Thank you, Tamra.
Let me begin by indicating that the CBA recognizes that the role of this committee puts politicians in the unfamiliar position of leaving political considerations at the door. You must, because public confidence in the justice system is at stake. Canadians should not be left with the impression either that judges are beholden to their boss, who decides their salary, or that judges are predisposed against government because of a salary dispute.
Depoliticizing judicial compensation isn't simply an ideal; it is a constitutional requirement. Every person in Canada involved in the justice system must receive a hearing by a judge who is fair and impartial, and as importantly, who is seen to be so. This principle is a cornerstone of our democracy.
Judicial compensation is one of three pillars on which judicial independence is based, the other two being security of tenure and control over court administration. When this committee reviews the bill before it, the CBA believes it should do so with an eye to whether the government has respected the raison d'être for the commissions: preserving judicial independence and depoliticizing the process for determining judicial compensation. In the CBA's view, the government's response to the commission's report—the foundation for the bill—does not do so.
However, there has been an inordinate delay in implementing the commission report. The CBA cautioned against any delay in the last Parliament, when it considered Bill C-51, saying that delay undermines the commission's effectiveness and consequently, judicial independence. Therefore, we recommend that the bill be amended without delay to reflect the commission's recommendations.
If it is not possible to make these amendments in a timely way, then Bill C-17 should be passed, to avoid more harm to judicial independence. If the latter course is taken, the CBA urges that the committee take the opportunity to comment on the deficiencies in the government's response. This is particularly important given that the next commission is following shortly, to which the government will also need to respond.
I'd now like to turn to the detail of the government response.
As the members of the committee will be aware, the government has refused to implement the salary recommendations of the commission. The government has expressed two reasons for not doing so. First, it concluded that the commission did not give sufficient consideration to the criterion in subsection 26(1.1) of the Judges Act relating to prevailing economic conditions in Canada. Second, it disagreed with the comparator groups chosen by the 2003 commission. In this aspect of its response, the CBA believes that the government has articulated a legitimate reason for departing from the commission's recommendation and a reasonable factual foundation for its decisions.
The CBA's concerns, therefore, are limited to the first of the two reasons given by the government. The unfortunate fact is that while the government has articulated two reasons for the government's salary recommendation, it has failed to articulate the degree to which each influenced its overall recommendation. The inference from the ordering of the considerations is that the first was dominant. Our concern is that this reason, then, permeates the entire response.
Constitutionally, the government must articulate reasons for departing from the recommendations made by a commission. The constitutional requirement to give reasons is illuminated by three further principles, two of which I want to briefly touch on.
First, the government must give rational reasons for departing from commission recommendations; this has also been described as the need to give legitimate reasons. In the words of the Supreme Court of Canada, reasons must be based on facts and sound reasoning, and bald expressions of rejection and disapproval are inadequate.
Second, reasons given by a government to reject a commission recommendation must have a reasonable factual base.