THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
OTTAWA, Wednesday, October 31, 2018
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-58, An Act to amend the Access to Information Act and the Privacy Act and to make consequential amendments to other Acts, met this day at 4:15 p.m., to continue its consideration of this bill.
Senator Serge Joyal (Chair) in the chair.
The Chair: Honourable senators, allow me to welcome you to the Standing Senate Committee on Legal and Constitutional Affairs. We are continuing our consideration of Bill C-58, An Act to amend the Access to Information Act and the Privacy Act and to make consequential amendments to other Acts.
Today, we are pleased to welcome Stéphane Giroux, President of the Quebec Federation of Professional Journalists. He is accompanied by Monique Dumont, Consultant and Access to Information Expert. Welcome to you both.
We also have the pleasure to welcome Philip Tunley, President of the Canadian Journalists for Free Expression. Welcome, Mr. Tunley. With Mr. Tunley, on behalf of the Canadian Association of Journalists, we have Karyn Pugliese, National Director. Welcome, Ms. Pugliese. It’s a pleasure to have you again at this table. You know the format of our work.
I will now ask Mr. Giroux to give a presentation on behalf of the Quebec Federation of Professional Journalists.
Then I will invite Mr. Tunley to complement that first part of the presentation. Then we will have an exchange with the honourable senators around the table.
Stéphane Giroux, President, Quebec Federation of Professional Journalists: Honourable senators, my name is Stéphane Giroux and I am the president of the Quebec Federation of Professional Journalists. With our 1,800 members, the QFPJ Is the largest association of journalists in Canada.
Allow me to begin my remarks by quoting the Right Honourable Beverley McLachlin, who in 2009, as Chief Justice of the Supreme Court of Canada, said:
The argument that access to information is essential to democracy is simply put.
Informed voting depends on informed debate. Parliament and the executive branch derive their power from the people, who exercise that power by voting for or against particular people at the ballot box. For the people to effectively participate and vote, they must know and understand what the government is doing.
For Canadians to understand what the government is doing, they must have access to all the information that is theirs by right, in all transparency. Most of the time, that information is communicated by journalists who, after their tasks of researching, fact-checking, gathering and analyzing information, make that information available to the public, to the taxpayers.
In the brief we have submitted, you will find a list of the problems that this bill raises and our recommendations to you to solve them. So I will simply raise the most important points and share with you our overall recommendation.
Abusive redaction: too often, journalists receive documents that are so redacted that nothing remains to be learned from them. Nothing in this bill strengthens sanctions against abusive redaction. According to recent studies, barely one quarter of the requests are provided in their entirety.
Reasonable timelines: very often, those responsible take much too much time providing documents. According to a study done at King’s University College, of 428 access to information requests, barely one quarter were responded to in less than 30 days. One third of the requests still remained unanswered more than four months after the request was made.
The Information Commissioner has no power. the provisions in the bill that give more power to the Information Commissioner are not enforceable. This leaves her with no real power and unable to force any institutions that ignore her warnings to provide the information requested.
Abusive refusals of access to information requests: section 6 of the act is amended to give a government institution the power to reject a request if it does not have a specific subject, if it does not explain the type of record being requested, the period for which the record is being requested, or the date when the document was prepared. In our opinion, this amendment is abusive. Too much arbitrary power is given to the officials within the institutions.
Section 6.1, which is entirely new, allows a head of a government institution to decline to act on a request, even before analyzing it and, specifically if the document does not meet the requirements of section 6 in the following circumstances:
(b) the request is for such a large number of records or necessitates a search through such a large number of records that acting on the request would unreasonably interfere with the operations of the government institution, even with a reasonable extension of the time limit …
(c) the request is vexatious, is made in bad faith or is otherwise an abuse of the right to make a request for access to records
In Quebec, the QFPJ made representations for this clause to be removed because those requesting access to information are subject to the arbitrary, unfettered power of those responsible for access to information. This clause serves to simply dismiss legitimate requests, even without preliminary processing, using their repetitive or abusive nature as an excuse.
Professional secrecy: it seems to us that clause 23 of the bill gives too much protection to information protected by lawyers and notaries, in the guise of professional secrecy. Some organizations have a tendency to add the names of lawyers and notaries on the distribution lists for their documents. This allows them to subsequently refuse to disclose those documents by claiming professional secrecy.
The Commission d’accès à l’information, which makes the review decisions in Quebec, has made it clear that, to claim professional secrecy, there has to be a relationship with a client. Simply writing the name of a lawyer or a notary on a distribution list does not create that relationship.
Proactive disclosure of documents: the bill puts a lot of emphasis on the proactive disclosure of information. Proactive disclosure is in the purview of the organizations with government programs. They can arbitrarily choose the documents to be disclosed, as well as their content. They can cut out columns of information from lists of data, they can cut out parts of documents that affect the integrity of those documents, all without being observed. Accountability then becomes extremely difficult.
In the opinion of the Quebec Federation of Professional Journalists, proactive disclosure of documents does not take the place of an open and transparent regime, with as few restrictions as possible on access to information.
In a word, this bill is very disappointing. The Quebec Federation of Professional Journalists recommends that the bill be rejected in its entirely, that the Treasury Board Secretariat do its homework again and come up with a new bill for Canadians, a bill that is better aligned with its commitments.
Thank you. Ms. Dumont will be able to answer your questions.
The Chair: Thank you very much, Mr. Giroux. We recognize that Ms. Dumont is available.
I would like to invite Mr. Tunley, on behalf of the Canadian Journalists for Free Expression, to please proceed.
Philip Tunley, President, Canadian Journalists for Free Expression: Thank you, Mr. Chair. Ms. Pugliese and I, on behalf of both organizations, CJFE and Canadian Association of Journalists, have coordinated our remarks. And if I may ask her to start, we will avoid duplication.
The Chair: The floor is yours, Ms. Pugliese.
Karyn Pugliese, National Director, Canadian Association of Journalists: Thank you, Mr. Chair. It’s always good to be back on the traditional, unceded territory of my ancestors.
Thank you for inviting us here today. The CAJ is truly a national association of working journalists with members all over the country in all forms of media. Before we offer you our thoughts on how this committee can improve Bill C-58 as it was passed by the House of Commons, we’d like to tell you a bit about CAJ and CJFE.
The CAJ was founded in 1978 as the Centre for Investigative Journalism, a non-profit organization that encourages and supports investigative journalism. Over the years, we have broadened our mandate. Now we offer high-quality professional development, primarily at our annual national conference, and outspoken advocacy on behalf of journalists.
Our members include some of the most dogged investigative journalists in the country — those who have read freedom-of-information laws back and forth, and actively use them to inform their stories. They serve the public interest by digging up information the readers require to be informed citizens.
Excellent journalism that we all watch and read every day has the power to improve public policy and change Canadians’ lives for the better. An effective access-to-information law allows journalists and, by extension, the broader public to be better informed. At an even more basic level, a good law serves the public’s right to know.
Last October, we offered similar testimony to the Standing Committee on Access to Information and Ethics as MPs scrutinized the bill. Today, we’d like to acknowledge some improvements to Bill C-58 now supported by the minister and reiterate other concerns that have so far gone unaddressed.
Mr. Tunley: Thank you, members of the committee. CJFE is a not-for-profit, non-governmental organization, with a membership drawn from journalists and others across Canada who are concerned about freedom of expression and journalist protection. CJFE monitors, defends and reports on free expression and access to information in Canada and abroad. Our reporting is rooted in the field of journalism, and we promote the free media as essential to a fair and open society. We champion the free expression rights of all people, and encourage and support individuals and groups in the protection of their own and others’ freedom-of-expression rights.
Our activities are detailed on our website, and they include testifying before parliamentary committees. Most recently, we did so in connection with the Journalistic Sources Protection Act, in 2017. We also appear before other legislative bodies, and intervene before the Supreme Court of Canada, and other courts and tribunals in cases involving the Charter, subsection 2(b), and other issues related to the media, free expression and access to information.
If I may add one word myself, I am the president of the organization, but I’m not a journalist. I’m a media lawyer. I act for CBC, Vice Media, NOW Magazine and other media organizations in Canada. I’m quite familiar with access to information. I’m happy to be in front of you today.
Ms. Pugliese: Of course, as journalists, we’re nowhere without our lawyers.
We’ll now make five points.
First, the government promised to expand the number of offices, including ministers’ offices, that were subject to the act. Instead of applying the right of access to ministers’ offices, Bill C-58 introduces increased proactive disclosure. The minister defended that decision when he appeared before this committee. Journalists don’t oppose proactive disclosure, but when governments control what’s being disclosed, that weakens the public’s ability to gain insight into what happens behind closed doors. We still believe in government’s election promise, which would subject ministers’ offices to the right of access.
Mr. Tunley: To address the commissioner’s order power in the new bill, this has been subject of some testimony before you already. I’d like to make clear our position, first of all, that although the order power in proposed subsection 36.1(1) is appropriately worded, the effectiveness of that new power is, we believe, undermined by two related provisions. First and most fundamentally is the provision for reconsideration of a commissioner’s order in a de novo hearing before the Federal Court. I think you’ve discussed this as a committee. The provisions are found in proposed section 41 and following, and particularly proposed section 44.1, which deals with the de novo nature of the hearing.
