Report on the Military Judges Compensation Committee 2012

September 28, 2012

The Honourable Peter MacKayMinister of National DefenceNational Defence HeadquartersMajor-General George R. Pearkes Building101 Colonel By DriveOttawa, Ontario  K1A 0K2

Dear Minister:

Pursuant to section 165.22(22) of the National Defense Act and article 204.23 of the Queen's Regulations and Orders (QRO), I am pleased to submit the report of the fourth Military Judges Compensation Committee inquiring into the adequacy of salaries and benefits payable to military judges.

Sincerely,

Constance Glube, Chairperson

 


ACKNOWLEDGEMENTS

The members of the Military Judges Compensation Committee wish to express their sincere gratitude to all participants in the process leading to this Report. In particular, we are most grateful to Ms. Chantal Châtelain, counsel for the Military Judges, and Ms.  Catherine A. Lawrence, counsel for the Government of Canada, for their gracious co-operation. We would also like to thank Mr. Guy Régimbald for his excellent work as the organizer and administrator for the panel. Their co-operation and assistance were invaluable to the Committee.

Finally, we would like to note that following the Committee’s notice to the public, one individual sought intervener status.  The Committee dismissed the application because the proposed intervener did not have a special interest in the issues and because the individual was seeking costs for his legal representation.  The Committee did not have discretion to grant such requests for costs.

THE HON. CONSTANCE GLUBE, OC, ONS September 28, 2012 CHAIR

THE HON. MICHEL BASTARACHE, CC

NORMAN W. STERLING, QC

 


Report of the Military Judges Compensation Committee

Introduction and description of mandate

The Committee was established on February 6, 2012. Its mandate, in accordance with section 165.22(22) of the National Defense Act and article 204.23 of the Queen's Regulations and Orders (QRO), is to inquire into the adequacy of salaries and benefits payable to military judges.

This report is the fourth since the establishment of the independent process for determining the remuneration of military judges in 1998. The importance of the Commissions and Committees which were created after the 1997 Reference re Remuneration of Judges of the Provincial court of PEI [1997] 3 SCR 3 was reaffirmed by the Supreme Court in its 2005 decision in Bodner v. Alberta, [2005] 2 SCR 286 at paras. 9 to 12 where it said: « Judicial independence has been called the “lifeblood of constitutionalism in democratic societies” (Beauregard, at p. 70), and has been said to exist  “for the benefit of the judged, not the judges.” (Eli, at para.29)  “Independence is necessary because of the judiciary’s role as protector of the Constitution and the fundamental values embodied in it, including the rule of law, fundamental justice, equality and preservation of the democratic process; Beauregard, at p 70.

Independence of the judiciary is a necessary condition of the function of a judge.

It is important to note that this formal process for determining judicial remuneration is constitutionally mandated; it is an important instrument for realizing the independence of the judiciary. The Committee is not simply asked to provide advice with regard to remuneration; it is asked to propose an adequate remuneration that is expected to be accepted by the government unless it can provide justification for rejecting it, because its very object is  “to remove the amount of judges’ remuneration from the political sphere and to avoid confrontation between governments and the judiciary.

In Provincial Court Judges Association of New Brunswick v. New Brunswick; Ontario Judges Association v. Ontario; Bodner v. Alberta; Conference des juges du Quebec v. Quebec; Minc v. Quebec 2005 2 SCR 286, the Supreme Court of Canada explained the limits on the government response in these terms:

  1. If the government departs from the commission’s recommendations, the Reference requires that it respond to the recommendations.  Uncertainties about the nature and scope of the governments’ responses are the cause of this litigation.  Absent statutory provisions to the contrary, the power to determine judicial compensation belongs to governments.  That power, however, is not absolute.
  2. The commission’s recommendations must be given weight.  They have to be considered by the judiciary and the government.  The government’s response must be complete, must respond to the recommendations themselves and must not simply reiterate earlier submissions that were made to and substantively addressed by the commission.  The emphasis at this stage is on what the commission has recommended.
  3. The response must be tailored to the commission’s recommendations and must be “legitimate” (Reference, at paras. 180-83), which is what the law, fair dealing and respect for the process require.  The government must respond to the commission’s recommendations and give legitimate reasons for departing from or varying them.
  4. The government can reject or vary the commission’s recommendations, provided that legitimate reasons are given.  Reasons that are complete and that deal with the commission’s recommendations in a meaningful way will meet the standard of rationality.  Legitimate reasons must be compatible with the common law and the Constitution.  The government must deal with the issues at stake in good faith.  Bald expressions of rejection or disapproval are inadequate.  Instead, the reasons must show that the commission’s recommendations have been taken into account and must be based on facts and sound reasoning.  They must state in what respect and to what extent they depart from the recommendations, articulating the grounds for rejection or variation.  The reasons should reveal a consideration of the judicial office and an intention to deal with it appropriately.  They must preclude any suggestion of attempting to manipulate the judiciary.  The reasons must reflect the underlying public interest in having a commission process, being the depoliticization of the remuneration process and the need to preserve judicial independence.
  5. The reasons must also rely upon a reasonable factual foundation. If different weights are given to relevant factors, this difference must be justified.  Comparisons with public servants or with the private sector may be legitimate, but the use of a particular comparator must be explained.  If a new fact or circumstance arises after the release of the commission’s report, the government may rely on that fact or circumstance in its reasons for varying the commission’s recommendations.  It is also permissible for the government to analyze the impact of the recommendations and to verify the accuracy of information in the commission’s report.
  6. The government’s reasons for departing from the commission’s recommendations, and the factual foundations that underlie those reasons, must be clearly and fully stated in the government’s response to the recommendations.  If it is called upon to justify its decision in a court of law, the government may not advance reasons other than those mentioned in its response, though it may provide more detailed information with regard to the factual foundation it has relied upon, as will be explained below.

