third and fourth years of the Commission’s inquiry period, in addition to indexation) and the Government (i.e., a 10 percent limit on salary increases attributable to IAI above the salary payable as of April 1, 2020). The Commission engaged in a thorough analysis of the evidence presented to it, the historical roots of IAI indexation, and its ongoing role in judicial compensation. It cited the statement by the 2015 Rémillard Commission that “IAI ensures that the annual earnings of judges keep pace with the annual earnings of average Canadians” (para. 115), while acknowledging the “unusually large increase at April 1, 2021 is the result, due to the COVID-19 pandemic, of approximately 2.9 million workers losing their jobs or being laid off in the spring of 2020” (para. 121).
The Commission concluded, “Attempting to fetter [… the] effects [of IAI] by imposing ceilings or floors, other than the annual 7% cap already provided for, is inconsistent with the policy behind indexation and its application over the last 40 years” (para. 127). The Government respectfully disagrees with the Commission’s implicit suggestion that the current statutory framework governing IAI is indelible. Rather, the constitutional process represented by the Commission’s inquiry is the appropriate venue to propose consideration of alternative approaches, even if this would effectively entail review of the 7 percent cap Parliament deemed appropriate in 1981. The Government respects the deliberation and scrutiny the Commission brought to bear on these interrelated issues, and accepts its recommendation that indexation continue to operate unchanged for the period of this Commission’s mandate (April 1, 2020 to March 31, 2024).
The Commission declined to recommend a salary differential between trial judges and court of appeal judges, as had been proposed by members of the Quebec Court of Appeal. The Government accepts the Commission’s reasons in this regard and reiterates its conviction that, while the roles of trial and appellate judges may differ qualitatively, they play equally important roles and have equal value within Canada’s judicial system.
Allowances (Recommendations 4-7)
The Commission made recommendations in regard to three distinct allowances, both existing and new.
An annual allowance of $5,000 is currently available to all federally-appointed judges to reimburse them for “reasonable incidental expenditures that the fit and proper execution of the office of judge may require” (Judges Act, subsection 27(1)). Prothonotaries may claim a maximum of $3,000 for the same types of expenses (subsection 27(1.1)). This allowance is administered by the Commissioner for Federal Judicial Affairs for the prothonotaries and all judges other than the nine judges of the Supreme Court of Canada, whose allowances are administered by the Registrar of the Supreme Court of Canada. Both the Commissioner for Federal Judicial Affairs and the Registrar have issued guidelines governing the applicable principles of value for money, accountability, transparency, and respect for judicial independence.1 The judiciary proposed that the current allowance of $5,000 be increased to $7,500, citing overall increases in the cost of living, as well as developments in the way judicial functions are carried out since the allowance was last increased in 2000. For example, the costs of technology, the need for which has only been exacerbated by the pandemic, were not contemplated more than 20 years ago.
The prothonotaries sought an increase in their incidental allowance from $3,000 to the same level as that to which judges are eligible. They maintain that the types and levels of expenditures (e.g., technology, continuing education) are the same for judges and prothonotaries, and there is no principled reason to maintain a distinction in the level of the incidental allowance.
The Commission agreed with the arguments put forward by the judiciary and the prothonotaries, and recommended an increase to $7,500 per year for all judges and prothonotaries. They concluded that technology expenses in particular are unlikely to decrease even as the pandemic subsides, and commented on the apparent prudent use of the allowance, as well as the auditing function performed by the Commissioner for Federal Judicial Affairs and Registrar of the Supreme Court of Canada. The Government accepts the two recommendations on the incidental allowance in relation to the prothonotaries (Recommendation 4) and the judges (Recommendation 5).
Subsection 27(6) of the Judges Act provides an allowance for judges who hold positions of leadership on their courts (i.e., chief justices, associate chief justices, regional senior judges) or within the judicial system generally (i.e., puisne judges of the Supreme Court of Canada). This allowance can be used to reimburse these judges for costs they may incur when they represent their courts and the work they do, such as giving speeches or lectures at public events, or meeting with members of the judiciary from international jurisdictions. As with the incidental allowance, representational allowances are payable in accordance with guidelines established by the Commissioner for Federal Judicial Affairs or Registrar of the Supreme Court of Canada,2 as the case may be, and subject to audit and reimbursement by them.
