Thank you, Mr. Chair. My apologies to member of the committee. It's a disability I suffer from, so I'll try to slow down.
Again to quote the Supreme Court, “...a mere assertion that judges’ current salaries are 'adequate', would be insufficient.” Together, these directions require specificity in reasons for rejecting a commission recommendation, and not just specificity in explanation of what is put forward as a substitute.
With respect, the CBA believes that the first part of the government response relating to the provision of the Judges Act is so generalized and so lacking in particulars that it fails to give meaningful effect to the 2003 commission report. The government response suggests a tension between the commission recommendations on the one hand and other social and economic priorities of the government on the other hand. However, it provides only generalized statements that other priorities exist, without supporting in any way the conclusion that implementing the recommendations of the commission would have any bearing on these priorities.
The evidence upon which the government relies to show that its words “economic pressures and [competing] fiscal priorities” were not properly weighed in the commission report is found in only two paragraphs of the government response. Reduced to its core, the government simply says that it has key priorities, which it lists, one of which is not judicial independence; it is committed to fiscal responsibility generally and reducing the national debt by $3 billion each year, and the President of the Treasury Board has been tasked to identify savings of $1 billion to support new and ongoing program expenses.
Although the government identifies key priorities and refers to other budgetary objectives, there is no explanation of how or why the implementation of the recommendations of the commission would impair or affect the ability of the government to pursue these goals or objectives.
The generality of the government's response is even more evident in the next paragraph of its response. It says, “Canadians expect that any expenditure from the public purse should be reasonable and generally proportional to all of these other economic pressures and fiscal priorities.”
In sum, the government does not believe that the commission's salary recommendation pays adequate heed to this reality. There is no substantive explanation or justification as to how or why the recommendation of the 2003 commission is not, in the words of the government, reasonably and generally proportional to all of these other economic pressures and fiscal priorities. In the absence of further explanation, with respect, the basis for the government's rejection of the commission report is a mere assertion, not a reason.
The CBA accepts that judges are paid from the government purse and that the competing demands on public moneys can mitigate the amount that might otherwise be paid for judicial salaries. The CBA further accepts that a dollar spent on judicial salaries or benefits is a dollar that cannot be spent on another priority, or collected. However, judicial independence is not just a government priority; it is a constitutional imperative. It is for this reason that any decision to deviate from a commission recommendation not only should but must be based on more than a mere assertion.
A reasonable reader of the government response is left with the impression that so far as the response relies on economic conditions and the overall economic and financial position of the country as a reason to disregard the 2003 commission report, the government simply thought the recommendation was too high and a lower salary level was adequate. With all due respect to the government, therefore, the CBA's position is that its response does not meet the constitutional challenge.