Let me explain. That means the Federal Court can hear all-new evidence, and it can entertain all-new arguments that were never entertained. The effect, we say, is twofold. Very importantly, it downplays the expertise of the commissioner to have a Federal Court sitting in second judgment and being able to hear the whole case over again from the start. It discourages parties from putting their best evidence and arguments forward at first instance.
The result is, of course, the very opposite of what media requesters want from this bill, which is an expeditious process. We want to get a well-reasoned and final access decision with minimum delay, and this duplication of trial process in two forums just does not achieve that.
The second provision that adds, unfortunately, to these effects is the automatic suspension of the commissioner’s order for at least 30 business days. That’s nearly six weeks before the order becomes effective, while parties simply consider whether they want to go to the next stage, to Federal Court. They may not, and the 30 days — six weeks — may well be wasted.
These two provisions really work against the expedition of the order power and its intended purposes, which are very well set out in the commissioner’s 2015 report. That’s what I would like to focus the committee on and ask the committee to consider. The order power itself is not the problem; it’s how it is set in this review process with the Federal Court, in our submission.
I would like to acknowledge something. I see from testimony you’ve heard that there is reconsideration of the requirement for the commissioner to go to the Federal Court to seek mandamus. There is consideration of an amendment to certify the commissioner’s order in a more expeditious process. We welcome and thank the minister strongly for that expedition to the bill. If that can be done, that improves it greatly.
The Chair: On the third point, Ms. Pugliese?
Ms. Pugliese: An earlier version of Bill C-58 would have allowed departments to decline to act on requests deemed vexatious or made in bad faith if those requests didn’t include narrowly defined criteria, including the specific subject matter of the request, the type of record being requested or the period for which the record is being requested. The minister was persuaded by Indigenous groups and some other advocates that the wording in the bill was overbearing and would still have denied requests unjustly.
We do applaud that move, but a broader vexatious request clause is still part of Bill C-58, and we’d prefer that be removed too.
Mr. Tunley: Very briefly, the fourth point is that we still think the provisions in Bill C-58 regarding fees are a step backward. A couple of years ago, the government introduced an interim directive that proposed dropping all fees in the act, with the exception of the mandatory $5 application fee. The version of Bill C-58 passed by the House of Commons still reintroduces additional fees through regulation. Because fees often act as a deterrent to access as much as delay, the CAJ and CJFE would like to see the spirit of the original government commitment and directive from 2016 in the bill.
Ms. Pugliese: Finally, on the fifth point, Canada needs an expedited processing clause. When the Access to Information Act was passed in 1985, the intention was to resolve requests within 30 days. The average turnaround time for resolving a complaint to the Information Commissioner in 2017-18 was 203 days — and by the way, we’ve had some requests for more than two years — which is seven months.
The revised act needs a way to resolve requests more quickly. It needs the expedited processing rules present in other countries, such as the U.S. Expedited processing permits the fast-tracking of requests that contains information that is critical for the public to know and would return the act back to its original intention of resolving requests promptly.
Mr. Tunley: Thank you for your time. We’re very happy to answer any questions the committee may have, and we support the submissions made by the Quebec Federation of Professional Journalists.
The Chair: Thank you very much for your efficient presentation. We’ll go to questions now, starting with the deputy chair.
Senator Boisvenu: My thanks to our four witnesses for being here and for their testimony.
Mr. Giroux, your judgment on the bill is quite harsh. As I read the criticisms that we have been hearing about the bill for a few weeks, I believe that you are quite right.
Without revealing your age, I know that you have been in the media world for years. Some major investigations have taken place in Quebec. As we know, a lot of investigative journalism happens in Quebec. We only have to think about “Shawinigate” or the sponsorship scandal. Let me take you back to the year 2000. At that time, those issues took meticulous work on the part of some journalists. If you had had today’s legislation, the bill before us, would you have done the same quality work?
Mr. Giroux: It is interesting that you ask that question. You are talking about investigative work and my colleague Ms. Dumont, was a researcher at the program Enquête. She used the previous access to information act to achieve her objectives. I will let her answer.
Monique Dumont, Consultant, Access to Information Expert, Quebec Federation of Professional Journalists: I have been around access to information legislation, both federal and provincial, since the end of the 1990s. I began with the Cinar affair. I worked with the RCMP and with other federal departments. Thereafter, I worked on other investigations, either in the newsroom or on the program Enquête. Since that time, access to information legislation, in Quebec and federally, has only eroded rights. We could not do the same things today. First of all, documents would likely be destroyed because there are now no longer any guidelines for conserving and producing them. Today, government decisions can be made without keeping any history, and documents to explain the reasons for a decision. When our members make access to information requests, they may be told that there are no documents. Sometimes, it is just crazy. I made a request to the Privy Council and I was told that the documents had been destroyed in a flood. There was a water leak and the pipe accidentally fell right on top of the drawer in which the documents were kept. That is one example; I could give you others.
Senator Boisvenu: So, if I understand correctly, it would not be feasible.
Ms. Dumont: No.
Senator Boisvenu: Mr. Tunley and Ms. Pugliese, you have talked about delays. In a lot of cases, the information cannot be used any more because of the time that has passed. We asked the minister what the next step would be after the bill is passed. Her reply that the department would start tackling the delays. You say that, from 1985 to 1990, there were already problems with delays. Is this bill aiming at the wrong target by not tackling the delays?
Mr. Tunley: Yes, thank you. In some ways, journalists will welcome the proactive disclosure provisions which makes certain information available on an ongoing basis, but this is very often not the most important information for investigative stories of the kind that we are discussing. I think it’s very useful to remember a recent case involving an inmate Ashley Smith. The CBC spent three years trying to get a document which had been filed in a courtroom, a video taken of this inmate. When after a long fight it was disclosed, that led to a long coroner’s inquest, changes in the law relating to segregation of inmates and lots of legal cases. It’s had a huge impact.
So when you get the one piece of information that you are looking for as a journalist, you really can change the way our society works. That’s a good example. The examples that you gave of Enquête and the inquiries in Quebec are also very similar.
It’s not a matter of formulaic information that governments make available on a routine basis. It’s about the investigative process and focusing where the information is that will really reveal a surprising story to Canadians and hold our government institutions to account.
Delays are terrible for that. If the event’s happening today, news watchers need the information today. Courts recognize this in making decisions about access to information, and I think it’s essential that as framers of the bill you consider the timelines that are set out. Why do we need six weeks to consider whether to go to the Federal Court? It doesn’t make any sense.
Senator McIntyre: I have a question for each of the associations. First, to the Quebec Federation of Professional Journalists. In your brief and your presentation, you raised the problems that section 6.1 of the Access to information Act might pose. That said, I understand that the Quebec legislation has a similar provision, namely section 137.1. What are the similarities and the differences between that section in the Quebec legislation and the one in Bill C-58?
Ms. Dumont: The two are much the same, in that they give an official responsible for access to information the ability to find out what types of documents are in question, even before starting the search and seeing whether the documents exist. Unfortunately, they put a lot of emphasis on who is making the request. The section allows them to claim that the request is abusive, repetitive, or vexatious, or that it will take an inordinate amount of time.
I was denied in a case against the Université du Québec à Montréal. I was told that told that I was going to unreasonably interfere with the operation of the university because of my request. It was for financial documents about this building and the transaction turned out to be catastrophic. It was brought up in Quebec to the extent that the QPJF asked for the section to be withdrawn with no effect. I was very surprised to see a promise of transparency, while I continued to see clause 6.1 in the bill. In my opinion, it simply invites abusive behaviour from some departments and institutions that do not want to be accountable to anyone. Who is going to ask for an accounting of clause 6.1. Are we going to end up in Federal Court? It is completely unworkable. That is why we are asking for the outright removal of this clause that opens the door to abuses of rights and of power.
Senator McIntyre: Thank you, Ms. Dumont.
Senator McIntyre: My next question is addressed to both associations.
When Minister Gould appeared before our committee two weeks ago, she spoke about delays and indicated delays could be dealt with in different phases. For example, phase 1 would look at delays through proactive public disclosure, and phase 2 would look at improving delays if pieces of information, other than the one that will be proactively disclosed are being sought and not received in a timely fashion or not within the law. So my question is this: What are your thoughts on dealing with the delays in different phases and the implementation of this proactive disclosure system?
Ms. Pugliese: I have a few thoughts on that. First of all, on proactive disclosure, my understanding also with that is that the records being proactively disclosed move out of the request-based size. So there are two problems with it. There is the problem of timeliness, but then there is the problem that the executive means you still can’t request the information. So there are a few problems there.
