Response of the Minister of National Defence to the 2024 Report of the Military Judges Compensation Committee
On behalf of the Government of Canada, this is the Response of the Minister of National Defence to the 2024 Report of the Military Judges Compensation Committee (MJCC). This Report examines the adequacy of the remuneration of Military Judges for the quadrennial period of 1 September 2019 to 31 August 2023.
The report was received by the Minister on 31 January 2024 and, as set out in subsection 165.37(2) of the National Defence Act (NDA), the Minister of National Defence is providing this public response.
The Government wishes to thank the Committee for its dedication and thoroughness in accomplishing its work. The Committee’s Report has provided the Government with valuable recommendations, advice and context which inform the following response.
This response confirms that the Government of Canada fully respects the constitutional importance of the work of this Committee and is committed to ensuring military judges continue to enjoy judicial independence, to the benefit of the Canadian Armed Forces (CAF) and all Canadians.
Background
This is the Government’s response to the sixth full process of the MJCC, first established in 1999 pursuant to then-recent amendments to the NDA.
The MJCC is a manifestation of one of the protections constructed around the constitutional principle of judicial independence, which the Supreme Court of Canada has found to be “the lifeblood of constitutionalism in democratic societies” and a principle that is fundamental to maintaining public confidence in the administration of justice (The Queen v. Beauregard, [1986] 2 S.C.R. 56 at 70).
More recently, in upholding the constitutionality of the dual status of military judges as both judges and officers, the Supreme Court of Canada in Edwards highlighted the importance of the work of the MJCC as a critical safeguard of judicial independent within the Military Justice System (R v. Edwards, 2024 SCC 15 at paras 12 and 114). The MJCC establishment and process is governed by sections 165.33-165.37 of the NDA and is consistent with the constitutional requirements enunciated by the Supreme Court of Canada in Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3, calling for an independent, effective, and objective body to assess the adequacy of judicial compensation. This process aims to protect judicial independence by avoiding direct negotiations between Military Judges and the Government.
In inquiring into the adequacy of remuneration for Military Judges, the NDA, at subsection 165.34(2), requires the MJCC to consider the following factors:
- the prevailing economic conditions in Canada, including the cost-of-living, and the overall economic and current financial position of the federal government;
- the role of financial security of the judiciary in ensuring judicial independence;
- the need to attract outstanding candidates to the judiciary; and
- any other objective criteria that the committee considers relevant.
While the Committee’s recommendations are not binding on the Government, the Supreme Court of Canada in Bodner v. Alberta, 2005 SCC 44 at para. 31 held that a government that proposes to reject or modify recommendations must provide rational reasons for doing so.
The Committee must report to the Minister of National Defence within nine months of beginning its inquiry (subsection 165.34(3)), and the Government must respond publicly to the Committee’s report and recommendations within six months of receipt of the Report (subsection 165.37(2)).
The Committee’s recommendations
In summary, the Committee, unanimously, made the following two recommendations in the Report:
- Remuneration: The Committee recommended that: “Military Judges’ salaries should be increased with a view to equating their salaries with those of other federally appointed judges.” This recommendation would mean a base salary of approximately $329,900 per year, as of 1 April 2019.
- Incidental Allowance: This Committee found that as all incidental funds payable to the military judges are under the control of the Department of National Defence chain of command, the Committee agrees that fixing an annual incidental allowance of $3,000 for the military judges would strengthen their independence in relation to the expenditure of funds related to their judicial duties.
Government Response
The Government accepts all recommendations of the Committee. In preparing this Response, the Government has considered the three stages of the test set out by the Supreme Court in Bodner, including the third stage, as noted in the Committee's Recommendation. The Government is of the view that, overall, the 2024 MJCC has succeeded in achieving the objectives established by the Supreme Court of Canada in the PEI Judges Reference and Bodner.
The Government remains open to exploring with the judiciary approaches that assist in ensuring that the process unfolds in a timely manner and thereby improve its overall effectiveness.
Remuneration
The Committee recommends that parity of remuneration between military judges and other federally appointed judges will comply with Parliament’s direction to determine what adequate remuneration for military judges would be.
The Government acknowledges that the recommendation for salary parity between military judges and other federally appointed judges has been recommended by prior Committees and yet not accepted by the Government. It is important to note that the Government is equally subject to constitutional imperatives to manage public funds within the confines of the law.
In the Government’s view, previous MJCC recommendations concerning parity failed to sufficiently equate their conclusions for parity with the statutory factors that must be assessed as part of their mandate. Similar errors are not evidenced in the conclusions of this Committee who have demonstrated that the recommendation for parity is not based on a “single factor.” Indeed, the Committee noted that “a global consideration of all the factors mandated by Parliament in s-s. 165.34(2) of the NDA leads the Committee to its conclusions.” However, in the present case, after conducting an exhaustive review of all of the required statutory factors, the Committee concluded that parity of remuneration with other federally appointed judges was not just a “factor” under s-s. 165.3(2)(d), but “rather it is a product of the Committee’s careful analysis under s-s. 165.34(2) which takes into account all factors to be considered pursuant to s-s. 165.34(2).”
Additionally, in contrast to similar recommendations made by past Committees, the MJCC directly explained how eliminating the pay disparity between military and other federally appointed judges would impact the mandatory statutory factors. It is important to note that the Government’s acceptance of the Committee salary recommendations should not be taken as a complete acceptance of all the assumptions made by the Committee with respect to the need for parity to attract outstanding candidates to the judiciary or the comparative analysis undertaken. That said, the Government accepts that the Committee carefully considered all the submissions placed before it and arrived at thoughtful and considered recommendations.
Annual Allowance
The MJCC also recommended that military judges receive an incidental allowance of $3,000. The Committee held that this amount represents a reasonable amount given the benefits to which military judges already receive as members of the CAF. In addition, having an allowance which is not directly tied to the chain of command serves to strengthen the financial independence of the judiciary. The Government accepts this recommendation and will undertake steps to operationalize its implementation.
The Government respects the deliberation and scrutiny the Committee brought to bear on these interrelated issues and accepts its recommendations.
Conclusion
The Government will take steps to ensure the timely implementation of the Committee’s recommendations. The Government again takes the opportunity to thank the Committee for its commitment to the public interest, as demonstrated by its participation in this important process. As noted by the Court in Edwards, the existence and effective functioning of the MJCC is a critical linchpin in judicial independence and legitimacy of the Military Justice System. Importantly, it must be recalled that judicial independence is for the benefit of the public and accused who appear before the court, not the judges themselves. CAF members can be fully confident that military judges are afforded the same degree of financial security which their federal counterparts enjoy.
The Government wishes to thank the Chair of the Committee, the Honourable Clément J.M. Gascon, and the two esteemed members, the Honourable Thomas A. Cromwell and Mr. James E. Lockyer, for their commitment to this important public interest process.
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