1. 1. Background: Supreme Court of Canada Independence Decision and a Revised Judicial Compensation and Benefits Process
2. 2. Report of the 2003 Quadrennial Judicial Compensation and Benefits Commission

1. Background: Supreme Court of Canada Independence Decision and a Revised Judicial Compensation and Benefits Process

The current federal Judicial Compensation and Benefits Commission (the Commission) was established in 1998 to meet the constitutional requirements established in support of the principle of judicial independence in the Reference re Remuneration of Judges of the Provincial Court (P.E.I.).^[1] The purpose of this independent, objective and effective commission is to depoliticize the process of judicial remuneration, so that the "courts are both free and appear to be free from political interference through economic manipulation by the other branches of government".^[2] The Commission is required to convene every four years, and to issue a report with recommendations within nine months of the commencement of its work. The statutory mandate of the Commission is to inquire into the adequacy of judicial compensation and benefits.^[3] In doing so the Commission is directed by statute to consider:^[4]

1. the prevailing economic conditions in Canada, including the cost of living, and the overall economic and financial position of the federal government;
2. the role of financial security of the judiciary in ensuring judicial independence;
3. the need to attract outstanding candidates to the judiciary; and
4. any other objective criteria that the Commission considers relevant.

The Commission's recommendations are not binding. However the Government is required to respond publicly to the Commission's report. Where recommendations are not accepted, or where it is proposed that a recommendation should be modified, the government must provide a reasonable justification for its decision. The reasonableness of the government's response is reviewable in a court of law and must meet the legal standard of "simple rationality", measured by the reasons and the evidence offered in support by the government.

It should be noted that while the Minister of Justice is responding publicly today on behalf of the Government of Canada^[5], it will be for Parliament to consider and approve the Government's proposed amendments to the Judges Act. Section 100 of the Constitution Act, 1867 requires that the salaries and allowances of the federally appointed judiciary be established by Parliament. The Government will introduce a Bill for consideration by Parliament at the earliest reasonable opportunity.

2. Report of the 2003 Quadrennial Judicial Compensation and Benefits Commission

The current Commission was established on September 1, 2003. As required by the Judges Act, the judiciary and the Government each nominated one member of the Commission. Those two members nominated a third member to serve as Chair of the Commission. The three members, Chairman Roderick McLennan, Q.C., and Commissioners Gretta Chambers, C.C., O.Q., and Earl Cherniak, Q.C., were appointed by the Governor in Council to hold office for a term of four years on good behaviour.^[6]

The Commission sought and received written submissions, supported by expert and other evidence, from a broad range of interested persons, including representatives of the judiciary and the Government. Two days of public hearings were held in February 2004. The Commission heard submissions from representatives of the Government, the Canadian Judicial Council and the Canadian Superior Court Judges Association, 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^[7] to the Government on May 31, 2004. An excerpt from the Report setting out the text of the Commission's recommendations is attached as Annex A.

^[1] [1998] 1 S.C.R. 3 (P.E.I. Judges Reference)

^[2] Ibid. 88, para. 131

^[3] Judges Act, R.S. 1985, c. J-1, as amended (the "Judges Act"), s. 26 (1).

^[4] Ibid., s. 26(1.1).

^[5] Ibid., s. 26(7).

^[6] Ibid., s. 26.1. The Commissioners' curriculum vitae can be found on the Commission website (www.quadcom.gc.ca)

^[7] Judicial Compensation and Benefits Commission Report, May 31, 2004 ("Report"). The Report, written submissions and supporting materials can be found at www.quadcom.gc.ca.