Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue No. 52 - Evidence - November 7, 2018
OTTAWA, Wednesday, November 7, 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 4:37 p.m. to study this piece of legislation.
Senator Serge Joyal (Chair) in the chair.
[Translation]
The Chair: Honourable senators, it is my honour to welcome you today to our 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.
We will have the opportunity to hear from Marc Giroux, who is Commissioner of Federal Judicial Affairs. As a result, he has a very special status in our study with respect to certain provisions of the bill. Welcome, Mr. Giroux.
I assume you had the opportunity to consult the testimony of your colleagues from the Judicial Council of Canada and the Canadian Superior Courts Judges Association that we heard last week. You have surely noticed that some questions have been forwarded to you in light of your position and responsibilities.
[English]
It is my pleasure to welcome you this afternoon. There is a keen interest around the table on the issue that you will address. The floor is yours. Please take the time needed to make your presentation. After that, senators will engage in questions and comments with you.
[Translation]
Marc A. Giroux, Commissioner, Office of the Commissioner for Federal Judicial Affairs: Thank you, Mr. Chair. I’m pleased to be here again before this committee. It is important for me to talk to you about Bill C-58 and its impact on the judiciary and judicial independence. As you know, my office’s mandate is to protect judicial independence. That is really the purpose of our office.
My presentation today is divided into three parts. First, I would like to talk to you about the allowances in the Judges Act and the responsibilities of my office in this regard, what we are doing to prepare for this bill, and the issues it raises.
First of all, I would like to tell you that my office and the judges accept and fully understand the objective of transparency in Bill C-58. That said, it does contain mechanisms that pose some important challenges.
First, let’s look at the allowances provided for in the Judges Act and referred to in Bill C-58. There are four of them. Section 34 of the Judges Act refers to the reasonable travel expenses of judges when they are required to sit outside their region. In section 41, there are judges’ travel expenses when they attend conferences outside their region, such as those organized by the National Judicial Institute. Subsection 27(1) deals with reasonable incidental expenses, which are limited to $5,000 per judge, and subsection 27(6) deals with representational allowances for Chief Justices and extrajudicial expenses incurred by them in the performance of their duties.
[English]
One of the responsibilities of my office is to approve or not the reimbursement of judges’ expenses under the allowances found in the act. In order to do that, we issue guidelines called information bulletins which are developed in consultation with judges to guide them as to what may be reimbursed. I will take, for example, the incidental allowance at section 34 of the act. Under this allowance we will reimburse judges’ expenses for the purchase of their formal court attire — by that I mean the gown, the court shirt, the waistcoat, the tabs; and the purchase of cellphones, laptop computers and other such electronic equipment since this is not provided to judges by governments. We will also reimburse books, of course, and memberships to professional associations such as the Canadian Bar Association; judicial outreach activities, such as participating at events at a law school; conferences that are otherwise not reimbursed under section 41; and security systems for judges’ homes in light of their functions and vulnerability on that font. These are capped at $5,000 per judge under this allowance.
We receive about 20,000 claims every year, and four people in our office work full time to process them. If they have questions on a certain claim, if it doesn’t fit what is usually reimbursed, they will raise the question with my director of finance and chief financial officer. If there are more questions after that, they come to me and I have the final say as to whether the expense is reimbursed or not.
[Translation]
The question was asked whether claims are denied. The answer is yes, from time to time. Generally, judges only claim expenses to which they are entitled. Sometimes they have questions about certain exceptional or other situations. In cases where this is not acceptable, claims are simply denied. Other witnesses have told you that we have a robust system to administer the processing of judges’ claims. That is true, and we are also subject to audits by the Auditor General. We were audited a year or two ago.
On the whole, judges are relatively happy with our work in this regard, but perhaps less so when they are denied a claim. Overall, I think people respect our work. If a judge isn’t happy to be denied reimbursement of some kind, the remedy is an application for judicial review before the Federal Court. There is no appeal to the minister. In this regard, the Commissioner has decision-making authority, which he exercises independently of the minister and the Department of Justice, and this aspect is at the heart of the purpose of our office. We are independent of the Department of Justice.
[English]
And other witnesses have said that we are the buffer between the government and the judiciary.
[Translation]
In my 13 years of service with the Office of the Commissioner for Federal Judicial Affairs, never has a minister asked us to see Judge X or Y’s claim to find out whether or not his or her claim had been reimbursed. That never happened. We are independent in this regard.
[English]
I will move on to the bill itself and its requirements with regard to our office and the provisions regarding publication of judges’ expenses. It requires the publication of four elements for every expense: the date of the expense, the name of the judge, the amount of the expense, and a description of the expense.
There are two exemptions, as you know. If the publication of an expense shall compromise, on the one hand, security, on the other hand, judicial independence, then publication shall not apply.
[Translation]
I wasn’t consulted when the bill was introduced, and the judges’ reactions varied greatly.
[English]
What I committed to do when the bill was tabled was to sensitize judges to the bill, it’s requirements and the issues it raised. I did that by speaking to the Canadian Judicial Council, the Canadian Superior Courts Judges Association and courts in just about every province and territory, including this morning.
Just as importantly perhaps, I created an advisory board to guide me in the issues raised by the bill. There are eight members on this advisory board. They include Chief Justice Marc Noël of the Federal Court of Appeal; Chief Justice Mary Moreau of the Alberta Court of Queen’s Bench; two judges from the association: former chair Terry Clackson of Alberta, and its treasurer, Thomas Cyr of New Brunswick; former Supreme Court of Canada Justice Michel Bastarache; former Privacy Commissioner of Canada Jennifer Stoddart; Peter Donolo, the vice-president of a large public relations firm in Canada; and Roger Bilodeau who is the Registrar of the Supreme Court.
