Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue No. 55 - Evidence - February 20, 2019
OTTAWA, Wednesday, February 20, 2019
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 study the bill and consider a draft agenda (future business).
Senator Serge Joyal (Chair) in the chair.
[Translation]
The Chair: Honourable senators, I now call this afternoon’s meeting to order. I am pleased to welcome you today to the Standing Senate Committee on Legal and Constitutional Affairs for the study 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.
In previous meetings, we heard from witnesses who mentioned the implications of the principle of judicial independence. Before the committee concludes its study,
[English]
— we thought it would be appropriate, following the suggestions from senators on both sides of the table, to hear two witnesses this afternoon: Professor Karen Eltis, Faculty of Law, University of Ottawa University; and Professor Trevor C.W. Farrow, Professor and Associate Dean (Academic), Osgoode Hall Law School, York University.
We will start with Professor Eltis. Welcome, professor. We will listen to you in the first part of our meeting, and then, of course, we will have an opportunity to engage with you on the issue of judicial independence. The floor is yours.
[Translation]
Karen Eltis, Professor, Faculty of Law, University of Ottawa, as an individual: Thank you very much, honourable senators.
[English]
Thank you for this opportunity to appear before the committee.
[Translation]
Even though I am not there with you, I appreciate the committee’s invitation to provide my perspective.
In my research, I focus on the impact of new technology on courts and democratic governance. My most recent book is entitled Courts, Litigants, and the Digital Age, so it is quite fitting that I was asked to speak to this issue today. Thank you for the opportunity.
[English]
I’m privileged to speak on judicial independence as it specifically regards the proposed changes referred to. First, it is imperative to recognize that the bill is praiseworthy in its purpose because it does address an essential objective, which is transparency.
That said, proactive disclosure — when it comes to judges — can only be understood in the context of the foundational principle of judicial independence, which, as Dean Dodek and others have said, links to values such as diversity, social context and judicial education. The latter I’m familiar with having served on secondment as senior adviser to the National Judicial Institute and having been involved in judicial training.
No less, I submit, must the principle of judicial independence be understood in the context of modern communications and the digital realm. Indeed, the peculiarities of the Internet age or digital realm, as the silo news phenomenon has confirmed, can unrecognizably decontextualize and distort information which is presented with the best of intentions. And the digital age can have the most Sartrean of unintended consequences.
Therefore, and I will enter into greater details, it follows that proactively exposing individual judicial expenses — l’individualisation des dépenses — risks grave unintended consequences, including, but not limited to, security considerations, shaming and harassment, and may impinge on judicial education in a manner that I submit is especially magnified by the Internet and our communications age.
Let me take a step back and begin by quickly highlighting the fundamental aspects of judicial independence and then talk briefly about the digital age that I’ve referred to. I know that much has been said by others, so I will only highlight a quick passage from a paper that Professor Fabien Gélinas of McGill and I wrote on the point of judicial independence and the unwritten principles that surround the written ones.
The power and legitimacy of judges are anchored in the public’s trust — the public’s perception of and faith in their ability to decide impartially and disinterestedly, shielded from inappropriate external influences and political pressures. Accordingly, certain rules and understandings must be in place for the purpose of insulating the judiciary from politicization and protecting it from both the reality and the appearance of improper influence . . . .
These, of course, take the forms of the Constitution and legislation, but also conventions and unwritten principles, with judicial independence having three components and two dimensions, which I’m sure you’ve heard much about. The three components are, of course, security of tenure, financial security and administrative autonomy. The dimensions — and this is important — are both, of course, individual and collective.
So the influences that judicial independence is meant to shield judges from operate, as Russell had said, at a level far more subtle than the threat of removal. This is where I hope that the digital age context will prove useful in the reflection process and the subtle influences on judicial independence.
A crucial component here, of course, is administrative decisions. Here, the individualized expenses being disclosed in the digital age can, perhaps, cause a judge to stand out individually for a random reason. Perhaps a judge has sought out judicial education and, therefore, inadvertently will stand out.
With your permission, I focus on a dimension that is the area of my research, and that is the topic of concern; namely, the digital age and how judicial independence, understood in that context, impacts on the proposed changes and on the proactive disclosure.
I think it’s very telling to look at what happened with the publication of court documents. The Canadian courts wanted to be proactive and put everything online in order to favour the principle of transparency, and they did. The open court principle was at the core of the considerations until a case called A.B. v. Bragg Communications Inc., where the Supreme Court of Canada unanimously recognized the unintended consequences of this, by analogy, proactive disclosure, which was essentially that by putting court records online, unlike having them available in paper form as they were in the past, it would expose individual litigants to potential humiliation, thereby dissuading them from availing themselves of remedies that they would otherwise seek out.
So initially courts thought, “Let’s put everything online because the open courts principle may outweigh individual privacy.” But then they recognized, in A.B. v. Bragg Communications Inc., a landmark decision, that there was a collective dimension: the value of access to courts, and that people, by having their individualized information online, might be dissuaded from seeking out justice, particularly vulnerable populations.
Therefore, the proactive disclosure, so to speak, of court records needed to be limited because of the particularities of the Internet, where people are exposed to shaming a fortiori, all the more so with individual judges. For our purposes, judges can be targeted and vilified. They cannot talk back due to the duty of reserve. Therefore, there is a concern that proactive disclosure may inadvertently, though that’s not the intention, compromise judicial independence in terms of the perception of impartiality individually and collectively and may, in the digital age, create greater misinformation because, as we’ve seen — and I’m happy to delve deeper into this — in the Internet age, more information does not necessarily mean better information.
In fact — this is a slight tangent, but hopefully useful — research reveals that, due to the nature of algorithms, the more extreme a view is, the more likely that view is to be propagated and spread online. So the marketplace of ideas is difficult in the Internet age. Decontextualized individualized data may fall prey to misrepresentation and spread uninhibited, thereby gnawing at the rule of law and judicial independence because it may, on a collective level, convey a mistaken impression of the judiciary.
On an individual level, it may expose a particular judge, at an extreme, to shaming, humiliation and potentially beyond. It could also, at a very basic level, create misinformation. The proverbial lie, in the Internet age, can make its way halfway around the world before the truth can put on its boots. It can confirm biases that may cause people to lose faith in democratic norms, so unintended consequences.
Also, the publication regime unbridled and individualized raises concerns with regard not only to judicial independence, individual and collective in dimension, but equality. Indeed, women’s particular vulnerability to online trolling and cyber harassment, confirmed by recent research, merits special attention. If women are to be attracted to the judiciary rather than dissuaded from it, and if judges, women judges in particular or judges belonging to vulnerable minorities, are to seek out judicial education like their peers in an equal fashion and democratic institutions be protected in that manner, it’s important to highlight that in the digital age, individual women or minorities may be disproportionately targeted. For instance, if a woman judge avails herself of judicial education and finds herself at the top of the list, that may, according to recent research, compromise her individually and have the unintended effect of undermining equality, judicial education, social context and, most obviously, judicial independence.
To sum up, it’s about judicial independence, but also about judicial independence understood in the context of our modern tools of communication in the Internet age, attaining an equilibrium between full and individual disclosure, with individual disclosures having the potential concerns and fears that were highlighted here.
