Judicial compensation as a cornerstone of judicial independence

In a nutshell

Judicial independence is not just one more government priority, but a constitutional imperative. That’s why there must be sufficient resources to provide adequate financial security for judges. The Canadian Bar Association offers practical suggestions on how to accomplish this goal.

The CBA’s mandate includes promoting improvements in the administration of justice and maintaining a high-quality justice system in Canada. An independent judiciary is fundamental to both.

To this end, the CBA offers comments on the seventh quadrennial Judicial Compensation and Benefits Commission to help determine fair and just judicial and prothonotary compensation and benefits in accordance with the Judges Act.

Financial security

The CBA letter describes three components of judicial independence: security of tenure, administrative independence and financial security. The latter, it adds, “embodies the three following constitutional requirements: Judicial salaries can be maintained or changed only by the recourse to an independent commission; no negotiations are permitted between the judiciary and the government; and salaries may not fall below a minimum level.”

• Judicial salaries can only be maintained or adjusted through an independent commission.
• Direct negotiations between the judiciary and the government are prohibited.
• Salaries must not fall below a constitutionally protected minimum level.

Noting several cases dealing with the dangers related to politicizing judicial compensation in which the CBA intervened, the submission urges the Commission “to caution Parliament that the consideration of its report involves special constitutional factors that risk being endangered by a politicized process and by any links, intended or unintended, between judges’ remuneration and judges’ decisions.”

Attracting quality candidates to the judiciary

Remuneration should not be the predominant factor motivating candidates to the bench, the Section writes. “But attracting candidates for judicial appointment requires judicial salaries to be competitive with the other options available to candidates in our professional world.” 

The relevant gauge should be 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 key concern, the CBA notes, is to prevent judges from facing significant financial disparity between their pre- and post-appointment earnings. Once appointed, judges must devote themselves entirely to their judicial duties and are prohibited from supplementing their income in any way.

It also highlights that there is a broader and pressing need to address underfunding within the justice system that needs to be addressed. Inadequate financial resources not only affect the ability to attract and retain top candidates but also hinder the courts’ ability to function efficiently.

Read the submission.