Considerations Which Apply to an Application for Appointment
Table Of Contents
Members of the judiciary hold office during good behaviour. An appointment is therefore permanent and terminates only upon attainment of the age for compulsory retirement, which for all federally appointed judges is currently 75, or upon the resignation or removal of the judge from office.
A judge is entitled to annual leave, the timing of which is arranged in consultation with the Chief Justice of his or her court. Should a judge be absent from his or her duties for more than 6 months, the approval of the Governor in Council is required.
A judge who has served 15 years in judicial office and whose combined age and number of years in office is not less than 80 has the right to retire with an annuity.
In recognition of the long service required of members of the judiciary, and as an option to retirement, the Judges Act permits federally appointed judges who have served 15 years in judicial office and whose combined age and number of years in office is not less than 80, or who have attained the age of 70 and continued in judicial office for at least 10 years, to elect supernumerary status. Judges who do so must hold themselves available to perform judicial duties assigned to them by the Chief Justice of the court of which they are members. Supernumerary judges are for all intents and purposes puisne judges of the court, and are entitled to the same salary, allowances and benefits as any other judge.
Judges hold office during good behaviour, and are removable from office only for cause. Complaints made against members of the judiciary are subject to investigation by the Canadian Judicial Council, a body comprised of all federally appointed Chief Justices, Associate Chief Justices of the provinces and Senior Judges of the Territories and presided over by the Chief Justice of Canada. The role and the functions of the Canadian Judicial Council are set out in Part II of the Judges Act.
A judge may be suspended from his or her judicial duties by the Chief Justice of the court pending completion of an inquiry by the Council into the conduct giving rise to a complaint. However, the salary of the judge is guaranteed by the constitution, and cannot be withheld.
Where the Council makes a finding of misconduct, it may make a recommendation to the Minister of Justice for removal from office. A judge may be removed only upon a joint address of the Senate and House of Commons to the Governor General.
The Constitution Act, 1867 recognizes the principle of the independence of the judiciary by imposing on Parliament, and not on the executive, the duty to fix and provide the salaries, allowances and pensions of superior court judges. As a consequence, judicial salary levels for all federally appointed judges are prescribed in Part I of the Judges Act. Salaries are adjusted annually on the basis of the lesser of the percentage change in Statistics Canada's Industrial Aggregate Index or 7%.
The adequacy of judicial salaries, pensions and benefits is reviewed every 4 years by the independent Judicial Benefits and Compensation Commission appointed by the Governor in Council. The Commission is required to submit a report with its recommendations to the Minister of Justice which is also tabled in Parliament. The Minister must respond to the report within 6 months after receiving it.
Current judicial salary levels for federally appointed judges are shown below:
This table charts the current judicial salary levels for federally appointed judges.
|Supreme Court of Canada|
|Federal Courts & Tax Court|
|Chief Justice and Associate Chief Justice||$329,900 + $2,000 (additional allowance for Federal & Tax Court Judges only)|
|Justice||$300,800 + $2,000 (additional allowance for Federal & Tax Court Judges only)|
|Appeal, Superior, Supreme, Queen's Bench|
|Chief Justice and Associate Chief Justice||$329,900|
|Yukon, Northwest Territories, Nunavut|
|Senior Judge||$329,900 + $12,000 (Northern Allowance)|
|Justices resident in Yukon, Northwest Territories and Nunavut||$300,800 + $12,000 (Northern Allowance)|
|Justice resident in Labrador||$300,800 + $12,000 (Northern Allowance)|
Restrictions on Employment and Earnings
Judges must devote themselves exclusively to their judicial duties, and may not engage, directly or indirectly, in any business or occupation, either for themselves or for others. Members of the judiciary may, however, serve as commissioners, arbitrators and mediators where authorized by federal or provincial law. Where they so act, they are not entitled to any additional remuneration, although they are entitled to reimbursement of travelling and other expenses reasonably incurred.
The Judges Act sets out the restrictions on employment and earnings in greater detail.
The full amount of a judge's contribution to judicial annuities and supplementary benefits is deemed to be contributed to or under a registered pension fund or plan, pursuant to the Judges Act. The entire contribution is therefore deductible in calculating federal income tax.
There could be significant tax implications for a judge's first years in office, arising from the cumulation of income accruing upon the winding up of his or her professional practice and the receipt of his or her salary as a judge. For example, those who practice as sole practitioners or in partnership should consider the tax implications of having to report income on a calendar year rather than on a fiscal year basis; of disposing of an interest in a partnership; and of income received upon the sale of various assets of their practice, such as accounts receivable, work in progress, depreciable and non-depreciable property, and goodwill.
