Backgrounder

The Supreme Court of Canada Independence Decision and a revised Judicial Compensation and Benefits Process

On November 18, 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.

A statutorily mandated federal judicial compensation commission had been in place prior to the decision. Following this decision, the Judges Act was amended in order to reinforce the objectivity and effectiveness of the commission process. The new Judicial Compensation and Benefits Commission is now required to convene every four years and to make a report with recommendations within nine months of commencement.

The mandate of the Commission is to inquire into the adequacy of judicial compensation and benefits by considering:

• 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.

The 1999 Judicial Compensation and Benefits Commission

The first Quadrennial Commission was established on September 1, 1999. 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, as required by the Judges Act. At that time, three members were appointed to hold office for a term of four years. One member was nominated by the Government and one by the judiciary. These members, in turn, nominated a third member to serve as Chair of the Commission.

The 1999 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 and March, 2000, the Commission heard extensive argument from government officials, the Canadian Judicial

Council, the Canadian Judges Conference and all others who chose to make oral submissions. In addition to the expert evidence provided in the various submissions, the Commission retained its own consultants to assist its deliberations. The Commission delivered its report to the Government on May 31, 2000.

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Department of Justice
December, 2000