Information & Ethics Committee on Oct. 30th, 2017

[The Chair, Conservative, Bob Zimmer]

Thank you.

Thank you, witnesses, for testifying today before our committee.

We're going to suspend briefly so that our next witnesses can take their seats.

[The Chair, Conservative, Bob Zimmer]

I'd like to bring the meeting back to order.

I want to thank the witnesses. From the Canadian Superior Courts Judges Association, we have Pierre Bienvenu, and from the Canadian Union of Public Employees, we have Robert Ramsay.

First up is Mr. Bienvenu. Go ahead, sir.

[Pierre Bienvenu, Lawyer, Senior Partner, Norton Rose Fulbright Canada, Canadian Superior Courts Judges Association]

Mr. Chairman, members of the committee,

Thank you for inviting the Canadian Superior Courts Judges Association to give its views on Bill C-58. My name is Pierre Bienvenu. I'm a lawyer in private practice at Norton Rose Fulbright, and I have long represented the association in relation to judicial compensation and benefits, and other constitutional law issues.

The association is composed of judges appointed by the federal government at the various levels of courts around the country. It has around 1,000 members, representing approximately 95% of all federally appointed judges, including judges of the superior courts, appellate courts, the Tax Court of Canada, and the federal courts.

Members of the committee, the provisions of Bill C-58 that cover judges are of grave concern to the association. The judiciary was not consulted prior to the bill's being tabled in Parliament, and the association therefore welcomes the opportunity to address this committee on questions that it considers fundamental. I should mention that the association has shared the submission I am presenting to you today with the Canadian Judicial Council, and the council has indicated that it endorses this submission.

Let me say at the outset that the judiciary acknowledges that Bill C-58is pursuing important objectives of transparency and accountability. However, there are compelling reasons that these objectives, in the case of judges, must be pursued by means that differ from the means adopted for elected officials and members of the bureaucracy.

The part of the bill relating to judges would require the publication of individualized information regarding a judge's expenses, including the judge's name, a description of the expense, the date on which the expense was incurred, and the total amount of the expense. The expenses in question are those reimbursable under the Judges Act as so-called “allowances”. There are provisions in the bill proposing to allow the registrar of the Supreme Court of Canada and the commissioner for federal judicial affairs to withhold publication if publication could interfere with judicial independence, could compromise security, or contains information that is subject to privilege or professional secrecy.

There are three basic points I want to make here today.

The first is that Bill C-58 proposes to apply to judicial expenses a regime that, insofar as accountability is concerned, is duplicative of control mechanisms that already exist in relation to reimbursable judicial expenses.

The second is that the proposed expense publication regime is unsuitable for judicial expenses and raises profound concerns for all judges, but particularly for judges on national courts who are required to travel extensively.

My third point is that the important objectives of the bill can be achieved by other means that do not violate judicial independence.

These points are developed in a written submission, a copy of which I've provided to the clerk of the committee, and which I invite members of the committee to read. I have time only to say a few words on each of them.

Bill C-58 is duplicative in relation to federally appointed judges because there are robust measures already in place to ensure that judicial expenses are legitimate, reasonable, and subject to independent verification. The categories of expenses that judges may incur in performing their functions are set out in the Judges Act. Judges cannot seek reimbursement of any expense falling outside of these defined categories.

In addition, there is a federal official, assisted by his own staff, whose responsibility is to review each and every judicial expense claim to determine whether the submitted expense falls within a category set out in the Judges Act and whether it was properly incurred and is reasonable. That person is the commissioner for federal judicial affairs, and for the judges of the Supreme Court of Canada it is the registrar of the Supreme Court.

I come to my second point, which is that there are two fundamental problems with the proposed regime as it would apply to judges. The first is the granularity of the information required to be published, tying named individual judges to identifiable judicial expenses. The second is the designation of a member of the executive to make a final decision as to whether the publication required by the bill could interfere with judicial independence.

Allow me to articulate the first concern by reference to expenses incurred by judges of Canada's national courts, such as the Federal Court, the Federal Court of Appeal, and the Tax Court of Canada. National courts are a service to Canadians and an expression of our commitment to our country. Judges of these courts are required to reside in the national capital region, but they must travel extensively, as they sit on cases across the country. As a result, they have significantly higher expenses than their colleagues at courts that do not require such extensive travel. Even among judges of national courts, some will travel more than others as a consequence of assignment decisions by their respective chief justices.

