7
[15] Independence is achieved by the selection of commission members, and the terms of their
tenure. In this case, the 2017 JCC was composed of Peter A. Gall, Q.C., appointed by the Minister of
Justice and Solicitor General, Andrew C.L. Sims, Q.C., nominated by the Association, and the Chair,
The Honourable C. Lynn Smith, Q.C., who was appointed on nomination by the first two
Commissioners. No issue is taken with the independence of the Commissioners.
[16] Commissions must be objective. “They must make recommendations on judges’ remuneration
by reference to objective criteria, not political expediencies”: PEI Reference at para 173. Objectivity
may be “ensured by including in the enabling legislation or regulations a list of relevant factors to
guide the commission’s deliberations”: PEI Reference at para 173. In this case, the JCC Regulation,
s 13, sets out criteria that the Commission “shall consider” in making its recommendations.
[17] “Finally, and most importantly, the commission must also be effective”: PEI Reference at
para 174. Commission reports need not binding; however, they must have “a meaningful effect on the
determination of judicial salaries”: PEI Reference at para 175. Effectiveness is achieved by requiring
that the executive or the legislature formally respond to a commission report and, if it “chooses not to
accept one or more of the recommendations in that report, it must be prepared to justify this decision,
if necessary, in a court of law”: PEI Reference at para 180.
[18] Justification in a court of law is thus the guarantee of the most important feature of judicial
compensation commissions – their effectiveness.
[19] In PEI Reference Chief Justice Lamer described the “standard of justification” as follows:
183
The standard of justification here … is one of simple rationality. It
requires that the government articulate a legitimate reason for why it has chosen to
depart from the recommendation of the commission, and if applicable, why it has
chosen to treat judges differently from other persons paid from the public purse. A
reviewing court does not engage in a searching analysis of the relationship
between ends and means, which is the hallmark of a s.1 analysis. However, the
absence of this analysis does not mean that the standard of justification is
ineffectual. On the contrary, it has two aspects. First, it screens out decisions with
respect to judicial remuneration which are based on purely political
considerations, or which are enacted for discriminatory reasons. Changes to or
freezes in remuneration can only be justified for reasons which relate to the public
interest, broadly understood. Second, if judicial review is sought, a reviewing
court must inquire into the reasonableness of the factual foundation of the claim
made by the government …
184
Although the test of justification — one of simple rationality — must be
met by all measures which affect judicial remuneration and which depart from the
recommendation of the salary commission, some will satisfy that test more easily
than others, because they pose less of a danger of being used as a means of
economic manipulation, and hence of political interference. Across‐the‐board
measures which affect substantially every person who is paid from the public
purse, in my opinion, are prima facie rational. For example, an across‐the‐board
reduction in salaries that includes judges will typically be designed to effectuate
the government’s overall fiscal priorities, and hence will usually be aimed at
furthering some sort of larger public interest. By contrast, a measure directed at
judges alone may require a somewhat fuller explanation, precisely because it is
directed at judges alone.