One of the things we had suggested is in dealing with the slowness taking something like the American model or one that other countries have, because this office has been trying to deal with this for years. You can go back and I think from 2013 forward it started getting slower and slower. They haven’t been able to deal with it. To some extent they will say that it’s staffing. What you could do is you could have the expedited processing. In the U.S., when you go and you file in the first place, you can ask for that status. They take a look at it, and in 10 days they respond to you and say, yes, they can speed it up.
There is a certain date they must hit. They have types of requests: An imminent threat to life; a matter of media involving questions about the government’s integrity, which could affect public confidence; an urgent need to inform the public about an actual or alleged federal government activity, if made by a person primarily engaged in disseminating information.
This bill is not going to deal with the human resources side of it, but there is a way to look at some of the most pertinent and important things that media cover and find a way to speed that up.
Senator Dalphond: Welcome to our guests. My first question goes to the representatives from the Quebec Federation of Professional Journalists. In your brief, you referred to the King’s College study indicating that barely one quarter of requests are responded to within 30 days. That could indicate a number of things, perhaps even an institutional culture. If you compare that trend to the experience in Quebec—because you also make access to information requests to the Government of Quebec, to different provincial ministries and to the National Assembly do you see the same phenomenon? Are one quarter of the requests responded to in the prescribed time or is the figure much higher?
Ms. Dumont: It varies a lot. The geometry is variable. Some organizations are completely delinquent and act in bad faith. I will not name them here so that I do not expose myself to a defamation suit.
The Chair: You have immunity?
Ms. Dumont: I would still like to play it a little safe.
In any event, some organizations in Quebec do not even respond to access requests. They do not even acknowledge receipt. It’s like the request was never received. If you are not on the ball and if you do not follow up to find out whether they have received the request, it gets lost in cyberspace or somewhere. Some organizations abuse that right.
The response rate is much the same as at federal level. However, with the federal government, the delay can be very long. I once made an access to information request to the Department of National Defence and it took three years for me to get an answer. With the federal government, you can get the information commissioner involved. She can always put pressure on the organizations by asking them what is happening.
In Quebec, that power does not exist. If the time limit of 30 days, meaning 20 days plus 10 days, is not met, you can consider that request has been refused. You try not to go there, because you may well end up before the Commission de l’accès à l’information.
So I would say that the process is more or less comparable. In Quebec, some organizations do not even reply to access to information requests.
Senator Dalphond: The second question is for the Canadian association. Since you have as president a lawyer by training and specializing in media and administrative law, you referred to clause 44.1 of the bill that provides for a new proceeding before the Federal Court.
So I understand, the current status of the law would be that it has to be a judicial review, subject to the reasonableness criteria, so that the judge has to defer to the commissioner’s decisions. Now he will no longer defer. That will be with additional information. That would be costly and lead to longer delays, and I guess the end result will be happening two years after the department filed with the Federal Court to reverse the decision of the commissioner.
Mr. Tunley: Let me respond first with two quick points. There are two issues of delay. The first is the delay in regular processing of a request that is going to be granted, where there is really no issue. That, I think, is one aspect which needs to be addressed.
The second, though—and it’s very important in terms of your question—is delays, once there is going to be an issue where the government does not want to release the information and the journalists want to get at it because there is a real issue about the importance of the information and the way our society functions around that information. That’s the issue with the de novo hearing.
My understanding is, from the way clause 44.1 is written in the bill at the moment, it’s not a judicial review. A judicial review is a very deferential process. It occurs on the record that is created by the expert body that is being reviewed, in this case, the Information Commissioner. There is no opportunity to introduce new evidence. It is, in effect, a review of the decision from the point of legal correctness only, not the facts, and it’s very deferential, expeditious and quick. This takes months, not years.
With a hearing de novo there is the opportunity to lead new evidence, so all the old evidence can be redone again. It’s a very lengthy process. Why are we doing this when we have an expert commissioner who has already gone through the facts, assembled the relevant evidence, inquired as to the relevant facts and made an expert decision? Why do we need the Federal Court to do all that again? It makes no sense to me as a lawyer, and I do a lot of judicial reviews. I act for a lot of tribunals, and there is a reasonableness standard where the record of the original tribunal is respected. But that’s not the case under this bill the way it’s written at the moment.
Senator Dalphond: A step backwards, instead of forward.
Mr. Tunley: Currently, we have an active and energetic advocate for free expression in the commission. When you change that role, you lose the effective advocate and you make a fairly ineffective decision maker. A decision maker can’t be an activist. You can’t be both. Judges and lawyers are two different practitioners in the law. They do different things.
We are moving away from having a vigorous, active advocate for free expression within government, which is the way our commissioner works today. We’re getting rid of that. That is a step backwards. Instead, what are we putting in its place? A process in which, eventually, the final decision rests with the Federal Court. There is nothing. You stand to lose the good things about the present system and not institute something that really works for the Government of Canada and for requesters of Government of Canada information.
The Chair: So you would suggest getting rid of the de novo application and just having a judicial review of the decision of the commissioner?
Mr. Tunley: If you want to create an effective expert and expeditious tribunal in the commissioner who makes effective decisions informed about the way government works, yes. The role of the Federal Court should be reduced to one of correctness review on legal issues, perhaps, such as client privilege.
The Chair: You mean the principle of correct decision as defined by the Supreme Court.
Mr. Tunley: Legally correct decisions. A review process, not a trial all over again, which is the way the current bill reads to me. Now maybe that’s not the intention. These things can be implemented in certain ways. But if it’s not the intention, the bill should be changed to reflect the real intention, in my view.
Senator Carignan: The points I wanted to bring up have been covered in previous senators’ questions.
I would like to go back to the duty to document. I understand that this has happened to you on a number of occasions. Have you noticed that behaviour, those reasons for refusal, because the documents do not exist mostly with the federal government, or have you seen the same practice in Quebec? Is there something in Quebec’s access to information legislation that stipulates a duty to document? Have you seen a difference?
Ms. Dumont: In principle, the legislation in Quebec should have been revised, like at federal level. But as we know, nothing has been done. In our proposals, whether they are to parliamentary committees or in our own representations, we have asked for a duty to document decisions. The trend exists in all orders of government. I have seen it with the federal government and with the provincial government. I have even seen it in other provinces. There is a trend, the result of which is that decisions cannot be documented. Is that part of a culture or is it “realpolitik”?
If documents do not exist, clearly we cannot obtain them. At that point, the problem is solved at upper levels whereas here, our whole discussion is about the lower levels, about what happens once a request has been made.
The bill makes no mention at all of the upper level problem, producing and conserving documents. Let us not forget that governments tend to adjust legislation quickly. Often, it happens as soon as the case law creates a breach in the access to information legislation. We saw that in Quebec with documents from the executive council when an order shut the door very quickly. We also saw it when a Quebec court rendered a decision about the receipts from a mayor in Bas-du-Fleuve. She was having a few too many restaurant meals with lobbyists and other kinds of representatives. Very cleverly, the government decided that the receipts could be destroyed after a year.
You are doubtless aware of the problem that exists in the media world. As journalists, if we do not ask for receipts each week or each month, thereby making it possible to invoke section 137.1 of the legislation under which that request is abusive, the receipts disappear, we no longer have them. They offer to provide us with tables, but, I am sorry, I have no evidence that the information in the tables is correct, because I have no documents.
So what am I supposed to do? I’m like Saint Thomas. At that point, we realize that abuse still exists. A table will never replace a document. That’s why I am saying that all kinds of subtle and pernicious practises are used to make legislation lose its effectiveness.
Senator Carignan: Earlier, you said “especially when a reporter is making the request”. I gather that, for Radio-Canada programs like Enquête and La Facture, you pay more attention to that, correct?
Ms. Dumont: Yes.
Senator Carignan: Have you ever gone through a third party to obtain a document that you were not able to obtain because you were a journalist?
Ms. Dumont: I have made access to information requests when I had a document but been told that the document did not exist. I have not personally used a third party to obtain a document, because that presents problems. If I then have to go before the Commission d’accès à l’information and I ask my son, for example, to sign my request, he will have to go before the commission or the federal court.
So I have never done it but I do know people who have used family members. Clearly, doing that is pretty obvious; the request is not anonymous and journalists known to do it are identified.
I am less familiar with the problem at federal level, but, in Quebec, I know that there is generally a weekly meeting to keep track of access requests that journalists have made, requests that are sent directly to the cabinet as soon as they see a yellow light. Thereafter, a communication strategy falls into place, which should not be the case. An access to information request is a stand-alone, administrative process, no matter who is making the request. That is my opinion.
Senator McCoy: Thank you, and welcome. I’m pleased to hear your testimony.
I want to ask first about the question of delays and about that part, as you were segregating it, the normal processing. Isn’t the core of the problem in the current federal legislation that the agencies have full discretion in saying how long the extension to the original 30-day period will be; there’s no cap, no limit on it? I understand that the Information Commissioner can put pressure on in response to a complaint. Looking at her statistics, her backlog of complaints has escalated by 75 per cent in the last five years to roughly 3,500.
The legislative framework in many of the provinces is not that way. In Quebec, in particular, there’s a cap on the extension, with a request to the Information Commissioner if you want it longer than that. Have you considered that as part of the remedy?