I’m not sure whether the time allotted to me has elapsed, but I will stop here and open myself up to your questions. Thank you for your kind patience.
The Chair: Thank you so much, Professor Eltis. You raised an issue that might have unintended consequences on the whole of bringing information whereby anyone who has some quarrel with the court could use that to really harass people. Of course, you will have an opportunity to expand on that. I already have a long list of customers because you have raised deep interests.
[Translation]
Senator Boisvenu: Welcome, Ms. Eltis. Of course, the role of technology in modern communications is increasingly large. I’d like to hear your take on how that technology affects the scope and substance of the Access to Information Act. We recently learned that senior officials at the Department of National Defence used code words in their electronic communications to avoid the scrutiny of access to information requests. I’d like to hear your view on the broader use of electronic communications as it relates to the Access to Information Act.
Ms. Eltis: Thank you, honourable senator. I focus specifically on how those kinds of changes can affect the judiciary, but clearly, it’s important to understand the act and the bill in the context of the digital age. Communications are ever-changing. When I began my research at the university, about 16 years ago, there was almost no mention of that change. We wondered whether it was a qualitative change or simply a different way of communicating.
Now, these are news-making issues covered by the likes of The New York Times in the U.S. The digital age has changed not just the way we communicate, but also our democratic governance, and to a significant degree. I could speak to that in greater detail, but because of time constraints, I’ll just mention the impact of algorithms, which magnify racist or extremist comments because that is their nature. They capture extremist content. We are witnessing a change in democratic culture. Judges could become targets if their information or spending is made public. In the past, if a disaffected individual spoke out against a judge — and as the research shows, it’s usually female judges being targeted — it would have been exactly that, nothing more than a remark by someone who was disaffected. Now, however, thanks to algorithms, those kinds of comments are given prominence on the Internet, which can build momentum and lead to very harmful consequences for the judge and, by extension, the judiciary and its independence. The form of communication used challenges perception and has an impact on democracy, because democracy is a part of it.
I will end on this point. A.B. v. Bragg, the decision I referred to, highlights something important. Even though the case concerns court records and not this bill, what it underscores is the need to balance the values we care about in the context of the digital age because they could have unintended consequences. Information that is posted on the Internet can lead somewhere other than originally intended, so it’s extremely important to keep that context in mind.
[English]
Senator Gold: Professor Eltis, it’s nice to see you. Thank you for appearing before us.
You’ve written a lot on many different subjects. I wonder if you could elaborate on the link between proactive disclosure and the judicial duty of reserve.
Ms. Eltis: Yes. Thank you, Senator Gold.
This is summed up in a recent article in the National Journal of Constitutional Law. The difficulty becomes that, if we understand the traditional duty of reserve of judges in common law countries and juxtapose that with the digital age, judges are to express themselves only through their judgments. Extrajudicial speech is extremely limited. There are a few rationales for that. Judges must not add or subtract, or be seen to add or subtract, from their previous decisions, which might compromise judicial independence and the perception of the judiciary. So it was generally understood, particularly in countries of common law heritage, that judges must abstain from making public comments, making comments in the media in particular, as modern media was understood.
That was fine in the past in that news came to people generally through intermediaries — the media with editorial oversight. People received their news from TV sources and newspaper sources that reported in a regulated fashion, certainly with a degree of civility, on the decisions of judges. That reconciled well with the duty of reserve.
Enter the digital age, when most people — and certainly those younger than me — rarely look at traditional media sources but in fact are given tailored news or receive their news from social media, from the Internet. Often that news is curated. As I say, algorithms tend to magnify extremist content. So if there is misinformation on the Internet, as is often the case with the nature of algorithms and lack of editorial oversight, that misinformation tends to be amplified.
As I mentioned, very often attacks — and we cite in the article some very unpleasant evidence with regard to women judges in the United States and elsewhere who are especially targeted for vilification online. It begins with one disgruntled litigant, for whatever reason, and that is magnified. The judge, due to this duty of reserve, cannot express themselves in defence or deny those allegations, if there are allegations or comments, often violent comments. Not only that, but the Internet is not structured the way traditional media is, so a judge may be unaware of that until it is captured for security reasons and the like.
In the article, we discuss with a judge — with whom I am co-author — the duty of reserve and judicial expression in the digital age and whether, with the nature of expression changing and judges being exposed on an individual level to vilification and threats and on a collective level as a judiciary, risking bringing individual justices and themselves into disrepute.
Specific to this proposal, in light of all that has been said, the concern is that if you individualize judicial spending and post it, and that information is available to all, it is possible and, indeed, probable that an individual judge will stand out. Perhaps this is only because he or she availed themselves of judicial independence or because his or her Chief Justice deployed them further from their home, where they sit to hear a case, which is within the purview of the Chief Justice. But for some reason, that judge will find his or her way on top of the list and will stand out as being a spender, which is decontextualized — it doesn’t account for the fact that the judge only sought out judicial education or was deployed — and that piece of data, disembodied, will show up online, thereby causing the judge to be a target. The judge, due to the duty of reserve, cannot defend him or herself, and that misinformation spreads, thereby compromising judicial independence and individual collective dimensions, as noted.
It’s a long article to sum up, but hopefully that sheds a little light on the particular dangers of individualized disclosure in the digital age when married with the duty of judges to abstain from making comment and their limited expression.
The Chair: Thank you, professor. I will ask you to try to synthesize your answers. There are many senators who wish to ask questions, and I know you have to finish at 5:15. I’m looking at my watch, and I want to give an opportunity to everyone to conclude.
Senator Gold: I have a brief follow-up. It’s almost a yes or no answer.
You and others have suggested changing the proactive disclosure from individual to aggregate. Would that be sufficient to address your concerns with this aspect of the bill?
Ms. Eltis: That might be a reasonable compromise, yes.
[Translation]
Senator Carignan: Welcome. This is a fascinating discussion. You’re saying that proactively publishing individualized information on judges’ spending has the potential to turn judges into targets for the media, individuals and lobby groups. It can put them in an uncomfortable position and perhaps even jeopardize their safety. I understand all that, but isn’t that par for the course for judges? Every time they render a decision against an individual, for instance, convicting someone of murder or ordering them to pay a large sum of money, don’t they risk becoming a target or jeopardizing their safety? Isn’t that a possibility anytime they render a decision that someone doesn’t like? Don’t you think there are worse situations, but they are accepted because of the nature of the position and therefore do not undermine judicial independence?
Ms. Eltis: Thank you. This is why I talk about the digital age. The Internet exacerbates the situation. You’re right that there are risks. I talk a lot about cybersecurity, and I tell people to use passwords. If hackers want access to your information, they may get it regardless, but if you don’t have a password, it’s akin to leaving your front door unlocked. You’re easy prey.
Because of the digital age, commonly available information has been taken out of context and made more accessible, and as a result, the quality of the information decreases. Yes, then, it’s true, and it happened in the A.B. v. Bragg case. It was argued that, if someone wanted to find a litigant, the information was available regardless. That is true, but the digital age exacerbates the situation, because it’s not necessary to go out and find the individual; all someone has to do is search online from the comfort of their living room. It is possible to find the individual easily, or even inadvertently, in a way that is decontextualized, thus making them an easy target.
