I. Introduction

A.  The Constitutional Basis for the Committee’s Work

Military judges are federally appointed members of a federal judiciary by an Order-in-Council who are also commissioned officers in His Majesty’s Canadian Armed Forces (CAF). They devote their full-time work and attention to their service as military judges.

Parliament established the Military Judges Compensation Committee to provide independent, impartial advice to the Government on military judges’ remuneration. The role of the independent MJCC is to inquire into the adequacy of the remuneration for military judges and to recommend remuneration for the period of its review – in this case, 1 September 2019 to 31 August 2023. The establishment of an independent Committee to recommend remuneration is a direct result of the decision of the Court Martial Appeal Court in R. v Lauzon (1998) 6 CMAR 19, which stipulated that judicial independence and depoliticization of the salary determination process must be ensured. In Lauzon, the court also stipulated that the remuneration must be fair and reasonable, objective, and guided by the public interest. The court followed the earlier decision of the Supreme Court of Canada in Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 SCR 3, which established that there must be an independent committee which must make a recommendation to the governing authority, and that negotiations between Government and the judges are prohibited. Most importantly, it established that the salary level of judges must not be one that risks putting a judge in a situation where they may be subject to financial manipulation.

The process for salary determination of military judges parallels the process for federally appointed judges where, pursuant to the Judges Act, R.S.C. 1985, c. J-1 (Judges Act), an independent Commission recommends appropriate remuneration to the governing authority. It is notable that the statutory language Parliament used in creating the Judicial Compensation and Benefits Commission (JCBC) is almost identical to that which establishes the MJCC.

The central task of the Committee is to “inquire into the adequacy of the remuneration of military judges” (s. 165.34 NDA). This focus on “adequacy” is also found in the mandate of the JCBC under the Judges Act which is to “inquire into the adequacy” of the salaries and other amounts payable to other federally appointed judges. It follows that the jurisprudence about “adequacy” within the meaning of the Judges Act provides a useful guide to how to approach that same term in the NDA.

The Supreme Court of Canada jurisprudence teaches that the process by which judicial remuneration is established must be independent, effective, and objective and that the Committee’s work must have a “meaningful effect” on the determination of compensation (Bodner v. Alberta, 2005 SCC 44). The Committee is a vehicle to help assure that these objectives are attained. With respect to the amount of remuneration, the Supreme Court of Canada has held that the mandate to determine adequate remuneration “is neither to determine the minimum remuneration nor to achieve maximal conditions.” Rather, the mandate is to recommend “an appropriate level or remuneration” (Bodner at para. 67). This is done considering the constitutional requirement of judicial independence, including financial security, and having regard to the factors set out in the statute. Adequacy is, therefore, neither the bare minimum amount necessary to meet the constitutional requirement of financial security nor the ideal maximum amount. Adequacy must be assessed by placing remuneration somewhere between these two polls guided by the statutory factors.

B.  The Statutory Scheme

When the NDA was amended to include sections 165.33 through 165.37 establishing the MJCC’s mandate and procedure, Parliament’s aspirations appeared to be both clear and efficient: every four years, the MJCC would make recommendations to the Government on military judges’ salaries, focused on prevailing economic conditions, the financial security of the judiciary that ensures judicial independence, and the need to attract outstanding candidates. While the Committee’s mandate was limited to recommending to Government rather than making binding decisions, the Committee’s mandate and procedure as a core part of the NDA establishes the importance of the MJCC’s role in the overall administration of the “the Canadian Forces and of all matters relating to national defence” as specified in section 4 of the NDA under the Minister’s responsibilities.

Unfortunately, we observe that the process established by Parliament has neither been followed with vigour nor proved to be effective. This is the sixth Committee to be convened under NDA authority. As we will describe in more detail, the long delay in appointment of the members of the Committee and the Government’s rejection of the key remuneration recommendation of the past two Committees have undermined the intended effectiveness of the process.