From my perspective, it was important to have a different group around the table to discuss the issues raised, to debate them if necessary, and to guide me at the end of the day in how to implement this bill.
[Translation]
The challenges raised by the bill are practical for my office on the one hand. I will only mention one. We handle approximately 20,000 claims each year. We support 1,200 federally appointed judges, and my office is not very large. It is still a challenge to publish information in a logical way so that it is not perceived as a “dumping” of information. On the other hand, we want to maintain the integrity and accuracy of the information we publish and continue to process complaints efficiently.
We have greater challenges. You have been told about the consequences for judicial independence. When the bill was introduced, I raised a concern about judges’ travel expenses when they have to sit outside their region, particularly for the national courts, including the Federal Court of Appeal, the Federal Court and the Tax Court of Canada. Judges of these courts sit across the country and have more travel expenses than their colleagues in the provinces and territories. The concern was whether these judges will be perceived as big spenders compared to their colleagues. When a judge is called upon to sit at a hearing and the case is postponed or cancelled, there are still costs. It is a concern I have about these judges and the power of the Chief Justice to assign cases to judges. In this case, the sole consideration of the Chief Justice should be related to the selection of the best judge in the administration of justice to hear the case.
In the context of the bill, my overall objective is to maintain a balance between the idea of complying with the bill and ensuring appropriate respect for judicial independence, and the privacy and security of judges.
As for the judicial independence exemption, it must be applied very carefully and not be used as an escape from the criteria of the bill.
[English]
In deliberating over this bill, you may wish to consider the suggestion already made that publication be done in an aggregate manner, at least for the travel allowance. If there is no change to the bill at this point, I would probably be leaning toward applying the judicial independence exemption in terms of travel for sittings of judges so as to provide all of the information required under the bill but perhaps exclude the name of the judge for that allowance particularly.
With regard to the judicial independence exemption and who should apply it, I haven’t taken a position on this. I know some Chief Justices have voiced an opinion. My responsibility is to prepare myself for the bill as it is in its current form.
That said, I am quite comfortable and well placed in looking after applying this exemption in light of our function to reimburse judges’ claims, which is exercised independently, and our mandate to safeguard judicial independence.
I can tell you I have assured the judiciary that if the bill were to remain as it is now, I would consult its members with regard to the application of the exemption.
If you consider that there must be in the bill a role for the judiciary as to this exemption, I would suggest that it should also include the Canadian Superior Courts Judges Association and not only the Canadian Judicial Council, as the council has a judicial discipline function and would have to reconcile its role in that area with that of having a role regarding judges’ claims.
[Translation]
At a minimum, I submit to you that it is essential that the Commissioner play an important role in this exemption, given our knowledge, experience and subtleties in administering judges’ expense claims, and so that decisions are made in an informed manner. If Bill C-58 remains as it is, I will consult with the judiciary in any event on this exemption.
Mr. Chair, I have tried not to take too long. However, by way of introduction, those are my comments.
[English]
Obviously, I look forward to taking your questions and answering them as best I can.
[Translation]
The Chair: Thank you very much, Mr. Giroux.
[English]
I am sure there will be questions touching on aspects of your presentation.
[Translation]
I now have the very pleasant duty of inviting Senator Dupuis, deputy chair of this committee, to open the discussion this afternoon.
Senator Dupuis: Thank you, Mr. Giroux. Do I understand from your presentation that you believe that what is set out in Bill C-58, this new responsibility to publish the individual expenses of judges, falls within your mandate? In other words, do you see any ethical reasons why you could not be given this kind of mandate?
Mr. Giroux: I understand that you have received submissions in this regard. I don’t take a position on constitutional issues. In practical terms, however, I would say to you, as I said earlier, that we are reimbursing these expenses without any interference from the government. Specifically, in terms of what Judge X spent when he went to a particular place to sit or to attend a conference, no one interferes in our duties. Decisions are made independently.
At the risk of repeating myself, if the bill remains as it is, I have no problem assuming this function to exercise the exemption. I would do it anyway with the judiciary to get their views.
Senator Dupuis: You said that the only expenses where there would be an element to consider are related to the travel of individual judges. Is there any objection in principle, in your mind, to publishing the expenses of individual judges? Since these expenses would be published, I assume that explanations would be provided on how the courts work, the fact that it is a travelling court and that it requires more travel. Is there an ethical reason, or by the nature of things, that would prevent the publication of expenses related to the travel of individual judges?
Mr. Giroux: When the time comes for publication, we will explain to the best of our ability the duties of judges, the allowances provided for in the Judges Act and the claims to which they are entitled.
For other allowances, such as incidental expenses, as specified in the act, or entertainment expenses, it is difficult at this point to provide examples where the exemption could apply. In individual cases, it is not impossible that some aspects that were not examined may be raised. However, this is less obvious.
A good argument can be made regarding travel expenses to sit. I’ll take the example of the Federal Court, where the Chief Justice has a decision to make as to which judge he would assign a trial that would take place in Alberta for two weeks. He determines that a particular judge would be the perfect candidate to hear this case. However, she was just sent to British Columbia for a month in the same quarter, and she incurred some expenses, including hotel and airfare. If, compared to her colleagues, it appears that her expenses are fairly high, it may be necessary to appoint someone else to hear the case. This aspect is at the heart of institutional judicial independence and the Chief Justice’s authority to assign a case to someone. In my opinion, the only consideration should be the choice of the best person to hear the case. The Chief Justice should not be required to consider other factors, such as high expenses.
