Ottawa urged to send salary dispute with judges directly to Supreme Court

An association of federal judges is asking the government to refer a dispute related to their compensation directly to the Supreme Court, according to a letter obtained by Radio-Canada.

The Canadian Superior Court Judges Association argues it would be more efficient to simply ask the Supreme Court to settle the issue, which is related to a proposed salary boost of $28,000 to $36,000 a year for judges within the federal judiciary.

The salary increase affects not only judges sitting on each province's superior courts, but also the Federal Court or Supreme Court judges who may be called upon to settle the dispute.

For now, the case is before the Federal Court. In the event of a reference to the Supreme Court, the question for the nine judges would be whether Ottawa's refusal to approve the raise "satisfies its constitutional obligations in respect of protecting judicial independence."

"We believe that this approach is proper to reduce the adversarial nature of the inquiry and to avoid protracted litigation. Otherwise, as you know, the Federal Court proceedings may continue for years and may culminate before the Supreme Court in any event," Justice Janet McMurtry, who chairs the association, said in a letter to Justice Minister Sean Fraser on Feb. 11.

Patrick Taillon, an expert in constitutional law at Université Laval, says the dispute puts the deciding judges "in an apparent conflict of interest."

Still, he agreed that it would probably be advantageous to bring the case directly before the Supreme Court, where the decision would be in the hands of a panel of nine judges.

"That somewhat mitigates the problem," he said. "The legal saga would be shortened, and therefore the duration of the matter, this spectacle that undermines public confidence in the administration of justice, would be more limited in time."

Geneviève Tellier, political science professor at the University of Ottawa, said any justice hearing the case will be "judge and party."

"It's all well and good to say that we must maintain the independence of judges. But what is that independence and where does it end?" she said.

Tellier said she doesn't know what would be the best way to resolve the dispute, but said any raise for judges should meet the threshold of "social acceptability."

A spokesperson for the minister of justice declined to comment on the letter, while indicating that the Carney government remains opposed to a proposed salary increase that goes beyond inflation.

The dispute stems from a decision last year by the Judicial Compensation and Benefits Commission, which is responsible for conducting an independent process to determine the salaries of federal judges.

The commission recommended an annual base salary increase of about seven per cent.