In our article, we talked about the notion of “mob justice” online. People have been attacked because someone tweeted that they were this or that type of criminal. Information didn’t use to spread as quickly. It’s not information I’m worried about; it’s misinformation, in other words, decontextualized information about a judge who wanted to take social context training. All of a sudden, they find themselves at the top of the spending list and someone on the Internet remarks on how much they are spending, without knowing that the money was used for training, as required by the rules or the chief justice. When that kind of decontextualized information spreads on the Internet, we see the mob justice phenomenon occur. That is why the major platforms try to limit the number of times information can be passed on. On WhatsApp, for instance, users can no longer send information to the same number of people as before because of mob justice fears. The risk is qualitatively exacerbated.
The Chair: Go ahead quickly, senator.
Senator Carignan: I’ll be very quick. New section 90.22 and subsequent sections provide some discretion to determine whether the publication of information could interfere with judicial interdependence. Do you think the provisions, as they currently stand, are enough to protect judicial independence and ensure that the bill would pass muster in the event of a court challenge?
Ms. Eltis: Since you’ve asked me to be concise, something that is hard for me, I’d say no, they aren’t.
Senator Carignan: Why?
The Chair: Why do you think they aren’t enough?
Ms. Eltis: I’ll try to answer without going into too much detail. When it comes to administrative independence, in particular, chief justices need a fair bit of flexibility. For example, if a chief justice worries that they can’t send judge X somewhere for important training — the courts have been in the news recently for all kinds of reasons — it hinders the administrative flexibility chief justices and the courts, in general, have. It impinges on their flexibility too much. The safeguards are not enough, especially in light of the concerns that the digital age raises.
I cited an article passage earlier, in reference to unwritten traditions and principles and political influence, which operate on a subtle level. I was talking about the potential influence on the discretion and assignment of judges, even without their consent or knowledge. The safeguards are not sufficient given this principle of independence, particularly at the administrative level.
[English]
Senator McIntyre: Thank you, professor, for your presentation and your brief.
I think we can all agree that the time will come to carefully revisit the doctrine of judicial silence. However, as you also indicated, in order for that to happen there must be judicial training and guidelines to know what is permissible and what is not. That said, what can be done about judicial training in this regard? What kind of guidelines should be put in place? And, speaking of guidelines, can you give us examples?
Ms. Eltis: Thank you, senator. I don’t know if the article was circulated amongst the honourable senators. I cannot summarize it given the time limit.
In terms of judicial education with regard to the proposed changes, I think more judicial education — as the senator says — and guidelines are necessary, not less. The concern is that if a judge is worried about freeing themselves up to travel — which, to begin with, is very difficult — to a course on social context, when they only have time for so much travel during the year and need to catch up on administrative law, on top of that they are concerned that if they do go to this course on social context, which seems peripheral at first glance, they will make the top of the list.
This is where I spoke of the subtle influences on judicial independence. Somewhere in the back of their mind, they might ask, “Do I really need that course?” Rather, not only is more judicial education necessary generally — because we have seen a few incidents in the media — but it is specific to the Internet age. The new Chief Justice of the Supreme Court of Canada has spoken of the importance of court communications in the digital age and, for democratic principles to flourish, how important it is for individuals to understand the work that judges do.
Following what was said in that article, which I don’t have time to elaborate on too much, it is important that judges are part of the Internet revolution that is upon us. Some have called it the fourth industrial revolution and learned to communicate in the Internet age within the scope of the duty of reserve. In the Internet age, the debate and the intermediaries are not there. The debate is still being shaped in terms of platform obligations and how content is moderated. That is a huge debate and the subject of my research.
Judges will need more education. The unintended side effect of having individualized spending publicized in that way is that judges or chief justices may say they just can’t risk that exposure. Someone starting a chat on the Internet could get the wrong idea, and as things stand, and norms evolve slowly, there is nothing we can say or very little we can say to counter that misinformation. That’s a concern.
The Chair: Ms. Eltis, your article has been circulated amongst the members of the committee. I want to reassure you in that regard.
[Translation]
Senator Pratte: Thank you, Ms. Eltis. I, myself, am inclined to support the disclosure of collective spending, mainly because of the risks you outlined and because judges can’t defend themselves, unlike politicians. It would be naive, however, to think that the disclosure of collective spending by courts, judges and members of the court would resolve the whole issue. Even the publication of collective information could spark controversy if, for instance, a given court’s spending rose significantly from one year to the next.
With that in mind, if we were to opt for the publication of collective spending, who do you think should be the one to defend a court, or even a judge, once the information is public? The chief justice? The commissioner? Where do you stand on that?
Ms. Eltis: Thank you, senator. I wouldn’t say controversy is necessarily unhealthy in a democracy. What concerns me at this point is the disclosure of individualized information. A method that infringed less on judicial independence would be preferable in disclosing the information, and I think that an aggregate approach interferes much less with judicial independence, both individually and collectively.
In the article, we talk about — and this is only the first step — who the spokesperson for the courts might be, in the digital age. I think there are people much more qualified than I to comment on that. The idea we discuss in the article is that certain courts would have a designated spokesperson for that purpose. It would be someone to act as an intermediary for judges because this is a difficult situation to navigate in the digital age. Even if judges didn’t have a duty of reserve, I don’t know whether it would be wise for a judge to defend themselves, as an individual, on the public forum that is the Internet. That isn’t what I would advise. It may be better for a qualified intermediary to provide an appropriate response and for the data to be made available on an aggregate basis.
There’s a huge difference when the courts are the subject of public debate, which isn’t necessarily a bad thing. On the contrary, we are talking about spending and the public is certainly entitled to have access to that information. The concern arises when we get into individualized information about judges, not only because of judicial independence, but also because of the distortion effect.
As for your question on who the designated person should be, it’s quite complex. I would be inclined to choose a qualified intermediary. Even then, common sense would have to dictate any response, because replying to every single thing that’s said online isn’t always a good idea. We are in the midst of solving — quote unquote — this problem at a much broader level: hate propaganda on the Internet. What is the responsibility of the platforms? Who should respond? That’s all part of a very important debate, one that needs to be had, in my view. It’s simply necessary to weigh the risks of revealing individualized information about judges and the ironic public perceptions it can lead to. An aggregate approach decreases that risk significantly.
[English]
Senator Lankin: I have three very quick questions I can put forward in one presentation.
Professor, that was very interesting. I have not been fond of the resistance that I have heard to this provision in the bill. I think you bring a lot of valid points to be considered.
Three questions: One, in an evolving, open court approach that you talk about, is this a matter that should or could be reviewed in the future? For example, if we went to collective disclosure, should we look again at how this is evolving and how individual disclosure contributes?
Second, do you know if there are different practices by other orders of courts, in provincial jurisdictions? I’m thinking for example of JPs. I know the order of importance perhaps is different, but they are dealing with a lot of people coming before them. In most places, they are order-in-council appointments, where their individual salaries are certainly disclosed and maybe a composite expenditure.