In their submissions, at para. 84, the military judges were critical of the government response to the last Committee and insisted that this Committee make  “clear and and exhaustively reasoned recommendations” to prevent the occurrence of a response incompatible with the obligations just mentioned. They insist at para 26 of their Reply that had the government given serious consideration to the 2008 report the present situation would be much easier to deal with because the discrepancy in the remuneration of military judges and other federally appointed judges would not be so great.

It is not for us to inquire into the difficulties of the last Committee; we are however determined to propose appropriate recommendations for review by the federal government. Our recommendations are based on the general principles applicable to this exercise and consideration of the court decisions that have clarified the conditions the Committee should keep in mind.

The process is serious. It is meant to satisfy the conditions of judicial independence set Out in Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island [1997] 3 SCR 3. In essence, the process is meant to avoid negotiations between judges and government and eliminate all perception that remuneration is susceptible to political pressure through economic manipulation.

A new Committee does not operate in a void. It should not disregard previous Committee reports and recommendations. Such reports are part of the background that informs the new Committee. It is however clear that should the Committee consider that the previous Committee was not permitted to achieve the establishment of an adequate compensation, it can proceed de novo. The Supreme Court of Canada affirmed this in its decision in Bodner v. Alberta [2005] 2 SCR 286 at para.14-15, stating that “each commission must make its assessment in its own context”, and that “the new commission may legitimately go beyond the findings of the previous commission and after a careful review, make its own recommendations on that basis”. That is the position taken by the present Committee.

The military judges argue that the 2008 report was rejected by the government on the basis of economic reasons that were largely a repetition of the arguments presented to the Committee and rejected, though it recognized that the government attached great importance to the fact that in its view, that the economic outlook had become worse since the publication of the Committee’s report. The government had also stated that the Committee had not sufficiently justified its recommendations. In our view, this is not the main problem; it is that the government failed to establish a valid rationale for the choice of a comparator and justification for its benchmark. We therefore cannot accept that the remuneration given after the report of 2008 constituted an adequate remuneration. There is in this instance no adjustment to be made to an otherwise adequate remuneration.

We have been presented again with arguments dealing mainly with economic conditions and the need for military judges to share the public burden of restraint that is required to satisfy the needs of the present economic situation. We will deal with this issue directly, insisting on the need to address this question in the proper context. Before dealing with the guiding principles and factors for determining adequate remuneration, it is however important to specify that the Committee is not asked to decide the minimum remuneration required to guarantee judicial independence or to ensure that there are a sufficient number of applicants to fulfill judicial vacancies. As stated by the Québec Court of Appeal in Conférence des juges du Québec v. Québec in 2000, at paras 48-49, it is not rational for the government to simply apply an annual increase consistent with that awarded to civil servants without addressing the adequateness of that remuneration. We insist that the decision on remuneration must be depoliticized; we are therefore of the view that reliance on rates of increase obtained by the government in negotiations with its unions is not a procedure consistent with the mandate of this Committee.

We were informed by the military judges after the June hearing that the government had negotiated a tentative agreement with its lawyers which would indicate that it is asking the military judges to shoulder a much more important part of the public burden than other persons paid from the public purse. The fact that the government is even considering increases beyond those proposed for military judges raises serious questions about the rationale presented to us in its written and oral pleadings. As mentioned earlier, we are also concerned with the very argument that the remuneration of judges should reflect government policies regarding negotiations within the public sector. If the remuneration of judges is to be the mirror result of negotiations in the public sector, the process is not achieving the aim described by the Supreme Court of Canada. Still, the government argued that the elimination of the severance pay and the capping of the Industrial Aggregate Index were justified as measures applicable to all persons paid from the public purse. The government appears to be saying that the minimum remuneration capable of satisfying the need for judicial independence is all that is required and that it is otherwise free to apply general remuneration rules and practices. The opinion of the Supreme Court of Canada in Bodner is quite different:  “The commission's aim is neither to determine the minimum remuneration nor to achieve maximal conditions. Its role is to recommend an appropriate level of remuneration”. We do not believe the Court was speaking of an appropriate level of remuneration for the civil service as a whole.

Adequacy is obviously hard to define and previous Committees have tried to give content to the legislatively mandated factors to be considered. Four main factors are to be addressed: prevailing economic conditions in the country, the role of financial security of military judges in ensuring judicial independence, the need to ensure that worthy candidates will not be discouraged from applying for judicial appointments, and other objective criteria. In the last category we have heard submissions dealing with workload, travel obligations, specialized training, salaries of other members of the military, salaries of civil servants, salaries of lawyers, and more forcefully the fact that appointed candidates have chosen to work in the military context, with an inference that they have accepted thereby a different and much lower pay scale as adequate.

The factors for determining adequate remuneration

Prevailing economic conditions

The position of the government of Canada is quite simple. It states at para 2 of its submissions that military judges should not be singled out for preferential treatment, meaning that measures impacting the public sector should be considered in determining the adequacy of their remuneration. Only a modest adjustment should be made. In fact the government does not propose an increase at all; it proposes to cap the Industrial Aggregate Index to 1% and to eliminate severance pay with an adjustment of 0.25% of pay in the first year.

We have heard the arguments about the fragility of the economy, read the material on World Economic Outlook and reviewed the Economic Plan 2012 of the Minister of Finance. We have considered the government's arguments about wage increases negotiated in the public sector and are now aware of a tentative agreement with different terms. We understand the position of the government regarding military judges “shouldering their share of the burden in difficult economic times” at para 38 of the federal submissions. Even if there are only four military judges and that an increase in their remuneration would have a de minimis impact on the public purse, it is clear to us that judges are not shielded from considerations such as those mentioned here.

