Judicial Compensation

1 Judicial Compensation and Benefits Commission Commission d examen de la r mun ration des juges Chairperson/Pr sident Executive Director/Directrice ex cutive Brian M. Levitt Suzanne Labb Members/Membres l. : 613-995-5300 Paul Tellier, , , e-mail/courriel : Mark L. Siegel May 15, 2012 The Honourable Robert Douglas Nicholson Minister of Justice and Attorney General of Canada 284 Wellington Street Ottawa, Ontario K1A 0H8 Dear Minister: Pursuant to Subsection 26(2) of the Judges Act, I am pleased to submit the report of the fourth Judicial Compensation and Benefits Commission.

2 Yours truly, Brian M. Levitt Chair Encl. i TABLE OF CONTENTS CHAPTER 1 INTRODUCTION 1 Background and Context 1 Mandate and Analytical Approach 3 CHAPTER 2 Judicial SALARIES 6 Salary for Puisne Judges 6 Positions of the Government and Association and Council 6 Comparators 8 Purpose of the IAI Adjustment 16 Review Concerning Salary for Puisne Judges 17 Section 26( ) Analysis 19 Recommendation Concerning Salary for Puisne Judges 22 Salary Differentials between Trial and Appellate Judges 23 Overview 23 Recommendations Concerning Salary for Appellate Judges 25 CHAPTER 3 Judicial ANNUITY 27 Annuity for Senior Judges of the Territorial Courts 27 Recommendations Concerning Senior Judges of the Territorial Courts 27 Annuity for Trial Judges Who Previously Served on Courts of Appeal 28 Recommendation Concerning Trial Judges Who Previously Served on Courts of Appeal 28 Submission of the Hon.

3 Roger G. Conant 29 CHAPTER 4 ALLOWANCES 31 Representational Allowances 31 Recommendation Concerning Representational Allowance 31 ii CHAPTER 5 - PROCESS ISSUES 32 Adequacy of the Government s Response 35 Recommendation Concerning the Formulation of the Government s Response 36 Bodner: Effectiveness of the Commission Process 36 Recommendation concerning the Commission s process and purpose 38 Recommendations of Prior Commissions 39 Recommendation Concerning the Adoption of Prior Commissions Recommendations 40 Adversarial Nature of the Proceedings 40 Recommendation Concerning the Adversarial Nature of the Proceedings 42 CHAPTER 6 CONCLUSION 43 CHAPTER 7 LIST OF RECOMMENDATIONS 45 ** LIST OF APPENDICIES Appendix A Press Release and Commissioners Biographies Appendix B Commission s Process Chronology Appendix C List of Submissions.

4 Replies and Letters Received by the Commission Appendix D List of Participants at the Commission s Public Hearings CHAPTER 1 - INTRODUCTION 1. The appointment of the fourth Quadrennial Judicial Compensation and Benefits Commission (the Commission ) was announced by the Honourable Rob Nicholson, , , in December The members are: Chair, Brian M. Levitt, and Commissioners Paul M. Tellier, , , , and Mark L. Siegel. The Commission is established under the Judges Act2 to inquire into the adequacy of salaries and benefits payable to federally appointed judges. Its term spans a four-year period ending August 31, 2015 (the Quadrennial Period ). 2. The Commission is charged by the Judges Act to prepare a report for submission to the Minister of Justice within nine months from the commencement of its This is the Commission s report.

5 Background and Context 3. The Constitution Act, 1867 provides the Parliament of Canada with the authority to set Compensation for the judiciary. Section 100 states that: The Salaries, Allowances, and Pensions of the Judges of the Superior, District, and County Courts (except the Courts of Probate in Nova Scotia and New Brunswick), and of the Admiralty Courts in Cases where the Judges thereof are for the time being paid by Salary, shall be fixed and provided by the Parliament of Section 101 provides the Government with the authority to create the Supreme Court of Canada, Federal Court, and Tax Court of Canada, and to fix the remuneration of the judges of these courts.

6 4. Prior to the current Quadrennial Commission process, the Judges Act provided for the establishment of Triennial Commissions to make recommendations to Parliament regarding Judicial Compensation . Over time, the judiciary lost 1 A copy of the Department of Justice s News Release as well as the resum s of the Chair and Commissioners can be found at Appendix A. 2 Judges Act, RSC, 1985 c J-1 ( Judges Act ). 3 Ibid at s 26(2). 4 Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 100, reprinted in RSC 1958, App II, No 5. - 2 - confidence in the Triennial Commission process due to the failure of successive governments to act on the recommendations of the Triennial Commissions.

7 The report of the first Quadrennial Commission (the Drouin Report ) provides an overview of this 5. In 1998 the Judges Act was amended6 to establish the Quadrennial Judicial Compensation and Benefits Commission process following the Supreme Court of Canada s decision in Reference Re Remuneration of Judges of the Provincial Court of Prince Edward Island ( PEI Reference Case ).7 6. The constitutional guarantee of Judicial independence is a cornerstone of the integrity of the Canadian Judicial system. The three elements of Judicial independence enunciated by the Supreme Court of Canada in the PEI Reference Case are security of tenure, administrative independence, and financial 7.

8 Chief Justice Lamer, speaking for the Court, held that in order to preserve Judicial independence, an independent, effective and objective commission should be interposed between the judiciary and the other branches of government. The constitutional function of this body [would be] to depoliticize the process of determining changes or freezes to Judicial The Supreme Court of Canada went on to set forth the legal and constitutional requirements for a process to deal with the Compensation of the judiciary without compromising its independence. This framework was summarized by the Drouin Commission as follows: 5 Report of the Judicial Compensation and Benefits Commission, submitted to the Minister of Justice of Canada, May 31, 2000 at 1 ( Drouin Report ).

9 6 Bill C-37, An Act to Amend the Judges Act and Make Consequential Changes to Other Acts, 1st Sess, 36th Parl, 1998 (assented to 18 November 1998). 7 Reference Re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 SCR 3 ( PEI Reference Case ). 8 Ibid at para 115. 9 Ibid at para 166. - 3 - Members of Compensation commissions must have some kind of security of tenure, which may vary in length; The appointments to Compensation commissions must not be entirely controlled by any one branch of government; A commission s recommendations concerning judges Compensation must be made by reference to objective criteria, not political expediencies; It is preferable that the enabling legislation creating the commission stipulate a non-exhaustive list of relevant factors to guide the commission s deliberations; The process of Compensation commissions must be employed before implementation of any changes or freezes to Judicial Compensation .

10 To guard against the possibilities that government inaction might lead to a reduction of judges real salaries because of inflation, Compensation commissions must convene at least every three to five years to ensure the adequacy of judges salaries and benefits over time; The reports of the Compensation commissions must have a meaningful effect on the determination of Judicial salaries . Thus, while the report of a Compensation commission need not be binding, at a minimum the responsible legislative or executive authority must formally respond to the report within a specified time; and Finally, the executive or the legislature, as applicable, must be prepared to justify any decision rejecting one or more of the recommendations in a Compensation commission s report, if necessary, in a court of Mandate and Analytical Approach 8.