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.