These, together with the Income Tax Act provisions relating to capital gains deductions and tax deferrals, are but some of the factors requiring careful consideration.
Reference should also be made to the Report on the Tax Treatment of Lawyers' Income on their Appointment to the Bench' (PDF Version, 38 KB), prepared by the Canada Revenue Agency, which is intended to inform lawyers appointed to the Bench, or who cease to practice their profession as proprietor or member of a partnership, of the tax implications of these changes.
3. Allowances and Benefits
The various allowances described hereafter extend only to actual and reasonable expenses incurred by a judge when performing his or her duties. Except for the removal and the representational allowances, these allowances are not intended to compensate for any additional cost related to such persons as a spouse or a child.
Pursuant to the Judges Act, a removal allowance is paid to a person who is appointed a judge and is required to change his or her place of residence to assume judicial functions, and to a judge who is required to change his or her place of residence upon transfer or reassignment.
The major costs which may be reimbursed out of the removal allowance include:
- travelling expenses of the judge and the members of his or her family incurred during the course of looking for a new residence and of moving thereto;
- transportation and storage of household effects;
- costs relating to the sale of the former residence;
- the cost of cancelling any lease on the former residence;
- certain interest charges on the mortgage for the new residence when these are higher than the interest charges on the mortgage for the former residence;
- under prescribed circumstances and for a reasonable period of time, the interest on a short-term loan arranged to purchase a new residence pending the sale of the former residence; and
- for a reasonable period of time while the former residence remains on the market, the cost of maintaining the vacated residence, minus any rent received.
Pursuant to the Judges Act, a travelling allowance is payable to a judge who, because of his or her duties, is required to travel outside the immediate vicinity of the place where he or she is by law obliged to reside.
The travelling allowance compensates for such costs as transportation, lodging, meals and other actual and reasonable expenses.
Incidental Expenses, Conference, Representational and Northern Allowances
Pursuant to the Judges Act, an allowance for incidental expenditures for each fiscal year is payable to a judge for reasonable incidental expenditures that the fit and proper execution of the office of judge may require.
Judges are reimbursed travelling, registration and other actual and reasonable expenses relating to their attendance at conferences, seminars and meetings with respect to the administration of justice. The attendance of a judge must be approved by his or her Chief Justice. In lieu of attending an approved conference, a judge is entitled to be reimbursed the cost of acquiring written or recorded materials distributed for the purposes of any such meeting, conference or seminar.
A representational allowance is payable to a Chief Justice, a Puisne Judge of the Supreme Court of Canada, the Senior Judge of the Supreme Court of Yukon, the Senior Judge of the Supreme Court of the Northwest Territories, the Senior Judge of the Nunavut Court of Justice, each regional senior judge of the Superior Court of Justice in and for the Province of Ontario or a judge acting in the place of one of the foregoing, who incurs expenses to meet extra-judicial obligations and responsibilities that devolve on a judge who occupies such a position. This allowance compensates for the expenses actually incurred by the judge or by the judge's spouse for travelling and other reasonable expenses.
A yearly allowance is payable to each judge of the Supreme Court of Newfoundland and Labrador resident in Labrador and each judge of the Supreme Court of Yukon, the Supreme Court of the Northwest Territories and the Nunavut Court of Justice as compensation for the higher cost of living.
Judges contribute a percentage of their salary towards their pensions. By virtue of the Judges Act, a judge may retire with a pension equivalent to two thirds of the salary annexed to his or her office
- upon completion of at least 10 years in office and attainment of the age for retirement (75);
- upon completion of at least 15 years in office and a combined age and number of years in office not less than 80;
- upon resignation on grounds of ill health;
- upon completion of at least 15 years in office and where resignation is in the national interest or for the better administration of justice;
- upon completion of 10 years in office in the Supreme Court of Canada.
A pro-rated annuity is payable to a judge who ceases to hold office by reason of having attained the age of retirement (75), but who has held judicial office for less than ten years. An immediate or deferred pro rated annuity is also payable to a judge who has attained the age of 55 years, has continued in judicial office for at least 10 years, and who elects early retirement.
These annuities are indexed.
Under certain conditions, judges may also apply and receive the Canada Pension Plan retirement pension.
When a judge dies while in office, a lump sum gratuity equal to one-sixth of the judge's annual salary is payable immediately to his or her survivor (spouse or common-law partner) or estate.