The point is that the total expenses of a judge may stand out for the reasons just given, but those expenses would have been incurred not by choice but by reason of service on a national court and the assignment decisions of a judge's chief justice. It is grossly unfair, and indeed unacceptable, that the burden of standing out from the lot by reason of high travel expenses be borne by an individually named judge, as opposed to the court to which he or she belongs.

Please also consider that by definition, the judicial function results in at least one party being dissatisfied with the result. 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. There are also real concerns about the security of individual judges if where they stay and eat while travelling on judicial duties or where they gather for legal education conferences were publicly disclosed.

There is a glaring constitutional defect in the safeguard clause in proposed section 90.22 in Bill C-58. That section, coupled with proposed section 90.24, proposes to give the commissioner and the registrar final say on the question of whether the principle of judicial independence could be undermined by publication. The registrar and the commissioner are members of the executive branch. It is not acceptable from a constitutional perspective to give them the responsibility to make a final determination of such a question.

I have presented the problems. I now turn to solutions. This will be my third and final point.

There are ways of balancing the bill's important objectives against the constitutional requirements of judicial independence. The commissioner could publish expense information according to the categories of reimbursable allowances set out in the Judges Act and according to each court. For example, the commissioner could disclose that judges of the Ontario Superior Court of Justice spent x dollars as a whole on legal education and conferences during the period, while judges of the Federal Court spent x dollars as a whole on travel. It would be easy for the public, based on that information, to derive figures on a per-judge, per-court, and per-expense-category basis, which would attain the bill's transparency objective, all the while preserving judicial independence and not compromising the security of individual judges.

As regards the safeguard clause, the decision on whether judicial independence could be undermined by publication could be made to reside with the chief justice of the court concerned.

I thank you for your attention and remain available to answer your questions.

[The Chair, Conservative, Bob Zimmer]

Thank you for your testimony.

We'll move on now to the Canadian Union of Public Employees for 10 minutes.

[Robert Ramsay, Senior Research Officer, Research, Canadian Union of Public Employees]

Good afternoon. My name is Robert Ramsay. I work as a senior research officer with the Canadian Union of Public Employees at our national office here in Ottawa.

I want to start by thanking the committee for this opportunity to present our thoughts on Bill C-58. We look forward to seeing our recommendations as well as the serious concerns expressed by the witnesses in previous sessions reflected in your committee work.

The Canadian Union of Public Employees, or CUPE, is the largest labour union in Canada. We represent 650,000 workers across the country in sectors as diverse as health care, social services, child care, municipalities, schools, universities, and transportation, among others. Our members provide a range of vital public services in thousands of communities, where they and their locals are engaged civic partners.

Since our founding in 1963, CUPE has been one of the strongest and most consistent voices defending public services in Canada. We know that robust, well-funded public services serve Canadians best and that the privatization of these services leads to higher costs, as Auditors General have revealed when they gain access to the full range of information about a privatization project. Privatization, whether through asset sales, P3s, outsourcing, or social impact bonds, also represents a real threat to the quality and level of access that public services should provide. As such, CUPE has serious concerns about Bill C-58, both about the parts of the current Access to Information Act that it proposes to amend and about the existing deficiencies that it fails to correct.

First, this bill leaves intact sections 18 and 20, which exempt from disclosure any material or information that falls under the broadly undefined category of trade secrets of either the government or a third party. The language removes from public scrutiny any financial, commercial, scientific, or technical information that has what is called “substantial value” or is reasonably likely to have substantial value in an undetermined future.

The current language allows the government to refuse to disclose third party information that was treated confidentially by that third party. It exempts from disclosure, in a preposterously broad limitation, any information that “could reasonably be expected to be materially injurious to... the ability of the Government of Canada to manage the economy of Canada”. The scope of information that can be exempted from public disclosure under this language is virtually infinite: contracts with private security or accounting companies, pharmacological research, reports by consultants on proposed government actions, records of foreign investment, information relating to the health and safety performance of a third party entity providing public services. These are some of the possible exemptions under sections 18 and 20, and they are also examples of material and information that must be accessible to Canadians if access to information legislation is to be meaningful.

