II. Committee's Composition, Appointment and Consideration

A.  Purpose and Object of the Report

The Committee is mandated by Parliament in s. 165.33 of the NDA to enquire into the adequacy of the remuneration of military judges in Canada. Its governing legislation specifies:

Military Judges Compensation Committee

165.33 (1) There is established a Military Judges Compensation Committee consisting of three part-time members to be appointed by the Governor in Council as follows:

• (a) one person nominated by the military judges;

• (b) one person nominated by the Minister; and

• (c) one person, who shall act as chairperson, nominated by the members who are nominated under paragraphs (a) and (b).

Tenure an removal

(2) Each member holds office during good behaviour for a term of four years, and may be removed for cause at any time by the Governor in Council.

Reappointment

(3) A member is eligible to be reappointed for one further term.

Absence or incapacity

(4) In the event of the absence or incapacity of a member, the Governor in Council may appoint, as a substitute temporary member, a person nominated in accordance with subsection (1).

Vacancy

(5) If the office of a member becomes vacant during the member’s term, the Governor in Council shall appoint a person nominated in accordance with subsection (1) to hold office for the remainder of the term.

Quorum

(6) All three members of the compensation committee together constitute a quorum.

Remuneration

(7) The members of the compensation committee shall be paid the remuneration fixed by the Governor in Council and, subject to any applicable Treasury Board directives, the reasonable travel and living expenses incurred by them in the course of their duties while absent from their ordinary place of residence.

2013, c. 24, s. 45

Mandate

165.34 (1) The Military Judges Compensation Committee shall inquire into the adequacy of the remuneration of military judges.

Factors to be considered

(2) In conducting its inquiry, the compensation committee shall consider

• (a) the prevailing economic conditions in Canada, including the cost of living, and the overall economic and current financial position of the federal government;

• (b) the role of financial security of the judiciary in ensuring judicial independence;

• (c) the need to attract outstanding candidates to the judiciary; and

• (d) any other objective criteria that the committee considers relevant.

Quadrennial inquiry

(3) The compensation committee shall commence an inquiry on September 1, 2015, and on September 1 of every fourth year after 2015, and shall submit a report containing its recommendations to the Minister within nine months after the day on which the inquiry commenced.

Postponement

(4) The compensation committee may, with the consent of the Minister and the military judges, postpone the commencement of a quadrennial inquiry.

2013, c. 24, s. 45

B. Composition of the Committee, Members and Administrative Support

The Committee was composed of one Chairperson and two Members. The Chair of the Committee was the Honourable Clément Gascon, C.C., Ad. É. The Members were the Honourable Thomas A. Cromwell, C.C., and Mr. James E. Lockyer, O.N.B., C.D., K.C. The Committee was administratively supported by Gordon S. Campbell as Executive Secretary.

C.  Military Judges: Who They Are, How Many, Where They Sit and Nature of Their Work

There is a roster of four military judges appointed in Canada who sit throughout Canada and as required around the world wherever His Majesty’s Canadian Armed Forces are deployed. Their  duties are established by the NDA. They are federally appointed judges having a specialized role, as is the case with other federally appointed judges in specialized roles such as those who have been appointed to the Tax Court of Canada. Military judges are commissioned military officers within the Canadian Armed Forces.

D.  Counsel for Military Judges and Counsel for the Government

Counsel for the Military Judges were Me Michel Jolin, Me Sean Griffin, Me Catherine Martel and Me Jean-Philippe Dionne. Counsel for the Government were Me Jean-Robert Noiseux and Me Sara Gauthier. They all most ably represented their respective clients and advocated for their positions.

E. Written Submissions Received by the Committee and Expert Testimony

The Committee received voluminous well-drafted written argument and supporting documentation from both the Government and military judges. The submissions for the Government and their dates of receipt by the Committee were:

a)      2 December 2022, the “Memorandum”;

b)      30 March 2023, the “CV of Yann Bernard”;

c)      17 February 2023, the “Mémoire du Gouvernement”;

d)      17 February 2023, the “Cahier de Documents” (Volumes 1 through 4);

e)      3 March 2023, the “Réplique”;

f)       3 March 2023, the “Cahier de Documents” (Volume 5);

g)      29 March 2023, the “Cahier d’autorités”; and

h)      29 March 2023, the “Cahier de Documents” (Volume 6).

The submissions for the military judges and their dates of receipt were:

a)      13 January 2023, the “Lettre de M. André Sauvé”;

b)      17 February 2023, the “Mémoire des juges militaries”;

c)      17 February 2023, the “Cahier d’autorités”;

d)      17 February 2023, the “Cahier d’annexes”;

e)      3 March 2023, the “Réplique:;

f)       3 March 2023, the “Cahier d’annexes supplémentaires”; and

g)      29 May 2023, the “Documents additionels.”

Mr. Yann Bernard was presented as an expert witness for the Government, who the Committee duly recognized as a qualified expert in his field. He is the Director of the Office of the Chief Actuary. He presented an analysis of the compensation of the Military Judges of Canada as of 2 December 2022. In his analysis, Mr. Bernard explained the results of his calculation on determining the value of compensation for the military judges compared to the other federally appointed judges of Canada.

Mr. André Sauvé is a consulting actuary and was presented as the expert for the military judges. He was likewise duly recognized by the Committee as an expert. He presented and explained his 13 January 2023 report, in which he sought to rebut several of Mr. Bernard’s findings, such as the rank available after Lieutenant-Colonel. He also calculated the value of military judges’ pension benefits and proposed some economic and demographic hypotheses. The experts especially diverged over whether total remuneration of salary and pension values resulted in military judges or other federally appointed judges being more highly remunerated.

