Response of the Minister of National Defence to the 2019 Report of the Military Judges Compensation Committee

1. On behalf of the Government of Canada, this is the Response of the Minister of National Defence to the 2019 Report of the Military Judges Compensation Committee (MJCC). This Report examines the adequacy of the remuneration of the Military Judges for the quadrennial period of 2015-2019.

2. The report was received by the Minister on 28 February 2019 and, as set out in subsection 165.37(2) of the National Defence Act (NDA), the Minister of National Defence is providing this official response.

3. 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.

Background

4. The Military Judges Compensation Committee 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 Remuneration of Judges of the Provincial Court (P.E.I.),[1997] 3 S.C.R. 3, calling for an independent, effective and objective body to determine judicial compensation. This process aims to protect judicial independence by avoiding direct negotiations between Military Judges and the Government.

5. 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:

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 the judiciary in ensuring judicial independence;
3. the need to attract outstanding candidates to the judiciary; and
4. any other objective criteria that the committee considers relevant.

6. While the Committee’s recommendations are not binding on the Government, the Supreme Court of Canada in Bodner v Alberta, [2005] 2 S.C.R. 286 at para. 31 held that a government that proposes to reject or modify recommendations must provide rational reasons for doing so.

The Committee’s recommendations

7. In summary, the Committee, unanimously, made the following recommendations in the Report:

1. 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 $314,000 per year, as of 1 April 2015. The Committee also adds that Military Judges’ salaries “should be indexed as of 1 April 2016, and annually thereafter based on the Industrial Aggregate of Canada and a formula similar to the one provided in subsection 25(2) of the Judges Act, R.S.C. 1985, c. J-1”, meaning that the Industrial Aggregate Index (IAI) value in any given year should not be adjusted or a ceiling imposed on the annual increase.
2. Civilian Clothing Allowance: The Committee endorsed the Government’s proposal that the value of the CAF civilian clothing allowance be incorporated in the remuneration of all Military Judges.
3. Reserve Judges: The Committee also endorsed the Government proposal regarding the remuneration of Class A and B reserve Military Judges. This proposal, in the Committee’s words, would establish their salaries in the same way as the salaries of other reserve members, but in accordance with the salary of Military Judges. Further, these amounts would be indexed annually in the same manner and at the same time as the remuneration of regular force Military Judges.
4. Incidental Expenses Allowance: The Committee recommended that Military Judges be provided with the same allowance as that granted to other superior court judges as of September 2018; and
5. Chief Military Judge Indemnity: The Committee recommended that the additional indemnity for the Chief Military Judge not be changed.

Government’s response

8. The Government accepts recommendations 2, 3 and 5 of the MJCC. With respect to recommendation 1, the Government accepts the Committee’s recommendation to maintain the IAI as the method for providing annual increases in between MJCC quadrennial reviews. The Government further accepts that the increase not be capped in any way, but that it reflect the full IAI value for the year. However, for the reasons provided below, the Government respectfully declines to accept the recommendation that Military Judges be paid a salary equal to that of federally appointed superior court judges. It also declines to accept the Committee’s recommendation that Military Judges receive the same incidental allowance that is provided to other superior court judges, as of September 2018.

9. The Government provides the following rationale for this decision:

Remuneration

10. Before the Committee, the Government proposed a one-time 16 percent increase, effective September 1, 2015. This would bring the Military Judges’ salary to $267 000, and would be followed by annual indexation based on IAI. The Government arrived at this proposal based on historical trends and comparators relevant to Military Judges’ salary, as well as its careful consideration of the factors contained in section 165.34 of the NDA. These are the same factors the MJCC must consider in conducting its inquiry. There are three specifically enumerated factors (prevailing economic conditions; ensuring judicial independence; and attracting outstanding candidates), as well as a more open-ended factor (any other objective criteria that the committee considers relevant).

11. While the Committee mentioned a number of times in its report that it cannot be satisfied that the remuneration is adequate based on one criterion alone, it nevertheless allowed a single factor – namely, the salaries of federally appointed superior court judges – to override and outweigh any other considerations. The Committee did not clearly explain how this factor fit into the statutory criteria framework required by the NDA. Rather, the Committee appears to have based its salary recommendation on reasoning that appears grounded more in philosophical concerns about parity at the federal level.