Lastly, is there any other profession that you know of that has anything similar to this duty of reserve? I’m thinking about the number of real partisan skirmishes that happen in provincial legislatures, in Parliament, as well as cabinet ministers and cabinet confidence, and sometimes even around a personal set of activities that could compromise and get out of control before people can respond.
Do you have any comments on those three questions?
Ms. Eltis: Thank you, senator. Here is my other attempt at being concise. In answer to your first question, yes.
In answer to your second question, in terms of comparative law, I haven’t looked at JPs but other courts, as far as I know, don’t have individualized disclosure. The few courts that I have looked at — and I haven’t scoured the globe — as far as I have seen, in most democratic countries there is no such similar proactive disclosure as proposed, unless it’s specifically requested.
On the third question, I think it’s important to look at the specific nature of the judicial role as contrasted, not only because of the duty of reserve but because a judge can be deployed. So unlike cabinet ministers, perhaps, where it’s also relevant, a judge can be told by the Chief Justice, “You need to go here for a case.” Certainly some courts are more mobile than others, and judges accept that responsibility. “I would like you to hear the case in X location.” That is part of the administrative independence and part of the role of the judge.
If we come to question those expenses on an individualized level, we’re perhaps coming to question the administrative decision, which has nothing to do with the spending, as opposed to looking at the spending in a more collective way.
The value added of the individual spending for judges, who are in a unique situation, is not only limited, but again — and this is my concern — it’s not about the information but the distortion of the information and the misinformation.
I think comparative law is helpful here, and seeing what’s done in other jurisdictions is helpful. The individualized proactive disclosure is not there that I know of, not having looked at every single jurisdiction but generally in democratic countries.
The Chair: Does that answer your third question, Senator Lankin?
Senator Lankin: Yes.
[Translation]
Senator Miville-Dechêne: I’m going to play devil’s advocate. I used to be a journalist and a media ombudsman, so an ethics adviser, if you will, and that required a certain degree of independence. Of course, that’s nothing like being a judge, but I wonder whether the risks to the judiciary aren’t being a bit exaggerated. In the increasingly open and transparent society we live in, people in all kinds of other occupations have to show the same transparency when it comes to their spending.
I understand what you’re saying about the risks, but perhaps those risks would be lessened if there were an intermediary to provide a response. All kinds of other factors pose a risk to judges’ independence, besides a clear list of expenditures showing whether a judge’s spending is appropriate, moderate or excessive and whether it should be called into question. It’s rather critical.
Ms. Eltis: I understand precisely what you’re saying. What concerns me is not transparency, because I completely agree with you there. My point has to do with the fact that the available information doesn’t serve to shed light on things, and that’s why I brought up the A.B. v. Bragg Communications Inc. case. The courts determined that they would put all court records online, only to realize afterwards that making more information available online did not mean making more truthful information available. I’d like to share a little example I quite enjoy. I’m not sure whether you are familiar with the right to be forgotten and the infamous Costeja decision. Mr. Costeja sued Google because it had truthful information on him. He had financial troubles and didn’t want people to be able to find out by doing a Google search. He sued Google, which is no small feat, and won. Google was forced to take down the data relating to the man’s financial concerns, and today, the only thing people all over the world know about him is that he has financial troubles.
That’s the one thing he didn’t want people to know about him, but by winning his case, it’s the one thing we do know about him. That was an unintended consequence. Should the public know if a judge is spending too much? Yes, but the issue is whether publishing the individualized information will lead people in the digital world to the appropriate conclusion. Yes, the judge did spend too much or, actually, the judge, who is older, realized he didn’t know enough about diversity and certain social realities and decided to take social context education. Let’s say the conference — which I’m familiar with because I work for the judiciary — was held in British Columbia, and the judge, being from Quebec or New Brunswick, had to travel to the event. It costs a fortune, and what people see is not that the judge realized he was out of step with the social reality and needed the training, but that he is a big spender.
Senator Miville-Dechêne: That’s true for judges, but it’s also true for those who work in other sensitive professions where spending information can be distorted and, in fact, any information online can be distorted.
Ms. Eltis: Yes. That’s why my research focuses on broader issues, in a sense, such as platform obligations and expression over the Internet. Things changed a great deal after the Industrial Revolution. It took 100 years for the standards to adjust, and right now we have a void. The legislation has always been based on territory and sovereignty. With cross-border data and cyberspace, the situation is less clear. The standards are trying to adjust. However, in the meantime, wouldn’t it be better, in terms of transparency, to have data in the aggregate form rather than share individual data, which is more easily distorted? This goes back to the following example. Do I lock my door? No. What exacerbates the risk? It isn’t only the risk for the judge, and that’s why I’m referring to the administration of justice and independence. It poses a risk both individually and collectively to the democratic system and judicial independence. This may be the specific issue for judges.
Senator Boisvenu: I want to come back to your position. If the bill were amended, could we distinguish what type of information about judges can be made public? If there’s a danger, in some respects, of revealing everything, couldn’t there be a kind of arbitration where we would somehow distinguish between the information that could be disclosed and the information that could be kept confidential?
Ms. Eltis: It’s a bit like when we talk about cybersecurity and piracy. Can we eliminate all risks? No. Do we need to weigh transparency, which is a very important value, against judicial independence in the digital age? Yes. The risk won’t be eliminated, but it may be mitigated. Personally, I’m in favour of disclosure. However, as the Americans would say, there’s a time, place and manner. Disclosure at the individual level poses too many risks to independence, while the aggregate would serve the interest of transparency, but would mitigate — it’s a bit like the Charter, these are the least prejudicial means — some of the risks while meeting the transparency goals.
The Chair: Ms. Eltis, it’s my privilege to thank you for your contribution this afternoon. I think this is an aspect that no one here knew about in this context, in particular the point of view expressed by Senator Pratte. If judges are flung onto the Internet, shouldn’t we give the courts the means to defend themselves? Unfortunately, the bill says little about this issue. There’s no proposal to balance the release of individual judicial expenses with the system’s ability to defend itself. This is where issues arise with the bill, and it will warrant our consideration when we wrap up our work. Thank you for your presentation. We’re indebted to you, and we’ll continue to read your contributions to this committee in particular concerning the principle of judicial independence. It’s almost a daily routine. Thank you, Ms. Eltis. We look forward to hearing from you again.
Ms. Eltis: Thank you, Mr. Chair and honourable senators. It has been a great privilege. Have a good day.
[English]
The Chair: It is my pleasure this afternoon to welcome Trevor C.W. Farrow, Professor and Associate Dean (Academic), Osgoode Hall Law School, York University.
Professor, many of us know your writing and your contributions to the debates on constitutional issues, especially your concern about judicial independence. You know that we are studying today section 38 of Bill C-58. I know you’re familiar generally with the legislation.
We will invite you to make opening remarks. Then, of course, we will have an exchange with you around the table. We will have about an hour. We have to adjourn at 6:15 to allow another committee to occupy the room, so we will try to give you ample opportunity to answer all the questions.
We now welcome your opening remarks, Professor Farrow.