The problem we have with the government's argument is that this whole line of reasoning is largely irrelevant if the starting point for an adjustment is not an adequate remuneration. Mere percentages of increase are meaningless if there is no analysis to consider what an adequate base salary should be. We agree with the military judges when they argue that it is irrational to make the same submissions before this Committee and the Levitt Commission when there is no evidence at all that the present remuneration of military judges can be considered adequate given in particular the response to previous Committee reports. In the Alberta Justices of the Peace case, the Supreme Court said at para 129 that a salary that was not recommended by an independent commission could not be accepted as setting an adequate salary to be taken as a benchmark.

We agree with the Court of Appeal of Quebec when it said in Conférence des juges du Québec at para 48 that accepting as adequate the government response rejecting the recommendations of the Commission on the same basis as its submissions to the Commission was to flout the very purpose of the compensation Commission. What our mandate requires is not that we decide on a percentage increase, but on an adequate remuneration.

The government of Canada argues that benchmarking superior court judges is not appropriate because of their sui generis role and other considerations discussed in para 21 of its Reply. These considerations are the following : there should be no single comparator; superior court judges’ salaries are set having regard to a large and varied pool of candidates from a wide geographical scope; they are meant to avoid a chilling effect in large metropolitan areas; there is a distinct pool for military appointments; the fact that other public servants should not be used as comparators because of the unique military system of justice. All this comes down to a simple proposition presented at para 45 of the federal submissions: a reasonable and informed person would be unlikely to view the current remuneration of military judges as inadequate to ensure judicial independence, given that the average salary of an employed Canadian is approximately $46,000.00. And at para 12 of the government Reply : the fact that a 31% increase for military judges would likely not be perceived by the public as fair. It may be useful to note with regard to this argument that in the New Brunswick case before the Supreme Court of Canada the increase was from $100,000 to $142,000 in three years; in the Ontario case there was an increase of 28% over three years; in Quebec, the 1998 report proposed going from $137,000 to $180,000. In the Alberta Justices of the Peace case the recommendation was $15,000 higher than the government proposal. This is evidence of the fact that when there is need for a fundamental adjustment, there is no room for arguing that an annual minor percentage increase is all that is required. In fact, the decision in the Quebec case clearly states that it was not acceptable for the government to simply argue that an earlier adjustment was enough and that reconsideration of the government's arguments before the Commission should be accepted as a valid foundation for its answer to the Report.

With all due respect, we disagree with the government. The reason we have a Committee is that there is need for an independent evaluation and an informed decision based on a contextual analysis. Reference to the general public is inconsistent with the process defined by the Supreme Court of Canada. The other reasons given by the government do not stand up to any serious scrutiny. The varied national pool for superior court appointments is not applicable to the great majority of appointments, which are based on provincial residency. The specialization of the military court is not different in kind from the specialization of the Tax Court, or for that matter criminal courts, family courts, juvenile courts... The fact that appointments would mean large increases in individual incomes is already very prevalent when one considers appointments of lawyers from the public sector, academia or lawyers operating in small firms in rural communities. There is no remuneration adjustment for judges sitting in Toronto, Vancouver or Montreal as compared to Bathurst or Summerside. With regard to prevailing economic conditions, we cannot accept that sharing of the burden precludes making adjustments to bring the base salaries to an acceptable level. A good example of this is the requirement of pay equity; if a group of women today suffer wage discrimination, is an adjustment to be refused because of prevailing economic conditions and the fact that civil servants have been awarded minimal increases?

The argument that no single comparator should be adopted is advanced out of context. The position of the military judges is that the nature of their function as it has evolved over the last few years is evidence that they should be recognized as having the same status as other federally appointed judges and that therefore the same factors and comparators should apply in determining their remuneration. They are saying in fact that they accept that the remuneration of other federally appointed judges is adequate and that this same remuneration should be afforded to them because they are part of the Canadian Judicial System and should not be singled out for different treatment. It is quite stunning to realize that only four of more than a thousand judges are singled out for much lesser remuneration if one accepts that they are indeed just as qualified as the others and paid from the same source. In our opinion, the fundamental issue in these proceedings is to determine if military judges share the qualifications and functions of other superior court judges and should for that reason receive similar remuneration. The rationale for keeping military judges from full participation in the Canadian Justice System has not been explained to our satisfaction.

Attracting qualified candidates and the role of financial security

The main position of the government is that the pool of candidates from which military judges are drawn is limited to officers of the Canadian forces (para 13 of its submissions). This results in two uniquely situated judiciaries and militates against closing the wage gap, according to the government. The government argues that there is no disincentive for members of the Reserve Force to apply for positions as military judges since more than five percent of eligible reserve legal officers applied in the last selection process, which compares with 4.2% of eligible lawyers for appointments to superior courts. The government notes that reserve officers not living in the national capital may not want to move there, or may not be attracted to a full time military position to explain a rather low participation rate; but capital region appointments already apply to the Supreme Court, Federal Court of Appeal, Federal Court and Tax Court. With regard to the military context, we would tend to believe that the choice made by Reserve Force applicants is that of becoming a judge, not taking on a full time military career. All parties agree that the choice of a judicial career is not dependant principally or exclusively on remuneration and that what is to be considered is not whether the salary will attract candidates but whether it will discourage potential applicants. This is difficult to measure because there are so many variables that will influence candidates differently. This is a reason for paying attention to the importance of comparators.

The military judges question the value of the federal statistics. They note that only 22% of candidates in 2008 and 2010 were from the Reserve while military lawyers in the Reserve represent at least 36% of JAG’s office (submission, para. 113). They also note that there is no accounting of officers who meet the eligibility requirements who are not legal officers because they do not practice law within the regular Reserve forces (Reply, para. 39). We would give very little weight to the percentages of applicants because it is uncertain and not accompanied by any scientific analysis.

