Government backs down on attempt to force judges to disclose individual expenses

Government backs down on attempt to force judges to disclose individual expenses
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OTTAWA — The government has backed down on a plan to force federally-appointed judges to disclose their individual expenses, a move judges had warned was unconstitutional and would undermine the public’s confidence in the judiciary.

The climbdown comes after judicial organizations voiced pointed objections in testimony at the Senate legal affairs committee. The committee then amended Bill C-58 to propose that judicial expenses would instead be lumped together by court and reported in the aggregate. Those same organizations had earlier urged the House of Commons justice committee to make changes to the legislation, but the Liberal-dominated committee was unmoved.

On Tuesday, the government notified the Commons it would accept the Senate’s amendment, despite the fact Justice Minister David Lametti had appeared at the Senate committee on Feb. 27 to defend individual expense disclosure.

“The operations of the courts and administration of judicial expenses are not immune from these expectations (of transparency), nor should they be,” Lametti told senators. “Public confidence in the courts and the judiciary is fundamental to our democracy. The moral authority and legitimacy of all in our institutions, not least the judiciary, relies on it. As in other areas, transparency in relation to the expenditure of public resources is key to maintaining public trust in our judicial institutions.”

Bill C-58, which largely contains access-to-information reforms, was first tabled in June 2017, when Lametti’s predecessor, Jody Wilson-Raybould, was still justice minister. 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 required for the job such as clothing and equipment.

But senators were sympathetic to concerns from judicial organizations who argued the public would likely not understand that judges have little control over whether they travel for cases (they are assigned by the court’s chief justice). Furthermore, the groups said it would be difficult for judges to defend themselves given their duty of reserve, an expectation that they stay out of public debates. They also warned that any requirement for individual disclosure would be immediately challenged in the courts as unconstitutional for violating judicial independence.

“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.”

The amendments were proposed by Sen. Pierre Dalphond, a former Quebec Court of Appeal judge, and were supported by both Conservative and independent senators.

In a statement on Tuesday, Lametti’s office said it “listened intently to the testimony and considerations” raised by committee witnesses.

“Importantly, we heard concerns that the proposed approach could have unintended consequences, including unfairly targeting judges with higher travel expenses who provide access to justice for remote and official language minority communities,” the statement said. “These concerns are exacerbated by the tradition that judges only speak in the public sphere through their decisions, leaving them vulnerable to accusations without the ability to correct the record.

“We feel that the amendments introduced by the Senate strike an appropriate balance in responding to these concerns, while ensuring the enhanced transparency and accountability that Canadians expect of their public institutions. We thank the Senate for their work and look forward to the bill’s passage.”

Under the current system, 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. However, the expense claims are not posted publicly. The commissioner will still have to approve claims in the proposed new regime, but will then post an aggregated version for public view.

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