For travel expenses to sit, I can see a valid argument.
The only thing I would add is that judges are also unable to explain to the media why their expenses are higher. This element becomes sensitive if a person is assigned to a long trial, or a few long trials, and incurs higher expenses than his or her colleagues.
Senator Dupuis: If I understand your answer correctly, you are telling taxpayers that it is normal for a Chief Justice to want to assign the most competent judge to a case, even if the trial is held some distance from the judge’s residence.
Mr. Giroux: Yes.
Senator Dupuis: I would like to understand your status. You said that the minister does not interfere with your duties. We are told that the Commissioner for Justice depends on the executive and that there is executive interference in the judiciary, and that there is no longer room to move. Is there anything unnatural about the publication of publicly funded expenses when it comes to the work of judges? Can you help us better understand your status?
Mr. Giroux: In essence, under the provisions of the act, the commissioner is appointed by order-in-council, following consultations with the Canadian Judicial Council. The commissioner, by law, is the minister’s delegate for the administration of Part I of the Judges Act, which deals with judicial compensation. Under the same provision, the minister may ask the commissioner to take on other responsibilities. It is under this provision that my office oversees the judicial appointment process, language training or other similar element.
With respect to the appointment of judges, the minister could amend the regime and indicate how it will operate in the future. We implement what the minister asks us to do and administer. I would add that the Judges Act provides for our independence from the Department of Justice.
With respect to the administration of Part I of the Judges Act, I would like to raise a point. Successive commissioners have independently managed the administration of the reimbursement of judges’ expenses independently of successive ministers. I won’t tell you that a minister has never asked questions about certain expenses, but we have never asked to see a particular judge’s claim. This is done completely independently by the commissioner. There would be a problem if a minister asked or demanded to know more. At that time, I believe that the judiciary would agree that there is no longer any independence in the administration of the process.
Senator Boisvenu: Welcome, Mr. Giroux. I have a few questions to ask you. Of course, we are all concerned that Bill C-58 must not undermine public confidence in the justice system. In my opinion, this is fundamental, and our reflection must focus on this.
Last week, Normand Sabourin of the Canadian Judicial Council appeared before our committee and stated that this bill, as it stands, represents a serious risk and that access to justice is compromised, particularly in remote areas. I am thinking of our itinerant judges in Quebec. I have known some of them, such as Judge Couture, who travelled to northern Quebec for many years, which involved significant expenses. If we decide to publish the expenses of all judges, could this compromise the administration of justice in remote areas, which costs much more than the administration of justice in Gatineau or Longueuil, for example?
Mr. Giroux: I’ll answer as best I can. For some itinerant courts, for example, the Tax Court of Canada, the judges of which are required to sit in remote areas, there may be a reluctance to sit in these areas, given the publication of expenses.
Senator Boisvenu: Could this have an impact on the frequency of travel, for example, for a judge who is called upon to travel every month? Since this is expensive and could be criticized, he could travel every two months. Could such a decision be considered to avoid criticism?
Mr. Giroux: This is a bit of speculation, because the administration of justice belongs to the Chief Justice. Therefore, it would be up to him to determine whether, given the publication, the way of doing things would be changed. Itinerant courts are an asset to our justice system because they can be located in more remote areas and not only in urban centres. For example, I have already been told that the Tax Court of Canada has already sat in a church basement or in the residence of a taxpayer who could not travel. It is good to have such a system, but to know if it would be compromised by the publication of expenses, it is a little difficult for me to comment on that. It would be up to the Chief Justice to make that determination.
The Chair: Your question could be asked tomorrow.
Senator Boisvenu: I was listening to Judge Gibeault, who is an excellent commentator in the world of justice. She was talking about the merits of the bill that my colleague in the other place introduced. The purpose of this bill is to amend the Criminal Code to provide support to jury members who suffer from post-traumatic stress disorder. Jury members sometimes have to attend difficult cases and, at the end of the trial, they are abandoned.
According to this judge, many judges experience very difficult trials, and sometimes they need support to recover. Would this type of expenditure be published under the current bill?
Mr. Giroux: When you talk about the type of expenses, are you referring to counselling?
Senator Boisvenu: A judge who would go to therapy for a week or two, for example?
Mr. Giroux: No. A counselling program is in place for the judiciary. This program is funded from our operating budget and not through the provisions of the bill. In this regard, a judge’s expenses related to this program would not be published. I do not think I have ever seen cases where the provisions in the bill have had to be used to reimburse a judge who has received counselling. At that point, I would like to think that an argument could be made under an exemption to exclude this type of expense. It would be unacceptable, in my opinion, to publish such expenditures.
Senator Boisvenu: I would like to ask you one last question. According to some of the witnesses from the judicial community who appeared before our committee, there has been little consultation, and we have not really listened to their concerns. The bill does not appear to have made much progress between the consultation period and the tabling of the legislation. What was your involvement in this bill? Have you made any comments? Have you conducted any consultations?
Mr. Giroux: I wasn’t consulted. However, given my role and the independence associated with it, I do not really participate in the development of bills or policies that affect judges. There is a specific unit within the Department of Justice that develops such legislation. It wouldn’t necessarily be unusual for me not to be consulted. Sometimes it is done informally to see if there are any problems, but with regard to this bill, I was informed that it would only be introduced a few days before.
