Backgrounder

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. The Commission was created to ensure that the compensation of judges was determined through an objective, independent process that protects the independence of the judiciary.

History of the Judicial Compensation and Benefits Commission

In 1997 the Supreme Court of Canada rendered a key decision in a reference on remuneration of judges of the Provincial Court of Prince Edward Island. The decision established new constitutional requirements for determining judicial compensation, which support the principle of judicial independence. Every Canadian jurisdiction is required to have "an independent, objective and effective" commission to consider the compensation and benefits of judges, and make recommendations to government.

Judicial Salaries and Benefits

In considering the adequacy of judicial compensation and benefits, the Commission is guided by statutory criteria, including:

• The economic conditions in Canada, including the cost of living and overall economic position of the federal government;
• The role of financial security of the judiciary in ensuring judicial independence; and
• The need to attract outstanding candidates to the judiciary.

While the recommendations are not binding, the Supreme Court of Canada's decision requires that a rational and public justification for not accepting recommendations be provided. The reasonableness of a government's response is reviewable in a court of law and must meet the legal standard of "simple rationality," measured by the reasons and evidence offered in support by the government.

In order to implement its response to the Commission report, the Government must table amendments to the Judges Act. Any amendments to the Act, including a raise in judges' salaries, must be voted on by Parliament.

The 2003 Judicial Compensation and Benefits Commission

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 expert and other evidence, from a broad range of interested parties, including representatives of the judiciary and the Government. During two days of public hearings in February 2004, the Commission heard submissions from representatives of the Government, the Canadian Judicial Council, and the Canadian Superior Court Judges Association. In addition the Commission retained its own consultants to assist its deliberations. The Commission delivered its report to the Government on May 31, 2004 and it was tabled in Parliament on October 18, 2004.

Recommendations of the Commission

The Government accepts the recommendations made by the Commission. The recommendations accepted include:

• A 10.8% increase in judicial salaries on April 1, 2004, with statutory indexing in the following three years.
• Conferring on the northern Senior Judges the equivalent salary received by a provincial superior court Chief Justice.
• Not implementing a salary differentiation between judges who sit on courts of appeal and judges who preside at trials.
• Incorporating into the Judges Act a method to divide the judicial annuity upon the breakdown of a conjugal relationship.
• Making minor enhancements to certain allowances.
• Permitting judges of Supreme Court of Canada to retire after 10 years of service on that court regardless of their age.

The Government modifies the Commission's recommendation that the judiciary's current entitlement to reimbursement of legal representational costs be increased. The Commission recommended that the judiciary be reimbursed for 100% of disbursements and 66% of legal fees. The Government proposes that the judiciary be entitled to reimbursement of 66% of legal representational costs, both of disbursements and legal fees.