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Backgrounder
Proposed Amendments to the National Defence Act
BG-03.025 - May 1, 2003
The Government is proposing to amend the National Defence Act (NDA) to allow regulations prescribing the rates and conditions of issue of pay of military judges to be made with retroactive effect. This would allow the government to implement the recommendations of the Military Judges Compensation Committee (MJCC) that may require the making of pay regulations for military judges with retroactive effect.
FINANCIAL SECURITY AND JUDICIAL INDEPENDENCE
Financial security is a core characteristic of judicial independence in that it ensures that the pay of judges is established by law and is not subject to arbitrary interference. In 1997, in the Prince Edward Island (PEI) Provincial Judges reference case, the Supreme Court of Canada established new constitutional requirements for determining judicial salaries to guarantee the financial security of judges, including the requirement for an independent, objective and effective body, such as a commission, to give prior consideration to any changes made by governments to judges' salaries. A commission's recommendations are not binding on the government, but the government is constitutionally required to publicly justify the rejection or modification of a recommendation.
In 1998, the Court Martial Appeal Court in Lauzon v. R, applying the PEI Provincial Judges decision, held that the then-existing system of establishing the rates of pay of military judges was unconstitutional as it did not have an independent, objective and effective mechanism to give consideration to any changes to military judges' rates of pay. In 1999, the MJCC was established by regulations to correct this deficiency.
The MJCC conducts a review every four years in order to make recommendations to the Minister of National Defence as to the appropriate rates of pay for military judges. The next MJCC review is scheduled to commence on September 1, 2003 with the Commission's report expected by the end of May 2004. As the MJCC may recommend that the adjusted rates of pay be made retroactive to the beginning of the review period, i.e. September 1, 2003, the Minister of National Defence and Treasury Board must retain the capacity to approve and implement any recommendations that may have retroactive effect. Without this capacity, the integrity and effectiveness of the MJCC process cannot be ensured.
PROPOSED AMENDMENTS TO THE ACT
To ensure the integrity and effectiveness of the MJCC process, an amendment to the NDA is proposed to clearly authorize the making of regulations by Treasury Board to set rates and conditions of issue of pay of military judges with retroactive effect to the start of the period of review of military judges' pay.
Several additional amendments to the NDA, unrelated to the pay of military judges, are also proposed. These are minor housekeeping amendments that have been included for the sake of legislative efficiency and primarily deal with providing clarity and consistency between the English and French versions of the NDA.
For further information :
Minister of National Defence Introduces Amendment
to the NDA for Military Judges Pay
[News Release - 01 May, 2003]
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