Senator Dalphond: I would like to come back to a question to enlighten the committee. We are talking about 20,000 claims per year, and that is for the total number of claims, regardless of the four categories mentioned earlier. Would it be possible to obtain figures on the number of complaints by category? It would allow us to understand what judges’ travel expenses, conference expenses, incidental expenses and Chief Justices’ allowance expenses represent.
Mr. Giroux: As for incidental expenses, which are those covered by subsection 27(1) of the Judges Act, they are subject to a limit of $5,000 per judge. So there are 1,200 judges. Right now, there are slightly fewer. This number varies depending on the number of appointments and the number of vacant positions, but usually there are about 1,200 federally appointed judges. Last year, judges were paid $5,010,000 under this allowance, which are incidental expenses. As for the representation allowance — again, there is a limit to what each Chief Justice can claim — it is $10,000 per Chief Justice or $12,500 for the Chief Justice of a province. During the last fiscal year, these expenses amounted to $431,000. The travel expenses provided for in section 34, namely, the costs for hearings, for 1,200 judges last year were $10,800,000. Here, we are mainly talking about flights, other means of transport, hotel, accommodation and meals.
Senator Dalphond: Did you say $10,800,000?
Mr. Giroux: That’s right.
Senator Dalphond: Thank you.
Mr. Giroux: As for the costs related to the conferences provided for in section 41, the figures are — I will divide them in terms of conference registrations — $9,471,000 last year for the 1,200 judges. I would add to this travel expenses in the amount of $7,308,000 for conferences; for example, I refer to travel expenses to conferences organized by the National Judicial Institute or a court or other organizations that offer conferences, or to conferences for lawyers, such as those of the Canadian Bar Association.
Senator Dalphond: So, we’re talking about $16 to $17 million in conference fees.
Senator Dupuis: Yes.
Mr. Giroux: That’s right. The total amount paid under these four allowances is $33,620,000. These figures appear in our financial statements, which you can find on our website. Of course, they are categorized according to the government’s requirements for financial statements, but they appear in them.
Here again, these are the claims of 1,200 federally appointed judges, and I would repeat that incidental and representational allowances are subject to a limit per judge.
Senator Dalphond: You distinguish conference registration fees from travel expenses to a conference elsewhere in Canada or even around the world. You have distinguished between registration fees. One of the witnesses we heard from recently explained to us that judges were not aware of the amounts that are charged for registration fees when the conference is organized by the National Judicial Institute, so judges don’t claim a refund for registration fees. Does your office pay the registration fees on behalf of the judges?
Mr. Giroux: Yes, the NJI is the largest provider of judicial training in Canada and has a good reputation in this regard. Since it is the main provider of this training, for efficiency and to eliminate duplication, this expense is paid directly by our office to the NJI. So, we spare judges this task; instead of paying and being reimbursed, the expense is paid directly to the NJI.
However, you are right to say that, in some cases, this means that a judge will not necessarily know the value of his or her enrolment in training offered by the NJI.
Senator Dalphond: If I may, I’d like to finish on this question. If the legislation is enforced, a judge who attends a Canadian Bar Conference in Vancouver would say that she spent X on taxis, Y on the hotel, Z on flight expenses and A on registration fees.
Mr. Giroux: That’s right.
Senator Dalphond: This would give the total amount of the judge’s participation in the conference. What do you do about the judge travelling to Vancouver for a conference organized by the National Judicial Institute who doesn’t know part A, the registration fees?
Mr. Giroux: You have put your finger on a real issue, Senator. At this time, what I intend to do, if the bill remains as it stands, is to publish information relating to the judge’s travel, including travel, meals and accommodation expenses, and still publish the expenses that will be paid, under section 41, to the NJI. This will be published in some way if it is not assigned to a judge. The publication will explain that fees were paid to the NJI during the reporting period for judicial training, and will attempt to establish as much detail as possible about the number of judges who participated in this training and the different topics of the training.
Senator McIntyre: Thank you for your presentation, Mr. Giroux.
My question is about the guidelines published by your office. I understand that these guidelines guide you when you review claims for reimbursement of judicial expenses. Can you tell us more about these guidelines?
Mr. Giroux: Yes, basically we have three types of guidelines; three information bulletins, if you will, that are relevant to Bill C-58 and for allowances, one of which deals with incidental expenses payable under section 27(1), and the other with travel expenses, both for sitting and for attending conferences. It deals essentially with both section 34 and section 41, because at the end of the day it is all about travel, regardless why, and the same criteria apply to both provisions.
Earlier, I mentioned the elements that a judge may claim under the incidental expense allowance, and the information statement discusses these various elements. I have named a gown, for example, the dress to go to court and the dress to go to court only. I have appointed a membership fee to any legal association. I have named an electronic equipment fee, a BlackBerry, an iPhone, a tablet, a laptop, a printer for the home. The cost of Internet services at home is paid for the research they do, and activities. When private firms and courts want to attract the best candidates, sometimes a judge can participate in this type of activity at law school. He will then be able to claim his expenses under incidental expenses. That’s essentially what incidental costs are.
As for travel expenses, there are limits. With respect to accommodation, there are limits per night at the hotel. We also have a daily allowance for judges’ meals. As public servants, we can claim a daily allowance when travelling on business, which is set by the National Joint Council. Essentially, for employees, this allowance is currently about $107 and a few cents per day for meals and incidentals. For judges, it’s $110. It is essentially the same thing.
Senator McIntyre: Are these guidelines comparable to Treasury Board guidelines for executives?
Mr. Giroux: They are quite comparable. The issue that has been raised is that judges are not employees of the federal government; the same guidelines are not issued as the council issues to public servants, but they are certainly being used to apply the same criteria to judges.