Trevor C.W. Farrow, Professor and Associate Dean (Academic), Osgoode Hall Law School, York University, as an individual: Thank you very much, Mr. Chair, and good afternoon, honourable senators. It’s a pleasure to be with you this afternoon. Thank you for accommodating my video appearance.
I understand, as the chair mentioned, that you are studying clause 38 of Bill C-58. I have one main point to make about that clause and the relevant amendments under that clause. In my view, the amendments, as drafted, raise significant concerns related to judicial independence, in particular the role and importance of judicial independence in the context of the rule of law in Canada’s democracy. I will focus my comments on those as invited by the chair.
At the pleasure of the committee, I also have some views and comments about clause 15, which is a different part of the bill, around solicitor-client privilege and government information, but I will hold those until or if invited by the chair to make those comments at the end.
In terms of clause 38 of the bill, I’ll start with a couple of points. First, I very much support the goal of the bill and the amendments around access to information. My view would be consistent with the purposes of the act generally, which is that access to information is a good thing. In particular, access to information of public institutions is a good thing. I think it promotes confidence and an overall trust in our public system.
I also think that proper access to information provides a tool to check power and, in particular, the abuse of power in public institutions. So as a starting point, I want to emphasize that I am very supportive of the goal of these amendments.
It’s important to note that there is a significant connection between justice, the rule of law and public information. Publicity is not inconsistent with justice. Put differently, I think it’s very consistent with the notion of justice.
It was Bentham who said that publicity is the very soul of justice. I think public justice in the form of open courts, published laws, and public institutions and courts is a significant part of why Canada’s justice system functions so well and is key to our notion of the rule of law. Not only is access to information important, but public information around justice and the rule of law is key to the functioning of those institutions.
Another key element of the rule of law that I think goes to the heart of what you’re looking at is judicial independence. From the early days of the Magna Carta, all the way up to the current judgments of the Supreme Court of Canada, it is key to Canada’s functioning democracy that we are ruled by laws, not humans. That is a core element of our democratic system.
To make that happen and maybe the core institution that makes that happen in our modern democracy is an independent judiciary. So it’s no small matter that we have and maintain that independent judiciary. In my mind, the functioning of democracy and, in particular, the separation of the different branches of government and offices are key in that overall picture of the rule of law.
I’m sure, given the materials you’ve looked at, I don’t think it will be any surprise to hear some of the statements I make. I think it’s important to also think about what judicial independence is and what it looks at. There’s no secret. I think there are three main elements to judicial independence: notions of security of tenure, notions of security of finance and, in particular for this purpose, administrative independence.
When we think about judicial independence, we think about two particular aspects: the courts generally and individual judges in particular. I didn’t make those up. They come from several Supreme Court of decisions, like the Valente case, like the judicial reference. They are consistent with the early principles of our Constitution that draws very much on an English constitutional democracy. I think they are contemplated by section 11(d) of our Charter and how the court has interpreted that document. They are very much consistent with the underlying principles of the Judges Act and also with the ethical principles of judges that guide our federally appointed judges.
They are also consistent with international documents. I’m thinking, for example, of the UN Basic Principles on the Independence of the Judiciary. We can find these principles in various places. To my mind, the notion of an independent judiciary is a settled notion. It at least considers those elements.
When we think of judicial independence, another related aspect that is also key for this discussion and may come up in the questions is around judicial impartiality. An independent judge is a requirement, a precondition to facilitate the notion of judicial impartiality. I think judicial impartiality, which is required under a notion of the rule of law, depends at least in part on the independence of not only our courts but the independence of judges individually. It’s not just actual impartiality but also a perception of impartiality that is key for this discussion.
Why do we care about this? If it’s so settled, then perhaps we don’t need to worry. My view is that there are several reasons for why I do not think it is so settled, one of which is the very review that your committee is looking at now. I think you are looking at elements of judicial independence that, to my mind, if these amendments were to go through, would be a challenge and a concern for me.
Judicial independence is not a guarantee. It’s not a natural thing. It’s something that we have worked hard for. It’s something that, as we saw early in our constitutional documents, through interpretations of our Charter, we not only jealously guard but we worked very hard in Canada to come to the point where we are now. Like perhaps many of you, I worked in many parts of the world and worked with different judicial and legal organizations that do not have independence and, because of that, face significant challenges and are trying hard to get what we have. It’s important to notice that we are not guaranteed to have this independence. In my mind, it’s not lucky that we’ve got it, but we’ve worked hard to get it.
The other aspect is that judicial independence can be eroded. We see this internationally in various parts of the world. We see it closer to home, at least in my view, if one were watching, for example, the recent Supreme Court of the United States confirmation hearings. A number of questions were raised about impartiality and independence that did not, in my opinion, militate in favour of the independence of the U.S. courts. So I think independence can be eroded.
Depending on your view of these things, even closer to home several years ago, we saw what I would describe as a challenge, at least to some extent, to judicial independence, between the interactions of former Prime Minister Stephen Harper and former Chief Justice Beverley McLachlin. I don’t think independence is guaranteed, and I do think it can be eroded. It needs to be jealously guarded and protected for the reasons that stem from its importance in our constitutional democracy.
Coming to the end of my opening presentation, and I won’t say this glibly, but when I reflect hard on the amendments you are considering in the Access to Information Act, one might say to be careful what you wish for or careful what one wishes for.
If we saw a problem with our judiciary and with judicial expenses somehow getting out of control, with a public that was lacking trust in our judiciary that was related to expenses or with the functioning of the judiciary, then I would be more concerned along the lines of where this bill is going.
I don’t see those problems. I don’t see that there is that concern at the moment. To me, this is more of a solution in search of a problem or, put differently, they are solutions that could create a problem around independence that we don’t currently have.
I am quite concerned with the proposed amendments that relate to new sections 90.06 to 90.09. I am concerned about those. If these amendments were to go through, a number of problems might come up. Different courts have different expenses. Different parts of the country require different travel to different regions. Of course, as everyone knows, different travel costs more. I could imagine different courts having wildly different levels of expenses. I could then imagine the media getting hold of those expenses and, to some extent, the coverage would create questions around those levels of expenses that might not be properly understood by the public. Certainly the judges could not defend against media attacks about or concerns about those expenses.
Finally, the way that the bill contemplates oversight — and I’m thinking in particular of new section 90.22 — that offends, in my mind, against the separation of administrative power that might contemplate having the commissioner oversee appropriate exceptions to disclosure that would normally rest with the judiciary.
So, I see a number of problems.
The final couple of points I would make would be that I already see some of the solutions that are adequate. It’s not that there is no oversight. There is certainly oversight through the CJC, and chief justices of each court play a significant role. The Judges Act and regulations around what expenses are appropriate or not are in place, so those apply. Presumably, if you have concerns about the kinds of expenses, those could be looked at. So I don’t see there being a big problem, and at the moment I also see adequate oversight.
The final thing I will say is that I do understand, through reading a number of these submissions, that an alternative approach might be some kind of aggregate published data. I do see that as a better solution or a better option than the current bill’s proposals, but I’m still not sure that’s required. I worry that that might be too much and too little; too little to really be useful to the public in a way that we don’t already have, and too much in the sense that it will provide an inadequate “window in” that would give those who had that information material to work with but not adequate enough material to make anything of it. To me, that would be perhaps more dangerous than nothing at all.
