Promoting and protecting the independence of the judiciary

  • May 19, 2021

An independent judiciary is essential to the promotion of improvements in the administration of justice and in the maintenance of a high-quality system of justice in Canada. In a submission to assist the sixth quadrennial Judicial Compensation and Benefits Commission as it determines fair compensation for judges and prothonotaries the Canadian Bar Association and its Judicial Issues Subcommittee continue a long tradition of speaking in defense of judicial independence and against potential political interference in the treatment and compensation of judges in Canada.

In his remarks to the Judicial Compensation and Benefits Commission hearing on May 11, 2021, CBA President Brad Regehr explained, “The CBA is an objective observer. We are not here on behalf of judges, the government, or any other party. We want to assist the Commission in its work, in the process of determining judicial compensation properly and fairly to reflect the imperative of appropriate judicial compensation. Our sole interest is in protecting and promoting judicial independence in the context of the administration of justice.”

An independent judiciary is one where judges are afforded appropriate financial security, and a strong judiciary requires that the compensation offered be sufficient to attract the best and most qualified candidates.

“From a practical perspective, Canadians want to know that when they appear in court, the judge will be impartial,” said Brad Regehr. “Canadians must have confidence that when cases are decided, judges have no financial incentive in the outcome,” which means judges should be free from having to worry that their decisions might displease the government which provides their compensation.

The CBA recognizes that financial benefits should not be the only or most predominant factor in attracting outstanding candidates for judicial appointments. But salaries need to be competitive. The Subcommittee argues that “the appropriate gauge for determining the level of judicial salaries is the compensation of senior lawyers in private practice and those at senior levels in the public service, as these individuals generally comprise the pool from which judges are selected and appointed and are their professional peers.”

The objective of the judicial compensation process is to ensure that judges do not experience significant, and discouraging, economic disparity between pre-appointment and post-appointment compensation levels, the submission adds, especially in light of the requirement that judges focus solely on their duties and are prevented from supplementing their income during their appointment.

The CBA recognizes that the COVID-19 pandemic has a significant impact on the Canadian economy. However, the Subcommittee writes that judicial compensation must at least keep pace with inflation to ensure sitting judges do not experience erosion in their salaries. The CBA urged the Commission to consider the generalized financial impact of COVID-19 on the Canadian economy and to recognize that the impact will be felt on judicial salaries for many years to come, at least through the current judicial compensation review period. While there are competing public and government priorities, the burden is on the government to give compelling evidence that other fiscal obligations justify infringing upon the constitutional imperative of judicial independence.

Diversity, prothonotaries

As Brad Regehr told the Commission on May 11, the judiciary must reflect the Canadian population including women, Black, Indigenous and People of Colour (BIPOC), disabled persons, persons of all gender and sexual identities, and members of other under-represented groups. “Attracting and expanding the number of outstanding candidates from diverse groups for judicial appointment requires judicial compensation to be competitive,” he said.

Judicial Issues Subcommittee Chair Indra Maharaj noted that many lawyers from these diverse groups make significant contributions to their communities by advocating on their behalf. The recommended compensation should reflect their obligation to become neutral upon appointment and to take on a larger leadership role.

The CBA is pleased to see that prothonotaries are included in the sixth quadrennial Commission, after presenting submissions to Special Advisors on Federal Court Prothonotaries’ Compensation in 2008 and 2013, “that principles of judicial independence should extend to judicial officers, like prothonotaries, who combine administrative functions with significant judicial decision-making responsibilities.”

Their compensation needs to be in line with that of comparable judicial officers in other courts, such as traditional masters. “And their compensation must reflect the respect with which the Federal Court is regarded, but at a level subordinate to Federal Court judges,” the submission says.