Judiciary says Feds’ Plan To Disclose Expenses Of Named Judges Is ‘Constitutionally Defective’

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The Lawyer's Daily


The Canadian judiciary is pushing back hard against Bill C-58, warning MPs that the Trudeau government’s proposal to publicly disclose the travel and other expenses of named federal judges is “grossly unfair and unacceptable” and violates judicial independence.

Under proposed amendments to the Access to Information Act and Privacy Act (Bill C-58) introduced June 19, the travel and other expenses of all 1,151 federally appointed judges — up to and including Supreme Court of Canada judges — would be made public for the first time after being kept secret for more than a century.

In a strongly worded submission, Montreal lawyer Pierre Bienvenu of Norton Rose Fulbright, counsel for the Canadian Superior Courts Judges Association, threw down the constitutional gauntlet at the Commons Access to Information, Privacy and Ethics Committee Oct. 30.

The senior Quebec litigator urged MPs to drop the proposed new requirements in ss. 90.01 to 90.25 of Bill C-58 to proactively publish quarterly the names, dates and amounts of business expenses reimbursed to each federally appointed judge for travel, attending conferences, representing his or her court and “incidentals” (reimbursement for reasonable incidentals to properly perform the judicial role is capped at $5,000 annually per judge).

Bienvenu vigorously argued that while the government’s objectives of bringing more transparency and accountability to public spending are “important,” the Constitution does not permit Parliament or the executive branch to treat judges the same way in that regard as elected officials and members of the bureaucracy, some of whose individual expenses have been posted quarterly on government websites for years.

“Bill C-58 is of profound concern to the judiciary,” Bienvenu told MPs in oral and written submissions endorsed also by the Canadian Judicial Council (CJC) — the federal judiciary’s powerful disciplinary and policy-making body that is chaired by Chief Justice of Canada Beverley McLachlin.

“The publication regime as it would apply to judges is constitutionally defective and it undermines important constitutional principles,” Bienvenu stated.

Additionally, he warned, “the potential for mischief in the use of publicly available individualized expense information is enormous and, unlike persons working in other branches of government, judges may not defend themselves publicly when they stand attacked.”

Bienvenu also called it “a glaring, fundamental constitutional defect” that s. 90.22 would empower the commissioner for federal judicial affairs, the chief administrator of the Courts Administration Service (for the four national federal courts) and the registrar of the Supreme Court of Canada (for Supreme Court judges) to decide when not to publish judicial expenses, in circumstances where disclosure “could interfere with judicial independence, or could compromise the security of persons, infrastructure or goods or that any information or part of any information is subject to solicitor-client privilege or the professional secrecy of advocates and notaries or to litigation privilege.”

“It is not acceptable from a constitutional perspective to seek to give members of the executive branch final say on the question of whether the principle of judicial independence could be undermined,” Bienvenu explained.

He went on to suggest an alternative and, in the judiciary’s view, constitutionally compliant “way forward” that the judicial branch believes appropriately balances the goals of accountability and transparency with judicial independence. Bienvenu proposed that the commissioner for federal judicial affairs (who reports to the minister of Justice, and who currently vets and approves individual judges’ expenses pursuant to non-public “guidelines” to judges) should instead publish each superior court’s total aggregate expenses in each of the general categories of reimbursable expenses — such as travel — without naming individual judges or revealing specific individual expenses.

“It will be easy for the public, based on that information, to derive per judge, per court, and per expense category figures, which will attain the bill’s transparency objective all the while preserving judicial independence and not compromising the security of individual judges,” Bienvenu argued.

He said it is also constitutionally critical that only the chief justice of each court —and not the federal commissioner or Supreme Court registrar or CAS chief administrator — is empowered to decide when to withhold disclosure of judicial expenses on the basis that judicial independence would be undermined by their publication.

Victoria, B.C., lawyer Murray Rankin, the NDP’s Justice critic, said the questions of some Liberal MPs at the committee gave him the impression that the government may be open to making some adjustments in response to the judiciary’s submissions, during clause by clause approval of Bill C-58 next week.

Bienvenu’s statement to the committee that the judiciary was not consulted on the bill’s provisions affecting judges is both surprising and “disturbing,” Rankin told The Lawyer’s Daily. “I think that’s really problematic.”

At the same time, in the 21st century the judiciary also has to expect to comply with the public’s expectations of transparency and accountability, said Rankin, who helped the Canadian Bar Association push for the creation of the first Access to Information Act. “Patronizing arguments” to the effect of “trust us,” don’t fly anymore, he noted.

“I found it kind of amusing to hear the arguments about why we cannot have greater transparency and accountability for the judiciary because those are the same arguments [against disclosure] that were being used for the executive way back [at the inception of the Act], and of course we still hear about the House of Commons and why the legislative branch should have very limited transparency, so I had to chuckle a little bit,” he remarked. “In general every institution seeks to cloak itself in secrecy, and it should be no surprise to us that the judicial branch is subject to the same concern.”