Pursuant to the Judges Act, an annuity equal to one-third of the judge's salary, or one-half of the annuity granted to the judge under the Judges Act, is paid to his or her survivor. In the latter case, the judge may elect to have this annuity increased from one-half to 60% or 75%, through an offsetting reduction in the annuity granted to the judge. A survivor who married the judge or became a common-law partner after he or she ceased to hold office is not eligible for an annuity, unless the judge had previously elected for a reduced annuity as referred to above.
An annuity equal to one-fifth of the annuity granted to the survivor is granted to each natural, adopted or stepchild of a judge. If there is no survivor each child is granted two-fifths of the annuity that would have been granted to the survivor. To receive an annuity, a child must be less than 18 years of age, or between 18 and 25 years of age and a full-time student substantially without interruption since he or she reached 18 or the judge died, whichever occurred later.
These annuities are indexed.
Disability insurance as such is not required, since the judge's income is protected against the risk of disability either by obtaining a leave of absence with full salary or by resigning on grounds of ill health with full pension.
a) Provincial Health Insurance
Judges and their dependants are entitled to hospital accommodation, in-hospital and other services, depending on their province of residence.
b) Public Service Health Care Plan
This plan paid by the federal government covers a wide range of health costs not covered by provincial health plans for the benefit of judges and their dependants. Coverage is also available to retired judges on an optional basis.
c) Public Service Dental Care Plan
Judges and their dependants are covered by the government paid dental care plan. Coverage is also available to retired judges on an optional basis.
Basic and Supplementary Life Insurance - Accidental Death and Dismemberment Insurance - Dependants' Insurance - Post Retirement Life Insurance - Living Benefit
The following benefits under the Public Service Management Insurance Plan (Judges Plan) are available to judges appointed after 31 July 2001:
a) Basic Life Insurance
This is compulsory for judges appointed after 31 July 2001, and provides life insurance equal to twice the adjusted annual salary. Coverage is at the government's expense.
b) Accidental Death and Dismemberment Insurance (AD & D)
The principal sum of AD & D insurance is $250,000. A schedule sets out the benefits payable to the judge or beneficiary following a loss resulting from an accident and in addition to any life insurance payable. The premium is government paid for judges who opt for this coverage.
c) Dependants' Insurance
This consists of life insurance and AD & D insurance for the judge's dependants - spouse or common-law partner, and unmarried children over 14 days but not yet 21 years old (25 for full-time students) who are not employed on a full-time basis. The premium is also government paid for judges who opt for this coverage.
d) Supplementary Life Insurance
Judges can apply for supplementary life insurance equal to their adjusted salary, which brings the total amount of life insurance to three times adjusted salary while under the age of 66. The amount of supplementary life insurance decreases after age 65. Evidence of insurability satisfactory to the insurer is required for the additional insurance, and judges are responsible for the premiums.
e) Post Retirement Life Insurance
This is available to judges entitled to government - paid basic life insurance on their last day in office and who are entitled to receive an immediate continuing pension under the Judges Act. The insurance is equal to the adjusted final salary in the first year of retirement, decreasing to 25% of adjusted salary in the fourth year and thereafter. The government pays the premium for those entitled to this coverage.
f) Living Benefit
This provides the life insured who has a terminal condition with a portion of the life insurance benefit which would be payable to the beneficiary upon the insured's death. This portion of the life insurance benefit is deducted from the amount payable to the beneficiary.
As well, the benefits of the Government Employees Compensation Act apply to a judge who is caused personal injury by an accident arising out of and in the course of his or her judicial duties.
Compensation, within the meaning of the same Act, is payable to the dependants of a judge whose death results from an accident arising out of or in the performance of judicial duties; this benefit is equivalent to the level of benefit available to the dependants of the most senior category of public servants. Compensation at this same level is also payable to the survivors of a judge whose death results from an act of violence unlawfully committed by another person while the judge is performing judicial duties.
4. Professional Development
Judges are encouraged to take advantage of the many continuing legal education programs which are available. In addition to conferences, seminars and meetings of general benefit to the judiciary, a number of specialized programs have been developed specifically for judges, including seminars for newly-appointed judges, and seminars on judgment writing, sentencing and the Canadian Charter of Rights and Freedoms.
The responsibility to further their education rests with individual judges who are encouraged to spend up to 10 sitting days a year on their continuing education.
Major legal education programs and avenues include the following.
The Council was established under the Judges Act to “promote efficiency and uniformity, and to improve the quality of judicial service in superior courts” in Canada. It consists of the Chief Justices and Associate Chief Justices of all federally appointed courts in Canada, and includes the Senior Judges of the three Territories. The Council is chaired by the Chief Justice of the Supreme Court of Canada. Amongst the Council's functions are the continuing education of judges, the development of consensus among council members on issues involving the administration of justice and the handling of complaints against federally appointed judges.
