OTTAWA — The Senate appears headed for a showdown with the government over legislation that would force federal judges to disclose their expenses publicly for the first time.
On Wednesday, the Senate legal affairs committee adopted an amendment to Bill C-58 that would see judges’ expenses reported in aggregate by each court, rather than by individual judge. Both independent and Conservative senators agreed on the amendment, indicating it has a strong chance of passing through the full Senate chamber.
Judicial organizations have strongly protested the idea of requiring judges to disclose their expenses, arguing it puts judicial independence at risk and could see judges embarrassed by people intent on portraying their expenses in an unfair light. They also warned that any such requirement would be immediately challenged in the courts as unconstitutional.
“Respectfully, we believe the proposed legislation is flawed,” said Norman Sabourin, executive director of the Canadian Judicial Council, in committee testimony last fall. “Council is of the view that the disclosure of expenses associated with named, individual judges, will seriously undermine public confidence in the judiciary.”
Throughout testimony on the bill, which has been spread out from October 2018 to February 2019, many senators expressed sympathy with the judges’ concerns.
Respectfully, we believe the proposed legislation is flawed
“I think this amendment, in my opinion, achieves a fair balance from what we heard from the witnesses and experts that were called at the table to testify and the overall objectives that the government wanted to satisfy,” said the committee’s chair, Serge Joyal, on Wednesday. The amendment was introduced by Pierre Dalphond, a former judge and lawyer appointed to the Senate as an independent in June 2018. Dalphond was a justice for both the Quebec Superior Court and Quebec Court of Appeal.
The bill still needs to pass a third reading vote in the Senate chamber. If the committee’s amendment survives that vote, the Liberal-dominated House of Commons will have to decide whether to stick to its guns on expense disclosure and reject the Senate’s amendment. The Senate generally defers to the elected Commons when there are disagreements over amendments on a bill.
The government’s decision will be led by Justice Minister David Lametti, who only took over from Jody Wilson-Raybould in January — meaning he was not minister when the provision was put into the bill. But on Feb. 27 he defended the clause in testimony to the Senate committee.
“The starting point of these proposals is our conviction that greater transparency will foster rather than erode public confidence in the courts and the judiciary,” he said. “We proceed on the basis that Canadians are fair-minded and reasonable and that, provided with sufficient information and context, they will make reasonable and informed judgments.”
In a statement on Thursday, Lametti’s office stood by the bill as originally written, saying it is “confident the proposed regime achieved a healthy balance between promoting accountability and transparency for Canadians, and protecting the judiciary’s independence.”
But it said it will consider next steps once the bill is through the Senate.
“Any amendments to Bill C-58 should meet Canadians’ expectations of enhanced transparency, respect the fundamental principle of judicial independence, and foster public confidence in our judicial institutions,” the statement said. “We will carefully consider the amendments brought forward by the Senate. Canadians can have confidence that the legislation that is ultimately passed by Parliament will have benefited from a full discussion of all the relevant policy considerations and constitutional principles.”
The bill as originally written would require judges to disclose expenses that include travel to hear cases, the cost of attending training seminars and conferences, and the cost of incidentals such as clothing and equipment required for the job.
Judicial organizations have made many arguments against disclosure. A common one is that judges often don’t have any say over whether they travel to hear a case; they’re assigned by the chief justice. The public may not understand that and instead blame the judge for high travel expenses, the organizations argue — and it could lead to certain judges getting fewer travel assignments, a possible infringement on judicial independence.
They also argue that judges will be handcuffed in responding to critics about their expenses. “Judges have a general duty of reserve, and it follows that if disgruntled parties seek to target individual judges through a vexatious use of published information on judicial expenses, judges will not be able publicly to defend themselves,” said lawyer Pierre Bienvenu, representing the Canadian Superior Courts Judges Association, in his committee testimony.
Currently, federal judges’ expenses are submitted to the office of the Commissioner for Federal Judicial Affairs for approval for reimbursement — about 20,000 claims per year. The office would still receive claims under the new plan, but the claims would then be posted publicly.
However, the commissioner would have discretion to keep an expense confidential if it compromises judicial independence or if it puts a judge’s personal safety at risk. In his own testimony, Commissioner Marc Giroux said that even if the government’s plan goes through, he is “leaning toward” applying the judicial independence exemption to travel expenses.
This article was updated with more information about Pierre Dalphond’s background.
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