V. Analysis of the Statutory Factors

A.  The Statutory Framework for the Committee’s Work

For military judges, the determination of remuneration is a process founded in the NDA. Section 165.34(2) of the Act sets out the criteria which the Committee must consider in determining the adequacy of the remuneration of military judges for the period under review.

Succinctly put, the four factors the Committee must consider are as follows:

• The Prevailing Economic Conditions in Canada;
•  The Role of Financial Security;
• The Need to Attract Outstanding Candidates to the Military Judiciary;
• Other objective criteria that the committee considers relevant.

The Committee heard representations from both the Government and the military judges on each of these criteria.

a.  The Prevailing Economic Conditions in Canada

i.    The position and argument of the Government on economics

The Government argues that any increase in the remuneration of military judges must reflect the current economy and the financial situation of Canadians. The pandemic caused a distortion in the CIAI in 2021 when 2.9 million Canadian workers lost their employment in the spring of 2020. Most who lost their work during the pandemic occupied positions that were subject to lower remuneration rates. At the same time, inflation was projected for 2023 at 4.3% and approximately 2.9% annually until 2027.

The Government argues that throughout this period military judges’ salaries benefited from an increase in the CIAI at 6.6%. Therefore, and contrary to most Canadians, the salary of military judges increased considerably during this period. The Government argues, consistent with the PEI case, that the reputation of the judiciary would be damaged if the public perception was that judges, including military judges, were not carrying their fair share of the burden of the economic difficulties. The Government points out that consistent with the Turcotte Commission, which set the increase for the other federally appointed judges as a function of the CIAI, military judges received the very same increase as the other federally appointed judges.

The Government argues that during the period from 2020 to 2022, there was a fall in GDP and CPI, as well as a recession and exploding budget deficits. There was also a recovery, with rising inflation and CPI, falling unemployment and high debt producing, at a minimum, uncertainty in the marketplace and in the economy. In these circumstances, the increase in the cost of living was largely offset by the increase (CIAI) in the salaries of military judges. Accordingly, the military judges have been insulated from the economic pressures through the increase in salary provided by the annual increase based on the CIAI.

The Government argues that the uncertainty in the economy, which will be experienced at least until 2027, requires caution in any determination of salary; meaning the existing formula provides a sufficient salary and the formula should be maintained. The Government argues that a salary increase to that of the other federally nominated judges is not warranted, given the present economic circumstances.

ii.    The position and argument of the military judges on economics

The military judges maintain that the percentage increases brought about by the CIAI are not an increase in salary but simply a provision to ensure that military judges do not lose the value of their existing salary. They argue that the three and four-year delay in which the Government has addressed the issue of military judicial salaries is a violation of the spirit of Section 164.34 of the NDA. They maintain that the Act requires a prospective approach to the issue and is not one to recommend salaries retroactively. They argue that this is a blatant and unjustifiable disregard of the structure put forward in the NDA. The military judges point out that this exercise should have begun in September 2019. This inordinate and unacceptable delay risks impinging upon the independence of the military judiciary and is sufficient to negatively impact the confidence of the public in the efficacy of the process to recommend military judicial remuneration. In other words, the Government is not following the relevant legislation, and this disrespect of the governing legislation is therefore an impingement of judicial independence.

The military judges argue that the issue of the strength, or weakness, of the economy was discussed by the Turcotte Commission in its report of 2021. They maintain that the Turcotte Commission concluded that the state of the economy should not constitute a restrictive factor in the establishment of judicial remuneration notwithstanding the economic difficulties presented by COVID-19. They point out that the Commission stressed that temporary budget deficits have the goal to stimulate the economy. They are not structural deficits and that the legislative criteria (Sec.165.34 NDA) should not be interpreted as a restriction on what should be considered as a satisfactory remuneration for judges. The Turcotte Commission concluded that the state of the economy could not be a limiting factor in setting the remuneration of federally appointed judges, despite the turmoil caused by the COVID-19 pandemic.

