An independent body is calling on Ottawa to boost the salaries of the 1,200 judges who sit on federal courts by $28,000 to $36,000 a year, saying the raise is required to ensure that top private-sector lawyers keep applying for judicial appointments.
While its conclusions are not binding, the Compensation and Benefits Commission is the central player in an independent process that sets the salaries of the judges who sit on superior courts, the Federal Court and the Supreme Court of Canada, among others.
“The Commission has concluded the current salary and benefits paid to judges are inadequate,” the commission says in a newly released report. “An appropriate increase to the current judges’ salary is required to ensure that more outstanding candidates are not discouraged from seeking judicial appointment.”
The commission’s findings are in line with arguments from judges who have asked for a $60,000 top-up to their base salaries, but not with the position of the federal government, which argues that such a raise is ill-timed in the current context of budget deficits and economic uncertainty.
The commission concluded the base salary of most federal judges should rise from $396,700 to $424,700, with the salaries of most chief justices rising from $435,000 to $465,700.
At the Supreme Court, the chief justice’s salary would increase from $510,000 to $546,000, while the eight other justices would get a $33,000 boost for an annual salary of $505,700.
The raises would be in addition to annual increases that are in line with the average rise in salaries across the country.
According to the commission, the salary adjustment is required to ensure that the best lawyers continue to apply for the bench. According to its calculations, the average salary among senior private-sector lawyers who could reasonably aspire to such a role exceeds $700,000.
The commission was established in the late 1990s following a Supreme Court decision aimed at ensuring the independence of the judiciary from the executive and legislative branches, including on matters related to their remuneration.
As part of the commission’s consultation process, the federal government said annual raises linked to inflation are sufficient and asked for those increases to be capped at 14 per cent.
In so doing, the government flatly rejected the judges’ request for a salary top-up to compete with higher salaries in the private sector.
“Not only does this increase have no legal basis, but it is insensitive to the current economic challenges of Canadians,” the government said in its submission to the commission.
In addition to their salary, judges benefit from a generous pension plan that is worth approximately $100,000 in additional annual compensation, according to the federal government.
“Other factors, such as the desire to serve the public, security of tenure, and the quality of life associated with judicial office, are all important incentives for accepting appointment to the judiciary,” said the federal government in its submission.
The government insists it has no difficulty filling vacant judicial positions across the country, and denies the issue of salaries is a hindrance to recruitment.
“The results speak for themselves: the bench has never been more diverse, and more qualified women, racialized persons, and Indigenous peoples are accessing judicial roles than ever before,” the federal government argued.
In response to the commission’s report, a spokesperson for the justice minister said the government “will take the time to carefully consider the recommendations” and will offer its full response in the coming months.
The Harper government rejected the commission’s salary recommendations in 2006, citing the economic situation of the day. The judges and the government subsequently agreed to defer wage increases until the next round of compensation consultations.
Former Quebec Court of Appeal judge Pierre Dalphond warned the government could end up in Federal Court if it decides to ignore the findings of the commission’s report this time.
“The government’s room for manoeuvre is very limited…. The commission has issued a report, and the government can only dismiss it if it can demonstrate that the report is unreasonable. That’s quite a heavy burden,” said Dalphond, who now sits in the Senate.
In their submission to the Commission, the federal judges argued their salaries pale in comparison to those of experienced lawyers, which undermines efforts to recruit some of the most qualified candidates to the Canadian judiciary.
In a joint submission, the Canadian Judicial Council and the Canadian Superior Courts Judges Association decried a gap of approximately $300,000 between the salaries of judges and those of comparable lawyers in the private sector.
“This persistent, dramatic gap is a serious obstacle to ensuring that outstanding members of the bar remain interested in considering a judicial appointment,” the judges’ associations said in their submission.
The judges’ submission cites the Supreme Court of Canada, which held that financial security is a central feature of judicial independence.
During consultations held by the commission, the chief justice of the Ontario Superior Court of Justice stated that in the current environment, it can be difficult to convince lawyers to apply for the bench.
“A routinely cited reason for this lack of interest is the combination of the heavy workload of superior court judges and the perceived lack of commensurate pay for that work,” explained Judge Geoffrey Morawetz.
According to the Canadian Bar Association, the federal government must endorse the commission’s final proposal.
“If the government declines to embrace fully the Commission’s recommendations on judicial compensation and benefits, or delays acting on them, the integrity of the process for setting judicial compensation will be compromised. Ultimately, judicial independence may be threatened,” the association said.
In an interview, the dean of Osgoode Hall Law School, Trevor Farrow, said an apolitical process to establish judges’ salaries is required to guarantee judicial independence. He added that this principle becomes even more important as the rule of law comes under attack around the world.
“Judicial compensation should not be a political game, it should not be part of the political back and forth,” said Farrow.
Dalphond added that it might be useful for the commission to delve into other issues in coming years. For example, the former judge asked whether all judges in the country, regardless of the city where they sit, should have the same salary, given that recruitment problems are more acute in large cities.
“Is there a way to have regional variations in base salary, with adjustments to take certain realities into account? This may be an avenue worth exploring,” the senator said.
