OTTAWA - The system for fixing federal judicial salaries will be tainted with politics and “back to square one” if Ottawa rejects the latest report from an independent commission that urged a pay hike to $304,000 by 2011, says the Canadian Bar Association.
Justice Minister Rob Nicholson has until Nov. 30 to respond to the position of the Judicial Compensation and Benefits Commission, tasked with settling what may be the most contentious round of quasi-bargaining since the commission was established nearly 10 years ago.
After months of submissions and counter-submissions from both sides, the gap remained large by the time the commission submitted its report to the government at the end of May.
The recommendation for salary increases and indexing over a three-year period was only $3,000 less than the salary requested in a joint submission from the Canadian Judicial Council and the Canadian Superior Courts Judges Association - but $17,000 more than they would get under the government’s proposed formula.
Puisne judges now earn $260,000 annually, following a 3.2 per cent hike last April 1, based on an industrial aggregate of salary increases in Canada.
If the acrimonious positions that surfaced during the submission process are any indication, the system established to take politics out of the equation may be in danger of collapsing, says Guy Joubert, incoming president of the CBA.
“If the government doesn’t act on these recommendations it essentially nullifies the whole process,” Joubert tells Law Times. “It’s politicized and it brings it back to square one, which the parties have been trying to avoid all along.”
He noted the government’s decision to base part of its argument on fiscal limits caused by economic and social priorities that were part of the 2006 election campaign contradicts the criteria established by the Judges Act.
Section 26(1.1) of the act states the commission must consider the prevailing economic conditions in Canada, financial security for judges to ensure judicial independence, salaries that will attract “outstanding” candidates, and “any other objective criteria” the commission deems relevant.
“The whole purpose is to remove these salary disputes from an otherwise public forum that could be a highly charged, highly politicized process,” says Joubert.
The commission agreed with a CBA argument, contained in a submission it presented during hearings, that it would be dangerous to accept the Justice Department’s position that political priorities of the government, taken from an election campaign platform, should be taken into account.
“The government’s contention that the commission must consider the economic and social priorities of the government’s mandate in recommending judicial compensation would add a constitutionally questionable political dimension to the inquiry, one that would not be acceptable to the Supreme Court, which has warned that commissions must make their recommendations on the basis of ‘objective criteria, not political expediencies,’” the commission’s report says.
The federal government might take caution from a judicial flap that has occurred in Ontario, where the Ontario Deputy Judges Association is protesting a decision by the provincial government to ignore recommendations from a provincial commission on salaries.
The commission, established by the Court of Appeal, had forced the government to increase the per diem rate for deputy judges from $232 to $475 in 2005, after the rates had remained unchanged since 1982. But the government rejected the commission’s recommendation to continue the pay increases until the per diems reached $750 by Jan. 1 2009.
“Deputy judges do not receive the same salary and do not have equal financial independence as full-time Provincial Court judges who do exactly the same work,” says Michael Cobb, president of the Deputy Judges Association.
The head of the Ontario Criminal Lawyers’ Association says the neutral process for establishing federal judicial salaries and benefits is ultimately crucial to the notion of judicial independence - particularly since the federal government is a party in more than half of the litigation over which the judges preside.
“It’s very important that the perception never exist that one of the parties can respond to its unhappiness with the performance of the judges by cutting their salary, or respond to pro-government rulings by increasing their salary,” CLA president Frank Addario tells Law Times.
“The government does win and does lose cases and ideological legislation or government action is sometimes trimmed down, or rebuked or altered by judgments, and they ought to be free to do that without concern that the government will penalize them,” he said.
One of the most contentious aspects of this round of commission submissions was the government’s decision to acquire federal income tax records for several hundred unidentified sitting judges, to compare their private-practice salaries to their income as judges.
The CJC and the Superior Court Judges Association objected to the tactic, but the Justice Department said no privacy laws or income tax laws were violated because the results were viewed as an aggregate - without personal identification.
The survey found 69 per cent of the sitting judges received a “significant” increase in salary after they were appointed, and 19 per cent were earning less than half of a judicial salary.
The commission did not take the survey into consideration saying, among other things, it “does not tell use whether judicial salaries deter outstanding candidates who are in the higher income brackets of private practice from applying for judicial appointment.”