The military judges maintain that the effects of the uncertainty of the Canadian economy are temporary. They point out that during 2019 and 2020, which forms part of this review period, the Government of Canada was indicating publicly that Canada would be the leader in economic activity amongst the G7 group of nations. The four military judges maintain that the  Government cannot reasonably suggest that the requested increase in salary to parity with other federal nominated judges would seriously prejudice the state of Canadian public finances. They say that the Government cannot credibly claim that the implementation of their proposal, for four judges, is financially harmful to the Canadian economy.

The military judges submit that the Turcotte Commission’s conclusions are perfectly applicable in this matter. On the one hand, the effects of the pandemic on the Canadian economy are of a temporary nature, and on the other, the Government has presented no evidence of the adoption or implementation of a policy of general application to reduce the deficits generated during the pandemic period.

iii.    Analysis of the economic factor

The prevailing economic conditions in Canada appear to have stabilized after the COVID pandemic. The 2019 Budget of the Government of Canada foresaw the strengthening of the Canadian economy through 2019 and estimated that Canada would become the leader of economic growth in 2019 and into 2020 amongst the G7 Group of Nations.

As the military judges have argued that the determination of the salary for the period of the mandate of this committee (2019 to 2023) should have been undertaken by September 2019 and completed shortly thereafter, as is required by the NDA and KR&Os (King’s Regulations and Orders). Had that determination been completed, as it was supposed to have been, it would have fallen within the time frame set out in 2019 and 2020 precisely when Canada was projected to be a leader in economic growth amongst the world’s most developed nations. That economic projection was current through to 2021 because, as was pointed out by the Turcotte Commission, the 2021 Federal Budget, which is a statement reflective of the Canadian economy, was not an austerity budget and did not impose measures to limit discretionary spending of departments and federal agencies.

As was pointed out by the military judges, the Turcotte Commission concluded in their analysis of the state of the Canadian economy in 2021, that the “state of the economy” should not be considered a restrictive factor in the determination of the remuneration of federally appointed judges notwithstanding the challenges posed by the COVID-19 pandemic. The JCBC concluded at paras. 78-79 (footnotes omitted):

1. As argued by the Canadian Bar Association, section 26(1.1) “does not give dominance to any criterion. It suggests that each one must be given due weight and consideration.”⁴⁹
2. Given that,
   1. the temporary fiscal deficits were meant to stimulate the economy rather than being structural deficits;
   2. the Budget 2021 is not an austerity budget. Unlike Budget 2009, it did not “outline measures to manage expenditures, including actions to limit discretionary spending by federal departments and agencies”;
   3. the Government presented no evidence of deficit reduction policies of general application; and
   4.  statutory indexing was maintained by the Government following each of the Block and Levitt Commissions despite the prevailing economic conditions;⁵¹

We are of the view that the first criterion under section 26(1.1) of the Judges Act should not inhibit or restrain us from making recommendations we would otherwise consider necessary to ensure the adequacy of judicial compensation.

The same would be true of the evidence presented to the MJCC in 2023. If anything, the economy has been slowly recovering since the pandemic, which was at its height in 2021 for the JCBC Turcotte Committee. Thus, for the MJCC in 2023, the first factor should not inhibit or restrain the MJCC from making recommendations we would otherwise consider necessary to ensure the adequacy of military judicial compensation. Finally, the salary increase requested by the military judges, which is parity with other federally appointed judges, cannot be credibly or reasonably said to compromise in any realistic manner Canadian public finances.

b.  The Role of Financial Security

i.  The position and argument of the Government on financial security

The Government accepts that financial security is an essential condition of judicial independence and is designed to ensure that judges do not succumb to interference in their decision-making process through the exercise of financial manipulation. The Government agrees with the PEI case which states that public confidence in the independence of the judiciary requires salaries that ensure that judges do not become vulnerable to pressures brought about by financial manipulation. The Government agrees military judicial salaries should be maintained at a level that insulates judges from such pressures.

