Thank you, Mr. Chairman.
I want to begin by welcoming the witnesses from the Canadian Bar Association. As the Minister of Justice, I was very much the beneficiary of your counsel, including on the matter that is before us today.
I also want to wish a very warm welcome to Professor Garant, whom I met, in my capacity as Minister, at the Laval University Faculty of Law.
I appreciate that the fundamental constitutional principle that has underpinned the presentation of the Canadian Bar Association is that of the independence of the judiciary as the cornerstone of our democratic process, as being, in effect, the lifeblood of constitutionalism, a principle that has had a certain increased importance with the advent of the charter. Financial security is a basic component of that independence. Indeed, as your brief points out, an important and related principle is not only that the judiciary must be independent, but it must be seen to be independent, which is the raison d'être for the establishment of the independent commission. In effect, this independent commission--and here I reply as well to Professor Garant's statements--was established to protect this constitutional principle, to protect our constitutional democracy, because with the advent of the Charter of Rights and Freedoms we have moved from being a parliamentary democracy to being a constitutional democracy, where the principle of the independence of the judiciary has, as I say, an enhanced importance.
I saw the work of the independent commission to protect our constitutional democracy in that principle, rather than to be seen, Professor Garant, as usurping it, to depoliticize the process of setting judicial salaries and benefits, and to ensure that judicial salaries and benefits would be determined by an evidence-based inquiry conducted by a commission that was independent from both the government and the judiciary, but giving Parliament an important role to give effect to this principle.
The parliamentary role, as I understand it--and here I relate to Professor Garant's presentation as well as to yours--takes place as follows. The Constitution does not require that the commission's report be binding, but the government must give a rational or legitimate set of reasons to depart from the commission's findings, and those reasons must have a factual and evidentiary basis, all part of the protection of the independence of the judiciary. Therefore, when a standing committee of Parliament, such as ours, reviews the government response to a commission report, it's our responsibility--and this is why there is an important parliamentary role distinct from the parliamentary role being usurped--to ensure that the reasons given by the government, as the Canadian Bar Association put it, are not incomplete, generalized, or lacking in particulars.
Here I come to the essential point. It is your view, as I appreciate it and as you expressed it today in terms of the Canadian Bar Association, a view which I share, that the government response is so generalized, so lacking in particulars, that it fails to give a meaningful effect to the 2003 commission report. The alleged reasons given by the government do not demonstrate how or why the implementation of the recommendations of the commission would somehow, as you put it, impair or affect the ability of the government to pursue its economic and social priorities as set forth in its budget of 2006, which could not have been before the commission in 2003.
To sum up, there's no justifiable explanation to reject the commission's findings. My question to the members of the CBA here today is this. Is it fair to say that, between what I call the constitutional imperative of protecting the independence of the judiciary, as against the lack of a demonstrably based justification for rejecting the commission's decisions, this standing committee should support the recommendation of that independent commission?
Either one could answer.