Justice Minister, judges battle over plan to publish expense reports

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Justice Minister David Lametti is defending the government’s bill to force Canada’s judges to publicly disclose their detailed expenses, in spite of opposition from judicial leaders who say it could put them in danger.

The dispute relates to Bill C-58, a government bill that updates the Access to Information Act. The legislation is in the late stages of the parliamentary process and senators are debating potential amendments, which would send it back to the House of Commons.

The Canadian Superior Courts Judges Association is warning that provisions in the bill requiring judges to disclose their expenses for items such as meals, travel and other costs could put them in the uncomfortable situation of having to somehow defend themselves should a public debate arise. The association’s counsel, Pierre Bienvenu, told The Globe and Mail that judges travel based on assignments and expense meals according to per diems.

Mr. Bienvenu said judges are concerned that publishing detailed expenses would reveal patterns – such as where they stay when working in a particular area – that could put them at risk.

“There is concern that there will be disclosure that will allow disgruntled parties to trace judges," he said. “The business of judging, by definition, is a business in which one of the parties ends up dissatisfied with the outcome, and therefore the potential for mischief in using the disclosed information is far greater than for other individuals who are subject to that kind of disclosure.”

The judges’ concerns are finding some sympathy in the Senate, where controversy over the individual expenditures of senators led to a scathing 2015 report from the Auditor-General.

However, in a letter sent last month to the Senate’s legal and constitutional affairs committee that is reviewing the bill, Mr. Lametti defends the government’s plan and points to places that he said have similar laws, including Australia and England.

The letter followed his Feb. 27 appearance before the committee in which he said he is open to amendments, but warned that addressing the judges’ concerns by requiring only aggregate – rather than specific – spending disclosures could render the information “almost meaningless.”

“We have great respect for the judicial system,” Mr. Lametti told senators in response to questions about the issue. “However, it must be admitted that judges are well paid. They deserve it and so do we. We must therefore be responsible with taxpayers’ money. We must try to find a balance between the transparency and accountability of our government, with judicial independence on the other side of course.”

The battle over the bill comes as relations between the Liberal government and the courts are already tense. Legal experts condemned the government last week after anonymous leaks to The Canadian Press and CTV portrayed former attorney-general Jody Wilson-Raybould in a negative light for reportedly recommending the appointment of Manitoba justice Glenn Joyal to the Supreme Court as chief justice in 2017. The reports said Prime Minister Justin Trudeau rejected the advice because Justice Joyal was considered too conservative in terms of the Charter of Rights and Freedoms.

Justice Joyal later issued a statement condemning the leaks as “wrong,” and said he withdrew his name after his wife was diagnosed with cancer.

As for Bill C-58, Canada’s legal community also objects to provisions that would allow the federal Access to Information Commissioner to privately view documents that had been blocked from release by the government on the grounds that they contain information covered by solicitor-client privilege. The goal of the provision is to provide independent assurance that the refusals are justified. However, the Federation of Law Societies of Canada warned senators that allowing for the “piercing” of solicitor-client privilege could have a “chilling effect” on government by making officials less likely to seek written legal advice.

Senators on the committee have already made amendments to other sections of the bill and said more amendments are expected.

The Access to Information Act was first adopted in 1985 and allows individuals to request copies of internal government documents, subject to numerous exemptions. Users of the legislation, including groups representing journalists, have said the system is plagued by excessive delays and redactions.

The legislation includes several new provisions for “proactive disclosure” that would require MPs, senators, judges and government departments to regularly publish detailed expenses online.

Independent Senator Pierrette Ringuette, who is sponsoring the bill in the Senate, said several committee members support the idea of amending the bill so that judges’ expenses are disclosed in a less-detailed way than for MPs and senators.

“The more details that are publicly available, I find, the better it is. But that being said, you have to bear in mind the fundamental difference between MPs, senators and judges,” she said, adding that protecting judicial independence is also a concern that senators are taking into consideration.

“We have to acknowledge that sometimes people are very mad at judges because of the decisions that they’ve taken and can go to extreme measures to make their lives miserable," she said.

Célia Canon, a spokesperson for Mr. Lametti, said the government will “carefully consider” any amendments from the Senate.