The Government argues that while the current salary is eighty-five percent of that paid to other federally nominated judges, the value of the pension adds another $219,835 to the annual value of the salary providing an overall value of $545,034. The Government asserts that the current value of the salary and pension of military judges is such that a reasonable well-informed person would conclude that the salary and benefits of military judges is far superior to that which would make them susceptible to bias through economic manipulation. We note that the military judges have advanced their own expert evidence which disputes the Government’s pension numbers, which are based on several assumptions.

ii. The Position and Argument of the Military Judges on Financial Security

A military judge is both a federally appointed judge and an officer of the Canadian Armed Forces. The Report of the Third Independent Review Authority to the Minister of National Defence Pursuant to subsection 273.601(1) of the National Defence Act, RSC 1985, c N-5 (30 April 2022) authored by the Honourable Morris J. Fish indicated that this fact could erode confidence in the independence of military judges because of the public perception of their inclusion as an officer in the CAF and their proximity to both the decision-making process inherent in the chain of command and to the Judge Advocate General’s (JAG) Branch which provides prosecution and defence services to members of the CAF. The military judges argue that one factor in dispelling this perception is to equate the remuneration of military judges to that of other federally appointed judges. In other words, treat military judges equally to superior court judges.

The military judges also argue that the systematic refusal of the Government to follow the salary recommendations of “parity” found in the decisions of this Committee of 2008, 2012 and 2019 is ministerial confirmation that military judges are not equal in stature to other federally appointed judges. This, they argue, amounts to a statement from the Government that federally appointed military judges do not have the same judicial standing, status, and independence of other federally appointed judges. They argue that members of the CAF and potentially civilians who appear before them would have the perception military judges are judges of a lesser stature. They stress that the problem of financial security and independence, taken together, is exacerbated by the refusal of the Government to accept the principal recommendations of the Military Judges Compensation Committees of 2008, 2012, 2019 with respect to remuneration.

The military judges say that the disparity between the salaries of military judges and other federally appointed judges undermines the independence of military judges. The remuneration of current military judges is fifteen percent lower than that of other federally appointed judges with no explanation given by the Government to justify the existence of this disparity. The military judges argue that they are fulfilling the same responsibilities, following the same training, attending the same conferences and workshops as their federally appointed counterparts. And yet, amongst approximately 1200 federally appointed, four military judges have been singled out to receive a lesser remuneration than their federally appointed colleagues. Finally, the military judges argue that the Committee should recommend, consistent with the committees that preceded it, that “parity” in the financial treatment of military judges as other federally appointed judges is required.

iii. Analysis of the Financial Security Factor

The Government and the military judges appear to agree on one aspect – that the current salary should not make military judges susceptible to bias through economic manipulation. The military judges stress that the eighty-five percent remuneration of other federally appointed judges is a minimum to ensure the independence of the military judiciary. But their argument goes further. Within the context of a federally appointed judiciary, no one has explained to them, or others, why military judges should be treated differently than other appointees in the federally appointed judiciary. Currently, that difference is approximately fifteen percent.

The Government asserts at para. 81 of its factum that: [translation] “The current salary … is far above the minimum level required to protect the military judiciary from political interference through economic manipulation.” However, this Committee believes that the three criteria statutorily mandated by Parliament must be considered in their totality, and not in isolation from each other, or from the overall mandate of the Committee. The Government appears to be advocating for a “bare minimum” interpretation of s. 165.34 of the NDA. For the reasons noted above, we have come to the conclusion that application of proper principles of statutory interpretation lead to the conclusion that Parliament in creating s. 165.34 of the NDA was not tasking the Committee with a bare minimum model, but rather with determining what satisfactory remuneration would be. We determine that satisfactory financial security would be parity with the remuneration of other federally appointed judges.