Ms. Pugliese: That could be part of the remedy, if there were a cap or if they had to justify it more. A good example is that I filed for an Indian Affairs response to an Auditor General’s report. I wrote that I wanted the document they had created as the response. I received that in six weeks, so that’s how fast it can be.
I received a call from the information officer. She didn’t really understand what I was looking for. She talked to some of the bureaucrats, and they said, “We know exactly what she wants.”
In that case, maybe they wanted me to have it. They might have been mad at the government. That sometimes happens.
I’ve also asked for an MOU, one document. This is not complicated. It had taken weeks, and they asked for an extension. They extended it twice. I’m going to say it was almost a year, and that’s beyond the pale.
So I think having some sort of limit and some sort of scrutiny over why they’re asking for more time, because you can argue with them.
Senator McCoy: Six weeks is 45 days. Thank you for that response.
Once I started studying this legislation, people who had used it — which I never had the pleasure of doing, but I’ve come to have a high regard for this quasi-constitutional act — were often of the impression that it was mainly used by muckraking journalists — pardon my language — on fishing expeditions. So I looked at the statistics that the government departments themselves give, and the percentage of requests from media is 10 per cent, compared to 42 per cent by business corporations and something like 34 per cent by members of the public.
Also, I talked to some journalists. I said, “You must have some good stories,” so picking up on your point about a good story, and yours earlier about making changes in the detention centre. The example given was that the minister was expanding the Canada Pension Plan and, for some reason, was too busy to talk to the journalist who wanted to put the story on the air quickly about why this was a good thing, and happened to use ATIP. The response came back lickety-split from the bureaucrats. It was because of demographic changes, and this expansion actually helped a lot more people who had fallen into this category — so it was a good-news story — and brought it out to the public, which presumably was a help and not a hindrance.
I have not forgotten that anecdote. I wonder if you have more, because I think it might help us to understand. The anecdotes tend to illustrate the benefits, as much as the theoretical description, of the workings.
The Chair: Do you have a question, senator?
Senator McCoy: I’m asking for any other good examples they have that they would like to share with us.
Mr. Tunley: One thing I would like to say in response to your point is that a really effective order power should include the power to expedite what is not going to be a contested request. Once a commissioner has become used to dealing with government agencies and their documents over time, you know which of the requests are going to be contested and which are not. So you can go to the commissioner to get an order to expedite, but if you have a 30-day appeal, anyone who wants to drag it out can. That’s the problem.
This is a quasi-constitutional bill. In my view, I think that’s a very good way of explaining it. There was a whole debate at the time of the patriation of our Constitution with the Charter of Rights as to whether the rights should be in the Constitution, which is a very interesting thing to look into historically. We have it as an act. It’s intended to work with the way government institutions work. They administer it so they’ve got to like it. But when it breaks down, the provisions have to be effective to bring the issues to closure. That’s my perspective. There are a lot of great stories.
Ms. Dumont: As for delays, you may have heard this spring about the request for information from an organization, I can’t remember which one any more, and the reply was that it would take 80 years to obtain the documents. Isn’t that ridiculous?
Senator McCoy: Do you know which one it was?
Ms. Dumont: The journalist would be dead. His descendants would probably carry on with the file.
The problem is that there is no one to rap the organizations’ knuckles. There is no accountability, there are no sanctions. Luckily, there is a lot of talk about it in the papers, but as long as there are no incentives…The idea of a maximum time limit is very good. We also support the idea of speedy recourse, but, once again, there needs to be a political will to change this culture in the administration.
The Chair: Does that complete your intervention, senator?
Senator McCoy: For now, to give other people a chance.
The Chair: Before Senator Pratte intervenes, I might suggest to you, Mr. Tunley, that when you refer to the patriation of the Constitution — and I happen to have been one of those persons pushing for the recognition of the right to access information — we have to recognize that even though it was not achieved at that time, the Supreme Court read in section 3 a right to access to information for the proper exercise of the right to vote, as you know.
In other words, the Supreme Court has complemented what was left wanting in the exercise of the drafting of the Constitution.
Mr. Tunley: Also in part in section 2(b), the same information about government affairs to effectively comment on government policy, so I agree with you. These principles apply well under the other sections of our Constitution.
The Chair: Exactly.
Forgive me for cutting you off, Senator Pratte.
Senator Pratte: I understand; it was a useful comment, as usual.
I am well aware that proactive disclosure is far from being the same as real access to information. Today, we have before us a bill with major weaknesses and we are trying to see whether or not we want to save certain parts of that bill. However, having proactive disclosure enshrined in legislation, rather than simply being government policy, isn’t that something that is worth taking for granted?
Whether it is in a law or not, it doesn’t matter and it’s not worth it?
Ms. Dumont: I don’t think we can dump on proactive disclosure; it is a step forward. Some documents are actually disclosed, documents on government business are disclosed. In Quebec, that goes from swimming pool schedules to baseball field schedules, but you are not going to find the correspondence you are looking for on any hot issues.
Did you know that we have colleagues who made a request to the Treasury Board Secretariat for the criteria for proactive disclosure that the bill is promoting, and the document was completely redacted? So, when you ask me whether that is a step forward, you will understand that I have my doubts. For me, it’s a smokescreen. The problem is that governments hide behind it to actually further weaken access to information legislation. So I think it’s a Trojan horse.
Mr. Giroux: If I may continue along the same lines as my colleague, the problem with proactive disclosure is that it works when the attitude is open and transparent. It’s about an attitude, not just a legal text. Our society and our elected government have to be transparent and not hesitate to release not only everything that looks good but also everything that looks bad.
In a bill like that, where documents could be released proactively, it would work if the mentality of a department was “we are being proactive and we release everything positive and everything negative”. But we have 35 years of history to prove that, in general, if the department does not want a document to be released, it will not be released. That is why we are so sceptical of a clause of that kind.
Senator Pratte: I have another point about section 6.1. There was an amendment moved in the other place that an institution could reject a request for information because they say it’s vexatious or whatever, but they would need the written approval of the Information Commissioner. That’s the amendment that was brought forward in the House of Commons.
Does that change anything?
Is anything changed by the fact that the commissioner has to kind of approve the rejection of a request?
Mr. Tunley: I would say that’s a very great step forward. It does mean that the government agency can’t arbitrarily use it or use it in inappropriate circumstances. They know they’re going to be subject to scrutiny if they ask the commissioner for permission. They’re going to have to make a case. I think we can all say that was a positive change to the bill, one that we would support and welcome. It’s good to see that the minister has been open to change. It has been very encouraging.
Ms. Dumont: If I wanted to be diplomatic, I would say what that gentleman said. But if I wanted to really speak my mind, I would say that the section should never have existed and it should be removed, just like section 6.1.
Senator Pratte: Thank you.
Senator Lankin: I want to follow up on the last exchange. By the way, thank you all for being here. It’s very important that you contribute in this way and we appreciate the time that you’ve taken to think about it and to come here and present.
For both of you, I want to follow up on the issue of frivolous and vexatious. Forgive me. From having been in a minister’s office as a minister, I never saw the media bringing forward anything that I thought was frivolous or vexatious at all. I did, however, see certain individual citizens, and I don’t know how they supported themselves but they had an occupation of these things. And at times it was extreme. I think the idea that the commissioner has to approve it is absolutely terrific. That brings some accountability into it.
I’m having trouble. Perhaps this question shouldn’t be to you. Perhaps it should be to Ms. Dumont. I’m having trouble seeing why that clause should be removed at all. If it was, what would the opportunity be where you have clear, prolonged, consistent years of vexatious activity?
Ms. Dumont: Right. People like that are called “quarrelsome litigants”. They make it their life’s work to make repetitive requests, and as government resources are certainly not unlimited, this can often become abusive.
As Mr. Giroux said, I feel that, if the philosophy was one of openness and transparency, there would perhaps be a way to present the section differently.
I believe it would be possible for the person responsible for access to information requests to be able to negotiate with people like that. Perhaps there are people with mental issues, but I think that is a tiny minority. They want to put a section in the act that would significantly broaden the arbitrary power of government institutions. That’s why I am opposed to the rejection in that section, for a tiny minority. It is like using a sledgehammer to kill a fly.
Senator Lankin: So you don’t take comfort from the commissioner having to provide that?
Ms. Dumont: The proposal is an improvement, I find. I agree with you. However, ideally, I believe that this section and section 6.1 should not be there at all.
Senator Lankin: Thank you.
Ms. Pugliese, you’ve answered this in part. I was interested when you talked about expedited processing, an actual structured approach to that. You referred to looking to other jurisdictions. I was going to ask you about that. You did talk about the American model and I appreciated the specific examples that you gave. It helped me understand what the structure might look like. You referred to jurisdictions in plural, so I was wondering if you could give us the reference to other jurisdictions so we could look at that.
Ms. Pugliese: I’m sorry, that was the only one that I researched and prepared for.
Senator Lankin: That’s federal legislation?
Ms. Pugliese: Yes, that’s federal.
Senator Lankin: Thank you very much.
