Response of the Government of Canada to the Report of the 2007 Judicial Compensation and Benefits Commission

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 provides that Parliament establishes judicial salaries and benefits.  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 independence.[1]

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.[2]  The Judges Act establishes express criteria which govern the Commission’s consideration as well as that of Government and Parliament in determining “adequacy” of compensation:

The 2007 Judicial Compensation and Benefits Commission delivered its Report to the Minister of Justice as statutorily required on May 30, 2008.  Its key recommendations include:[3]

This Government’s Response has been delayed to allow the Government to consider the Commission’s Report in light of significant changes to a key criterion in relation to which the Commission developed its recommendations: the prevailing economic conditions in Canada, including the cost of living, and the overall economic and financial position of the federal government.   

The Government has determined that in view of the significant deterioration in economic conditions in Canada and the financial position of the Government, it would be unreasonable to implement the Commission’s recommendations.  This Response provides the constitutionally mandated public explanation and justification for this decision, in light of the standard established by the Supreme Court of Canada in Bodner v. Alberta.[4]

Changed Economic Conditions

The global economic situation and the financial position of the Government deteriorated significantly after the Commission concluded its inquiry and submitted its recommendations to the Minister of Justice on May 30, 2008.  The deterioration of the economic outlook, its implications for Government revenues, and the need for the Government to take extraordinary action to respond to the immediate economic threat while securing Canada’s long-term growth and prosperity are outlined in Budget 2009 – Canada’s Economic Action Plan, announced on January 27, 2009. 

Budget 2009 - Canada’s Economic Action Plan announced measures to stimulate the economy, protect Canadians during the global recession, and invest in long-term growth.  It also outlined measures to manage expenditures, including actions to limit discretionary spending by federal departments and agencies, and the introduction of legislation to ensure the predictability of federal public sector compensation during this difficult economic period. Legislation has now been introduced to put in place annual wage increases for the federal public administration (including senior members of the public service, public office holders and Members of Parliament) of 2.3 per cent in 2007-08 and 1.5 per cent for the following three years.

In the Government’s view, the public would reasonably expect that judges should be subject to similar restraint measures.  The Supreme Court of Canada has established that it is to ensure continued public confidence in the judiciary that judicial remuneration should be subject to measures affecting the salaries of all others paid from the public purse. In Reference re Remuneration of Judges of the Provincial Court (P.E.I.), Chief Justice Lamer observed that equality of treatment “helps to sustain the perception of judicial independence precisely because judges are not being singled out for preferential treatment”.[5]  He explained:[6]  

In my opinion, the risk of political interference through economic manipulation is clearly greater when judges are treated differently from other persons paid from the public purse.  This is why we focussed on discriminatory measures in Beauregard.  As Professor Renke, supra, has stated in the context of current appeals (at p. 19):

. . . if judges were spared compensation decreases affecting other public sector groups, a reasonable person might well conclude that the judges had engaged in some behind-the-scenes lobbying.  The judges’ exemption could be thought to be the result of secret deals, or secret commitments to favour the government.  An exemption of judges from across-the-board pay cuts is as likely to generate suspicions concerning judicial independence as the reduction of judicial compensation in the context of general public sector reductions.

The Government accepts that judicial compensation is subject to certain unique requirements that do not apply with respect to others paid from the public purse.  In particular, it is necessary to ensure that judicial compensation does not fall below the “minimum” required to protect financial security, including through erosion of compensation levels over time.  The purpose of this minimum is to avoid the perception that judges might be susceptible to political pressure through economic manipulation as witnessed in many other countries.[7] Superior court judges in Canada are protected against erosion of compensation levels by annual statutory indexing, which will be maintained, as well as the quadrennial review of judicial compensation.     

The Government is mindful of the unique quadrennial nature of the judicial compensation process which limits the possibility of interim adjustments during the quadrennial period.  However, in the event that the current economic circumstances improve before the next Judicial Compensation and Benefits Commission is established so as to justify salary enhancements, such circumstance could be taken into account by the Commission.   


Recommendations of the Third Judicial Compensation and Benefits Commission