As I say, if you’re going to do anything, as the judges’ submissions have suggested, an aggregate approach as opposed to an individualized approach certainly would be better. My view would be, in particular around judges and the judicial office, I would suggest that you leave those expenses to the judges themselves.
Mr. Chair, those are my opening comments. I’m happy to take questions about any of those.
The Chair: Thank you very much, Professor Farrow.
[Translation]
Senator Boisvenu: Professor Farrow, thank you for your brief, which is very clear. I want to ask you several questions.
In addition to the feared impact on judicial independence, you emphasized the fact that problems would be created. Can you specify the type of problems that would be created?
[English]
Mr. Farrow: Thank you, Senator Boisvenu.
Let me start by saying, of course, I would be speculating about what those problems are, but these speculations come with a very considered view.
My concern would be very practical and it would be very much around the publication of judicial expenses and the impact that potentially could have on both on the individual judge’s role and also on the public’s trust in the courts.
Let me start with individual judges. If individual judges’ expenses were in the media and questioned, and I’ll take as an example a judge in one of the territories or in a large province or, perhaps, anywhere, those expenses would start to be naturally compared with other judges. So there would be questions raised about why judge X has a certain number of expenses and judge Y has a different number. Speculation could start around whether that judge is living a lavish lifestyle. Is that judge travelling more than she needs to? Is that judge adequately spending the public purse?
I think speculation would then start to look at the number of judgments a judge wrote as compared to their expenses. There might be speculation as to notions of deliverables and the value the public is getting for the expenses that a certain judge is delivering.
Conversely, speculations might come where someone is not spending much money at all and the public might wonder whether they are going to any judicial conferences at all, whether they have any training, whether they are taking seriously their educational role and whether they are adequately preparing themselves.
I’m sure you can come up with as many of those hypotheticals as I can, but those are very real possibilities about the kinds of things that judges do and the kinds of comparisons that might get made about individual judges. And, of course, they could say nothing about that.
[Translation]
Senator Boisvenu: Senators or members of Parliament don’t have this difficulty. For example, senators who live in Ottawa or Montreal have their expenses published, and in this case, they have relatively few expenses. However, senators or members of Parliament who live in Vancouver and who fly every week or every other week have very large amounts included the publication of their expenses.
You seem to think that the public wouldn’t be able to make this distinction. A judge serving in Nunavut or the Northwest Territories will certainly have much higher expenses than a judge serving in downtown Montreal and living in the Montreal area. Do you think that the public wouldn’t be able to make these distinctions?
[English]
Mr. Farrow: I will answer your question. I believe there are two important parts to that. First, when you give the example of senators, members of Parliament or other members of our public service — and I say this with the utmost of respect — I think judges are different. I do not think that we can easily compare the role of the judiciary in the context of the rule of law as compared to the equally, but differently, important role of the Senate or the House of Commons. They are different roles with different levels of expectations, and the role of judicial independence plays a huge factor here.
I’m not criticizing your question, but I’m taking issue with comparing senators and judges or academics and judges. My expenses are public, ultimately, as well. Mine, of course, are not as important as yours, but I’m also paid publicly. I think it’s appropriate that anything I do as a publicly paid academic should ultimately be publishable on the front page of The Globe and Mail, that I should be held accountable and it should be defensible. I take that as part of my role, as I bet all of you do in your different role.
Judges, however, I think play a different role. My first point is I don’t think we can easily compare the role of the judges, which fits within this impartiality and independence piece, as compared to other important but different roles in the public.
Second, can the public differentiate and understand? With the greatest respect to the public, sometimes yes, sometimes no. You know much better than me where we have seen expense scandals, in particular in the Senate but certainly in other areas. In my view, some of those expense scandals have been wildly unfair. The information around them has not been adequately provided, and I don’t think that the public always understands why it’s important for people to travel differently, the kinds of travel that people do, et cetera.
So I’m not sure I have the confidence in the public that some might. It also depends on the kind of information the public is given when that happens.
Senator Gold: I can’t resist saying that, as a former professor and former associate dean at Osgoode Hall Law School, it’s a pleasure to have you appear before us. You make me feel old, because it was a long time ago and we didn’t know each other. Thank you for being here.
I take it that though you think this is a solution in search of a problem, you would prefer a collective rather than individual approach. So my question is this: Would you still be concerned even if we took the collective, aggregate approach that the difference between different jurisdictions and courts, which have implications for travel costs and the like, might still be misunderstood by the public? In that regard, who should be the spokesperson for the court that is being criticized for spending far more than its counterpart elsewhere in Canada?
And if we do take an aggregate approach, would you still be concerned about new section 90.22 and that the role for determining what information is or is not published is given to the registrar, the chief administrator or the commissioner as opposed to the Chief Justice?
Mr. Farrow: Thank you very much. Thank you for recognizing our former shared role as associate deans.
Regarding your first question around the aggregate, yes, I still feel it’s a problem. What might that look like?
For my view on this, let me give you a sense of where I’m coming from. Obviously I’m not a judge, and obviously if we were speaking to judges they would have more direct experience around their actual travel, et cetera.
I do quite a bit of judicial education through the NJI, the National Judicial Institute. I spend quite a bit of time with associate chief justices and chief justices in the context of judicial education in different parts of the country. So I have had many opportunities to see first hand the different levels of participation for different courts and different programs, all of which would, in the aggregate, presumably be available with some kind of information, depending on what you recommend and what ultimately goes through.
So again, bear with me, because I’m speculating. I’m working with hypotheticals, but I could easily imagine some kind of unsavoury competition or view that somehow Alberta’s judges must be better educated because they are spending more time at NJI sessions here. New Brunswick, which I think which is your province, if I’m right — maybe I’ve gotten that wrong. I’m sorry if I’ve made a mistake.
Senator Gold: It doesn’t matter. I’m from Quebec.
Mr. Farrow: I apologize. Quebec judges must be the most educated because they are travelling, who they are being educated by, and what have you. We can imagine those differences already becoming a bit of voyeurism on the kinds of things that judges are doing, the different levels of education, and then associate chiefs and chiefs being called on to defend those differences. I can easily imagine that being in the middle section of the The Globe and Mail.
In a different context, we see chiefs of trial courts in Alberta over the past number of years calling out for the appointment of more judges, and then we start to hear other chiefs saying, “Well, what about us, because we also have a number of vacancies we’re waiting to fill?” No one likes to see that in our justice system because I don’t think it does anything to bolster confidence. If anything, it goes a different route.
Will this be the biggest problem that we face in the justice sector in Canada? No. But will it add value or potentially decrease value? To me, it raises some concerns.
The second part of your question was this: Would I still be concerned about 90.22 if it were aggregated? My answer to you is yes, not only the potential of actual bias or lack of independence from an administrative perspective, but the perceived independence as well.
