Response of the Minister of National Defence to the Report of the 2008 Military Judges Compensation Committee

1. The establishment of the Military Judges Compensation Committee is governed by subsection 165.22(2) of the National Defence Act ¹ and article 204.23 of the Queen’s Regulations and Orders for the Canadian Forces (QR&O). ² The Committee members are appointed every four years to inquire into the adequacy of the remuneration of military judges. As required by QR&O article 204.24(3), in conducting its inquiry, the Committee shall consider:
   • “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 military judges in ensuring judicial independence;
   • the need to attract outstanding officers as military judges; and
   • any other objective criteria that the Committee considers relevant.”
2. On 29 January 2008, the third quadrennial Military Judges Compensation Committee commenced its inquiry into the adequacy of the remuneration of military judges for the period commencing 1 September 2007. The Committee considered written submissions from counsel for the military judges and for the Government. There was one public hearing during which both parties were afforded the opportunity to present their positions and answer questions from Committee members. The Committee submitted its “Report on the Compensation of Military Judges,” ³ to the Minister on 29 September 2008.
3. Under the National Defence Act, ⁴ the military judges preside over courts martial of officers or non-commissioned members and (subject to various limitations) others, including civilians. They have jurisdiction over the offences in Part III of the NDA, which includes offences under federal ⁵ and foreign law. ⁶ They can also perform other judicial functions, such as the judicial review of persons held in pre-trial custody ⁷ and, with the concurrence of the Chief Military Judge, be appointed as a board of inquiry. ⁸ In fulfilling these duties, the military judges travel extensively in Canada and occasionally may have to travel overseas to preside over a court martial wherever Canadian Forces (CF) members are located.
4. The Governor in Council appoints officers of the CF who are barristers or advocates of at least ten years standing at the bar of any province in Canada to be military judges. ⁹ They are appointed for a five-year term and are eligible for re-appointment on the recommendation of a renewal committee established by QR&O article 101.15. ¹⁰ The selection process for military judges is similar to that for other federal judicial appointments. The military judicial selection process is administered by the Commissioner for Federal Judicial Affairs, and the Military Judges Selection Committee is utilised to assess interested candidates. The Office of the Chief Military Judge currently has its full complement of four military judges.
5. As noted by the Committee at page 5 of its Report:

“the fact remains that military judges have opted into a career of military service. While fully independent of the chain of command, they remain a part of the military, with all attendant advantages and disadvantages this brings. Their situation, therefore, remains a unique one. As the military judges indicate in their submission, ‘The Office of the Chief Military Judge is a unit of the Canadian Forces of which the Chief Military Judge is the commander.’”

6. The Committee concluded in its Report at page 13 that the salary of military judges cannot be determined in reference to any single comparator and recommended that the salary for the military judges be set at $225,000.00, as of 1 September 2007. The Committee also recommended that the annual measure of indexation in order to protect against inflation should be based on the Industrial Aggregate Index, as is done with other federally-appointed judges. This indexing recommendation is fully accepted and will be implemented. The Minister also accepts the Committee’s recommendation at page 14 that the Chief Military Judge continue to receive a supplement of 3.0% of the military judges’ rate.
7. In accordance with QR&O article 204.27(2), the Minister was to respond to the Committee’s Report by 29 March 2009. This response was delayed in order for the Department to consider the Report in light of the very significant changes to the first of the factors that the Committee was mandated to consider in its recommendations regarding the adequacy of the military judges’ remuneration. That factor, under QR&O 204.24(3)(a), is “the prevailing economic conditions in Canada, including the cost of living, and the overall economic and current financial position of the federal government.” When the Departmental authorities started their analysis of military judges’ salaries and the implications of the Report, the Government was engaged in the 2009 budget process. Thus, the consultations that were undertaken and the possible Ministerial responses that were considered were all affected by those other processes. The Government’s fiscal situation culminated in the passage of the Budget Implementation Act, 2009, ¹¹ on 12 March 2009. The Department’s proposal on military judges’ salary then had to be reconsidered in this light.
8. The Minister has determined that in light of Canadian economic conditions and the financial position of the federal government, it would be unreasonable to implement the Committee’s actual military judges’ salary recommendation. This Response, therefore, provides the constitutionally mandated public explanation and justification for this decision, as set out in the 2005 decision of the Supreme Court of Canada in Bodner v. Alberta. ¹²
9. The global and Canadian economic situation and the financial position of the Government deteriorated significantly after the Committee concluded its inquiry and submitted its recommendations to the Minister in September 2008. The Government’s response to the deterioration of Canadian economic conditions, the longer-term prognosis, the significant implications for Government revenues, and the worldwide need for extraordinary fiscal measures resulted in the Expenditure Restraint Act, 2009. ¹³ Of significance, this Act restricts federal public sector compensation during this difficult economic period. Annual wage increases for the federal public service, public office holders and Members of Parliament is statutorily limited to 2.3 per cent in 2007-08 and 1.5 per cent for the following three years.
10. While federally appointed judges and military judges are excluded from the operation of the Expenditure Restraint Act, ¹⁴ the Government, in responding to the report of the 2007 Judicial Compensation and Benefits Commission, has limited the federally appointed judges’ increases to the Industrial Aggregate Index. As has been detailed in the Government’s responses to that Report and to the Report of the Special Advisor on Federal Court Prothonotaries’ Compensation:

“[T]he public would reasonably expect that judges and prothonotaries should be subject to similar restraint measures. The Supreme Court of Canada has established that it is to ensure continued public confidence in the judicial officers that their remuneration should be subject to measures affecting the salaries of all others paid from the public purse. In PEI Judges Reference, Chief Justice Lamer observed that equality of treatment ‘helps to sustain the perception of judicial independence precisely because judges are not being singled out for preferential treatment’. He explained:

‘In my opinion, the risk of political interference through economic manipulation is clearly greater when judges are treated differently from other persons paid from the public purse. This is why we focussed on discriminatory measures in Beauregard. As Professor Renke, supra, has stated in the context of current appeals (at p. 19):

. . . if judges were spared compensation decreases affecting other public sector groups, a reasonable person might well conclude that the judges had engaged in some behind-the-scenes lobbying. The judges’ exemption could be thought to be the result of secret deals, or secret commitments to favour the government. An exemption of judges from across-the-board pay cuts is as likely to generate suspicions concerning judicial independence as the reduction of judicial compensation in the context of general public sector reductions.’”

11. In the Minister’s view, the public would reasonably expect that military judges would not be adversely treated if they, too, were subject to restraint similar to that implemented for the members of the Canadian Forces, federal judges and others of the federal public administration.
12. The Committee recommended that the remuneration of military judges not be tied to the average of the provincial court judges and that their salary not be determined in reference to any one single comparator. Instead, they recommended that the judges’ salaries be set at $225,000.00. In light of the economic circumstances, it would be not be fiscally responsible for the Government to accept this recommendation to increase military judges’ salaries by 21%, especially when the Committee noted at page 8 that “the wages of military judges over the past four years has significantly outpaced the rate of inflation, as well as the salaries of other wage earners paid from the public purse….” Additionally, the Minister would not accept the Committee’s recommendation in this regard given the absence of any justification. The Report does not demonstrate how the salary of military judges, based on the provincial court judges’ average (and the recent increases that that methodology resulted in), had been inadequate to maintain their independence or attract outstanding officers.
13. Maintaining the current methodology of using the provincial court judges’ average would have constituted a 7.3% increase for 1 September 2007 and 3.7% for 1 September 2008. In the Conclusion at page 13 of its Report, the Committee agreed with the counsel for the military judges and for the Government that the salary of military judges should not be tied directly to that of the average of the provincial court judges. While the salary of four military judges is not a large sum, given the significance of Canada’s economic and the Government’s financial positions, maintaining this methodology would not follow the spirit of the restraint legislation and the treatment afforded to other individuals remunerated from the federal purse. Thus, the Minister has obtained the Treasury Board’s approval to provide the annual increases based on the Industrial Aggregate Index. This methodology would remain in effect indefinitely and would be reviewed on 1 September 2011 when the next Committee is due to convene.
14. In using this methodology, the military judges will receive a 3.0% increase for 2007, a 3.2% increase for 2008 and a 2.8% increase for 2009. These salary increases translate into lump sum payments of $3,364, $12,102, and $10,397 for 2007, 2008 and 2009 respectively, for the Chief Military Judge, and $3,266, $11,749 and $10,094 for 2007, 2008 and 2009 respectively, for the other Military Judges. The annual rates of pay beginning November 1, 2009, payable on a monthly basis, shall be $210,039, for the Chief Military Judge, and $203,922 for the other Military Judges. Although higher than the Expenditure Restraint Act increases for the Public Service and the Canadian Forces of 2.3%, 1.5%, and 1.5%, ¹⁵ these increases will ensure that military judges’ compensation does not fall below the “minimum” required to protect their financial security, including erosion of their compensation levels over time. This minimum avoids the perception that judges might be susceptible to political pressure through economic manipulation. Therefore, judicial independence in the military justice context will be maintained, while still taking into account the prevailing economic conditions in Canada, including the cost of living and the overall economic and current financial position of the federal government.
15. The Minister is mindful of the unique quadrennial nature of the judicial compensation process which limits the possibility of interim adjustments during the quadrennial period. However, in the event that the current economic circumstances improve before the next Committee is established, such circumstance could be taken into account by that Committee.
16. The Minister thanks the Committee members for their time and efforts in addressing this important matter. No one could have foreseen, however, how radically economic conditions would change by the end of 2008. Nevertheless, the Minister is committed to ensuring that the military judges continue to receive the salary necessary to ensure their full independence and that military justice continues to operate as a fair and impartial process meeting Canadian constitutional standards.

1 R.S.C. 1985, c. N-5 [NDA].

2 Found at: http://www.admfincs.forces.gc.ca/qro-orf/index-eng.asp.

3 Found at: http://www.forces.gc.ca/en/about-reports-pubs/compensation-committee-2008.page.

4 NDA, supra note 1, s. 60.

5 Id., s. 130.

6 Id., s. 132.

7 Id., s. 159.

8 QR&O article 21.081(1).

9 NDA, supra note 1, s. 165.21(1).

10 Id., s. 165.21(3).

11 S.C. 2009, c. 2.

12 [2005] 2 S.C.R. 286.

13 Part 10, Budget Implementation Act, 2009, supra note 11, s. 393.

14 Id., s. 13(4).

15 Id., s. 16.