The Council, through its Judicial Education Committee, recommends conferences and seminars for judges which qualify for re-imbursement of expenses. The Council's Study Leave Committee also reviews applications and recommends judges for the Study Leave Program at Canadian Universities; this allows for a leave of absence to reflect, research, or teach at a Canadian University.
Created in 1988, the National Judicial Institute (NJI) is a federally and provincially funded non-profit organization committed to continuing legal education. The NJI designs and presents courses for judges which focus on the three major components of judicial education: substantive law, skills training and social context issues. The Canadian Judicial Council authorizes various seminars provided by the NJI in this respect.
The Commissioner for Federal Judicial Affairs (FJA) has developed and supports a private computer network for the sole and confidential use of federally appointed judges through its Judicom Program. Training sessions are held with judges throughout Canada for this purpose. In coordination with the National Judicial Institute, FJA also provides individual courts with computer training.
The FJA also offers English and French language training programs to both federally and provincially appointed judges designed to improve proficiency in the other official language in the judicial and legal context. These courses are available to both anglophone and francophone judges and at several levels of proficiency. They are provided through group sessions in various parts of Canada, and reinforced with private courses.
The FJA also administers, on behalf of the Minister of Justice, the federal judicial appointments process of interest to all those who seek an appointment to the Bench. This is effected through the operation of the Judicial Appointments Secretariat which ensures that all applicants are aware of the criteria and other considerations which apply when seeking a position on the Bench.
The Canadian Institute for the Administration of Justice (CIAJ) organizes a wide range of conferences and workshops, at which federally appointed judges are authorized to participate.
5. Ethical, Change of Lifestyle and Other Considerations
Anyone considering a judicial appointment should have as much information as possible on what becoming a judge entails, and should enter upon the responsibilities of judicial office only if he or she is fully prepared to accept the substantial changes which it will bring, not just to the judge's own life, but to the lives of the members of his or her family. Among the factors to consider are moving from one city to another, buying and selling a house, career disruption of a spouse, children changing schools, and other inconveniences. The decision to seek and to accept a judicial appointment should be taken only after full consultation with all those who will be intimately affected by the changes it will bring. As well, while training programs are provided to new judges, and continuing education is available, judges are by and large on their own.
A reasonably long-term commitment is also required from each judge: generally, judges cannot retire with a full pension, except on medical grounds, until they have served 15 years in office and the total of their age and years in office equals at least 80, or have completed at least 10 years in office and reached the age of retirement (75). Judges must remain on the Bench until the statutory requirements for retirement with a full pension are met, or leave with only a pro-rated pension or a return of contributions.
Anyone considering a judicial appointment should review the Assessment Criteria for candidates for federal judicial appointment, with particular attention to those topics listed under “Personal Characteristics” and “Potential Impediments to Appointment”.
In addition to these considerations, there are others.
The independence of the judiciary both isolates the individual judge from former associations to avoid the possibility of conflict of interests, and imposes upon a judge the highest standards in performing the duties and responsibilities of judicial office. It requires that each judge devote himself or herself exclusively to the duties of the judicial office, and not engage in any outside business. The range of activities that are available to a practicing lawyer is therefore severely curtailed upon appointment to the bench.
Once appointed, judges are expected to conduct themselves in a manner that attracts no criticism to their office. The judge is not permitted to engage in public debate on any of his or her decisions, and should avoid expressing personal opinions on major social issues which might lead to an apprehension of bias when such issues come to be adjudicated by the courts. When a judge performs his or her duties in a way that falls short of the standards expected of the Bench, or where the personal life of the judge intrudes upon his or her judicial duties, a complaint may be made to the Canadian Judicial Council. The Council has a statutory mandate to investigate all complaints and allegations of misconduct on the part of federally appointed judges and to recommend to the Minister of Justice whether there are grounds for removing a judge from office.
All who aspire to judicial office should be aware that their responsibilities will include not only the fair and just application of the law but the maintenance of the high reputation of the judiciary itself. Candidates should therefore be prepared to make full disclosure of any matter that would reflect upon their ability to perform the functions of judicial office, or upon the credibility and repute of the judiciary as a whole.
The Canadian Judicial Council 1998 publication Ethical Principles for Judges provides additional ethical guidance for federally appointed judges. Persons considering a judicial appointment are encouraged to refer to this publication as well; it is available on the website of the Canadian Judicial Council under the link "Publications".
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