Senator Boisvenu: Thank you very much to our guests. Your testimony is very interesting.
I have an open question. Canada is in 55th position in terms of managing access to information. Canada has lost some positions over the years. Will this bill put us back near the top of the class, or are we likely to be in 70th place in five years?
Ms. Dumont: Personally I do not see it improving the situation. We will continue to lose ground.
Mr. Tunley: I would say it’s in the right direction. I don’t think it will have a huge impact on the international ranking just as it’s written at the moment. I think some of the things we discussed might improve it and you have an opportunity to improve it.
Senator Boisvenu: So we’re going to miss the target to be at the top?
Mr. Tunley: I don’t expect it will make a lot of difference.
Mr. Giroux: Like I said before, it is not about fixing the problem strictly with legislation. It’s a problem of mentality. Either you’re transparent or you’re not, and if you decide not to be transparent, it doesn’t matter how thick the legislation is, it’s not going to change anything. The problem has to start at the top.
Senator Carignan: Have you talked about the part of the bill that deals with publishing expenses, for judges specifically? Do you have any particular comments on that subject? In your opinion, is that part appropriate or should it be redrafted in another way? Is there any benefit in obtaining more details on judges’ expenses?
Ms. Dumont: It is like an omnibus bill; there are all kinds of provisions, from really important ones to less important ones. That is a minor issue, as far as I am concerned. It may be important for other people. I have not really gone into the issue in any depth and I do not plan to put a lot of effort into it, compared to the other issues we have talked about today.
Mr. Tunley: I agree with the assessment.
Senator McCoy: Very quickly, a last word to the witnesses, this bill has proposed that the legislative review that is promised for a year hence and then every five years thereafter be done by the minister. Bill C-59, for example, the next bill up, actually provides for a parliamentary review. As our learned chair pointed out to the Information Commissioner, she is actually an Officer of Parliament. She doesn’t report to a minister; she reports to the House of Commons and the Senate of Canada.
Would you support a parliamentary review as opposed to a ministerial review?
Ms. Dumont: Certainly.
Mr. Tunley: Yes, I think everyone would agree with that.
The Chair: Thank you so much.
The Chair: Mr. Giroux and Ms. Dumont, thank you very much for coming here to take part in our work and for giving us the benefit of your experience of this legislation. I feel it was very useful. You experience the legislation in a really practical way.
Thank you, Mr. Tunley and Ms. Pugliese. I think it is important to listen to the stakeholders and those who will be impacted by the legislation. Thank you, Mr. Tunley and Ms. Pugliese. If you have any additional information in regard to the work of this committee please provide that to the chair and the clerk. We will share it with the other members around the table.
Thank you very much.
It is a great pleasure for me to welcome two witnesses who have made themselves available to provide us with some food for thought and contribute to our study of the bill. First, we have Norman Sabourin, Executive Director and Senior General Counsel of the Canadian Judicial Council. Welcome, Mr. Sabourin. We also have Pierre Bienvenu, who has just arrived from Montreal, which is always a dangerous undertaking. He is a senior partner with Norton Rose Fulbright Canada and is here representing the Canadian Superior Courts Judges Association.
Our two witnesses, of course, will be able to help us with our consideration of the bill’s provisions dealing with the Canadian judicial system.
Pierre Bienvenu, Senior Partner, Norton Rose Fulbright Canada, Canadian Superior Courts Judges Association: Honourable senators, thank you for inviting the Canadian Superior Courts Judges Association to give its views on Bill C-58. I have long represented the association in relation to judicial compensation and benefits and other constitutional law issues.
The association is composed of judges appointed by the federal government to the various levels of courts across the country. It has around 1,000 members, representing close to 90 per cent of all federally appointed judges, including judges of the superior courts, appellate courts, the Tax Court, and the federal courts.
Honourable senators, the provisions of Bill C-58 that apply to judges are of grave concern to the association. The judiciary was not consulted prior to the bill being tabled in Parliament, and since that date the association and the Canadian Judicial Council have sought to call attention to the inherent defects of the provisions of this bill that would apply to judges. The association and council raised their concerns before the committee of the House of Commons that reviewed the bill, and the senators who serve on this committee would be aware that the concerns that we raised before the House of Commons committee are shared and have been echoed and even cited in the submission of the Canadian Bar Association and the Barreau du Québec. These concerns are serious because they relate to a foundational constitutional principle, the principle of judicial independence.
Now, the judiciary acknowledges that Bill C-58 is pursuing important objectives of transparency and accountability; however, there are, in our submission, compelling reasons why these objectives in the case of judges must be pursued by means that differ from the means adopted for elected officials and members of the bureaucracy.
You are aware of the provisions of the bill relating to judges. They would require the publication of individualized information regarding judges’ expenses, including the judge’s name, a description of the expense, the date on which the expense was incurred, and the total amount of the expense. The expenses in question are those reimbursable under the Judges Act as so-called allowances.
The bill also contains provisions proposing to allow the registrar of the Supreme Court of Canada and the commissioner of federal judicial affairs to withhold publication, if publication could interfere with judicial independence. The bill provides that their determination of this question would be final.
The concerns of the association with this bill are set out in a written submission that we filed yesterday with the committee clerk. I have three basic points to make in my introductory oral remarks, but before I do, I wish to mention certain factors that need to be kept in mind when considering judicial expenses.
Judicial expenses are largely non-discretionary in nature. For example, the need for a judge to travel for hearings arises from the nature of the court itself or from assignment decisions of the chief justice of that court.
Second, all claims for reimbursement of judicial expenses are evaluated by the Registrar of the Supreme Court or the Commissioner for Federal Judicial Affairs, two officers whose responsibilities include this auditing function.
A third important factor to keep in mind is that, by its very nature, the judicial function usually entails one party not getting what it wanted.
The fourth and last factor is that 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.
I turn to the three basic points I wish to make in relation to Bill C-58. The first point is that Bill C-58 proposes to apply to judicial expenses a regime that, insofar as accountability is concerned, is duplicative of control mechanisms that already exist in relation to reimbursable judicial expenses. These control mechanisms are two-fold.
The first control mechanism is the fact that in order for any judicial expense to be reimbursed, it has to fit within one of the four expense categories provided in the Judges Act. The second control mechanism results from the audit function provided by the Commissioner for Federal Judicial Affairs and the Registrar of the Supreme Court. The commissioner and the registrar will not allow a claim unless the expense falls within one of the statutory categories and conforms with the commissioner’s practices and guidelines in terms of both the appropriateness and the reasonableness of the expenses.
My second point is that the proposed expense publication regime is unsuitable for judicial expenses and raises profound concerns for all judges, but particularly for judges serving on national courts who are required to travel extensively.
Let me speak about judges serving on national courts for a moment. I refer here to the Federal Court, the Federal Court of Appeal and the Tax Court. Those judges must travel extensively because they sit on cases across the country, even though they are required by law to reside in the National Capital Region. As a result, they incur significantly higher expenses than their colleagues at courts that do not require such extensive travel.
Even among judges of national courts, some will travel more than others as a consequence of assignment decisions by their respective chief justices.
Honourable senators, it is grossly unfair, and it is, in my submission, unacceptable that the burden of standing out from the lot by reason of high travelling expenses, be borne by an individual judge as opposed to the court to which he or she belongs. It is an institutional burden, and it should be borne by the institution.
As can be seen, the fundamental defect of the model in the bill is the attribution of specific expenses to named individual judges. Considering the nature of the judicial function, the potential for mischief in the use of publicly available individualized expense information is enormous and, I submit to you, must be avoided.
Senator Joyal expressed concern during the hearings of this committee on October 3 and it is a concern that we share, that if people start comparing individual judges and their different expenses, this could—and in my submission, it likely would—result in undermining public confidence in the judiciary. And that directly engages the principle of judicial independence, because as Senator Joyal pointed out on October 3, that principle has not only an individual dimension—the ability of a judge to determine a dispute free from outside influence—but also an institutional dimension, requiring the courts to be free to function independently of interference by other branches of government that risks undermining the autonomy and the credibility of the judicial branch.
The second defect I want to bring to your attention is the glaring fundamental constitutional defect in the safeguard clause at clause 90.22 of this bill. That measure, coupled with clause 90.24, proposes to give to the commissioner and the registrar final say on the question of whether the principle of judicial independence could be undermined by publication.
The registrar and the commissioner are members of the executive branch. It is not acceptable from a constitutional perspective to give them the responsibility to make a final determination of such a question.
I come to my third point, which proposes solutions to the problems identified in my first two points.
Judges have nothing to hide in relation to judicial expenses and the important objectives of the bill can be achieved by other means that do not violate judicial independence.
The commissioner and registrar could publish expense information according to the categories of reimbursable allowances set out in the Judges Act and according to each court. For example, it could be made public that, in the first quarter of the year, X number of judges of the Ontario Superior Court of Justice spent Y dollars as a whole on conferences while judges of the federal court spent X dollars as a whole on travel.