We agree with the submission of the military judges at paras. 117 of their factum: [translation] “Therefore, in order to meet the constitutional standard, the Committee’s recommendations take on additional importance. These recommendations must be expressed in such a way as to foster the perception that military judges enjoy full judicial independence despite the fact that they belong to the CAF.”

“Judicial independence” as articulated by Parliament in s. 165.34(1)(2) NDA has both an objective and subjective component to it. The judiciary must not only remain independent but be perceived to be independent. The salary differential between military judges and other federally appointed judges promotes a perception of difference to the disadvantage of the perception of the independence and impartiality of the military judges. We believe that public perception of independence is especially important within a hierarchical organization like the CAF, where clearly military judges remain integral parts of the CAF, unlike other federally appointed judges.

c. The Need to Attract Outstanding Candidates to the Military Judiciary

i.  The position and argument of the Government on outstanding candidates

The Government states that the current remuneration of military judges does not deter the recruitment of the best candidates for appointment to the military judiciary. Since 2005, for each of the five appointments between 7 and 10 candidates were classified as either “recommended” or “highly recommended” for appointments to the military judiciary. The Government maintains that these figures are certainly comparable or superior to those of federally appointed judges working in the civilian system. The Government maintains that the results of the processes for appointing military judges have achieved success overall.

By comparative analysis, the salary of a military judge is certainly attractive to CAF members who are regular force or reserve lawyers working in the military justice system. The comparison of military judge salaries with JAG officer salaries displays an attractive advantage to pursuing an appointment as a military judge.

Comparing the available information, the Government argues there is nothing to suggest that the remuneration of a military judge is dissuasive for applications from reserve force lawyers. The Government points out that in 2018 there were candidates from the reserve force who applied for military judicial positions. The Government indicates thirty percent of officers who applied for military judicial positions were reservists and seventy percent were members of the regular force – a proportion which has remained stable across the years. The Government maintains that while there could be other factors which may dissuade reservists from applying to be a military judge, salary would not be one of them.

ii. The position and argument of the military judges on outstanding candidates

The military judges argue that the Government has adopted an unjustifiably restrictive view of the pool of candidates for the military judiciary. The military judges stress that it is essential the best possible candidates be attracted to service in the federally appointed military judiciary. They state that remuneration is a major factor in promoting this attractiveness. They maintain the converse is also very true: low remuneration must not become an obstacle to the attraction of the best candidates. The salary must not be sufficiently low as to dissuade potential candidates from applying for a federal appointment as a military judge. This must be true for military lawyers working in the JAG Branch, as well as other officers in the regular force who may be lawyers not practicing military law as their daily responsibility, and finally for members of the reserve force who practice law in their civilian occupation. The military judges say this salary must be such that members of the CAF are attracted to the call for service as a military judge. The salary must be attractive to a broad spectrum of potential candidates including satisfying the requirements for diversity and inclusion.

The military judges say that given the salary disparity between other federally appointed judges and military judges, the best candidates are more attracted to a federal appointment in the civil judicial system than service in the military justice system. They point out that any qualified lawyer of the CAF, regular or reserve, is eligible to be a federally appointed judge in the civilian justice system. As an example, the military judges maintain that CAF reservists who practice law as their civilian occupation would be far more attracted to a superior court appointment rather than a military judicial appointment. This preference could be largely due to the discrepancy in remuneration.

The military judges argue that salary “parity” with federally appointed judges in the civil system would negate that disadvantage, thereby ensuring that for all military judicial appointments the very best candidates from the Canadian Armed Forces, and the private sector, would be assured. It might also have the added benefit of having a non-member of the Canadian Armed Forces who is a specialist in military law make an application for a military judicial position.

iii.  Analysis of the outstanding candidates factor

The Government, as noted, argues that there are plenty of qualified candidates for the posts of military judges and it follows that remuneration must already be adequate: [translation] “The current remuneration of military judges has no deterrent effect on the recruitment of the best candidates for the military judiciary” (factum para. 86). But as we explained above, our statutory interpretation is that Parliament intended in drafting s. 165.34 to attract “the best” candidates, not just well- qualified candidates. The “best” means that the top candidates will not be diverted to higher-paying judicial positions elsewhere. With the current salary differential in place between military judges and all other federally appointed judges, the best candidates are likely to seek appointment to other parts of the federal judiciary.