In the case of hotel expenses, for example, which are subject to limits, if the judge was called to sit in Calgary during the Stampede, or in Toronto during the International Film Festival or in Montreal during the Grand Prix, it becomes impossible to find a hotel room at the rates; at that time, the judge is asked to find three places that offer comparable rates, and if the rates fall within that range, the rate is paid, because the administration of justice requires it. We have criteria and we exercise a certain flexibility where necessary. In general, however, the established criteria are applied.
Senator McIntyre: Does your office use the same guidelines as the Registrar of the Supreme Court of Canada?
Mr. Giroux: The registrar and I exchange questions from time to time. I would say that the form of his guidelines is a little different, but essentially it’s more or less the same thing.
[English]
Senator Lankin: Thank you very much, Mr. Giroux. It’s a pleasure to have you here. We appreciate you taking the time.
With respect to fees for conferences put on by the Canadian Judicial Council and with the counselling supports from your office budget — those are just examples — do I understand that these are not attributed — that individual judges do not put in any kind of expense claim for them?
Mr. Giroux: I’ll take the counselling program. If a judge needs recourse to that program, since there is no provision in the act that allows us to pay that expense, years ago we established a budget within our own operational budget to have judges participate in that program. Essentially these programs exist, for example, for public servants, but there was nothing comparable for the judiciary.
In terms of the National Judicial Institute, a decision was taken long ago, again because of efficiency, to pay those amounts directly instead of having 1,200 judges, who participate in a multitude of conferences every year, claim those expenses to us, et cetera.
Senator Lankin: I understand.
Mr. Giroux: On that point, at the current time, they are not assigned to a specific judge.
Senator Lankin: I think you might have said that if this bill came in, you would feel compelled to apply those to the names of individual judges. I want to clarify this with you.
Mr. Giroux: It’s a good question that was raised. It’s a bit of a challenge for us to try and deal with that. At this point, there would be two considerations: to assign them to judges specifically or, if that can’t be done, to have a proper explanation as to the amounts that are paid to NJI under section 41 and why they are done in that manner.
Senator Lankin: I don’t understand why the legislation would compel it to be assigned to an individual judge; I think there are all sorts of programs put on institutionally, if I can use that terminology. And I understand the point of the question Senator Dalphond raised; namely, that other training programs would be treated differently and there would be the expenses.
I’m sure other committee members have received, as I have, a letter from the head of the Tax Court. I don’t have it with me, unfortunately, but it was a detailed, thoughtful and helpful letter. I scanned it quickly and intend to go back to it. I think the same point was made that it’s not so much a problem around incidentals and other sorts of things, but it’s the travel.
So I’m trying to understand this on behalf of Canadians, looking at the expenditure of dollars in the public service. This is an incredibly important part of our public service, but we need transparency and the ability to understand. The only thing I heard you say that really speaks to why there is a sensitivity about publishing the travel expenses of judges is that it might bring pressure on the Chief Justice, who is assigning people, to not have too much of an expense for one judge versus another.
Is there anything else? Because, for me, that seems to be more of a problem for the Chief Justice. I think there are very valid explanations. Many of us who have gone through various things over the years — sunshine lists and filing public expenses — have had to live through the initial flurry of questions, with the understanding that it settles down.
Is anything else at the heart of the concern about threatening the independence of the judiciary in the filing of travel expenses?
Mr. Giroux: Yes, there are two things. I’ll start with your point, briefly, about being compelled to publish information related to training for judges. The reason I would feel compelled to do that is that the expenses are paid under section 41, under which expenses do have to be published. So I feel that these would have to be set out publicly.
As to the judicial independence issue, if I can speak broadly about that, two other witnesses who appeared before you last week could probably speak more eloquently as to the reasons it might impact judicial independence. I would bring forward two points they raised. The first is that the information could also be used by parties appearing or wishing to appear before a judge in order to embarrass the judge or, in essence, to use that information maliciously to try and embarrass the judge. That concern has been raised by judges throughout the country.
The other issue I would raise is that I think Canada is lucky in that its judiciary enjoys a very good reputation and has the confidence of the public. There is a grave concern that the publication of expenses may somehow diminish that public confidence toward the judiciary.
Those are two arguments that have been raised. Again, I apologize, because I think the other witnesses spoke more about these factors, but those are two of the main factors that have been raised.
Senator Lankin: I have reviewed that testimony and was here for that. I will tell you that I am still struggling. I understand the concern about embarrassment. Every single public individual who has had expenses put forward has worried about that, before the process started happening. Used maliciously — I’m really reaching to find an answer.
The most compelling thing you have said to me — and I’m not diminishing the testimony of others before us — is about the impact on the decision making of the Chief Justice in assigning cases. Can that concern be alleviated by strong public explanations of how judges are assigned to various cases, et cetera? I’m not trying to be difficult, but I don’t understand how it fundamentally undermines judicial independence.
Mr. Giroux: On your last point, yes, obviously we will provide an explanation and do it as best we can. We will be discussing with the media prior to publication, if they want to hear about us, about how the publication is made and what the allowances are for judges in order to provide the best understanding of how all of this works. But at the end of the day, obviously there will be some public comment on the expenses of some judges, and some will be singled out.
Contrary to parliamentarians, judges are not in a position to defend themselves. They can’t speak to why their expenses are what they are. They don’t speak out in public. They don’t argue their cases in public. There isn’t any ability for a judge to speak to that, so that is certainly an issue.
