Information & Ethics Committee on Oct. 30th, 2017

[Pierre Bienvenu]

The example I was going to give you is travelling expenses. Judicial independence has three core characteristics: security of tenure, financial security, and administrative independence. Administrative independence has been held to extend to assignment decisions by chief justices. I am convinced that if this publication requirement remains in the bill, assignment decisions by chief justices will be influenced by the risk that one judge, or more than one judge, of our national courts will stand out by reason of his or her travelling expenses, and I think that would compromise judicial independence.

The second way—

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

Okay, I've only got a minute left, Pierre, so you're going to have to wrap it up, because I have one more question for Mr. Ramsay.

Maybe I'll cut you off there. It's nothing to do with what you're saying; it's just that I only have a limited amount of time.

Mr. Ramsay, based on your critique of the situation, what's the motive involved here? Why is the government doing what you're saying they're doing in terms of degrading transparency and openness?

[Robert Ramsay]

I don't really have any interest in the motive or any speculation on what the motive might be. I can only talk about the effect of the application of exclusions.

What we see, and have seen over many years, is an application of what should be narrowly defined and specific exclusions being applied very broadly to exclude from disclosure anything relevant in any way to the interests of a third party or private party engaged in some sort of public interest function with the government when, in our view, that language should be subject to a test of real harm.

As I was mentioning with our specific case, the 613 pages of blacked-out pages—and that's not the only case; we have multiple examples of that—we believe that there's information in the public interest contained in that information that is being excluded, yet it is not being subjected to a test of real harm and is not subject to the public interest override. There have been many people before you at this committee talking about the issue of a lack of a strong public interest override in this act, and we agree with them.

[The Chair, Conservative, Bob Zimmer]

That's your time.

I'd like to welcome another guest to our committee. MP Rankin, you have seven minutes.

[Murray Rankin, NDP, Victoria, BC]

Thank you, Chair. I appreciate it, and I welcome our witnesses.

I'd like to pursue with Mr. Bienvenu the line of inquiry that others have pursued. If the legislation contemplates that the registrar or the chief administrator or the commissioner can determine that the publication in a particular case might interfere with judicial independence, that of course connotes that in other cases it wouldn't. In the interest of transparency, why wouldn't it be acceptable to allow them to exercise their discretion, subject to judicial review, if required? Why is that such a big deal?

Second, what about the way in which the expense reports are handled, the rejected claims in the example you gave? If the commissioner consistently excepts bogus claims, why shouldn't he bear the kind of accountability this legislation is designed to promote?

[Pierre Bienvenu]

In response to your first question, the work of judges involves issues of criminal conviction and sentencing fraught with emotion, such as custody of children, disputes over wills and estates, and bankruptcy matters, to give a few examples. As I stated in my opening remarks, judges adjudicate disputes, so by definition, at the end of the process, one party is dissatisfied. I think that there is a very real risk of mischievous use of information if it is tied to named, individual judges.

I'm here completing my answer to Madam Fortier. I had time to talk to the accountability objective of the act, but I believe the transparency objective of the act can be attained by the disclosure of expense information on a per-expense category and per-court basis. Where the problem lies is in tying individual judges to individual expenses in a publication regime where you have too much and at the same time too little information. It's too much because you have expenses tied to individual judges, but it's too little because the public will be unaware of the reasons a given judge has incurred more expenses than the average or more than his colleague of the same court.

Fundamentally, I would submit to you that this regime is misconceived as it applies to judges, because I have given at least three reasons that I believe judges stand in a different position.

[Murray Rankin, NDP, Victoria, BC]

If it wasn't individual decisions on expense claims for individual judges but the aggregate expense performance, if I can call it that, by a particular court, and if the commissioner was perhaps being too generous with expense claims for a court that has a particular bent for expenses, as totally different from other superior courts, does the public have a right to know if the commissioner is acting inappropriately? Does the public have the right to see aggregate information that the commissioner provides?

