Senate to hear secret testimony from judge

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 federallyappointed 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.

One is that it could put judges at risk if people know where 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.”

THEY FEEL THEY ARE MORE EXPOSED THAN OTHER COURTS.