In our written submission, we have included a sample table that shows how the aggregate information could be published. The association and the Canadian Judicial Council have agreed jointly to propose this compromise, whereby expense information is provided in aggregate form, without attribution to individual judges, but with figures on a per judge and per court basis for each category of expense.
Insofar as the safeguard provision in paragraph 90.22 is concerned, the association proposes that the Chief Justice of the court concerned determine whether publication of certain expenses could interfere with judicial independence. Alternatively, if the committee wishes to promote harmony in the approaches of the various chief justices to that exception in the statute, the determination can be made by a panel of three chief justices.
Honourable senators, I conclude by saying that I have tried in these brief oral remarks and in the written submission you were provided with to articulate some of the reasons why Bill C-58 is of profound concern to the judiciary. The publication regime, as it would apply to judges, is constitutionally defective. It is nearly certain that if left unchanged it will attract an immediate constitutional challenge calling on judges to adjudicate on whether this regime violates judicial independence.
I urge you to consider the points that I have made today carefully and to propose that the changes we have suggested be made to the bill.
I thank you for your attention, and obviously remain available to address any questions you may have.
The Chair: Thank you, Mr. Bienvenu.
Norman Sabourin, Executive Director and Senior General Counsel, Canadian Judicial Council: Honourable senators, thank you for the invitation. I represent the Canadian Judicial Council, which is made up of the 39 chief justices and associate chief justices of superior courts in Canada.
Council and the association speak with one voice on Bill C-58. Respectfully, we believe the proposed legislation is flawed. If adopted in its current form, as Mr. Bienvenu has said, there is no doubt it will be challenged before the courts.
I will briefly highlight two major concerns for the council, and I will propose solutions to those concerns.
First, the bill recognizes potential infringements on judicial independence since it includes an exception clause for cases that might affect judicial independence, but the mechanism provided is insufficient to determine the circumstances under which proactive disclosure could be problematic. Our solution is simply to invest the council with that authority, and we have proposed wording that reiterates section 73 of the current Judges Act, which pertains to the appointment of the commissioner for judicial affairs. The council is of the opinion that a committee, the majority of which is chief justices, would be an ideal mechanism to exercise the power currently set out in clause 90.22.
Second, for reasons that should now be clear, council is of the view that the disclosure of expenses associated with named, individual judges, will seriously undermine public confidence in the judiciary.
I don’t want to be repetitive here. You have heard Mr. Bienvenu and you have seen the submission by the council, but judges cannot defend themselves publicly, and judges have little or no discretion in the assignments they are given or in the courses they are required to attend. Therefore, comparing the expenses of individual, named judges will only result in the public questioning of expenses for which they have little or no discretion.
Further, we believe there is a serious risk that access to justice will be compromised, especially in remote areas of the country — not only for the national courts but also for courts in other countries that have a vast territory to cover. I mention, for example, the Court of Appeal of Alberta, which must travel to the Northwest Territories and Nunavut.
We propose that disclosure take place in an aggregate manner for each and every Superior Court across Canada. Council and the association are of the view that this solution will achieve the public objectives of transparency, while fostering continued public confidence in the judiciary.
Thank you, Mr. Chair.
The Chair: Thank you, Mr. Sabourin.
Senator Boisvenu: Welcome to our two lawyers. Mr. Sabourin, I would like you to comment on two observations in your brief.
The first is as follows, and I quote:
Council is of the view that the provisions of the bill are problematic because, fundamentally, they would erode public confidence in the judiciary.
How would they erode public confidence?
Mr. Sabourin: Litigants expect very strict controls over public funds. The difficulty for the judiciary, as Mr. Bienvenu stated, is that judges decide on matters that nearly always make some people unhappy. At the council, I am responsible for receiving complaints against judges. There were 700 complaints last year, 500 of which were rejected at the first level because they were unfounded. Those complainants are not happy. Sometimes they create blogs or websites and make up stories about judges. I think people will try to use financial information related to judges to make them look bad, even if the judge was assigned to a court by their chief justice or was required to attend ongoing training, in accordance with Canadian Judicial Council policies.
As a result, comparing judges’ expenses undermines litigants’ trust in judges, who in addition cannot defend themselves. This is problematic and the most undesirable aspect of the bill.
Senator Boisvenu: The other comment you made, also today, is as follows, and I quote:
There are other, unintended negative consequences that would affect the proper administration of justice, including those related to security.
Can you clarify this please?
Mr. Sabourin: Superior courts and the Federal Court have concurrent jurisdiction over national security. National security cases are difficult to manage. I assume that, under certain circumstances, the judicial independence exception could apply. Managing judges who have to hear those national security cases could become very complicated if the expenses of those individual judges are later published. I am not an expert on this, but I know that Chief Justice Crampton and Justice Noël, of the Federal Court, are very concerned about this.
There are also issues related to the personal safety of judges. Judges could take measures to try to protect information that could be used to jeopardize their safety. That information might identify their usual travel routes and where they typically stay. We must remember that judges are often targeted as a result of the difficult decisions they make.
Senator Boisvenu: Mr. Bienvenu?
Mr. Bienvenu: I would remind you that the Canadian Bar Association stated in its brief that, considering the information that would be disclosed under the regime proposed here, on top of the information available to the clerk, and considering that judges have travel habits, this raises concerns. A number of members of the association were concerned about safety issues when they saw the provisions. In addition to this information, if you consider the information available about cases being heard and the judges who hear them, this might make it possible to identify their travel habits.
The Chair: Would you not consider the case of Justice Garon, who was murdered by a person whose case was the subject of a previous decision, as an example of those safety issues?
Mr. Sabourin: Mr. Chair, you are entirely right. We miss him a great deal, a man who was murdered for doing his job by someone who was angry about his decision on a tax case. So you can imagine what happens in child custody or criminal cases. As Mr. Bienvenu said, judges are worried about their personal safety. I do not want to overstate this, but surely some measures can be taken for judges’ protection. In its current form, it is hard to imagine that a person determined to find that information could not do so.
Senator McIntyre: Thank you for your presentations. Mr. Bienvenu, in your brief and in your presentation you stated that the registrar or commissioner is required to review all judicial expense claims to determine whether the expenses submitted are reasonable and in accordance with the guidelines published by the offices of the registrar and the commissioner.
Can you elaborate on those guidelines? What are they and how are they adopted? To your knowledge, do the offices of the registrar and commissioner use the same guidelines? If not, why not?
Mr. Bienvenu: I would like to say first that I believe the commissioner will be appearing before this committee. He would be the best person to tell you about his practices. That said, I can tell you that, for each category of expenses set out in the act, there are practices or guidelines, or both, that guide judges and the commissioner’s staff in processing expense claims.
I can tell you, and the commissioner will confirm this when he appears, that the expense claims submitted are carefully and rigorously audited, which, in my view, assures Canadians that the purpose of the act is achieved as regards accountability. It is not a question of transparency, but accountability. As a result, the regime set out in the bill duplicates existing measures. In terms of accountability, those existing measures assure Canadians that such expenses are strictly controlled.
Senator McIntyre: As you already said, rigorous measures are already in place.
Mr. Bienvenu: Exactly.
Senator McIntyre: I would like to talk more about the guidelines. Have there been cases or expenses that were approved by the chief justices which, upon review by the registrar or commissioner, were considered unreasonable or incorrectly incurred? If so, what happened in those cases?
Mr. Bienvenu: I cannot answer that question. I do not know the answer.
Senator McIntyre: Mr. Sabourin?
Mr. Sabourin: As Mr. Bienvenu said, Mr. Giroux will be appearing before the committee next week and he will be able to answer. I can assure you though that it is not necessarily unusual for certain expense claims to be denied.
If the guidelines are not followed, the commissioner asks for explanations, for accommodations and air fare in particular. As to the guidelines, which are developed jointly by the commissioner and the association, they are comparable to Treasury Board’s guidelines for senior public servants.
The Chair: I think part of your question will definitely be discussed with the commissioner, whom we will be pleased to welcome next week.
Senator McIntyre: Exactly. Thank you, Mr. Chair.
The Chair: Thank you.
Senator Dalphond: I have four quick questions. First, you said the judiciary was not consulted in this process. Minister Brison and Minister Gould told us that the judiciary had been consulted, not by them but by others. In any case, perhaps we will have the opportunity to hear the minister of justice tell us that she was consulted.
If there was no consultation, I have trouble understanding how clause 90.25 of the bill, which exempts the 39 chief justices and associate chief justices from the act. Why does the entire regime apply to justices but not chief justices, who are also members of the Canadian Judicial Council?
Mr. Sabourin: First, I can confirm that justice department officials did meet with me and members of my team to discuss possible amendments to the Access to Information Act. We were not consulted by Treasury Board officials, but by justice department officials because, at the time, we did not know what the bill that is now in effect would contain.
With justice department officials, we discussed the idea of the Canadian Judicial Council being subject to the Access to Information Act in roughly its current form, which the council strongly opposed. First, we considered that the council often develops policies that the government does not necessarily agree with and that, if we were developing policies within a department, the minister would grant an exemption.