Senator Lankin: I’ll just ask about that. When you were talking, I was thinking about that. This might be simplistic and might betray my lack of understanding of the processes, but wouldn’t it be possible that there is a policy that all inquiries of that nature go to the Chief Justice, who does the assigning of court cases and travel?
Mr. Giroux: That has been raised, and perhaps that’s an idea. But I would argue, as well, that the Chief Justice is still a judge, and I’m not sure if he or she should be the public spokesperson to defend judges’ expenses. My office will do its share as best we can. We’ll have to reinforce the capability to do that, because it becomes difficult for a Chief Justice to argue with the media why one of its judge’s expenses are reasonable as compared to others or why they are reasonable, period.
I do want to make one comment with regard to conferences. One can certainly fathom why the expenses of judges to travel for their sittings might be an issue. For conferences, I have had Chief Justices come to me and say, “When I became a judge, I was not as knowledgeable in one area of the law as I wanted to be, and I took on as many conferences in all kinds of areas of the law that I could in order to increase my knowledge in these areas.” If this information is now to be published, I think there will be a hesitation or reticence on the part of some judges to participate in some conferences — but not all — so as not to be seen as the big spenders on that front or not to be perceived as a judge who took on so many conferences because he or she was not knowledgeable enough. There is certainly a concern as well in that specific area.
[Translation]
Senator Dupuis: I would like to continue along the same lines regarding conferences. Do I understand that what falls into this category is the training of judges in general? Does this include training that a judge must take because the Canadian Judicial Council has so decided? Is it indicated somewhere? What does the “conferences” category include? Are there other types of training given or received that would not be published?
Mr. Giroux: Under the bill right now, we would be required to publish any expenses related to any conference. Conferences vary enormously. Some are mandated by the Canadian Judicial Council, mandatory conferences for which each judge must attend a certain number of conference hours per year. Overall, they are offered with the approval of the Canadian Judicial Council. The latter passes a number of resolutions each year regarding the conferences offered. These vary widely and affect the training of new judges, as well as different areas of law — whether criminal, family, or other — and sub-areas specific to each major area of law. For example, training in sexual assault law is much more available now. Most of these conferences approved by the Canadian Judicial Council are offered by the National Judicial Institute.
Each individual court also provides training for its judges. Each court holds a meeting of its entire bench at least twice a year and may have other meetings of smaller groups of the bench. At almost every meeting, training is provided to the judges as required by the court. The training can be provided by the National Judicial Institute, which the courts contract to provide that training. Courts can also ask other organizations to provide training, or they can provide it themselves. For example, they can invite a judge who is an expert in a particular area of the law to come and explain that area to the court. I do not know whether I am making myself clear, but a lot of training is provided.
The two major divisions are training approved by resolution of the council, in which a limited number of judges can participate each year, and training provided to judges by the various courts. I would add a third category, where a judge can participate in a conference held by the Canadian Bar Association — which I seem to be mentioning a lot today — or by another similar organization.
Senator Dupuis: I have another little question about assignments, along the same lines as Senator Lankin’s. It is about security for judges in cases where the parties to the litigation may want to embarrass or threaten the judges. In the current situation when itinerant courts travel to small towns, where almost everyone knows that the judge, the prosecutors, and the witnesses are there temporarily and that everyone is going to sit down to dinner together each evening, does that change anything? There are very well-documented cases of situations like that.
What will change, with everything to be published eventually? Will the fact that expenses are going to be published not actually lead us to a problem assigning judges to cases? You are right to say that the chief judge is perhaps not in a good position to explain why such and such a judge has travelled more, because that is the judge who assigned the judges to those cases. Does it not call into question the management of assignments and the basis on which judges are assigned to those darned trips and trials? Are we not now calling into question the competence of the judges? Clearly, expense figures can reflect something other than the fact that such and such a judge went to such and such a place and it cost such and such an amount. Does that not basically reveal an assignment problem?
Mr. Giroux: It reveals an assignment problem and also a communication problem. To illustrate my point, in my case, like every public servant, my expenses are published on our website each quarter. When that information is published, I have some idea of what is going to appear.
In some cases, I can raise the issue with my finance director, as I have previously done. If it shows that I went to New Brunswick, but I did not go because I had to cancel, she will tell me that expenses were committed. However, I have a credit for that kind of situation that can be applied later on. It seems more logical to me to apply it to a trip I actually took.
My apologies for that rather dull example, but what I am trying to say is that with 1,200 judges, our office does not have the opportunity to give them an idea of what their expenses will look like. So they have no opportunity to indicate problems, if they did not make the trip, as in my case to New Brunswick.Unfortunately, mistakes can happen.
As an example, I could talk about hearings for judges that can be totally unanticipated. This week, one judge told me that three of his trials had been cancelled in the same week. Each time, he had made reservations, because we recommend that they reserve cheaper flights. It becomes an administrative headache to reclaim those amounts and apply them elsewhere. Hearings are not always foreseeable. Judges can be called on to preside over a hearing at the last minute for any reason. At that point, the costs are higher. Or they can be cancelled at the last minute, when money has been spent. I do not know whether that answers your question, senator, but essentially, yes, assigning cases is a major concern, including the whole issue of communicating and publishing information. It is not at all straightforward.
Senator Boisvenu: Thank you, Mr. Giroux. When judges preside over cases dealing with public safety or national security — say terrorism cases — could there be an exception to protect the independence of those judges, where the information on the costs of the trial would not be published?