We believe that regular force officers who want to become judges have no real choice; technically they could qualify for superior or provincial court appointments, but the appointment process would not likely be favorable since they would have no experience or contacts in the locality for which an appointment is to be made. As for members of the Reserve, the military judges note that some have been appointed to provincial courts in British Columbia, Quebec and New Brunswick, and two to superior courts in British Columbia and Ontario. They note that those judges who would qualify for military appointments and are selected according to a similar process as members of another superior court are paid 31% more than military judges, from the same public purse. They question the federal argument that a different pool of candidates militates for a lesser remuneration even where the qualifications and functions are comparable. The only rationale for that proposition in their view would be that the comparator is formed of other members of the military. They reject that comparator because it undervalues the function of the military judge and sets him as an outsider to the Canadian Judicial System. In that regard they note that doctors and dentists are not paid lower incomes in spite of the fact that they have also accepted a military career (see submission at para 127) and that the Chief of Defense Staff is paid $327,000 and the JAG's pay is indexed to that of federal court judges. We agree that the rationale of the government does not stand up to scrutiny.

In our view, the government has not provided a reasonable rationale for its recommendations. It has not explained what comparator should be used in any convincing way. In essence it is saying that military judges are part of the military establishment and should be paid on the same basis as other officers in the closed environment in which they function. Given the small pool of candidates in the military, there is no need to widen the net and to pay more than absolutely needed. We disagree because we consider that the judicial office is particular. It is because of its particular nature that a Committee is constitutionally mandated. The situation must be recognized as such.

We note in that regard that former justice Lesage in his recent report on the improvement of policies and practices in the military justice and grievance system (Report of the Second Independent Review Authority to the Honourable Peter G. MacKay, Minister of National Defence, December 2011) recommends at page 41 that all reference to the hierarchy and chain of command be eliminated for judges in the military. This is consistent with the opinions of federal court judges who have over the last few years recognized that since the decision in R. v. Lauson [1998] CMAC 415 in particular, the role of military judges has been transformed and is now equivalent to that of superior court judges. In LeBlanc v. Regina [2011] CMAC 2 there were more pronouncements to the same effect. Justice Létourneau states at para. 45 :  “For a judge is no longer, as it was at the time of Généreux and Lauzon, above, a simple transition stage in his or her military career, a springboard to another promotion, or a feather in his or her cap. It has become a career for jurists who seek to apply their knowledge for the benefit of and in the service of the needs of the military criminal justice”. Judicial independence is the same for all courts, as decided in R. v. Généreux [1992] 1 SCR 259; the requirements to safeguard it must be similar. Linking the remuneration of military judges exclusively to that of military officers is in our view inconsistent with the requirements of judicial independence. We are also convinced that the remuneration of superior court judges is not simply that which is of necessity required to ensure that there will be a sufficient number of valid applications to fill judicial vacancies. It is hard to understand why the government would apply a different principle when dealing with military judges.

Other factors

The essential factor is in the nature of the military judge's office and its functions. We are relying on the 1997 Reference at para 143 :  “On the other hand, the fact remains that judges, although they must ultimately be paid from public monies, are not civil servants. Civil servants are part of the executive; judges by definition, are independent of the executive. The three core characteristics of judicial independence – security of tenure, financial security, and administrative independence – are a reflection of that fundamental distinction, because they provide a range of protections to members of the judiciary to which civil servants are not constitutionally entitled.

The National Defense Act was modified in 1998 and 2008 to redefine the role of military judges to a point. The report of the Chief Military Judge and that of the Judge Advocate General provide an overview of present functions. Although the military court is separate, it is staffed by judges who meet the requirements for appointment to a superior court of justice, including ten years standing at the bar. The Commissioner for Federal Judicial Affairs manages the appointment protocol for military judges as he does for superior court judges. The selection process is as thorough as the general process: a five-member committee is struck with members drawn from the military and civil judiciary, the bar and the ranks of the military.

The appointment is by ministerial order and the appointee may remain in office to age 60. Military judges preside over the General court martial and the Standing court martial; the two courts have jurisdiction over persons charged with committing an offence under the Code of Service Discipline, the panel of a court martial being analogous to a jury in criminal matters. The judges decide questions of law and fact, determine sentence. Judgments of a court martial may be appealed to the Court Martial Appeal Board (CMAC), which is composed of at least four judges of the Federal Court or Federal Court of Appeal, as well as any judge of a superior court of criminal jurisdiction, which includes any judge from any other court of appeal in Canada.

With respect to jurisdiction, the laws and regulations covered by the military justice system are found in the NDA and the QR&O. In addition to these instruments, the NDA establishes the Code of Service Discipline and the jurisdiction extends to any criminal or penal matter under any federal statute. Jurisdiction extends to acts in and outside Canada. The jurisdiction applies to civilians such as spouses or dependant children accompanying military personnel as well as the latter’s teachers living outside Canada. In some cases, military judges will apply foreign law. The point is that military judges exercise all of the functions necessary to conduct trials and even punish for contempt of court. There is no need to further describe the situation. As mentioned in the Nguyen case, the nature and duties and increased role of the military judges  “are not just part of the modern context of the military courts and their history. They testify to Parliament’s desire to bring the military justice system more closely into line with present Canadian values and legal criteria while attempting to preserve those features of the system that seemed necessary in order to respond to uniquely military needs”, in R v. Corporal HP Nguyen, 2005 CM 57.

We will not undertake a description of the military justice system. It has been aptly described in previous reports and other documentation presented to us. We are content to say that it is truly part of the Canadian justice system and not an inferior system of justice. Military judges are as well qualified as other federally appointed judges. It is worth reading the decisions in Dunphy v. the Queen and Parsons v. the Queen [2007] CMAC 1, CMAC 491 and CMAC 492 to realize that military judges are clearly recognized as akin to judges in civilian courts.