Certainly we understand that there are legitimate grounds for non-disclosure, such as national security and personal privacy, and that access requests can sometimes require judgment calls by government officials. These exemptions, however, like those in other sections that hide from view the actions and decisions of the PMO, cabinet, and ministers' offices, are overly broad, not subject to a test of real harm, and not subordinated to a meaningful public interest override.

We must note as well the dangerous ways these exemptions intersect with other legislation this government has proposed in what others more cynical than we are might characterize as a war on transparency. For example, Bill C-22 gives the staff of the Department of National Defence the authority to decide what is excluded from disclosure without any independent review. In Bill C-44, section 28 of the Canada Infrastructure Bank Act expands exclusions to include information about proponents, private sector investors, and institutional investors in infrastructure projects, again with no independent review.

The Canada Infrastructure Bank Act provides a clear example, in fact, of the regressive nature of the current legislative trajectory. Not only does the Canada Infrastructure Bank Act lay out overly broad additional exemptions, it also places final decisions before cabinet, essentially shrouding the entire process in darkness, out of the reach of the Information Commissioner, the Auditor General, and even the federal courts.

Let us provide a concrete example. CUPE recently filed an access to information request for information and material related to the government's participation in the private REM light rail project in Montreal, specifically for the reports and analyses prepared by a third party consultancy called Blair Franklin Capital Partners. This is a project to which the government has committed 1.3 billion public dollars, and it is something the government has indicated the Canada Infrastructure Bank may take on as one of its first projects.

Is this a good investment? What information has the government relied on to make that decision? Were environmental, health and safety, or accessibility concerns integrated into the decision? What is the business model and the business case? What is the projected fee structure, and will it be regressive or restrict access?

Answers to these questions are central to the public's understanding of this particular public investment. In other words, the public interest is immense. However, when we received a response—after a delay, of course—Infrastructure Canada invoked section 18 to redact virtually all of the records, making the entire 613-page disclosure incomprehensible and useless.

Rather than apply the exemptions narrowly and with respect for the public interest, it has become common practice for the government to redact by default, to exclude by default. This is an application that runs counter to the stated aims of the act and the bill under review, and counter to international standards of open government.

While there may be legitimate exemptions for disclosure of third party information, they would need to pass the test of real harm in each case. It is not legitimate for government to refuse disclosure simply because the information is related to a third party interest.

A recent report by the Vancouver-based Columbia Institute, entitled “Canada Infrastructure Bank and the Public's Right to Know”, notes that there is virtual unanimity among information commissioners across Canada that private entities that receive public funds or perform a public service or public interest function must be covered by access to information legislation. This is the emerging consensus internationally as well.

Here, though, this government has moved in the opposite direction by establishing a regime in which information on how our public services and public infrastructure are provided, how they are funded, how these decisions are made, and even who is involved in the work can be hidden behind a curtain of third party privilege. CUPE submits that the government instead needs to ensure that access to information under sections 18 and 20 faces far narrower exemptions that are subject to a test of actual harm, to a strong public interest override, and to review by the Information Commissioner, and that this act take precedence over any other act, such as the Canada Infrastructure Bank Act, that seeks to unreasonably limit the public's right to know.

We would also like to take a moment to echo the serious concerns of your previous witnesses. Proposed section 6, as written, creates new hurdles to gaining access by establishing requirements for the structure and content of requests that void the government's duty to assist and that defeat the very purpose of the act. Proposed section 6 also would allow the government of the day to create unilaterally a “do not respond” list of troublesome Canadians who always seem to want to know something and ask too many big questions. The determination that an access request is frivolous, trivial, vexatious, or made in bad faith is one that cannot and should not be made by the government of the day to whom the information request is made. This is a subjective determination that is necessarily rife with conflict of interest.

Another barrier to access is cost. Bill C-58 leaves open the possibility of government requiring new and onerous costs for access. Where is the promise for a nominal $5 fee with all other costs voided, and for the $5 fee itself to be refunded if timelines are not met?

