OTTAWA – The Harper government has not only rejected an independent commission’s call for judicial salary hikes, but also turned down all other changes the panel recommended, Law Times has learned.
The unexpected development has surprised members of the legal and academic community, who were expecting Justice Minister Rob Nicholson to table legislation that would reveal details of the government’s belated response to the Judicial Compensation and Benefits Commission’s May report.
A statement Nicholson issued nearly two weeks ago referred only to the salary aspects of the quadrennial commission’s recommendations, suggesting federally appointed judges might be getting the same level of wage increases public servants were awarded in the January budget.
No mention was made of 14 other recommendations, at least four of which would require a bill amending the Judges Act.
Those issues included new salary differentials for puisne judges appointed to provincial courts of appeal and to the Federal Court of Appeal; retirement changes for supernumerary judges in the territorial courts; retirement annuities for judges who serve on appeal courts but return to trial courts; and salary parity for the senior family law judge in Ontario.
As of last week, judges were still not sure of the details of the government’s position, and expected them to be fleshed out in the normal bill that accompanies the government’s response to the commission recommendations.
But the Justice Department, in response to a Law Times question about the expected legislation, said no bill will be tabled.
“Legislation is not required because the government is not implementing any changes to judicial salaries,” Carole Saindon, a senior communications officer in the department, said in an e-mail.
“The statutory indexing currently provided for by the Judges Act will continue,” she wrote.
“During this period of global economic uncertainty, it is vital the government keeps its sight fixed on sound fiscal management,” the e-mail said.
“In light of the economic situation, the government has concluded that it would be unreasonable to implement the increases to judges’ base salary recommended by the commission.”
The surprise news is that the government is ignoring all 15 recommendations from the commission, chaired by Sheila Block, a prominent lawyer with Torys LLP in Toronto.
Adam Dodek, a University of Ottawa associate law professor and columnist for Law Times, says the government position is puzzling.
“It’s not clear what the grounds are for rejecting all these other recommendations,” he says.
Puisne judges in federally appointed courts are now earning $260,000 annually, and will receive an automatic increase on April 1 this year based on an industrial aggregate compiled by Statistics Canada.
The Block commission recommended the salary for puisne judges should be set at $264,300, effective April 1, 2008, which includes the statutory indexing that would have taken effect that date.
The change, plus indexing and increases for subsequent years, would have taken puisne judge salaries to $302,000 by April 1, 2011.
The commission recommended a salary of $349,800 retroactive to April 1, 2008, for the chief justice of the Supreme Court of Canada and $323,800 for the Supreme Court’s puisne judges.
Chief justices of the Federal Court of Appeal and courts of appeal in the superior courts of the provinces would have been retroactively increased to $298,300.
Indexing and increases would similarly have taken all the salaries to higher levels by April 1, 2011.
Dodek says politics unquestionably played a role in the government delay reacting to the Block commission recommendations. The Judges Act required a response by last Nov. 30.
The government likely had little taste for increasing the salaries as an election loomed last fall, no appetite at all for increasing salaries during the election period, and found it politically impossible to increase the salaries to levels the commission recommended once the economy began a full-scale plunge into recession in October.
“Government, of whatever political persuasion, is in no hurry to be seen as implementing salary increases for highly paid judges,” Dodek says. “Second, in the midst of an election campaign, everything gets put off.”
Dodek agrees the delayed response to the commission report, combined with the eventual decision to ignore the report entirely, could pose a threat to judicial independence.
But he says it is not yet at the point where public confidence in the fairness of the justice
system may erode.
“I agree with that, but I think we are so far away,” he says. “I think that the public is engaged only on the level of looking at the bottom-line dollar figure of what judges are paid and saying, ‘Wow, I wish I was paid that.’”
Dodek says it may be necessary to replace the commission system, which he argues has developed into a confrontational forum with the entire question under a public spotlight, with a more neutral method of settling salary increases.
He cited England as an example, where judicial salaries are increased at the same time as the wages of senior public servants by an independent board.
However, he acknowledges politics will always be part of the mix.
“You simply cannot take the politics out of remuneration,” says Dodek. “To think you are going to be able to do that is naive.”
