What price justice? The CBA doesn’t put a figure on it, but it does recommend a number of principles be adopted by the commission calculating the appropriate pay for federally-appointed judges and prothonotaries.
In its submission to the fifth quadrennial Judicial Compensation and Benefits Commission, the CBA notes its long commitment to an independent judiciary, and says,
Not only must the judiciary be independent, it must also be seen to be independent and free from interference and influence from the other branches of government and from other external sources. To ensure that this requirement of independence is met, the executive, legislative and judicial branches must remain separate. This principle extends to the determination of judicial salary and benefits undertaken by an objective, independent commission that is beholden to none.
Financial security is an essential component of judicial independence, along with security of tenure and administrative independence, the CBA’s Judicial Compensation and Benefits Committee notes, but adds, “the objective is not to provide judges with the same level of financial benefit that they may have enjoyed prior to appointment. Rather, it is to ensure that judges do not experience significant economic disparity between pre-appointment and post-appointment compensation levels.”
Still, the pay needs to be high enough to attract and retain the best candidates, and must also be commensurate with a judge’s position in society, reflecting the respect given the courts. The appropriate gauge is the compensation paid to senior practitioners in private practice and those at the senior level in the public sector, which is generally the pool from which judges are chosen.
The CBA committee says that the same principles for deciding judicial compensation and benefits should be applied to prothonotaries, who are now included in the quadrennial commission’s mandate, recognizing that their compensation should be less than that of Federal Court judges.
Part of the submission was taken up with the history of section 26 of the Judges Act, which sets out the Commission process, and of successive governments’ poor record of keeping to the schedule laid out in the Act: there have been four quadrennial commissions and in only one case – 2012 – did the government meet the legislated deadlines. The 2016 commission began its inquiry in January instead of in October 2015, delayed due to the fall federal election.
Therefore, the committee says, “We urge the Commission to remind the government that its response to the Commission’s report must comply with section 26(7) of the Judges Act. Delays in response past the four-month timeframe will cast doubt on the degree of importance the government assigns to judicial and prothonotary compensation, judicial independence and the rule of law.”
CBA President Janet Fuhrer and Judicial Compensation Committee Vice Chair Hugh Wright will present the submission to the commission on April 29, 2016.