Going back to the Supreme Court of Canada in Valente or in the judge’s reference, that third badge that administrative independence is key to the whole notion. If we make the commissioner the arbiter of what counts or what doesn’t or what shouldn’t be produced, that really flies in the face of what we’re trying to accomplish through independence and why we created the CJC in the first place.
Senator McIntyre: Thank you, Professor Farrow, for your presentation. I have two short questions on Bill C-58.
First of all, the bill states that some provisions do not apply to the activities of the Canadian Judicial Council. I would like to have your thoughts on that.
You may have partly answered my second question, but in any case, the bill calls upon the Registrar of the Supreme Court of Canada, the chief administrator, or the Commissioner for Federal Judicial Affairs to make the final decision about whether publication could interfere with judicial independence.
Do you think that the decision should reside with the Chief Justice of the court concerned, or could there be another process in place to ensure that a member of the executive branch does not have final say on that question? And if so, what could that process be?
Mr. Farrow: To the first part of your question, that some provisions don’t apply to the judiciary or the CJC — I have the bill in front of me, but I won’t look at it unless I need to because I have read it fairly carefully — what concerns me are the specific aspects that are limited to judges around expenses, whereas judges would not — if I’m reading your question correctly — be subject to, for example, contracts over $10,000, that the concerning sections for judges really are limited around expenses.
Is that the heart of your question in that first part?
Senator McIntyre: Yes.
Mr. Farrow: I guess there are two aspects to the first part. Let’s assume, for the moment, that you were to push these amendments through. I think the more limited the focus, the better, so to limited amounts of expenses as opposed to a more expansive view.
Also, the fact that judges’ expenses would somehow be exempted but the registrar and the court’s administration expenses would be more open would be better than nothing, but I’m still concerned that we shed too much light on those court administration expenses without significant attention to the impartiality point. I would still want there to be a zone of protection or privacy for the proper operation of the Chief Justice’s office and of the Associate Chief Justice’s office so that their expenses and the information is appropriately cloaked with their making administrative decisions around, for example, which judges should travel, how often they should go, whether their registrars are also spending certain amounts of money, that go to the direct issues around independence.
I know that’s not a perfect answer, but I’m concerned that we not get in through the back door what I’m trying to avoid getting in the front door, by putting too much attention on the expenses of the court’s administration, which to my mind is not totally separate from the notion of the judicial role and judicial independence. That’s a woolly answer to the first part of your question, but I do have concerns about that.
To the second part of your question — if I’m right about this and not simplifying it too much — if we were under new section 90.22 or whatever version of that were to come up with an ultimate arbiter on who is the right person or body to decide whether judicial expenses are appropriate, that decision needs to rest with the judges, not with the executive. It needs to stay with either individual chief justices of individual courts or the collective through the CJC.
What I would very much avoid doing is pushing that beyond the judicial envelope into what might be described as the executive or administrative envelope.
Senator McIntyre: Thank you.
[Translation]
Senator Boisvenu: I gather from your presentation that you looked at other judiciaries?
[English]
Mr. Farrow: Yes. I was referring to other jurisdictions where I have worked with judges and lawyers, in particular on independence.
[Translation]
Senator Boisvenu: Compared to modern countries, where does Canada land in terms of the disclosure of the type of information set out in the bill?
[English]
Mr. Farrow: Let me say two things. First, let me acknowledge that I do not think I have a perfect answer to your question. I don’t feel like I have got perfect information on that. There may be information you have that is more up to date than mine. I don’t think I can answer your question with confidence in terms of the specifics of where Canada lands vis-à-vis the U.K., the U.S., Australia, India, South Africa or other potentially comparable jurisdictions.
Having said that, I’m not aware of what I would call peer jurisdictions requiring the disclosure of judicial expenses to the extent that would be contemplated by this bill. I could be wrong about that, but my understanding is that that would be contrary to those jurisdictions. I don’t want to say that with too much confidence because, as I said at the beginning, I do not think my information is perfect on that.
Perhaps underlying your question is if we also look at peer jurisdictions and then at other jurisdictions, where would this put us? I think this would put us a step back from peer jurisdictions.
I go to some of my opening comments where I worry that going down a road of trying to increase access to information, which, as we all probably agree to some extent, is a good thing, while perhaps improving an issue on one side, I really do think that would put us behind some of our peer jurisdictions on a different track, which is the judicial independence track. I worry about the erosion around the rule of law. I won’t repeat what I said at the beginning, but I think that’s not a small thing to think about. I really do.
So that’s with our peer jurisdictions.
I can think of jurisdictions where independence is much more of an aspiration, such as countries in Asia I have worked with, some systems in the former Yugoslavia and systems that are very much influenced by the Napoleonic civil systems, such as Russia, or Soviet, and China. All are sophisticated with their own merits, but one merit they would not claim would be a particularly independent judiciary. Working with members of those jurisdictions, I can also say that there are a number of aspirations to move forward toward a more independent judiciary.
Speaking about our peers, I think it would put us back. I think it would also, for those jurisdictions that are trying to become more like that, be inconsistent with the aspirations of many countries to line up with those principles that are shared — for example, the UN declaration around judicial independence.
That’s not a perfect answer to your question, but I am glad you are asking it because I think the international experience in terms of realism, some of the jeopardy and some of the aspirations leads us away from these kinds of amendments as opposed to toward them.
[Translation]
Senator Boisvenu: I should have asked my question differently, but I still want to thank you for your answer. In democratic societies, there’s a public movement to hold administrators accountable at the judicial, political and public administration level. There are much greater transparency requirements for public funds. I think that Bill C-58 is part of this philosophy of transparency with regard to judicial expenses. Is this type of movement strictly North American, or it is also seen in Europe and other democracies?
[English]
Mr. Farrow: I think I understand your question now, and I’m sorry I came at it a different way.
Yes, democratic societies should push for accountability, and I do not think that courts or judges are exempt from that notion of accountability. I think if there were an age where courts and judges could simply say, “We are above all that,” I think that, as a practical matter, is a bad idea. If I were a Chief Justice, I think that shirks my responsibility. I’m not sure it is consistent with much of what the Supreme Court of Canada is now talking about around access to justice and culture shifts around the roles of judges to make justice more accessible, more user-friendly and, in fact, to make it work better for Canadians.
So I do think there is a push for accountability. I think there is a push and a responsibility on the judiciary to play a big part in that, and I think if they don’t, the public will go around the courts in the form of private arbitration, eBay or some other notion of justice that, to my mind, would be a significant concern. So, judges are not free from accountability.
Having said that, I don’t think the accountability comes in the form of publishing expense statements. Accountability comes in the form of the role of the courts in delivering justice to Canadians. That’s a different conversation. That was not your question, but I do think the accountability and that the deliverables from our justice system come from whether our courts are accessible and functional and effective for Canadians. To me, there is a huge discussion there for another day.
I do not think that the accountability that we’re talking about today will do anything for that. If anything, I think it will make judges more worried about being brave and courageous. I think it will make judges worry about their independence and perceived impartiality. I think it will add a layer of complexity that will militate against and not in favour of the brave, independent judiciary we need, not just for the hard cases but for the everyday, self-represented litigant, for the everyday case where we want judges in the game in an active, robust way.