In their submissions, the military judges have set out in detail the nature of the work of military judges: see paras 50 to 59.  At para 61, the military judges quote from the decision of Letourneau JA in LeBlanc where he describes the powers of military judges, concluding at par 37 by saying:  “I agree with the Chief Military Justice (sic) that the numerous amendments to the Act have, on the one hand, caused the roles and functions of military judges to become intrinsically comparable to those of civilian criminal court judges, and, on the other hand, enhanced fairness in the military justice system for military personnel facing criminal charges...”. In reality, the government does not reject this declaration. Its position is not that the same powers and functions are not given to military judges, it is that they operate in a different parallel system that has its own characteristics and that, for this reason, a different set of factors should apply to determine adequate remuneration. We disagree because the main factor to be applied in our opinion is the qualification of the judge as a judge, and not as a member of the military establishment. In para. 72 of their submissions the military judges describe in detail the similarities between the functions of superior court judges and military judges.

If treated differently from other members of the Canadian Judicial System, the perception will be that they are inferior to them and probably less qualified and worthy of trust and respect. There is no reason to treat the military court differently than other specialized courts; stated differently, there is no true difference in kind between the specialization required of a Tax Court judge and a Military Court judge. We also think this is a matter of equity and fairness.

We see no justification for maintaining an inferior status for military judges and do not accept the comparator provided by the government as rationally justified. Military judges are federally appointed, similarly qualified, subject to a discipline inquiry Committee similar to that of the Canadian Judicial Council. They have the same powers in criminal matters as civilian judges. Why should their remuneration be different? We think it is only fair that all similarly situated judges receive the same remuneration because the same factors should apply to determine what is an adequate remuneration in their case. The government is of the view that they are not similarly situated because they are part of the military establishment; we are of the view that they are similarly situated because they are above all other considerations members of the Canadian judiciary. The sui generis situation argued by the government is not acceptable. After all, there are other particular courts and no reasoning is given to provide lesser remuneration because those courts are specialized and staffed from a particular pool of candidates.

Recommendations

We are of the view that the remuneration of military judges should be increased incrementally in each of the four years covered by our mandate in such a way that at the end of that term it will be equivalent to that of other federally appointed judges.

We are of the view that the next quadrennial commission should be responsible for determining the appropriate remuneration for all federally appointed judges including members of the military courts.

We are of the view that the government is competent to review the retirement arrangements for military judges and eliminate the present severance benefits, but would recommend that they be maintained for the four present members of the military court. Nevertheless there is evidence that the pension benefits of military judges are lower than that of superior court judges (evidence of Mr. Sauvé, an expert presented by the military judges, in that regard, was not contested). The nature of the benefits is distinct and there is no information available to determine how the situation could be redressed. However, for the time being, we would recommend that the government revisit its compensation in lieu of severance benefits and adjust it to provide for the status quo.

We are of the view that there is no economic justification for capping the Industrial Aggregate Index and that such a measure will in real terms cause the remuneration of sitting judges to be reduced. In our view, there should be no reduction in judicial remuneration unless there is a financial crisis and that the measure is a necessary part of a large number of measures needed to secure the fiscal position of the government. All of the evidence on the economic situation at present does not justify such a measure.

The military judges have asked that we recommend that the government pay their costs in these proceedings. It is our understanding that the government has always paid reasonable costs and do not consider it possible for us to propose a particular formula for establishing what is reasonable in the circumstances.

Conclusion

The members of the Commission have applied themselves to provide a considered view of the matters raised and wish to thank counsel for both parties for their cooperation. We believe that this process is important and expect that the government will consider this report with full attention to the obligations derived from the jurisprudence of the Supreme Court of Canada quoted earlier.

Constance Glube, Chairperson, Michel Bastarache, Commissioner

Dissenting opinion:

As a member of the Military Judges Compensation Committee, and after having read the reasons of my colleagues, I do not agree with the conclusions and recommendations of the majority of the Committee.  For the reasons hereinafter, I do not agree that the military judges should have equivalent salary and financial benefits to that of Canadian Superior Judges.  In my view, the current remuneration of the military judges is adequate to attract highly skilled individuals to the judicial positions and to preserve judicial independence.

Mandate of the Committee

I agree with my Colleagues that the mandate of the Committee is to propose an adequate remuneration for the military judges, in order to preserve judicial independence.

Particularly, I agree with my colleagues when they state at p. 6 that the Committee does not operate in a void and should not disregard previous Committee reports. I part with my colleagues however in their opinion, that the remuneration given after the report of the Committee of 2008 was not adequate (p. 6).  

I also do not agree with my colleagues that the government cannot consider the  increases it has offered to its unionized employees.  Indeed, the reasons of my colleagues present an underlying contradiction.  First, my colleagues state at p. 7 that it is inconsistent with the mandate of the Committee to rely on rates of increase obtained by the government in negotiations with its unions; but then in the very next paragraph state that “[t]he fact that the government is even considering increases beyond those proposed for military judges raises serious questions about the rationale presented to us in written and oral pleadings”.

In my respectful view, in determining the adequate remuneration of any judge, the government is entitled to compare increases given the employees in the public service (as well as increases in wages of the general population) and such a procedure is not inconsistent with the mandate of this Committee. 

While the government policy regarding any increase to the remuneration of military judges may not “reflect” or “mirror” government policies regarding negotiations with the public service, as my colleagues mention, the “adequate” remuneration for judges in order to “preserve” judicial independence must not be analyzed in a vacuum. In my view, if all previous Committees determined that judicial independence existed at that time, and there is no evidence of a substantial increase in the public service (indeed in the general population’s) wages, it cannot be argued that a substantial raise at this time is necessary and failure to do so will jeopardize judicial independence.  Indeed, no party made such argument in this case. 