F. In-Person Hearing

An oral in-person hearing took place in Gatineau, Quebec on the 14th and 15th of June, 2023, which proceeded in three parts:

1)  the presentations of the expert witnesses Mr. Sauvé and Mr. Bernard by way of sworn viva voce testimony before the Committee;

2)  the presentation of military judge Pelletier J. before the Committee;

3)  oral argument made by counsel for the Government and the military judges.

At the end of the hearing, the Committee indicated that it would take the matter under consideration. This report is the result of the deliberations of the Committee, based upon all of the evidence and argument presented by the parties.

G.  Acknowledgment of Contributions and Assistance to the Committee

The Committee wishes to thank Mr. Campbell for his skilled and dedicated assistance.

H.  Effectiveness of the Committee Process

The Military Judges noted the long and unexplained delay in appointing the Committee. Their factum presented to this Commission at paras. 100-104 sets out the relevant facts:

[translation] This Committee should have been set up shortly after 1 September 2019. Yet, it was only on 20 June 2022, after the military judges had sent a draft application for mandamus to the Federal Court, that the members of this Committee were appointed by Order in Council.

The military judges do not understand and furthermore condemn the considerable time the Minister has taken in establishing this Committee, despite the clear and express terms of the NDA and the QR&O regarding the required deadlines.

The legislative intent is for the Compensation Committee to operate on a permanent basis. However, the failure to respect the applicable deadlines and process has left the military judges without a formal process for determining their compensation, thereby undermining the independence of the military judiciary.

That forces the Committee to engage in an essentially retroactive exercise, which affects public confidence in the independence and effectiveness of a process that is required pursuant to constitutional principles and the NDA.

The military judges deplore the fact that this Committee was not set up until almost two years after all the administrative steps and documentation required by the Governor in Council for the appointment of the three Committee members had been completed…

The Committee notes that such delays are not consistent with the constitutional imperative that it be effective and converts our role into recommending remuneration retrospectively rather than prospectively. We urge the Government to appoint future Committees in a timely way so that they may report their recommendations before the beginning of period to which they relate rather than after that period has passed.

The Government’s recent consistent rejections of the MJCC’s core recommendations also undermine the effectiveness of the Committee’s process as envisaged by the Supreme Court of Canada. While the Government is not bound by the recommendations, consistent refusal to implement independent recommendations saps confidence in the process.

The two most recent Committees recommended parity of remuneration for the military judges with other federally appointed judges. It is instructive to consider their views.

a.  2012 MJCC Report Majority Recommend Remuneration Parity with Other Federally Appointed Judges

The 2012 MJCC Report emphasized the following at pages 12 and 14:

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 sources....

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 … We agree that the rationale of the government does not stand up to scrutiny. [emphasis added]...

b.  2019 Report Unanimous in Recommending Remuneration Parity with Other Federally Appointed Judges

The 2019 MJCC Report noted at pages 8 and 9:

If the Government of Canada is fine with equal remuneration for judges working in different provinces or for specialized courts, it is difficult to understand why, as a matter of principle, it would be any different for the military Courts …

The 2019 MJCC Report concluded at pages 10 and 11:

1.  economic conditions are not the primary factor for the Committee to consider as they are “not an obstacle to setting adequate remuneration; this was admitted by the government.”

2.  financial security in preserving judicial independence should not simply aspire to the absolute bare minimum: “we should not be satisfied with the minimum requirement and that it is impossible to set adequate remuneration on the basis of this standard alone.”

3.  for attracting outstanding candidates “When one considers appointments to the superior courts … It has already been established that many candidates will earn much more than what they earned previously. There is no need to make a distinction for military judges. Our finding on this criteria is simply to accept that an adequate salary is one that allows for reasonable and stable recruitment.”

4.   “military judges’ salaries should be increased with a view to equating their salaries with those of those of other federally appointed judges … there is nothing to justify paying military judges less when they have equivalent training.”

We note that the Government’s responses to these reports were concerned that the Committees appeared to focus only one benchmark or criterion, namely parity, rather than inquiring into the adequacy of the remuneration having regard to all the statutory factors. In our deliberations, we have taken those concerns to heart and carefully and fully considered all the statutory factors in coming to our conclusions.

c.  Government’s Consistent Acceptance of JCBC Reports Recommendations

The Government’s treatment of the JCBC recommendations relating to other federally appointed judges stands in sharp contrast to that given by the Government to the previous MJCC reports. The Committee notes that the “Response of the Government of Canada to the Report of the 2021 Judicial Compensation and Benefits Commission” (11 May 2022) accepted 100% of the eight recommendations made by the Commission: “The Government will take steps to ensure the timely implementation the Commission’s recommendations  ” This included improvements to judicial allowances such as a 50% increase in the annual “incidental allowance” (from $5,000 to $7,500). There the Commission rejected the Government’s proposal for “a 10 percent limit on salary increases attributable to IAI above the salary payable as of April 1, 2020” notwithstanding an “unusually large increase at April 1, 2021,” while also rejecting “proposals put forward by ... the judiciary (i.e. 2.3 percent increases in salary in the third and fourth years of the Commission’s inquiry period, in addition to indexation).”

The Committee notes that the Government likewise accepted 100% of the recommendations of the Rémillard Commission in its “Response of The Government of Canada to the Report of the 2015 Judicial Compensation and Benefits Commission,” even finding that “The Government agrees that it is appropriate that the Chief Justice of the Court Martial Appeal Court receive a salary equal to that of other superior court chief justices, and that the step-down provisions also be extended to that office.” The Government’s responses to the last two Judicial Benefits and Compensation Commissions thus stand in stark contrast to the Government’s response to the last two MJCCs.

The Government noted in its response to the Sixth Judicial Compensation and Benefits Commission (Turcotte Commission) that the Commission 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.” This is equally true for the MJCC, which is statutorily governed by precisely the same principles as direct the JCBC.