We also agree with other witnesses that Bill C-58 represents a missed opportunity. There are serious problems with the current legislation, problems that the current government correctly identified while in opposition and that remain wholly unaddressed in the proposals before you. Canada, despite its leadership in other areas, sets a very poor example globally with the current act. According to the global right to information index compiled in part by the Centre for Law and Democracy and based on 61 indicators, Canada is ranked 49th out of 111 countries on the quality of its access to information laws.

News Media Canada has criticized this government's approach to access to information as being “even worse” than the previous government's. Your own outgoing Information Commissioner has called Bill C-58 “a regression of existing rights”, as has been mentioned many times at this committee. We urge you to take her 28 carefully considered recommendations.

To summarize, we submit that the law must apply to private third parties who receive public funds or perform a public service function. All exemptions must be discretionary in practice. The Information Commissioner's office must have at its disposal a full tool box of real order-making powers and the authority to enact penalties. We agree with Democracy Watch that the appointment process for the Information Commissioner must be changed so that it is open, merit-based, and not controlled by the very ministers the commissioner will be reviewing.

In conclusion, we cannot recommend that Bill C-58 proceed as written. It is, quite simply, bad legislation. It makes access more difficult rather than improving it.

Instead, CUPE calls on the government to review the problems that these hearings and previous commentary have identified, to research the best examples from your provincial and international counterparts, and to draft amendments that have as their guiding principle what Mr. McArthur, the acting commissioner from B.C., called “access by design”: an act that facilitates access rather than blocks it and that leads to a government that is truly open by default and closed only in the narrowest, independently defensible circumstances.

Thank you again for the time. I would be happy to answer any questions you may have.

[The Chair, Conservative, Bob Zimmer]

Thank you for your testimony.

We'll start off our seven-minute round with MP Fortier.

[Mona Fortier, Liberal, Ottawa—Vanier, ON]

Thank you very much.

Thank you for being here this afternoon and for presenting your testimony. It's very valuable for our discussion here at committee as we look at this legislation.

Mr. Bienvenu, I have a question for you, but perhaps I'll introduce my context first. Like you, I am always cognizant of judicial independence and the role that the separation of governance from the judiciary plays in ensuring that our democracy stays strong and the rule of law is maintained. I'm also very aware of the need for transparency. The testimony we have heard numerous times here at this committee is that there is a need for progress and that this legislation is long overdue, as you probably know already.

You mentioned that you believe the enforcement of these rules should rest with the chief justices versus the independent commissioner. Can you elaborate on why you think this power should rest with the chief justices?

[Pierre Bienvenu]

The decision that the bill proposes to have made by the commissioner or the registrar and that I have suggested should be made by the chief justice of the court concerned is the decision as to whether the contemplation and publication of a given judicial expense could undermine judicial independence or not. That is the decision that currently the bill would place under the responsibility of the registrar or the commissioner for federal judicial affairs.

We say that from a constitutional point of view, it is unacceptable to place the decision of whether a fundamental constitutional principle—such as judicial independence—is undermined or not with a member of the executive to make a final determination of that question. Under our form of government, that kind of decision rests with the judiciary. Under the bill before you, proposed sections 90.22 and 90.42—I mentioned the two in my opening remarks—would place that decision with the registrar and the commissioner. We say that in the first instance, the decision should be with the chief justice of the court concerned.

[Mona Fortier, Liberal, Ottawa—Vanier, ON]

I was wondering if you could take the time to answer another question. Does it not lead to inconsistent application of the law when each chief justice has more discretion, versus an independent commissioner who is applying the policies across courts? Just as importantly, do you not think that this has the potential to create tensions within the courts when a chief justice is forced to decide between a colleague and access to documents and disclosures that they may not want to be in the public domain?

[Pierre Bienvenu]

The short answer is no. I don't think there is a risk that this would be the case, but I need to insist that you are focusing on an exception. The thrust of my submission is that the regime itself is inadequate and unnecessary.

