Information & Ethics Committee on Oct. 30th, 2017

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

It would be without the understanding of why this judge would have an awful lot of expenses. You can't compare apples to oranges.

[Pierre Bienvenu]

Exactly. The judge may have had a three-month trial in one of the most expensive cities in the country, and that would be reflected in his expenses.

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

You've made suggestions that we're covering it, in one sense, since we have the control mechanisms in there. Do you see any additional value in adding the process of putting these expenses out for the general public?

[Pierre Bienvenu]

I see no value and only serious downsides in the regime as conceived in this bill. However, as I mentioned in answer to Mr. Rankin's last question, I absolutely support and acknowledge the transparency objective of this bill. That can be achieved by disclosing information on a per-expense-category basis and on a per-court basis. It will be easy to translate that on a per-judge basis.

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

An average per judge, you mean.

[Pierre Bienvenu]

It would be on an average per-judge basis, exactly. It will be an average, but per court, per expense. It's pretty granular, but at least it will not single out individual judges. I think the reason behind the level of the expense will flow from the nature of the expense.

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

In essence, you're for giving the information out in a manner such that it can be used, be effective, and show transparency, but, if I understand correctly, such that it would not target any one particular judge. Because of the very nature of the work that they do, they should not be individually targeted.

[Pierre Bienvenu]

Precisely, sir, precisely. The problem here is the proposal to tie the individual expenses to named judges.

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

You had mentioned that it might impact their safety, theoretically. How would that happen?

[Pierre Bienvenu]

Judges tend to stay in the same hotel. Judges, like anybody, have patterns of behaviour. Judges usually do not identify themselves as judges when they travel, for the security reasons that you can imagine, so that is a concern—

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

In a worst case—

[Pierre Bienvenu]

It is a concern if 50 judges gather for an annual legal education conference and it is published on the Internet where and on which dates these judges gather. It is just, in my submission, ill-advised to require that kind of granular information. There is a security risk to that kind of information being published.

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

You had also touched on administrative independence and a concern that this publication might impact administrative independence. Can you explain that?

[Pierre Bienvenu]

Yes. Administrative independence has been held to extend to assignment decisions by chief justices.

Members of the committee, chief justices of Canada's national courts are troubled and extremely concerned by this regime. I cannot overemphasize this point, and these chief justices will not allow one of their justices to stand out.

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

Then their problem is if they have someone really good at something, but my God, he's run up—

[Pierre Bienvenu]

They're not going to make the best assignment decision in that case—

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

That's because they have to take into account this extra bit of—

[Pierre Bienvenu]

That's right.

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

They have to balance that they have to put this information out there, so they're not choosing the best person for the job. They have to take into account something that has, in your estimation, no additional value, so they may not assign someone—

[Pierre Bienvenu]

That's right, and that's the decision, between expense decisions that are discretionary and expense decisions that result from someone else's decision—in this case, the chief justice.

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

Did you say they're very concerned about this particular point?

[Pierre Bienvenu]

They're very concerned about this particular point. They're very concerned about travelling expenses of named individual judges standing out without the information that would provide context.

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

Did they reflect that publicly, or is that something they reflected to you? I don't know. I'm just asking.

[Pierre Bienvenu]

This was expressed to me.

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

Again, given the nature of their work, they're somewhat limited in expressing what they think, so are you their porte-parole, per se?