In my view, the military judges should preserve their current remuneration and the difference in their remuneration as compared with the Canadian population.  They are not, however, entitled to an increased remuneration when the economic conditions do not justify it.  As the Supreme Court of Canada held in the 1997 Reference at paras. 158-159, judicial independence may also be undermined by a disproportional judicial salary increase.

The factors for determining adequate remuneration

Prevailing economic conditions and the role of financial security

I also part ways with my colleagues’ analysis of the prevailing economic conditions.

First, I disagree with my colleagues’ proposition at p. 8 that the starting point of the analysis is that the current remuneration of the military judges is “inadequate”.  While percentages of increase will necessarily continue to augment the discrepancy of the salary between the military judges and Superior Court judges (because the actual salary difference will continue to increase), the mandate of the Committee is not to remedy any discrepancy, but to propose an “adequate remuneration” to “preserve judicial independence”.

My colleagues reject any evidence of economic hardship on the basis that the current “starting point” is not adequate.  In my view, the government is entitled to consider the current salary of $220,009.00 as the starting point, to consider the prevailing economic conditions including the increases it has given to its employees, in determining whether Committee’s recommendations can be justified.

I have also read the materials on the World Economic Outlook and other information on the Canadian and global economic situations and accept the government’s submissions that although the Canadian economy has improved and is in a better position as compared with other countries, the projection of growth are modest and uncertain due to the global economic situation.

Attracting qualified candidates

I also disagree with my colleagues’ opinion that the reasons given by the government not to increase the military judges’ salaries do not stand up to any serious scrutiny. My colleagues, for example, note at p. 9 that “[t]he specialization of the military court is not different in kind from the specialization of the Tax Court, or for that matter criminal courts, family courts, juvenile courts”. What my colleagues fail to mention, however, is that any member in good standing of the Bar that complies with the conditions may apply and be appointed to these positions.  For example, there is no need to be a tax specialist, or even a tax practitioner, to be appointed to the Tax Court (see my colleagues’ comments at p. 13 on Tax Court judges).

For military courts, the criteria is indeed different. Being a member of the Bar in good standing is not sufficient.  The pool from which judges can be appointed is much narrower and requires the candidate to be an officer in the Canadian Forces.  Moreover, the evidence is that legal officers that could be candidates for a judicial position earn significantly less than military judges, and a higher percentage of the pool of potential candidates apply for these positions as compared with other judicial positions.  In my view, salary and other financial benefits do not deter potential candidates from applying for a military court judicial appointment. 

Moreover, I disagree with my colleague’s opinion at p. 10-11 that  “regular force officers who want to become judges have no real choice; technically they could qualify for superior or provincial court appointments, but the appointment process would not likely be favorable since they would have no experience or contacts in the locality for which an appointment is to be made”.  In fact, the evidence does not support that statement.  During the hearing, it was mentioned that at least four military legal officers were appointed to civilian courts, one at the Superior Court of Ontario, one at the Supreme Court of British Columbia, and two others at provincial courts across the country (transcript at pp. 174-175).

Finally, while some members of the reserve may also be qualified to become military judges and may earn a higher salary in private practice than legal officers in the military, the same can be said of other lawyers in private practice applying for Superior Court judicial positions.  To that extent, I agree with my colleagues that what is to be considered  “is not whether the salary will attract candidates but whether it will discourage potential applicants” (p.10). Salary and financial benefits are not the only factor in attracting outstanding candidates for judicial positions and there is no evidence that the remuneration of military judges deter potential applicants.

Other factors

I agree with my colleagues that the role of the military judge has been redefined and the jurisdiction and function of the court is very similar to Superior Courts.  The military court is not an inferior system of justice and the judges are not less qualified.  This being said, the military court system also presents some specific distinctions.

As noted above, the potential candidates for judicial positions is much limited as compared with other Superior Court appointment.  Moreover, and perhaps more importantly, the evidence as well as oral arguments suggest that the workload of the military judges is far less when compared with Superior Court judges.  The four (4) military judges have presided an average of 64 courts martial per year in average in the past four years.  The information sent by the military judges after the hearing demonstrate that in 2010-2011 for example, the four judges sat a total of 172.5 days in court, and another 152 days were for temporary duty (meaning that 152 days were spent to perform judicial duties outside of the location of the Office (in the National Capital Region) and this number includes travelling days).  In 2011-2012, 213.5 days were spent in court and another 343 days were on temporary duty.  For the current year, the evidence was that as of June 28, 2012, 57.5 days were spent in court and another 80 days were on temporary duty.  These numbers are the total numbers of days spent on judicial duties for the four (4) judges together.

In my view, while these numbers do not include preparation for trials and drafting of reasons, the workload of the court cannot be compared with Superior Courts.  My colleagues note at p. 9 that Superior Court judges do not have a remuneration adjustment whether they sit in Toronto, Vancouver, Montreal, Bathurst or Summerside.  In oral arguments, there was a discussion as to whether workload should also be taken into account and comments were made that caseload was also different in large urban regions as compared with judges in rural areas, yet all Superior Court judges made the same salary. 

In my view, the fact that Superior Court judges all have the same remuneration regardless of their workload or the cost of living (in large urban areas) is irrelevant.  This Commission does not have the power to make recommendations on such issues even if arguments may be made that it is unfair for a judge sitting in a large urban region to be paid the same salary as a judge in a rural area given that the workload is greater and the purchasing power much lower. 

