III. Statutory Construction of Governing Legislation

We must address two points of interpretation in relation to our statutory mandate. The first concerns the meaning of “adequacy” of the remuneration. The English term “adequacy” - the adjective form of the noun “adequate” - in some definitions has the sense of bare minimum, but in others it does not, leading to some ambiguity in Parliament’s intentions in using the English term. The Concise Oxford Dictionary, 8th ed. (Oxford: Clarendon Press, 1990) at p. 14 defines “adequate” as “sufficient, satisfactory” (often with the implication of being barely so).  Black’s Law Dictionary, 6th ed (St. Paul: West Publishing, 1990) at p. 39 defines “adequate” as “sufficient, commensurate, equally efficient; equal to what is required; suitable to a case or occasion; satisfactory.” We find the term “satisfaisant” in French used in the French statutory text of both the NDA and the Judge’s Act has a more precise and broader meaning, with an equivalency in English of “satisfactory.” See Provincial Court Judges’ Assn. of New Brunswick v. New Brunswick (Minister of Justice); Ontario Judge’s Assn. v. Ontario (Management Board); Bodner v. Alberta; Conférence des juges du Québec v. Quebec (Attorney General); Minc v. Quebec (Attorney General), 2005 SCC 44 at paras. 65-67,

R. Sullivan, Sullivan and Driedger on the Construction of Statutes, 4th ed. (Toronto: Butterworth, 2002), at pp. 80-81, notes:

The basic rule governing the interpretation of bilingual legislation is known as the shared or common meaning rule. Where the two versions of bilingual legislation do not say the same thing, the meaning that is shared by both ought to be adopted unless the meaning is for some reason unacceptable ... The law is the abstract rule or provision that the legislature ‘intends’ to enact. The words in which the law is expressed may or may not be well chosen; they may be well chosen in one language version but not in the other. The court’s job is to construct, or reconstruct, the rule relying on the meaning of both language versions ...”

Here, we find the French meaning is more precise than the English meaning, but the English meaning overlaps the French meaning. As such, they can each have a shared meaning of “satisfactory” in the context of compensation for military judges as mandated by the NDA, which is quite different than merely the bare minimum.

A statutory comparison of the NDA’s provisions in establishing the Committee and the Judges Act provisions in establishing the Commission is also useful, as we observe that Parliament’s drafting of the Judges Act contains the same key English-French version issue at s-s. 26(1) as does the NDA at s. 165.34. Thus, what the JCBC has found to be satisfactory for the approximately 1200 other federally appointed judges is highly relevant to this Committee’s determination of what will be satisfactory for four federally appointed military judges. It is helpful to apply the golden rule of modern statutory construction as endorsed numerous times by the Supreme Court of Canada, such as in R. v. Ulybel Enterprises Ltd., 2001 SCC 56 at paras. 28-19:

In numerous cases, this Court has endorsed the approach to the construction of statutes set out in the following passage from Driedger’s Construction of Statutes (2nd ed. 1983), at p. 87:

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

This famous passage from Driedger “best encapsulates” our Court’s preferred approach to statutory interpretation: Rizzo & Rizzo Shoes Ltd. (Re)  , [1998] 1 S.C.R. 27, at paras. 21 and 23. Driedger’s passage has been cited with approval by our Court on frequent occasions in many different interpretive settings which need not be mentioned here.

Here, the Committee determines that the intention of Parliament in establishing both the JCBC and MJCC was to provide for independent advisory bodies in compliance with Parliament’s constitutional obligations on the remuneration that should be provided to the federal judiciary. The object of both the NDA and the Judges Act in respect of establishing a judiciary was in part to guarantee “judicial independence” as confirmed in s-s. 165.34(2)(b) of the NDA, where “outstanding” judges would preside, having “financial security” by way of “adequate” remuneration. We therefore find that the JCBC’s findings - and the Government’s responses to them - although not binding, are relevant to our work in assessing the adequacy of compensation of military judges, on the basis that Parliament’s intention in establishing the scheme of both Acts was the same.

The second interpretative point concerns the third statutory criterion of attracting “outstanding candidates” in s-s. 165.34(2)(c) of the NDA. The statutory language in both official languages can be harmonized by giving them a common meaning of “the best” in English. We elaborate on the implications of these statutory construction findings below, in analyzing the application of the evidence to the third criterion.