[Pierre Bienvenu]

Yes. In my opening remarks, I acknowledged that one way of pursuing the transparency objective of the act is to have unattributed expense information made public by the commissioner.

[Murray Rankin, NDP, Victoria, BC]

Mr. Ramsay, I think you indicated that a lot of Bill C-58 was unacceptable. I can tell you that you're in very good company with the Centre for Law and Democracy, the Canadian Association of Research Libraries, media organizations, academic experts, and most notably, the Information Commissioner of Canada, Madam Legault, whose report is certainly the most scathing that I've ever read in my 30 years of looking at this legislation. You're in good company in saying that.

You mentioned in an answer to another question that you wanted a harms-based test for the exemptions under the act. If you had to list your most significant concerns, would the failure to address that be the main problem with Bill C-58?

In your judgment, could you tell us what are the most significant problems with this bill?

[Robert Ramsay]

From CUPE's perspective, I believe that one of the most major deficiencies with Bill C-58 is what is not in Bill C-58. There are a number of issues in the current access to information legislation that are inadequate. Members from all parties have acknowledged this over the years. There have been multiple studies and multiple recommendations. Canada's international counterparts have sped ahead, while Canada's act has stayed the same for a very long time. There are many political reasons for that. I think that this represents an opportunity to address those issues, and they're not in Bill C-58.

One that we are most concerned about, because it is central to our work, is access to information around the provision of public services, whether those public services are provided by government or in co-operation with a private entity. Currently, under the legislation, the so-called trade secrets and commercial and economic information that belong to a third party can be excluded under that blanket language.

[Murray Rankin, NDP, Victoria, BC]

Then your concern is that, to the extent that a public-private partnership is involved, it would be a way for the government to avoid any kind of accountability, because much of that would be seen as trade secrets or sensitive business information that could not be disclosed under the act.

[Robert Ramsay]

I'll say this: it is a way, currently, for information to be excluded from access requests. Our concern is that information in the interest of Canadians related to how their public services are delivered—how much they cost, what the cost is to them, their access to them in relation to fees, and so on—be available to the Canadian public.

[The Chair, Conservative, Bob Zimmer]

That's your time. Thank you, MP Rankin.

The last questioner of the day is MP Baylis, for seven minutes.

[Frank Baylis, Liberal, Pierrefonds—Dollard, QC]

Thank you.

Thank you, Mr. Bienvenu. I'll follow up and put you back in the hot seat. I would like to understand a bit more about some of the arguments that you're making for judicial independence and some of the dangers you put forth in linking specific expenses to specific judges.

If I understand correctly, we could have a situation in which a judge, for whatever reason, has made judgments against somebody who is not happy about it and who wants to attack that judge. That person might go through an access to information request, find out that the judge has a huge amount of travel expenses, and compare it to other judges who have very small amounts. This may be used to cast aspersions against his character, to say he's wasting money or any type of thing like that.

[Pierre Bienvenu]

Here, he wouldn't have to ask for the information, because it's a proactive publication system—

[Frank Baylis, Liberal, Pierrefonds—Dollard, QC]

So it's out there.

[Pierre Bienvenu]

—so the publication would be—

[Frank Baylis, Liberal, Pierrefonds—Dollard, QC]

How would that be used for mischief?

[Pierre Bienvenu]

Well, it could be.... I leave it to your imagination.

[Frank Baylis, Liberal, Pierrefonds—Dollard, QC]

I would be to embarrass the judge, maybe?

[Pierre Bienvenu]

It could be to try to embarrass the judge. Again, the problem, as I said earlier, is too little and too much—too much and too little.

[Frank Baylis, Liberal, Pierrefonds—Dollard, QC]

Is it too granular, in one sense?

[Pierre Bienvenu]

It's too granular, because it allows one to tie expense levels to individual judges.

[Frank Baylis, Liberal, Pierrefonds—Dollard, QC]

Without the understanding of—

[Pierre Bienvenu]

Some judges happen to sit on national courts. National courts are very important to our country—