It is clear that the minister cannot grant exemptions to the Canadian Judicial Council because she is not informed about what is happening. We were adamant about the need for an exemption for the Canadian Judicial Council for all aspects of its substantive work relating to policy development and the awarding of contracts for professional services.
Suppose, for example, that we want to hire an expert on the ongoing training of justices in order to develop new policies. If we have to disclose who the expert is, the kind of work they will be doing and the cost, we believe that would interfere with the council’s administrative independence in managing such an undertaking.
We also maintain that, if the council were an administrative body within a department, it could ask the minister to grant an exemption. On that point, I gather that justice department officials spoke to her about the need for an access to information exemption for the Canadian Judicial Council.
I would agree with you however, senator, that there is probably no fundamental problem with disclosing the council’s travel expenses, for example. In that event, however, it would be very important to disclose the expenses overall and not for individual justices.
Mr. Bienvenu: I would like to elaborate on that answer. As to the origin of the provisions we are discussing, you will see that the information commissioner’s 2015 report suggested that the bodies that support the courts should be subject to the act.
This recommendation was included in the prime minister’s mandate letters for the Minister of Justice and the President of the Treasury Board. This does not include individual justices or the judiciary. It refers instead to the office of the commissioner and the office of the registrar as the chief administrator—and this is clearly spelled out in the commissioner’s 2015 report.
Mr. Sabourin: The chief administrator of the Courts Administration Service.
Mr. Bienvenu: Exactly. So that was the original intent. I would say that the idea of making individual judges subject to the proactive publication regime came as a great surprise.
The Chair: In other words, it was supposed to apply to the bodies that report to the executive branch?
Mr. Bienvenu: Exactly. The three bodies that support the judiciary. Extending the act to the individual justices in question, however, is incomprehensible and, to my knowledge at least, not supported by any evidence.
Senator Dalphond: We talked earlier about the provisions in the bill being consistent with constitutional principles. If I understand correctly, you would be agreeable to amending the bill so that any exemptions that are needed to preserve the independence of the courts are the responsibility of the chief justices rather than the commissioner for judicial affairs or the Supreme Court registrar.
I would point out that, pursuant to clauses 71.12 to 71.14, the Speaker of the Senate and the Speaker of the House are responsible for exemptions owing to parliamentary privilege. According to the principle of symmetry, however, matters that fall under the authority of the institutions and their privilege are the responsibility of those representing those institutions, since we know that chief justices are representatives of their institutions rather than the boss of the judges, given that all judges are independent.
That might be a solution, and the suggestion you are making would be consistent with what the legislator is proposing as regards the House of Commons and the Senate.
Mr. Bienvenu: You are absolutely right. We had not raised the striking lack of symmetry between the solution adopted for the House of Commons and the Senate, where the speaker is responsible for deciding on the exemption, whereas, in the case of judges, this responsibility falls to an official who reports to the executive branch.
So there are two problems: the asymmetry and the fact that, in the case of judges, this conflicts with the principle of judicial independence.
The Chair: Do you have a final point, senator?
Senator Dalphond: I am not sure whether my question is for the commissioner or our other witnesses. Although I know the answer, I would like an explanation of the fees for judges’s conferences. Judges can attend two types of conferences. Some are organized by the National Judicial Institute, which are open to judges only, and others are organized by other bodies such as the Canadian Bar Association or the International Bar Association. Judges have to pay the registration fees. When they attend National Judicial Institute conferences, on the other hand, they know there are registration fees, but they do not know how much they are.
For the information of committee members, clause 90.21 requires each judge who attends a conference to claim the expenses incurred. I wonder whether judges are able to make such a claim since they do not know the cost of the conference.
Mr. Sabourin: That’s quite right, senator, you are entirely correct. We know that your experience will have enlightened you on this. Most of the continuous learning conferences judges take part in are authorized by and developed under the authority of the Canadian Judicial Council. The commissioner directly refunds the organization concerned under the authorization of the CJC. That means that the judge does not even know how much the training costs.
He or she may be obliged to take the course. It could be a course offered in the context of the annual conference of the court he sits on. His chief justice may say to him: “If you want to preside over trials in criminal court, you will have to take the criminal proceedings course.” It could be a new judge who must take part in these conferences during the first five years of his career.
So it is unfair to allocate expenses to a judge over which he or she has absolutely no discretionary control. There’s a fundamental problem there. The judiciary wants to be transparent. The council recently published a list of all of the courses we authorize, and we would be very happy to see more transparency around all of the costs related to professional training, which are rigorously controlled, we feel, in close co-operation with the commissioner.
The Chair: Thank you.
Senator Pratte: Your arguments are quite convincing. My professional journey taught me that we have to be careful about the words we use like this. The solution you are proposing isn’t really about transparency. You can say to the population: there are control mechanisms, don’t worry, this is well managed, there will be a collective transparency. That is not transparency. The question we need to ask ourselves is this one: is the status of judges such that we cannot impose real transparency on them? I think that is the question we have to ask ourselves.
Allow me to explore a few avenues with you. I understand your point of view that the judicial independence exception clause should be managed by the chief justice or a committee of chief justices. However, one of the main arguments against transparency is the fact that judges cannot defend themselves publicly, as opposed to an MP or even a public servant. Isn’t it up to the chief justice to do that? Can we imagine a scenario where all of the judges’ expenses are made public, even on an individual basis, and then it would be up to the chief justice to come to a decision about exceptional cases, and to come to the defence of judges when they are treated unfairly?
Mr. Bienvenu: Senator, I totally subscribe to your analysis, with one exception. I admit that the regime we are proposing is less transparent than the one that applies to parliamentarians. The smallest unit of expenditure disclosure is not linked to a judge who is identified by name. The question, as you said quite rightly, is this: for judges, are there reasons that justify making an exception?
But there is some transparency. If you look at page 9 of the brief we submitted to the committee, in the proposed disclosure model, you have a number of judges and claims. So there are a number of individual pieces of information. The only difference is that an individual amount is not directly linked to a named judge.
The question you identified is the question we must ask ourselves: are there imperative reasons inherent in the judicial function that mean that expenses should not be linked to a particular judge’s name? I submit that there are several reasons why that should not happen. I outlined some of those reasons: the possibility that some parties who are dissatisfied with a particular judgment may make use of some of that information to seek revenge; more generally, the idea of comparing judges on the basis of their expenditures would systemically undermine the public’s trust in the administration of justice. That said, I agree with you that although there is some transparency involved in our proposal, it is not total, as in the case of parliamentarians.
Senator Pratte: I have a brief legal interpretation question, because you know this area better than I do. In your interpretation of clause 90.22, if we replace the commissioner and the registrar with the chief justice or a committee of chief justices, could we use that article to systematically exempt judges from disclosure? Or, depending on how the clause is worded, could that be done only in exceptional cases?
Mr. Bienvenu: You raise a very important question. It would be regrettable if, for reasons they deem imperative, chief justices authorized an exception to obviate the proposed system, basically. It is your responsibility to indicate that in those cases, there is no point having such a system, so that the exception will remain an exception.
I think that is a very important question. Disclosure must be excluded when the system is designed, because there is a risk of broadening an exception, and causing more criticism which would be well-founded in that case.
Mr. Sabourin: I would like to add that, in its current form, the bill means that the commissioner is going to have to ask himself that question. If the bill were passed as is, the Commissioner for Federal Judicial Affairs would surely be asked to exclude a category of expenses to safeguard the independence of the judiciary. This is a fundamental issue.
If disclosing judges’ individual expenses jeopardizes the independence of the judiciary, which exists for the benefit of the population, there is a problem at the outset with that exception, which should perhaps be interpreted more liberally.
Senator Pratte: Thank you.
Senator Pate: Thank you both for attending. You’ve talked a fair bit about the manner in which these proposals would interfere with judicial independence and separation of powers, as well as the one named example of the potential risk danger.
I’d be interested in what your views are in terms of some other issues that I’ve heard about from others, which have to do with issues this committee has looked at in the past — access to justice and delay issues — and some suggestion that these kinds of provisions may result in some judges making requests to their chief judges not to be the ones travelling so as not to be named as one spending, and potential for it to limit the number of venues in which tax courts or a Federal Court might sit.
Is that an issue that has been raised with you? If so, how would what you’re proposing assist that? Do you have other recommendations about how to address the issues?
Mr. Sabourin: Senator, if I may, the point you make is of great concern to several chief justices who feel that, for example, in assigning the best judge for a type of criminal case or a type of refugee case, they may have to repeatedly assign a certain judge to go to a certain court, perhaps from Ottawa to Vancouver, and suddenly that judge is the highest spender in the country. Next time, that judge may say, “You know, chief, I don’t want to be in the papers again in three months’ time. Maybe someone else should go.”
The chief will feel a dynamic exists and feel restrained in how he or she assigns the best judges to cases.
The solution we propose for disclosure in the aggregate relieves that difficulty and eliminates that problem of individual assignments by chiefs. No court has a problem with aggregate disclosure, including the national courts. Canadians, I think, understand we’re a big country and it costs money to travel, but the idea of having a named individual judge is highly problematic.