There are two aspects to this bill. One is accountability and the other is transparency. Accountability, in the case of judicial expenses, is currently assured by the fact that these expenses are not, in the main, discretionary. A judge will incur travel expenses if his or her chief justice asks him or her to travel. In addition, the travelling and the accommodation expenses incurred on that occasion need to be submitted to the commissioner for federal judicial affairs. The commissioner publishes guidelines that set limits on rates that may be incurred in hotels, per diem allowances—

[Mona Fortier, Liberal, Ottawa—Vanier, ON]

I understand the expenses, but don't you think we're also trying to show that government and the judiciary should be treated the same as the members of Parliament and ministers. Canadians should know what is happening in the courts.

[Pierre Bienvenu]

That is a very important question. Why are judges in a position that is not comparable to that of elected officials or members of the bureaucracy? They are in a different position, I would submit, for at least three reasons.

The first, as I've just mentioned, is that their expenses are not, in the main, discretionary. The second is that they are currently subject to third party verification. I have to insist on this. Every judicial expense has to be submitted to an official whose very existence is—

[Mona Fortier, Liberal, Ottawa—Vanier, ON]

I only have 30 seconds. What would be the third one?

[Pierre Bienvenu]

I just need to finish my answer.

—whose very existence is to stand as a buffer between the government and the judiciary. The third reason, a very important reason, that judges are not in a situation comparable to elected officials is that judges may not publicly defend themselves when they are attacked. Judges speak through their judgments, and when they are attacked, they stand silent.

[Mona Fortier, Liberal, Ottawa—Vanier, ON]

Thank you very much.

[The Chair, Conservative, Bob Zimmer]

Mr. Clement, thanks for coming.

[Tony Clement, Conservative, Parry Sound—Muskoka, ON]

I'm a stranger to these issues. I've never encountered these issues before.

That's being facetious, Chair; sorry about that. As a former President of the Treasury Board, I know a little bit about these issues.

Mr. Bienvenu, can you tell me what percentage of the claims under the current process are rejected or scaled back?

[Pierre Bienvenu]

I do not have that information, but I know there are expense claims that are rejected by the commissioner.

[Tony Clement, Conservative, Parry Sound—Muskoka, ON]

That's probably a better answer than saying all of them are 100% perfect, but it still underlines the question that taxpayers are in the dark about whether there is a judicial officer whose claims are being repeatedly rejected or what have you.

You keep talking about judicial independence, which is, of course, a hallowed principle in our country, but I'm still trying to connect the dots between how, if you have greater public accountability.... Prove to me or show me how that infringes on the independence of the judge.

The judge still gets the paycheque from the Government of Canada, yet no one says that is an outrageous denial of judicial independence. How is it that the judge can be paid by the Government of Canada, ergo the taxpayers of Canada, yet the expenses are still in this alternative universe of process?

Can you walk me through it?

[Pierre Bienvenu]

Sir, with respect, I disagree with your premise. It is not the case that the Canadian public is in the dark as to judicial expenses. I mentioned in my opening remarks that all reimbursable expenses must fall within one of the five allowances that are set out in the Judges Act. It is explained in the Judges Act what expenses are reimbursable.

In addition to those broad categories, I've mentioned the role of the commissioner, and to go into further detail, the commissioner issues guidelines that are available to judges detailing the rules that he applies—currently it is a he—to the reimbursable expenses under the Judges Act. Therefore, the percentage that you have asked for— the percentage of claims that are rejected—would not be a useful piece of information, because if the commissioner does his job well through the publication of guidelines and is clear as to what conditions a claim must comply with in order to be accepted, then judges need to comply with these guidelines, and their expense—

[Tony Clement, Conservative, Parry Sound—Muskoka, ON]

But how is it that judicial independence is degraded if we have more specific transparency?

[Pierre Bienvenu]

The fact, and that's an important point for members of the committee, that judicial independence is engaged by the publication regime set out in that bill is acknowledged by the bill itself. The bill itself contains an exception if the publication can undermine judicial independence, so the fact that judicial independence is engaged is acknowledged in the bill.

[Tony Clement, Conservative, Parry Sound—Muskoka, ON]

But you're saying it all—

[Pierre Bienvenu]

Let me answer your question. You're asking me to give you examples of how judicial independence is engaged by the requirement to publish expenses. The example I'll give you is travelling expenses.

[Tony Clement, Conservative, Parry Sound—Muskoka, ON]

Sorry; would you say that again?