As discussed in Provincial Court Judges’ Association of British Columbia v. British Columbia (Attorney General), 2012 BCSC 1022 at para. 48, the British Columbia Judges Compensation Commission considered, in determining whether the provincial judges’ remuneration was adequate, that “[t]he jurisdiction of the Provincial Court is expanding, its caseload is increasing and the cases that come before it are increasingly complex and varied in nature. Despite efforts to create efficiencies, the workload of Provincial Court judges continues to increase steadily [...]”.  In my view, the workload is a factor that may be taken into account in determining the adequate remuneration of military court judges.

In the case of military judges, and based on previous Committee reports, I am satisfied that the current remuneration of the military judges is adequate. Given the current economic circumstances, and given that the current remuneration is sufficient to attract highly qualified individuals to the judicial position, the remuneration is sufficient to preserve judicial independence. 

Recommendations

I am of the view that the current remuneration of military judges is adequate.

Like my colleagues, I do not believe that there is an economic justification for capping the Industrial Aggregate Index. The remuneration of military judges should be increased according to inflation.

I also agree with my colleagues that the government is competent to review the retirement arrangements for military judges and eliminate the present severance benefits.  I also agree with them that the current retirement arrangements should be maintained for the four present members of the military court.

Norman Sterling, Commissioner

Appendix A – Press Release Appendix B – Commissioners’ Biographies Appendix C – Commission’s Rules of Procedure as adopted in consultation with the partiesAppendix D – List of Participants at the Commission’s Public Hearings

Appendix A – Press Release

MILITARY JUDGES COMPENSATION COMMITTEE

MJCC Inquiry – 2012

As per the direction outlined QR&O 204.24, the MJCC was convened in May of 2012 to begin the process of reviewing the salaries payable to military judges.

The committee presently consists of the Honourable Justice Constance R. Glube, O.C. O.N.S (nominated by the military judges) who serves as Chair of the Committee, the Honourable Norm Sterling, Q.C. (nominated by the MND), and the Honourable Justice Michel Bastarache, C.C.

As part of the process of evaluating the adequacy of compensation for military judges, the MJCC will hold public hearings in Ottawa during the Summer of 2012.  The committee will invite all interested parties to make written submissions in either official language concerning the matters within its mandate. 

Appendix B – Commissioners’ Biographies

Honourable Constance R. Glube, OC ONS: The honourable Constance R. Glube was the 21st Chief Justice of Nova Scotia and first female Chief Justice in Canada.

Madam Glube graduated with a Bachelor of Arts degree in 1952 from McGill University and with a Bachelor of Laws in 1955 from Dalhousie Law School.  Madam Glube was called to the Bar in 1956. Madam Glube was conferred a Doctor of Laws honoris causa by Dalhousie Law School and by Saint Mary's University.  She also holds an honorary L.H.D. from Mount Saint Vincent University.

In 1977, she was appointed Puisne Judge of the Supreme Court of Nova Scotia (formerly trial division) and ex-officio member of the Nova Scotia Court of Appeal making her the first woman on the Supreme Court of Nova Scotia. In 1982, she was appointed Chief Justice of the Supreme Court of Nova Scotia making her the first female Chief Justice in Canada. In 1998, she was appointed Chief Justice, Nova Scotia Court of Appeal. She was the first woman on a federally appointed court in Nova Scotia and the 15th woman as a federally appointed judge in Canada when she went to the Supreme Court of Nova Scotia in 1977.

Madam Glube retired in December 2004 from her judicial position.

Honourable Michel Bastarache, B.A., LL.L., LL.B., D.E.S.: The honourable Michel Bastarache holds a bachelor of Arts from the University of Moncton, and bachelor of laws from the University of Montréal (LL.L.) and the University of Ottawa (LL.B.) and a graduate degree in public law from the University of Nice.  He was called to  the Bar of New Brunswick in 1980, the Alberta Bar in 1985, the Ontario Bar in 1986 and the Barreau du Québec in 2008.  Mr. Bastarache was conferred honorary degrees from the University of Moncton, Dalhousie University, the University of Ottawa, the University of Mount Allison, the University of Manitoba, Université Sainte-Anne, the University of New Brunswick, and the University of Montréal.

Mr. Bastarache was appointed to the New Brunswick Court of Appeal on March 1, 1995, and to the Supreme Court of Canada on September 30, 1997.

Mr. Bastarache retired on June 30, 2008 and now acts as Counsel at Heenan Blaikie LLP.

Norman W. Sterling, B. Eng., P. Eng., LLB, QC.: Norman Sterling attended Carleton University and the University of Ottawa, working as both a Professional Engineer and Lawyer prior to serving as a Member of the Ontario Legislative Assembly from 1977 to 2011.

From 1978 to 1981, during a significant law reform period in Ontario, Mr. Sterling served as Parliamentary Secretary to the Attorney General.

Between 1981 and 1985, Mr. Sterling served in the cabinet of Premier William Davis as Minister Without Portfolio, Provincial Secretary for Justice and Provincial Secretary for Resources Development.  In these capacities, he had responsibilities for Native Affairs,  the Niagara Escarpment Plan and Freedom of Information and Privacy Laws.

From 1985 to 1995, while in opposition, Mr. Sterling served as Deputy House Leader and Caucus Chair of the Progressive Conservative Party of Ontario.  He also chaired several Legislative Committees during this period of time.

Between 1995 and 2003, Mr. Sterling served in the Cabinets of both Premier Mike Harris and Premier Ernie Eves.  He held seven different portfolios including Minister of Consumer and Business Affairs, Minister of Environment, Minister of Energy, Minister on Intergovernmental Affairs, Minister of Corrections, Minister of Transportation, and Attorney General, again with responsibility for Native Affairs.  In addition, he served as Government House Leader from 1996 to 1999.

While in opposition, from 2003 to 2011, Mr. Sterling chaired the Public Accounts Committee of the Legislature of Ontario before retiring in 2011.