12. Most notably, the Committee made its recommendation on salary while also explicitly recognizing the adequacy of the Government’s proposed salary increase. Specifically, the Committee recognized that the Government proposal (1) constitutes a significant increase, (2) satisfies the judicial independence test, and (3) attracts outstanding candidates. On the first three specific factors to be considered, the Committee indicated the following:

1. In general, the evidence filed establishes that the economic criterion does not have a noteworthy effect on the determination of adequate remuneration. The Government of Canada therefore proposes a simple, albeit significant, increase to the current base salary. (Page 3)
2. The Committee agrees that a reasonable and informed person would not consider the salary proposed by the Government to be lower than the minimum required to satisfy the independence test. However, the Committee cannot be satisfied based on this criterion alone.
3. Regarding the role of financial security in preserving judicial independence, the Committee recognizes that the salary proposed by the Government is sufficient to guarantee judicial independence. The Committee finds, however, that it should not be satisfied with this minimum requirement and that it is impossible to set adequate remuneration on the basis of this standard alone. The Committee is convinced that any candidate is first and foremost motivated by the desire to become a judge and, therefore, by the role itself.
4. Finally, with respect to the need to attract outstanding officers to the military judiciary, while it is obvious that salary is not the determining factor, it should also not discourage outstanding candidates. The Committee agrees that the Government’s proposal would be satisfactory. However, it would be inappropriate to decide on what is adequate on this criterion alone. When one considers appointments to the superior courts, the salaries offered do not necessarily discourage outstanding candidates, but their level does not seem to be set with a view to attracting candidates because there are already enough candidates. It has already been established that many candidates will earn significantly more than what they earned previously. There is no need to make a distinction for Military Judges. The Committee’s finding on this criterion is simply to accept that an adequate salary is one that allows for reasonable and stable recruitment.

13. Despite the foregoing, the Committee concluded that the Military Judges’ salaries should be the same as that of other federally appointed judges. No justification or explanation was provided for relying on this sole overriding criterion to determine the adequacy of Military Judges’ remuneration. The Committee simply indicated that they have equivalent training and carry out similar duties to other federally appointed judges.

14. While the remuneration of federally appointed judges is certainly a criterion that can be taken into consideration, the Government cannot accept without further comparison and explanation that membership in the federal judiciary should be the pre-eminent consideration when determining the adequacy of the Military Judges’ remuneration. Parliament made the decision to create a specific MJCC that operates under the NDA and not the Judges Act, consistent with and reflecting the reality of Canada’s unique and separate system of military justice.

15. The Committee appears to base its salary recommendation on reasoning that is more focused on parity for federally appointed judges than on the data on current salary and comparators that it had before it. For example, the Committee appears to not appreciate the fact that the work of Military Judges is more similar to that of provincial court judges who sit on criminal matters than to that of superior court judges; does not factor the workload of the different judicial actors; and, while mentioning that the training of Military Judges is equivalent to federal judges, does not make reference to the training of other judicial actors. The judicial actors include the federal judges, provincial judges and prothonotaries. A significant comparative exercise would be required to conclude that only one of these potential analogs is the only acceptable benchmark; in the Government’s view, the Committee has not clearly established the link that would be necessary to make the superior court judicial salary the overriding factor to the exclusion of all others.

16. In considering the Canadian economy the Government must take both a current and prospective view. Where the Committee made a general examination of current economic conditions, the Government must also consider developing issues in international trade and international relations that may weigh on economic, uneven and risk-inducing technological developments; climate change risks to the economy; and other persistent structural issues in the Canadian economy.

Incidental expenses allowance

17. The Committee recommends that Military Judges be provided the same allowance as the one received by superior court judges. No evidence is offered as to the necessity or utility of providing this allowance. Given that the Chief Military Judge’s office is provided with a budget for training, expenses, materials, etc., adding this allowance serves no clear value or purpose. In the absence of any supporting rationale, the Government respectfully declines to accept this recommendation.

Conclusion

18. The Government is pleased to fully accept recommendations 2, 3, and 5 of the MJCC. While the Government does not accept all the remaining recommendations of the MJCC for reasons explained above, it is prepared to provide a significant increase to the current base salary of Military Judges, having carefully reviewed and considered the Committee’s recommendations and in light of the factors enumerated at subsection 165.34 (2) of the NDA. The Government has determined that the pay of Military Judges ought to be set at $267,000 from 1 September 2015, and that the IAI, without adjustment, continue to be used to increase the pay of Military Judges in between Committee mandates. The Government has included the annual value of the CAF Clothing Upkeep Allowance in the annual salary value of Military Judges.