A rush to judgment

CTV reports on the latest attempt by the Cons to pick a fight with Canada's judges:

Canadian judges will not be getting the 11 per cent pay hike an independent commission recommended two years ago, CTV News has learned.

Justice Minister Vic Toews will ignore the recommendation -- something he attacked back in December 2004...

Constitutionally, judges aren't allowed to negotiate their salaries, which is why the commission was set up in the first place...

Since the commission reported, the judges have been waiting for the federal government to act.

On this file like so many, some responsibility clearly lies with the Libs for sitting on their hands for a year after the commission reported back. But it apparently isn't taking Toews long to take ownership of the problem by permanently junking the recommended result.

It doesn't seem likely that such a decision will go unchallenged: even if judges themselves would prefer not to see the issue brought into court, a previous set of disputes over judicial compensation led to a wave of applications to have criminal prosecutions dismissed on the basis of compromised independence. In that regard, it's worth noting that the article seems to imply a standard different from the one set out by the Supreme Court of Canada (emphasis added):

25 The government can reject or vary the commission’s recommendations, provided that legitimate reasons are given. Reasons that are complete and that deal with the commission’s recommendations in a meaningful way will meet the standard of rationality. Legitimate reasons must be compatible with the common law and the Constitution. The government must deal with the issues at stake in good faith. Bald expressions of rejection or disapproval are inadequate. Instead, the reasons must show that the commission’s recommendations have been taken into account and must be based on facts and sound reasoning.

The test for judicial review of the government's decision is then as follows (see para. 31 of the linked case, emphasis again added):

(1) Has the government articulated a legitimate reason for departing from the commission’s recommendations?
(2) Do the government’s reasons rely upon a reasonable factual foundation? and
(3) Viewed globally, has the commission process been respected and have the purposes of the commission — preserving judicial independence and depoliticizing the setting of judicial remuneration — been achieved?

It remains to be seen what public justification will be advanced for the Cons' decision to scrap the Commission's recommendations. But based on Toews' comments at the time the commission first reported, it doesn't seem out of the question that the decision could face a serious challenge even on the question of whether his reaction to the recommendation fails as a "bald expression of rejection". And even if the Cons can clear that hurdle, given the well-known antipathy that Harper and his inner circle seem to have for the judiciary, it seems highly likely that the Cons could lose out on the question of whether the process has been unduly politicized.

Of course, it's not hard to see how the issue might appear to be a political winner for the Cons. At the very least, it will presumably help to stir up some parts of the rural base. And it may well succeed in picking a fight which could harm the judiciary more than the Cons. After all, most Canadians won't have considered the inputs before the commission which led to its recommendations. As a result, it may sound to a lot of people as if judges are unfairly demanding a pay hike, when in fact their sole role in the process is in ruling on whether the federal government has met its obligation to be reasonable in rejecting the commission's report.

But then, there's a difference between an issue with political benefits and one worth pursuing in the interests of the country. The Cons' apparent willingness to undermine one of the fundamental pillars of a democratic society for their own personal gain only helps to highlight their disinterest in governing in the best interest of Canadians. And in time, the Cons too will face judgment for that kind of mismanagement.