If I may, and I hope I’m not taking too much time, on an earlier point, we talked about the individual costs of which judges are not aware. The bill seems to assume that all the reimbursements are paid further to individual claims made by judges, and that is not the case. There is a real problem in how to assess the individual cost to a named individual judge.
I’m probably not explaining it very well, but it’s a key problem in terms of individual association, because many of the amounts paid are paid on a global basis rather than an individual basis.
I’m sorry I diverted from your original question, senator.
Mr. Bienvenu: Senator, you asked your question in relation to judicial independence, and the lawyer in me cannot resist but to point out that the assignment power of Chief Justices has been held to be protected by administrative independence, which is one of the three core characteristics of judicial independence. So there is authority for the proposition that the assignment decision of a judge is covered by the administrative independence characteristic of judicial independence.
So I would submit that a measure that indirectly — but very tangibly — interferes with the assignment of judges, such as this one, raises a real problem.
Senator Pate: So you’re suggesting that your proposal would address the issue by having aggregate reporting?
Mr. Bienvenu: Yes, insofar as it does not tie named judges to a given expense. Therefore, you don’t run into the problem that Mr. Sabourin has highlighted, which is that the judge is going to say, “I don’t want to end up on the front page of the national newspaper as a big spender.” That would result from what? From the fact that this judge had to hear a three-month trial in Vancouver in high tourist season? What are we achieving by tying named judges to an expense for which he or she has no say?
Senator Pate: So your response is the same as to the question posed by my colleague Senator Pratte in terms of that potentially being the legitimate purview of the chief justice to explain why the costs would be such?
Mr. Sabourin: On that specific point, I think it would be difficult for chief justices to speak at length about the very nature of the expenses of individual judges. Obviously, chief justices have the duty and the ability to speak on administration of justice generally, but if chief justices are going to have to explain every three months for each court why one judge is the biggest spender because he was assigned for a certain reason, I think that, in and of itself, threatens the chief justice’s ability to exercise their authority to assign judges in the best manner possible for an efficient administration of justice. I think it would become very difficult for chiefs to publicly intervene on the issue of expenses of individual judges.
The Chair: That completes your question, Senator Pate?
Senator Pate: Yes.
The Chair: Thank you.
Senator McCoy: I’m going to be brief because I know we’re running over and I thank you all for your patience. The senators around the table will remember that we’re careful with our own disclosure scheme to take into account the security matter. We did not want the patterns of travel, for example, to be apparent. It took us some time to come up with a solution.
I’m persuaded. I don’t think we have quite as many regular circuits, if I can put it that way, but I know, of course, that courts go on circuits. Every three months they go out on circuit, so it is a difficulty.
I must say, I will reinforce your point about the former Information Commissioner. When she was briefing me personally, she said with some annoyance that she had meant it to apply to the administration and not to the judges. She had meant it to apply to the Senate administration and not to senators. She had meant it to apply to the civil service, including the support staff of ministers, but not to the ministers. That’s verified.
What does trouble me is the lack of performance comparatives. I could talk about key performance indicators or I could talk about benchmarks. I look at your table and I see it’s all somewhat informative, but how do I know how Manitoba’s bench of 31, if those are the three categories shown, stacks up against B.C.?
I’m stretching for some meaningful information to say the judges aren’t out there sleeping on feather beds, or whatever the expression might be, and I think that’s a legitimate question for the public. I’m very sympathetic to your objections, and I don’t think even your aggregate presentation has quite captured the essence of what might be most useful to protect independence and security and enhance public trust.
Mr. Bienvenu: I would like to mention something that I believe partially answers your question, though I acknowledge that it doesn’t provide a full answer. That point is that there is an independent body called the Judicial Compensation and Benefits Commission provided by the Judges Act, which is entrusted with the task, every four years, to inquire into the adequacy of judicial salaries and benefits.
The jurisdiction of the commission extends to the adequacy of the allowances provided for in the Judges Act, particularly those that are capped, like the incidental allowance and the representational allowance of chief justices and associate chief justices.
So there is a mechanism for government, because government appears before that commission, as does the judiciary. There is a mechanism to — “benchmark” may not be the best term — verify the adequacy of these expense categories and the caps that are fixed for these expenses.
Senator McCoy: That might be a starting point, as well. I would encourage you to be creative.
Mr. Sabourin: The aggregate disclosure of costs will provide something very useful to the public and parliamentarians alike and it is the ability to compare global costs with global costs for parliamentarians and for public servants. That would be an appropriate comparator. Because the guidelines are very similar to those set by Treasury Board, I think you will get comfort from knowing that they are similar in scope and in their nature.
The Chair: Thank you.
Senator Boisvenu: Self-analysis causes dismay, but comparisons will console you, as they say. In other countries like the United States, where judges are elected, is there more openness and transparency when it comes to disclosing information, as the bill proposes to do? Is there more transparency in the United States or England, where the system is similar to ours? Are we more closed here? What does our situation look like if we compare ourselves to other countries?
Mr. Sabourin: I can speak about the United Kingdom, briefly. They put in place a disclosure system which is similar to what they put in place for public servants. They applied the system for five or six years. The government decided to retire the disclosure regime, and said that it did not add much, and that the amounts involved were always more or less known in advance. All that this did was that every three months, people knew that Mr. Justice X was the one who had spent the most. It was not the judiciary that opposed this officially; it was the government that decided to do away with proactive disclosure. I cannot speak about the other countries, but in that case, they ended it.
Senator Boisvenu: And what about the United States?
The Chair: In the United States, where judges are elected, are expenditures disclosed to such a high degree of detailed transparency?
Mr. Bienvenu: The big concern in the United States as regards the disclosure requirement imposed on judges is to prevent conflicts of interest. Judges are asked to disclose their assets and possessions. The disclosure requirements are set with a view to preventing conflicts of interest. Expenditures are disclosed, and I say that with the usual reservations, but certainly not to the level of detail that is required here.
In fact, in all of the jurisdictions where to my knowledge there is or was a certain requirement to disclose expenses, such as Ireland, the United Kingdom, Wales and New Zealand, the disclosures are more aggregated than those being considered here.
Senator Boisvenu: Would it be worthwhile to hear some constitutional experts on what protections might apply to judges, should this bill have an unconstitutional dimension?
Mr. Sabourin: That couldn’t hurt, and the chief justices in this country are concerned about that aspect. It’s not just clause 90.22, but also the overall adverse effect this could have on public trust.
Senator Dalphond: It was a suggestion to the chair. I wonder if we could obtain from the witnesses the documentation they have on New Zealand, England and Ireland, the three countries you referred to?
Mr. Sabourin: Certainly, yes.
The Chair: I think that on page 6, Mr. Bienvenu’s brief refers to the constitutional issue underlying Senator Boisvenu’s question. On page 6, second paragraph, in the second third of the paragraph—you must certainly have it to hand, Mr. Bienvenu:
Moreover as a matter of constitutional law, a measure that indirectly though tangibly interferes with the assignment of judges would most likely be found to encroach on administrative independence one of the three core characteristics of judicial independence, the other two being security of tenure and financial security.
And you give the reference of the famous P.E.I. case, Reference re Remuneration of Judges of the Provincial Court (P.E.I.), 1977 Supreme Court decision, which is the classical case quoted in all the constitutional law courts and the Canadian faculty about the three pillars of judicial independence.
The problem with this bill, in my humble opinion, is that it impinges on the first principle, which is the administration of the justices by the justices, as much as we as parliamentarians have the privilege to administer our own affairs, take into account our own disciplinary matters, and generally determine our procedure over deliberative and legislative functions of each house of Parliament, and so much for the legislature.
This is where the major issue, in my opinion, lies, on the basis of the jurisprudence established by the P.E.I. case of the three foundational principles of judicial independence.
I don’t want to testify, but it seems to me that if we are to hear any witness, as Senator Boisvenu or Senator Dalphond have mentioned, it would be on the understanding of the scope of the judicial independence based on those three principles.
I am grateful, Mr. Bienvenu, that you mentioned it. The bar has referred to it generally, but I think you have put your finger on what is essential for this committee to decide upon, as I would say, a prima facie case of encroachment on a constitutional principle as important as judicial independence.
Mr. Bienvenu: Correct, Mr. Chairman. When I answered Senator Pate and said that the assignment of judges had been held to fall within administrative independence, I meant to refer to the second case cited in that footnote, which is the Valente case. It is confirmed there and in other cases that the assignment power of judges is protected by judicial independence. And it makes eminent sense, doesn’t it?
The Chair: Of course.
Thank you, Mr. Sabourin and Mr. Bienvenu, particularly Mr. Bienvenu, since you managed to break the sound barrier and extricate yourself from downtown Montreal to arrive in Ottawa in time for our hearing this afternoon. I speak for all of my colleagues when I thank you for making yourself available and for contributing to our study of these crucial provisions in Bill C-58.
M. Sabourin: Thank you.
M. Bienvenu: Thank you.
(The committee adjourned.)