IV. Overview of 2023 Parties' Positions

A.  The Military Judges

The military judges, as summarized especially at paragraphs 8 and 204 of their factum, took the position that:

• the Government misconceives the roles of the military judges, who are in fact and law judges first who happen to also be military officers, and not the other way around;
• military judges are part of the federal justice system where there is no reason to treat the four of them any different from the other approximately 1200 federally appointed judges;
• parity of remuneration with other federally appointed judges has been recommended since 2012 by the Committee, but consistently ignored by the Government;
• there is no reason to depart from parity for military judges (see judges’ brief at paras. 154- 166);
• the pension plan of military judges is not relevant to the assessment of remuneration, and even if there is relevance it should not be given the value attributed to it by the Government.

The military judges have long argued, before successive remuneration committees, that their remuneration should be the same as for other federally appointed judges. They argue that their current salary is fifteen percent less. They argue strenuously that this disparity, which has been condemned by the previous committees, impinges on the independence of military judges. They maintain the disparity is not experienced by other federally appointed judges. Those judges are treated differently, from a salary point of view, and that lessens judicial independence.

The military judges argue that to ensure public confidence in the independence of the military judiciary they should be paid a salary commensurate with the other federally appointed judges. They argue that the criteria set out in section 165.34 of the NDA would allow for salary parity with other federally appointed judges and that the section does not prohibit “parity.”

B.  The Government

The Government, as summarized especially at paragraphs 1 to 3 of their factum, took the position that:

• military judges already receive satisfactory treatment;
• adequacy of remuneration should be assessed globally, taking into account particularly the value of the pension plan (paras. 140-159), workload (paras. 122-139), and a comparison with provincially appointed judges’ remuneration (paras. 160 and following);
• parity with federally appointed judges is not justified, as they are governed by a different statute, their remuneration recommendations come from a different Commission, and different factors are involved.

The position of the Government is that the current salary structure is adequate. The salaries of military judges are increased each year on April 1st based on the CIAI (Canada Industrial Aggregate Index), as is the case with other federally appointed judges. That provision will bring military judges’ salaries to $339,183.00 for the year 2023-2024, which constitutes a 19.4% increase over the four-year period of this review. The Government also relies heavily on the assertion that military judges will benefit from their CAF pensions as military officers, which it is claimed by the government’s expert witness will bring the global value of their remuneration package to $545,034.00. The Government argues these figures assure that the criteria for an increase in salary as set out in the legislation (s. 165.34 NDA) is fully respected and that no increase to their salary apart from this feature is necessary. The Government argues that military judges receive this salary through the existing process, and therefore there is no need to link their salary to that of other federally appointed judges. The current process is supposedly quite adequate.

The parties take a common position on the issues of CIAI and Chief Justice differential remuneration, but diverge on remuneration and the incidental allowance.