We conclude that this criterion favours remuneration parity with other federally appointed judges.

d.  Other Relevant Factors

Under s. 165.34(2)(d), the Committee “shall consider … any other objective criteria that the committee considers relevant” to its mandate to inquire into “the adequacy of the remuneration of military judges.” The military judges submitted that we ought to consider the remuneration of other federally appointed judges under the heading of other objective criteria. As part of the comparison with federally appointed judges, the Government invites us to consider the pension scheme for the military judges as compared with the annuity for other federally appointed judges. The Government also invites us to consider the increases in remuneration of others in the federal public service, the role of the military judges and their workload.

i.  Pension scheme comparisons

There was disagreement between the parties over whether the Committee has the authority to consider pension/annuity provisions in its inquiry into the remuneration of military judges. We find that we do have authority to examine the adequacy of “remuneration” and should not be blind to the reality of the totality of that remuneration in making our recommendation as to its adequacy. However we do not have authority to make recommendations dealing with the pension scheme.

The Committee has considered the Government’s argument that including their pensions, the remuneration of military judges is in fact more than that of other federally appointed judges. In our view, the evidence does not bear this out.

The Government has insisted during the hearings of the Committee that the salaries of military judges are $545,034 when their pensions are accounted for, according to the evidence presented by their actuary who claims they receive an additional 67.6% of their salary by way of pension benefits. It is also argued by the Government that military judge pensions have a greater value than other federal judges because they retire 14 to 16 years earlier than other judges, and that provincial judges only receive $287,136 per year and Superior Court Associate Judges $297,700 by way of annual salary.

The Committee was presented with dueling expert evidence from the military judges and the Government concerning pension comparisons. By comparison, there was no debate over what the actual salaries of military judges and other federally appointed judges are. We do not believe it necessary to choose a winner in the war of experts over pension valuations. That military judges may retire with greater pensions than other federally appointed judges may simply be a function of most military judges having devoted themselves to a career life of public service prior to being appointed to the judiciary, rather than federal judges where a significant proportion of other federally appointed judges came from the private sector where if in private practice, they may have had not been benefitting from any pension regime, and thus be starting their pension contributions at a much later age than military judges did.

However, this ignores the fact that other federally appointed judges may have been earning much higher salaries in the private sector prior to being appointed a judge, and some might be taking pay cuts upon appointment to the bench, which would help offset their fewer pensionable years, particularly if they were setting aside significant portions of their incomes as investments for retirement. There are too many variables in pension values for there to be apt comparisons between the pension values of military judges and other federally appointed judges.

It is not disputed that both military judges and other federally appointed judges benefit from significant indexed retirement schemes. Military judge pension amounts payable upon retirement could be greater than other federally appointed judges if they had contributed longer to pension schemes, but then again, they might not be. Military judges might also retire at much younger ages than other federally appointed judges. A variety of life factors can affect pension values including taking early retirement for reasons of health.

The calculations of both experts involved several assumptions to advance the arguments that either military judges including pensions were already paid more or less than other federally appointed judges. Pension values are not an obligatory factor we must consider according to our mandate from Parliament. We do not find the comparison of the pension schemes useful for several reasons:

•  the retirement regimes are completely different (counting of years of service, retirement ages, accumulation of benefits);
• the value of the benefit swings wildly depending on the assumptions used in the calculations;
• some of the pension value is based on subjective factors, such as choice of retirement date or the choice to elect supernumerary status.

