Backgrounder

Implementing the Government’s Response to the Judicial Compensation and Benefits Commission

As part of a comprehensive set of judicial and court-related reforms, the Government of Canada has introduced legislation to implement its Response to the May 2004 Report of the Judicial Compensation and Benefits Commission.

The Supreme Court of Canada in 1997 rendered a key decision, the PEI Judges Reference, concerning the constitutional requirements for the financial security of judges. In order to protect judicial independence, governments are required to have “independent, objective and effective” commissions to consider the adequacy of judicial compensation and make recommendations to government. Accordingly, the Judicial Compensation and Benefits Commission is established under the Judges Act to inquire every four years into the adequacy of the salaries and benefits of the federally appointed judiciary.

The Commission consists of three members: one is nominated by the judiciary and another by the federal Minister of Justice, and these two then nominate a Chairperson.

As a result, the Minister of Justice appointed Roderick A. McLennan, Q.C., Chair, Earl A. Cherniak, Q.C., and Gretta Chambers, C.C., O.Q. to the 2003 Commission.

The Commission sought and received written submissions, supported by evidence and expert reports, from a broad range of interested parties, including representatives of judiciary and Government. Two days of public hearings were held in February 2004.

The Commission delivered its Report in May 2004. The Report was tabled in Parliament in October 2004 and the Government released its Response to the Report in November 2004.

The Government is fully committed to this independent Commission process and has accepted all but one of the recommendations in the Commission’s 2004 Report. The exception relates to the judiciary’s legal representational costs in appearing before the Commission, which the Government would modify by reimbursing 66% of costs, both disbursements and legal fees. The Commission recommended reimbursement of 100% of disbursements and 66% of legal fees.

The proposed amendments to the Judges Act would:

• Provide the judiciary with a 10.8% salary increase, effective April 1, 2004, with annual indexing in the following three years. The 10.8% is the only increase above indexing that the judges will receive between 2004 and 2008. An increase in this range, together with annual indexing, is comparable to compensation trends for senior members of the federal public service;
• Provide a mechanism to divide the judicial annuity upon breakdown of the conjugal relationship. This reform would respond to a long-standing equity issue for judicial spouses and common-law partners, by facilitating the division of judicial annuity in the event of a conjugal relationship breakdown. This approach is consistent with those used to facilitate the division of other federal pensions;
• Permit judges of the Supreme Court of Canada to retire after 10 years of serviceon that Court regardless of their age – a measure that recognizes the Court’s extremely heavy case-load;
• Change the designation of the territorial Senior Judges to Chief Justice of their respective courts and provides that they would be paid the salary of a Chief Justice;
• Enable some judges to elect supernumerary status sooner, which permits those who are otherwise able to retire (usually age 65 with 15 years of service) to continue to serve part-time. This measure allows the court to retain and benefit from an experienced judge; and
• Other minor enhancements to certain allowances. For example, judges resident in Labrador would receive a Northern Allowance ($12,000 per year) to assist with the higher cost of living in Labrador. Another example would be to extend the Representational Allowance ($5,000 per year) to the eight Regional Senior Judges in Ontario, to assist those judges in undertaking duties within their respective regions related to representing their courts at official functions and conferences.

To access an online version of the Government’s response, visit: http://canada.justice.gc.ca/en/dept/pub/jcbrj/index.html

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Department of Justice
May 2005