My view of the courts is not that they are immune from scrutiny, but it’s a different form of scrutiny, I think, than we’re talking about today.
[Translation]
Senator Boisvenu: I have a third question, which may be more annoying, regarding the lengthy delays in our judicial system, which vary from province to province. Our judicial system even releases murderers who haven’t been tried. Our committee conducted an excellent study on the matter. Does this put pressure on politicians with regard to budget transparency in the judicial system? Judges are the first scapegoats of the public. We sometimes hear that lengthy delays in the judicial system are the result of our judges not working hard enough and the fact that the work day at the courthouses isn’t as long as elsewhere. Doesn’t this situation also put further pressure on judges, to make them more accountable to the public for the performance of the system?
[English]
Mr. Farrow: I would not say that the earlier questions were easy, but I would agree with you that that is a difficult question.
I’m thinking about the context of what you’re talking about, the Supreme Court of Canada’s Jordan decision that came out a short while ago has put huge pressure on the courts. The Supreme Court of Canada yesterday on its docket was looking at the context of some of these issues, in particular around delays involving accused youth. It’s an issue that the court is facing. I think it would be fair to say — and your committee, I’m sure, knows better than me — there is huge pressure on the courts to perform, to do more with what they have got. We certainly heard from that associate chief justices across the country, chief justices as well, around concerns about complement and appointment. So yes, it’s a huge topic right now.
Does that mean there is increased pressure on transparency on how the courts work? I think here probably a sophisticated answer is required. I don’t know if I’m going to do this justice in the short time I have, but let me try.
When the public looks at a published docket, I have heard people say many times, “It’s incredible how short the working hours of a judge are.” What they don’t see is the judge showing up at 8 o’clock and doing pretrial motions in chamber. What they don’t see is the judge over lunch answering emails and setting up their judicial education. What they don’t see is the judge working from 4 o’clock until midnight reading briefs for the next day. None of that is published and none of that really is there. So the public has a view that the court is working on summer hours. And, of course, the judges can’t say any of that and no one really cares. That’s an example of my worry of imperfect information.
If we were to publish information about expenses, and I don’t think we should, it would be need to be handled with such care and such sophistication that I just don’t think the media sound bite and the Internet age will do it justice. I think what we will be left with is that imperfect situation where judges will be left to defend an expense that really doesn’t mean anything.
I would much rather us — “us” meaning academics, the government and the judges — work together on the deliverables of the courts in terms of access to justice for Canadians. That is where the accountability question really hits the road, and I know chiefs are working on that.
This question doesn’t seem like the right question to me. I hope I’m not being offensive. I’m really not making fun of the bill; I’m taking it very seriously. I just don’t think it’s the right focus for the kind of accountability we should be thinking about.
The Chair: You said in your opening remarks, Professor Farrow, that you wanted to make a quick comment on clause 15 of the bill, which is the solicitor-client section. It would allow the Information Commissioner to look into documents and have access to the relationship covered by that privilege.
Do you want to make a quick comment on that? We have five minutes left. If you would care to share your views on that, we would certainly be attentive.
Mr. Farrow: My comments come in the context as a former litigation lawyer and someone who now teaches legal ethics and legal process, particularly in the area of solicitor-client privilege and confidentiality. It’s an area that I have some familiarity with.
I certainly have significant concerns with clause 15 and replacing subsection 36(2) of the act. Given the short time, I won’t rehearse the importance of solicitor-client privilege. All I will say is that many people think — I’m not suggesting those in the room do — that governments should somehow be different from regular clients. In some ways I think that’s true. I think the importance of the public interest and the mandate of government to essentially protect the public interest makes it different than some private litigants, for example.
Having said that, I do not think the importance of solicitor-client privilege is meaningfully different for a government client than it is for a private client. Put simply, as a member of the public I would want to encourage our government bodies to have a robust space to debate, consider and think about the appropriate legal avenue for a given course of action.
If it were the case that somehow we are now eroding solicitor-client privilege in the areas of government documents and information, which is what the clause proposes, that jeopardizes that safe space for governments — which I think is such a critical place — to moot and deliberate about the appropriate course of conduct. I would encourage protecting that space, not eroding it. I think that is critical.
I also don’t see a significant problem so far, notwithstanding current events that we’re seeing in the media all around us. I hope to see the protection of that space.
I also think that if you were — and I say you shouldn’t — to go down the road of these amendments, I think it is much too wide, too expansive and far-reaching. You’ll be aware of the Supreme Court of Canada cases, but the mandate to set aside or to infringe on solicitor-client privilege requires extremely narrow tailoring, extremely narrow focus, and would I say a case-by-case basis. I just don’t see that in these current amendments.
I have concerns about it. They are based primarily in saving that safe place for government clients, which I think is so important for the proper functioning of government.
The Chair: Seeing no additional questions and having the obligation, of course, to leave the room for a subsequent committee, it’s my privilege to thank you on behalf of all senators around the table, Professor Farrow. We remain very grateful for your enlightenment and experience regarding the judicial system, especially the way that the judiciary remains compelled to adjust to contemporary needs and how we can balance all those competing objectives.
Thank you so much for your contribution.
Mr. Farrow: Thank you so much and good luck with your deliberations.
The Chair: Can I have a motion to authorize a budget in the amount of $6,000 for the purpose of purchasing copies of the new Criminal Code for all permanent members of the standing committee?
So moved, Senator Boyer.
Senator Boisvenu: On debate.
[Translation]
Senator Carignan: I understand that the motion is to purchase copies of the new Criminal Code. For some time, I’ve been wanting access to databases such as Quicklaw. However, we don’t have access to it. Unfortunately, only the Library of Parliament has access to it. Could we check whether the Library of Parliament can extend its licence or whether we need to pay? It would be good to have access to the Quicklaw database.
[English]
The Chair: I think we would have to subscribe individually, but I could check that.
First, I need support of the motion for it to be authorized to purchase the Criminal Code. The question of Quicklaw is another motion, and I will come back to it.
Do I have the concurrence of senators to authorize in the amount of $6,000?
Hon. Senators: Agreed.
The Chair: Agreed. Thank you.
[Translation]
Now, Senator Carignan, of course I want to hear what you have to say about the committee members’ subscription to Quicklaw.
Senator Carignan: Since we’re adopting a $6,000 budget in the “books, newspapers, manuscripts and miscellaneous expenses” category, I thought that we could include Quicklaw in these items.
The Chair: We must find out whether the $6,000 budget is enough to cover each senator’s subscription to Quicklaw. If not, I’ll raise the issue with the Internal Economy Committee, where the honourable senators are represented on both sides, and I’ll come back to you later with a proposal.
Senator Carignan: With an amended budget, please.
The Chair: As we say in bad French, let’s secure the purchase of copies of the Criminal Code, because we need them.
Senator Carignan: At least we’ll have our hammers.
The Chair: Regarding the Quicklaw subscription issue, I can then get back to you at the next meeting and ask for your support to cover the subscription, if that suits you.
Senator Carignan: Yes.
[English]
The Chair: Are there any other questions in relation to that?
Thank you, honourable senators.
(The committee adjourned.)