RESPONSE OF THE GOVERNMENT TO THE 1995 TRIENNIAL COMMISSION ON JUDGE'S COMPENSATION AND BENEFITS

1. Introduction

Judicial independence is a cornerstone of our democratic society, a principle clearly reflected in and protected by sections 96-100 of the Canadian Constitution. On September, 18, 1997, in Reference Re: the Independence of Provincial Court Judges of P.E.I., the Supreme Court of Canada reiterated that financial security for judges is a constitutional requirement established to ensure public confidence in the independence and impartiality of the judiciary.

In 1981, in recognition of the importance of judicial independence and the unique constitutional role of the judiciary, Parliament provided for an independent commission to examine the adequacy of judges' salaries and benefits. In its recent decision, the Supreme Court underscored the importance and necessity of the role played by such independent commissions in ensuring public confidence in the independence and impartiality of the Canadian judiciary. A key part of that decision is to require a public justification by government for a decision not to implement, or to only partially implement, a recommendation of such a commission.

2. The 1995 Commission on Judge's Salaries and Benefits

The most recent Commission on Judge's Salaries and Benefits, chaired by Mr. David Scott, reported on September 30, 1996, and the Commission's Report was tabled in Parliament on October 11, 1996.

This government continues to support the principles that led Parliament to institute the judicial salary commission process 17 years ago. In light of those principles and the enhanced constitutional role of independent salary commissions following the Supreme Court decision, we have given serious consideration to the recommendations of the Scott Commission.

In terms of judicial salaries, the Scott Commission recommended an appropriately phased upward adjustment of 8.3% on the expiration of the salary freeze (April 1, 1997). In proposing prospective increases only, the Scott recommendation is consistent with the government's view that it would be unreasonable for the judiciary to not share in the necessary economic restraint that was exercised from 1992 until very recently by all Canadians paid by the federal government.

This government agrees with Chief Justice Dickson of the Supreme Court of Canada, when he stated in R. v. Beauregard that "Canadian judges are Canadian citizens and must bear their fair share of the financial burden of administering the country". This view is echoed in the recent decision of the Supreme Court of Canada where the Chief Justice of Canada observed :

At the same time, in deciding what was reasonable, the Scott Commission recognized that a complex range of factors must be considered in establishing an appropriate level of remuneration, including the need to ensure levels of compensation that attract and keep the most qualified candidates for judicial office.

The government is also mindful that a number of provincial governments across Canada have responded to the recent Supreme Court decision by providing salary increases to their judiciary. In some cases, retroactive adjustments have been made to restore earlier reductions and freezes as well.

The government is therefore proposing amendments to the Judges Act to provide a phased-in increase to judicial salaries of 4.1% per year over two years, effective April 1, 1997.

The government is also proposing to implement certain pension-related recommendations, including the "Rule of 80" which will permit retirement when a judge has served on the Bench for a minimum of 15 years and the sum of age and years of service equals at least 80.

The Government agrees with this recommendation which responds in an important way to the changing demographic profile of the judiciary . More and more judges are being appointed at a younger age and many of these younger judges are women. The current provision, although based on the rule of 80, requires a minimum age of 65. A judge who retires before 65 has no right to a pension at all. Therefore, a judge appointed at the age of 50 can retire with a pension at 65 with 15 years of service, but a judge who is appointed at 40 must serve 25 years, a situation that is increasingly considered unfair. This has a particular impact on women judges who constitute the majority of those appointed at an early age. The Rule of 80 would allow older, long-serving judges to retire when they feel they no longer wish to continue in the role. Permitting this will be good for them and for the court itself as an institution.

The Scott Commission has proposed a different retirement option for the judges of the Supreme Court of Canada who would be permitted to retire with a full pension after serving a minimum of ten years on the Court. The Government agrees with the Commission that the immense workload and heavy responsibility inherent in membership on that Court justifies the proposed retirement provision. However, the government proposes to limit it to those judges who have reached the age of 65 years.

The Scott Commission recommended that the current government-paid life insurance coverage for judges be brought more closely into line with that provided to Deputy Ministers. However, there are serious and complex issues that require further consideration before the government can respond to the Scott suggestions, including equity issues arising from the potentially disparate impact on younger, mostly female judges of the resulting increased taxable benefit.

The Scott Commission itself recognized that this is a very costly option for taxpayers to support and acknowledged that these issues had not been fully considered, when it stated at page 28 of the Report:" it is premature to make a detailed recommendation presently, but we are of the view that even if it must be a staged program based on manageable age criteria, efforts should be made to offer equivalent life insurance coverage".

While there has been some discussion of the range of approaches to this issue, and the judiciary support the option of integration into the same insurance plan as Deputy Ministers, fuller consideration of this and other options is required. This is therefore an issue that would be appropriate to refer to the new commission, once established, for further study and recommendation.

The government is also proposing to make a number of improvements to the judicial compensation commission process in order to reinforce its independence, objectivity and effectiveness. This will include a proposal that the Minister of Justice be required to respond to a report of a salary commission. This is responsive in part to the recommendation of the Scott Commission that would require the Minister of Justice table the report of a commission in the House of Commons, together with the government's response to the report and a government bill.

However, the government's proposal for a response differs from the Scott recommendation in two ways. First, our proposal would have the Minister respond within six months rather than three, in order to allow the time necessary to give careful consideration to commission reports. Secondly, the government cannot accept the recommendation that a bill be tabled within a specified period of time. Control of legislative priorities and the agenda of the House is the prerogative of the government and it should not be fettered by fixed or inflexible time constraints.

3. Conclusion

The government appreciates the work done by the Scott Commission in reviewing judicial compensation and in making a thoughtful and balanced set of recommendations. Each recommendation has been carefully considered.

Under section 100 of the Constitution, Parliament is responsible for setting judicial compensation. The Scott Commission recommendations that have been accepted by the government will therefore be reflected in proposed amendments to the Judges Act and will be subject in due course to parliamentary review and approval prior to implementation.