The Commission accepted the expert evidence presented by the judiciary that the effect of inflation over the years since maximums were first set (in 2004 for regional senior judges, and in 2000 for all others) had, over time, eroded the value of the allowance and supported the judiciary’s proposal for increases. It therefore recommended increases to the “maximums allowable under the legislation in line with the increase in the cost of living over the years” (para. 282). The Government accepts this recommendation, which will be implemented through the necessary amendments to the Judges Act.
Medical Assistance Allowance
The Government proposed the creation of a new medical assistance allowance to cover reasonable medical travel expenses incurred when a judge who receives a northern allowance under subsection 27(2) of the Judges Act is required to travel for non-elective medical or dental treatment. The Commissioner for Federal Judicial Affairs has identified a need for this type of support, and the Commission signalled its agreement through Recommendation 7. The Government accepts this recommendation and will introduce the necessary legislative amendments to create such an allowance, modeled on similar support provided to public servants who live in remote locations. The new allowance will be administered by the Commissioner for Federal Judicial Affairs.
Data-collection (Recommendation 8)
The Commission made a detailed recommendation regarding the collection of data meant to help the seventh Commission better evaluate the adequacy of judicial compensation with reference to the statutory criteria (Recommendation 8). The Government agrees that the data referred to in the recommendation are germane to the Commission’s statutory mandate. At the same time, the Government recognizes that the data mentioned by the Commission are drawn from various entities fulfilling various distinct mandates, and there may continue to be limits on what data are available or can be shared. The Government is committed to acting on the Commission’s recommendation, in collaboration with the other participants in the Commission process, where appropriate.
Supernumerary Office for Prothonotaries of the Federal Court
While both the prothonotaries and the Government provided information to the Commission on a proposed new supernumerary office for prothonotaries, the Commission declined to make a recommendation in this regard. The Government is mindful of and respects the Commission’s observation in relation to the bounds of its statutory mandate. That said, with respect to the creation of a supernumerary office for prothonotaries, the Government wishes to make clear that it nevertheless decided to bring the issue to the attention of the Commission for two reasons. First, the Government wanted to inform the Commission that it had followed through on the commitment it made in its response to the 2015 Commission to constructively engage on this issue with the Chief Justice of the Federal Court. This engagement ultimately led to a decision on the part of the Government to create the office of supernumerary prothonotary.
Second, the Government takes seriously the Supreme Court of Canada’s finding in Conférence des juges de paix magistrats du Québec v. Quebec (Attorney General), 2016 SCC 39 (CanLII),  2 SCR 116 that “when a new office is created, a committee must review the initial remuneration” (para. 54). Given the quadrennial schedule on which this Commission’s inquiries are held, the Government preferred to raise this matter in advance of creating the new office of supernumerary prothonotary, out of respect for the Court’s caution that retroactive review of the conditions attached to a new judicial office may be constitutional, but the time “will generally be measured in months, and not in years” (para. 56).
On that basis, and given the Government’s decision to establish the office of supernumerary prothonotary, the Government welcomes the Commission’s positive observations in relation to the proposed supernumerary office. The Government is committed to enacting the necessary legislative amendments along with the other amendments necessary to implement this Response.
The Government will take steps to ensure the timely implementation of the Commission’s recommendations by introducing the necessary legislative amendments “within a reasonable period”, as required by subsection 26(7) of the Judges Act. The Government again takes the opportunity to thank the Commission for its commitment to the public interest, as demonstrated by its participation in this important process.
1 https://www.scc-csc.ca/pdaia-dplai/ju/ai-ifa-eng.aspx?d1=2020-04-01&d2=2020-06-30#tabs1_3 and https://www.fja.gc.ca/JudgesExpenses-DepensesJuges/incidentals-faux_frais/v1/pdf/(April-Avril%202020)%20Guidelines%20Incidental%20Allowance_Lignes%20directrices%20in....pdf
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