Rankin said it is important that the commissioner for federal judicial affairs publicly disclose the specific guidelines he issues to judges on what they can spend for food, accommodation, travel and other expenses.

He noted that under the judiciary’s proposed regime of anonymized aggregate expenses, by court, the public will still not be able to determine whether any individual judges are abusing the spending guidelines, or are otherwise not in proper compliance.

But Rankin also stressed the importance of judicial independence. “If the price of admission” to at least some transparency for judicial expenses is giving chief justices, rather than bureaucrats, the power to decide when to make exemptions from disclosure on the basis of judicial independence, Rankin said he is open to that suggestion.

At the committee, Bienvenu asserted that Bill C-58 is “duplicative” because there are “robust measures already in place to ensure that judicial expenses are legitimate, reasonable and subject to independent verification” — namely the commissioner for federal judicial affairs who vets judicial expenses and (for Supreme Court judges) the Supreme Court’s registrar.

Bienvenu told Conservative MP Tony Clement he did not have information as to how many expense claims the federal commissioner rejects as invalid.

“That’s probably a better answer than saying all of them are 100 per cent perfect, but it still begs the question whether there is a serial judicial officer whose claims are being rejected or what have you,” said Clement, a former Treasury Board president. “I’m still trying to connect the dots between how, if you have greater public accountability … that infringes on the independence of the judge,” Clement advised.

Bienvenu rejected Clement’s premise that Canadians are in the dark about judicial expenses. The lawyer stressed that judges’ expenses must fall into the categories set by the Judges Act and expenses are vetted by the federal commissioner for compliance with spending “guidelines” issued to the judges.

Moreover travel and conference expenses are generally not discretionary, in that the chief justice of each court decides whether, when, and where a judge travels for judicial duties, and preapproves attendance at judicial conferences and educational session, Bienvenu said.

If Bill C-58 proceeds as introduced, Canadians will learn for the first time, for example, how often, where, when, for how long and why Chief Justice McLachlin travels domestically and internationally — something the chief justice’s office has repeatedly refused to disclose for years.

The bill also contains a significant and unexplained exception for chief justices and associate chief justices in respect of their travel and other expenses that are “related to the activities of the Canadian Judicial Council.”

Judges of the Supreme Court of Canada all enjoy representational allowances (which includes covering the travel claims for accompanying spouses or common law partners) for which they have never had to account publicly. The judges are also entitled to incidental expenses, travel allowances and conference allowances.

Bill C-58 would require the registrar of the top court to publish electronically 30 days after each quarter the travel or other expenses reimbursed to a Supreme Court judge (i.e. expense claims that are rejected would not be published), including: the judge’s name, a description of the expenses, the dates on which the expenses were incurred and the total amount of the expenses.

In the same way, the other 1,100 superior court judges below the Supreme Court level would also have to proactively disclose through the commissioner for federal judicial affairs details of their travel, incidental expenses, representational allowances and conferences allowances.

Bienvenu argued that “there are real concerns about the security of individual judges if it were publicly disclosed where they stay and eat while travelling on judicial duties, or where they gather for judicial education conferences.”

He said publishing specific expenses amounts linked to individual named judges “raises profound concerns for all judges,” and particularly for the four national itinerant courts, the Federal Court, the Federal Court of Appeal, the Tax Court and the Court Martial Appeal Court who must travel much more than judges of the other superior courts. “The reason for the difference in levels of expense will not be obvious when looking at the published information on expenses,” he said.

Moreover, one judge in an itinerant court may be assigned to more travel by his or her chief justice than another judge, for reasons of availability to travel, or expertise, or other reason.

“It is grossly unfair, indeed it is unacceptable, that the burden of standing out from the lot by reason of high travelling expenses be borne by an individual judge, as opposed to the court to which he or she belongs,” Bienvenu asserted. He suggested the public disclosure of expenses to attend judicial education programs will be used to criticize some judges for failing to take such courses, while others will be seen as admitting that they don’t have enough expertise in a certain area of the law.

Moreover, unhappy litigants in cases involving criminal sentencing, child custody, wills and estates disputes and other emotionally fraught issues could use the published expense to attack the presiding judge — with the latter having no recourse or ability to defend themselves, Bienvenu suggested.

“The potential for mischief in the use of publicly available individualized expense information is enormous,” he warned.

Osgoode Hall Law School professor Trevor Farrow told The Lawyer’s Daily “increased transparency and accountability are very important principles for all public officials, including judges. And I think for the public to have confidence in public institutions those institutions not only need to function, but need to be seen to function, within appropriate guidelines. But having said that, there is a balance that needs to be struck when it comes to judges in the court, and while judges and courts are not immune from the importance of appropriate transparency, competing principles of independence need to be taken into account. In this case I think it would be a mistake to require the reporting of individual judicial expenses, however I do think a robust process of aggregated expenses, combined with appropriate independence safeguards, are what’s needed — which is what I understand the [judges’] association to be proposing.”