Mr. Giroux: That could possibly be the case, senator. At this stage, it is difficult to list all the situations in which exceptions would apply. We can see places where an exception of that kind would generally apply. In that context, travel costs are probably the first exemption that comes to mind. Some situations would have to be considered on a case-by-case basis from time to time. If a judge incurs expenses to sit in a particular case and if, for one reason or another, that could endanger his safety or judicial independence, it would have to be looked at.
Senator Boisvenu: On page 2 of the bill, section 90.11 talks about the role of the chief administrator or deputy chief administrator. I gather that, in the process of publishing expenses, the person involved is the chief administrator or deputy chief administrator, correct?
Mr. Giroux: That provision deals with the role of the Courts Administration Service. That is not my bailiwick. If we are talking about judges’ expenses, I have a deputy commissioner who helps me with my decisions. Up until now, the process has involved the staff that checks claims. When a claim is being checked, if everything is fine and fits within our guidelines, we proceed. When there is a question, it is raised with our director of finance, who can exercise a degree of discretion. If she does not want to use that discretion, or does not feel comfortable doing so, she will ask me to make the final decision.
Senator Boisvenu: Can those people deal directly with judges on any expenses?
Mr. Giroux: Which people?
Senator Boisvenu: The chief administrators.
Mr. Giroux: With the Courts Administration Service, I do not know. Within that service, I do not know which expenses would be paid to judges. Most judges’ expenses are reimbursed under the Judges Act, which we administer.
Senator Boisvenu: Would it be useful for the committee to meet those people so that they can explain their role and the level of discretion they have in publishing one expense as opposed to another? We could perhaps put that question to the witnesses who will be appearing tomorrow.
Mr. Giroux: For the Courts Administration Service, I believe that the provisions on judges’ expenses in Bill C-58 come more under our office.
Senator Dalphond: I feel that each decision has to be analyzed in the light of the facts. That is why I am asking a lot of questions about the figures. I want to understand the reality. I understand the broad principles, but the reality often provides a proper context for the principles.
In the figures we saw earlier, the total was between $33 million and $34 million annually. Judges’ travel expenses amounted to $10,800,000. I have a number of questions about that. The amount includes the expenses of judges in federal courts, provincial superior courts, and provincial courts of appeal.
Mr. Giroux: It includes the travel expenses of 1,200 federally appointed judges. They are judges of national courts, including the Federal Court of Appeal, the Federal Court and the Canadian Tax Court across the country and in the territories, and all superior courts, including trial divisions and family divisions in the provinces.
Senator Dalphond: Does the figure also include travel expenses for chief judges attending meetings of the Canadian Judicial Council?
Mr. Giroux: Travel expenses, such as the figures I gave you earlier, do include those amounts.
Senator Dalphond: So, we have $10,800,000 annually for 1,200 judges. If I do a quick division, I get less than $10,000 per year per judge.
Mr. Giroux: Yes.
Senator Dalphond: My colleague even tells me that the amount is $10,300. We are talking about less than $1,000 per month per judge.
Mr. Giroux: On average, it is less than $9,000 per judge, so you are correct.
Senator Dalphond: So this question arises: if we are publishing information showing that a judge spent between $2,000 and $3,000 in the previous quarter, is judicial independence really an issue? I am just asking. If you report quarterly, and divide between $8,000 and $9,000 per year by four, you get an average of $2,500 per quarter. I understand that, for some judges, the figure will be $5,000 and for others, it will be $500.
Mr. Giroux: Exactly.
Senator Dalphond: However, even in the worst case scenario, if we consider the average, some will be a lot higher than the median. Once again, I have a hard time seeing how the amount can be very high on a quarterly basis.
Mr. Giroux: Mathematics are not my strong suit. I rely on your calculations.
Senator Dalphond: I am not an accountant.
Mr. Giroux: My math teachers could testify on my behalf.
Senator Dalphond: My accounting skills are limited to calculating support payments a number of years ago.
But I can see that the average is less than $10,000 per year per judge.
Mr. Giroux: On a quarterly basis, you could have a large number of judges whose travel expenses to sit in other places are zero. If you are a Superior Court judge in Ottawa and you go to L’Orignal and come back the same day, you will have incurred perhaps less than $100 in expenses. However, if you are a Federal Court judge and you have been hearing cases in Vancouver for almost the entire quarter, the expenses will be in the thousands of dollars.
If the media cover this issue without informing themselves about the reasons behind the major difference between the expenses, an argument can certainly be made. The situation can become embarrassing for the judge in Vancouver for all that time, compared to his colleague who incurred no travel expenses because he was at home every evening. The judge in Vancouver, however, was in a hotel room every evening working on his cases.
Senator Dalphond: Can we not explain that the law requires a Federal Court judge to be based in Ottawa, and, because it is a national court, it has to provide its services to the entire country? As a result, it is normal for a Federal Court judge to incur travel expenses that may reach $20,000 per year, whereas, for Ontario Superior Court judges, the expenses may be $2,000 per year, given that they do not have to travel as far.
Mr. Giroux: We certainly do that, senator. Even within the same court, say the Federal Court, there will be differences, as we saw with the one judge who was in Vancouver and the other who did not have to travel because he was in Ottawa for the same time. If you want to write something without being completely informed, it is easy to use those figures to embarrass one judge as compared to another.
Senator Dalphond: Thank you.
Senator Carignan: I am trying to see the difference between judges in terms of the more sensitive aspects of their expenses or of security risks. Could you draw a parallel with us?
We have those issues too. If you look at my expense allowance and the published figures, you can see some of my habits. I do not want to go into too much detail; the information is public. But you know what I mean. We have those issues too. The only difference I am hearing is that judges cannot explain their expenses and defend themselves publicly. But you can. You decide whether an amount is acceptable. If you decide that it is, you have your justification for the expenses and you are perfectly able to respond to the media or the public by explaining your decision to accept them.