Thus, while we concluded that the comparative value of pension schemes is a relevant factor, the evidence presented before us does not materially assist in applying this factor in investigating the adequacy of the military judges’ remuneration.

ii.    Comparisons with other federally appointed judges

The Government asserts at paras. 121 of its factum: [translation] “Tying the salaries of military judges to those of federally appointed judges or provincial court judges would run counter to the mandate and requirements of the NDA.” The sole authority cited for that assertion is the Committee’s 2008 Report at p. 15. However, when one examines the wording the 2008 Report used, it does not support the Government’s submission:

The parties have both agreed that the previous Committees’ determination that the salary of military judges should not be tied directly to that of the average of provincial court judges was not an appropriate approach to or method for the determination of adequate compensation of military judges. This Committee agrees. Among other problems, this would constitute an abdication of the responsibility of this Committee to make its own determination, by linking the outcome to the conclusions of the various other judicial compensation committees in Canada. This would also entail a degree of circularity. It is up to each judicial compensation committee to make its own assessment, rather than to predicate its conclusion on those of others. Furthermore, the salary of military judges cannot be determined in reference to any one single comparator.

Thus, the Committee was talking about avoiding abdicating its statutory responsibilities in favour of other committees, not that the remuneration of other federally appointed judges was irrelevant. As the 2008 Committee said, and we agree one and a half decades later, it falls to each Committee to come to its own conclusions, and those conclusions must be based on the evidence and consideration of all statutory factors. From the evidence presented before us, we conclude that the remuneration of military judges is less advantageous than that of other federally appointed judges. This may give rise to the impression that military judges are “second-class” judges. As we have noted above, we do not consider parity with other federally appointed judges to be a “factor” under s-s. 165.34(2)(d) of the NDA, rather, it is a conclusion under s-s. 165.34(1) of the NDA.

iii. Comparisons with provincial court judges and federally appointed associate judges

We do not believe that the remuneration of federally appointed Associate Judges is a useful comparison for determining the adequacy of the remuneration of military judges. This comparison, if anything, suggests that military judges should be compared with judicial officers who, like the Associate Judges, are not judges but rather have more limited jurisdiction and authority than judges. That would mean classing military judges effectively as judicial officers who are not full- fledged judges, which is neither legally nor factually correct. Similarly, we find the comparison of provincial court judge remuneration throughout Canada to be of limited value, given the differing economic situations of the various jurisdictions.

If one is to take provincial court judges’ salaries presiding over more than 38% of Canada’s population in the province of Ontario, Schedule A - Order in Council 1273/2018, “Salaries for Judges of the Ontario Court of Justice,” they are already tied to 95.27% of federal Superior Court judge’s salaries:

In respect of service from April 1, 2018 to March 31, 2022, the annual salary of a provincial judge set out in subsection 1(3), following the adjustment in Section 3, shall also be increased to align with a percentage of the salary rate of judges of the Ontario Superior Court of Justice set out in Part I of the Judges Act (Canada), R.S.C., 1985, c. J-1, (“Superior Court Judge salary rate”) as follows:

From April 1, 2021 to March 31, 2022, to equal 95.27% of the Superior Court Judge salary rate for that period.

By comparison, military judges’ salaries rest at 85% of federal judges’ salaries, over 10 percent below provincial court judge salaries in Canada’s largest province. We particularly caution against comparing the remuneration of civil servants to that of judges. While it is true that both are paid with tax dollars, judges occupy constitutionally vital positions in Canadian society which places them differently than civil servants. As the Supreme Court of Canada said in British Columbia (Attorney General) v. Provincial Court Judge’s Association of British Columbia, 2020 SCC 20 at para. 85: “a government that does not take into account the distinctive nature of judicial office and treats judges simply as a class of civil servant will fail to engage with the principle of judicial independence.”

We do not give workload significant weight as an additional factor. Workload varies tremendously among other federally appointed judges. We do not find days of sitting a useful point of comparison. For example, the Supreme Court of Canada sat for 35 days in 2020 and issued 45 decisions (Supreme Court of Canada Year in Review 2020, online: https://www.scc-csc.ca/review- revue/2020/index-eng.aspx).