Appendix C – Commission’s Rules of Procedure as adopted in consultation with the parties

Rules of Procedure For The 2012 Military Judges Compensation Committee

MANDATE
  1. The Military Judges Compensation Committee was established in accordance with s. 165.22 of the National Defence Act, R.S.C. 1985 c. N-5 and s. 204.23 of the Queen's Regulations and Orders, P.C. 2000-1419 dated September 13, 2000.  Its purpose is  “to inquire into the adequacy of the remuneration of military judges.” This Committee, as the three previous ones (established in 2000, in 2004 and in 2008), is mandated to consider in conducting its inquiry, pursuant to s. 204.24(3) of the Queen's Regulations and Orders:
    1. the prevailing economic conditions in Canada, including the cost of living and the overall economic and current financial position of the federal government;
    2. the role of financial security of military judges in ensuring judicial independence;
    3. the need to attract outstanding officers as military judges; and
    4. any other objective criteria that the Commission considers relevant.
DEFINITIONS
  1. In these rules, the following terms shall have the following meanings:
  • "Committee" means the Committee established under s. 204.23 of the Queen's Regulations and Orders;
  • "documents" includes the parties’ and interveners’ factum and any documentation or information in support of the arguments therein;
  • "intervener" means a person or entity that has filed representations under these rules and who has an important interest in the issues to be determined by the Committee. The Committee shall decide in its discretion whether an applicant will be accepted as an intervener;
  • "parties" mean either the Military Judges or the Government of Canada.
ADOPTION OF THE RULES OF PROCEDURE
  1. After consultation with the parties, the Committee will adopt the rules of procedure.
  2. Any rule of procedure or time period under these rules may be modified by the Committee in its sole discretion.
FILING OF DOCUMENTS
  1. The parties may file with the Committee a factum not exceeding 30 pages.
  2. The parties shall serve one copy of their factum and documents on the other party and four (4) copies on the Committee by May 28, 2012 at 5 p.m. With the consent of the parties and the Committee, service can be effected by e-mail, with delivery the next day.
  3. An intervener may file with the Committee a factum not exceeding 20 pages.
  4. An intervener shall serve one copy of its factum and documents on the parties and four (4) copies on the Committee by May 28, 2012, at 5 p.m. 
  5. The parties may file with the Committee a response not exceeding 10 pages to the other party’s (and any intervener’s) factum and documents.
  6. The parties shall serve one copy of their response on the other party and four (4) copies on the Committee by June 4, 2012, at 5 p.m. With the consent of the parties and the Committee, service can be effected by e-mail, with delivery the next day.
HEARING
  1. A hearing is scheduled for June 14, 2012, at 9 a.m.  The hearing will conclude no later than 5 p.m.
  2. The hearing shall be held at the Military Court rooms situated in  Asticou Centre, 241 Boul. Cité des Jeunes, Gatineau, Qc, K1A 0M7.
  3. During the morning session of the Committee, the Military Judges shall have three (3) hours to make their oral representations.  The Committee shall take a short 15 minutes recess during the proceeding.
  4. The Committee shall adjourn the hearing between 12 p.m. and 1h30 p.m. for lunch. 
  5. During the afternoon session, the Government of Canada shall have three (3) hours to make its oral representations.  The Committee shall take a short 15 minutes recess during the proceeding.
  6. The Military Judges shall have a right to a reply of 30 minutes.
  7. An intervener may, in its factum, request permission of the Committee to make oral representations.  The Committee may grant the request after having considered the factum if it is of the view that the intervener has a special interest in the issues and that oral representations may help the Committee in its deliberations.  If an intervener is granted an opportunity to make oral representations, the intervener shall have 15 minutes to do so, before the reply of the Military Judges.
  8. If an intervener is granted permission to make oral representations, the Government of Canada shall be granted permission to reply to the representations of the intervener.  The right to reply to the representations of the intervener shall be of a maximum of 10 minutes.
  9. If an intervener is granted permission to make oral representations, the Military Judges shall be granted permission to reply to the representations of the intervener.  The right to reply to the representations of the intervener shall be of a maximum of 10 minutes.  The reply of the Military Judges to the representations of the intervener shall be made after the reply of the Government of Canada and prior to the Military Judges’ reply of a maximum of 30 minutes to the representations of the Government of Canada.
  10. The Committee may grant additional time to the parties to reply to the representations of an intervener at its sole discretion.
  11. Parties and interveners shall be allowed to make a presentation on electronic support, such as powerpoint.   
  12. A court reporter shall be present at the hearing.
TRANSLATION AND SIMULTANEOUS INTERPRETATION
  1. Documents submitted by the parties and interveners may be translated at the request of the Committee.
  2. Simultaneous interpretation shall be provided at the hearing.
PUBLIC AND MEDIA
  1. The hearing shall be open to the public.
  2. The media shall be notified of the hearing date.
  3. No pictures may be taken inside the hearing room.
  4. No media report or press conference may be made inside the hearing room or within 10 metres from the entrance of the hearing room. 
REPORT
  1. The Committee shall submit its report to the Minister by July 15, 2012, in both official languages. 
  2. The Committee may extend that time by up to nine months from the commencement of the inquiry at its sole discretion.

Appendix D – List of Participants at the Commission’s Public Hearings

Hearing : June 14, 2012

Catherine A. LawrenceCraig Collins-WilliamsDepartment of justiceCivil Litigation Section12th Floor, East Tower,234 Wellington Street,Ottawa, ON,K1A 0H8

Counsel for the Government of Canada

Chantal ChâtelainVincent de l'EtoileLanglois Kronström Desjardins, s.e.n.c.r.l.1002, rue Sherbrooke Ouest, 28e étageMontréal, Qc,H3A 3L6

Counsel for the Military Judges

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