Politics

Tax court justice to testify in secret as Senate studies public disclosure of judges’ expenses

OTTAWA — Senators studying the government’s transparency
legislation are set to hear secret testimony from a senior
judge over the contentious issue of disclosing expense claims
of federally-appointed judges.

Serge Joyal, chair of the legal and constitutional affairs
committee, argued the unusual closed-door hearing is necessary
because of security considerations. Judges have levelled many
arguments about why they shouldn’t have to disclose their
expenses, but one is that the public could learn which hotels
they regularly stay at.

“The Tax Court is a travelling court, so they feel they are
more exposed than other courts,” Joyal told the National Post
on Wednesday as a justification for the secret session. “Any
committee of Parliament that hears about security issues, that
involve the security of an individual, they hear in-camera
testimony.”

He pointed to the fact a retired tax court chief
justice, Alban Garon, was murdered in Ottawa in 2007 by a
man later determined to have had a vendetta against tax
officials.

The agenda for Thursday’s legal and constitutional affairs
committee only says “Witness A” for its first panel, but Joyal
told the Post it’s Tax Court Chief Justice Eugene
Rossiter. He said the committee had invited other chief
justices to testify, but they declined.

The Canadian Judicial Council, the Canadian Superior
Courts Judges Association and the Canadian Bar Association
have previously testified. All three say they support greater
transparency for public institutions, but feel judges should be
exempt from disclosing expenses.

The judicial expense disclosure is a measure in Bill C-58,
which reforms the federal access-to-information regime — though
it has been assailed as being far weaker than the Liberals
promised during the 2015 campaign.

The bill would require the proactive disclosure of expense
claims filed by individual judges for official travel,
conference allowances and incidental expenses. Judges currently
must have expenses approved internally, but there is no way for
the public to see what each spends.

MPs completed their study of the bill last year, and voted down
an amendment requested by the judges that would have seen the
expenses aggregated by court, rather than released for
individuals. The judicial organizations are now trying their
luck with the Senate as their last hope to get the bill
amended.

There have been three main arguments advanced for why judges
should be exempt from expense disclosure.

This is a glaring, fundamental constitutional defect

One is that it could put judges at risk if people know where
they they frequently stay. The bill does, however, contain
a clause that allows an expense to be redacted if the
commissioner for federal judicial affairs determines it’s a
security risk.

Another is that judges could be singled out unfairly, since
professional development activities are mandatory and some
judges are required to travel more than others for cases.
Furthermore, judges are expected not to respond publicly to
attacks.

In its written brief to the Senate, the Canadian Judicial
Council argued that disclosure could “erode public confidence
in the judiciary” because it involves “expenditures over which
the judge has little or no control.”

Pierre Bienvenu, a lawyer representing the superior court
judges, told MPs the public may not know that some judges
simply need to travel more.

“How would that be used for mischief?” asked Liberal MP Frank
Baylis, a former businessman.

“Well, it could be … I leave it to your imagination,”
responded Bienvenu.

“It would be to embarrass the judge, maybe?” said Baylis.

“It could be to try to embarrass the judge,” Bienvenu agreed.

The final argument is that judicial independence could be
compromised by Parliament requiring disclosure of expenses,
rather than leaving it to existing internal controls on
spending.

The bill gives oversight on the disclosures to the commissioner
for federal judicial affairs (or, for Supreme Court justices,
to the registrar of the Supreme Court of Canada). The
legislation allows those bodies to keep an expense secret if
it’s determined it could harm judicial independence.

“This is a glaring, fundamental constitutional defect,” says
the written brief to the Senate from the superior court judges.
“The registrar and the commissioner are members of the
executive branch. They are not judges. Judicial independence is
a fundamental constitutional principle.”

In a statement, Justice Minister Jody Wilson-Raybould’s office
said the “proactive publication requirements do not extend to
any information whose disclosure could interfere with judicial
independence.”

”Bill C-58 strikes the right balance between the public’s right
to know and this fundamental constitutional principle,” it
said.

“We will continue to follow the Bill’s study by the Senate
Legal and Constitutional Affairs Committee.”

• Email: bplatt@postmedia.com |
Twitter: btaplatt

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