I have difficulty understanding the argument, the reluctance to publish the expenses, other than that judicial independence is a matter of law. It will be up to a judge one day to decide on that. What is the issue with security and non-disclosure?
Mr. Giroux: I will make some comments, senator. Again, my colleagues at the Canadian Judicial Council and the Canadian Superior Courts Judges Association have commented too.
As for justifying expenses, you are right, I can do that. I will do it to the best of my ability when and where needed. However, I am not necessarily familiar with the details of the expenses for each of the 1,200 judges. I know that they are reasonable if they have been paid. In some cases, I may know why there is a discrepancy. If the expenses are out of the ordinary, it will have been brought to my attention. I will tell you that, in any event, it is not easy for judges to learn about the details of their expenses on the same day as they are published. Then, someone from New Brunswick asks questions about a judge from that province or someone from Alberta asks about a judge from that province. The answers to all those questions are not always clear. That is an issue that we will have to clarify.
As for security, some judges would tell you that, given their duties — where there is basically always a winner and a loser — people do not accept their loss in a case, even though the system is working as it should. I am thinking about family law, where people are very passionate, and rightly so. However, they can get carried away and they may have it in for a judge who has ruled against them.
Senator Carignan: Do you have any statistics on the number of cases that have been investigated because of threats to the judges? I am a lawyer, my wife is a lawyer. I know that lawyers sometimes receive threats.
Mr. Giroux: I do not keep those statistics. Anecdotally, some chief judges advise us when a judge has been specifically threatened by a litigant. For those reasons, what can be done to ensure their security? It is not such a rare occurrence. It happens from time to time. Specific measures have to be taken and we have to try our best to determine whether the expenses can be paid according to the provisions of the act. In some cases, we can fall back on our operational budget when the expenses are not according to the provisions of the act. Because somewhere, we have to ensure the judge’s security when a situation falls into a crack of some kind. For situations like that, we take action from our own budget. From time to time, quite serious threats are made against certain judges, but we do not have specific statistics on the subject.
Senator Dupuis: I would like to continue along the same lines as Senator Carignan. You have opened an interesting door, I feel. You talked about the exception to publication when it compromises security. Generally speaking, is it possible to consider publishing expenses by province? In other words, if a judge goes to L’Orignal, for example, he is not travelling very far. He is not going as far as the judge who went to British Columbia three times. We know that she went, because she was assigned there by the chief judge. So we do not even ask whether that judge’s expenses were justified. You could add all the judges’ expenses together or group them into one category for each of the provinces. You would have to do a calculation: one judge sits in Ontario almost all the time, but almost never in British Columbia, and vice versa. The door that you opened seems to offer some possibilities.
Mr. Giroux: I raised the possibility, as other witnesses also did, of publishing the information by court rather than by individual judge. I feel that would reduce some concerns that judges have. It might make our work easier. I think that, when a judge has to sit somewhere else, the issue of travel expenses deserves to be explored, perhaps more than in the matter of incidental expenses, for example.
Senator Dupuis: I was thinking about judges’ travel. The expenses do not have to be attributed to an individual judge, but rather by the territory they have to serve in each quarter. That would give us a very clear indication. That is what I understood from your remarks. The expenses are gathered for each judge, but they are assigned by territory and not by judge. There could be cumulative and non-cumulative data, which would give us a more accurate picture. If a judge has higher expenses in a quarter, it is because he has been sitting in British Columbia. We do not know how many cases were heard, but we know that the judge was in British Columbia, while his colleague was closer to home, in L’Orignal.
Mr. Giroux: I would have to give that some more thought, senator. Clearly, provincial court judges travel only within their province or territory, whereas national court judges travel anywhere in the country. I am trying to see how it could be done by territory. National court judges are all based under the Federal Courts Act. For example, Federal Court judges have to live in Ottawa. I have to understand the situation better to see whether it is possible.
Senator Pratte: Forgive me for being late. I was held up in the chamber. I am going to continue along the same lines as my colleagues. Travel expenses do not concern me much. My impression is that, the first time they are published, people will ask questions, such as why such and such a judge has travel expenses of $15,000 when another has travel expenses of $20. Once the explanation is provided, people will understand the situation perfectly well.
Imagine a case, for example, when, for whatever reason, a judge’s meal expenses are much higher than the average. The kind of case that can cause a controversy is when a judge, for whatever reason, has routinely had very high expenses for two years. I would like you to explain that because this is a public session, after all. We are told that judges are not in a position to respond. Say that Mr. Justice Giroux has meal expenses that give rise to controversy, why could not Mr. Justice Giroux respond to that publicly? It may seem clear to you, but not to the public. If he does not address the controversy, who will? The chief judge? Yourself?
Mr. Giroux: That is a good question, senator.
There is a convention of judicial restraint by which, for example, judges do not speak publicly about their decisions; they let their decisions speak for themselves. With that has arisen a great reluctance on the part of judges to comment on anything.
Let me give you an example. With appointments to the federal bench, if a media representative communicates with the chair of the committee evaluating candidates, who are often judges, the chair will, most of the time, phone us to say that he has refused to talk to the media and that he prefers us to handle it. In that context, I understand the reluctance on the part of judges to explain any expenses. It could be done by our office. As I say, we do not really have the ability to do so currently, but we could develop it.
You are really putting your finger on one of the issues that concerns us at the moment. When the information is published, when questions are asked, who will answer them? I don’t think that is a task for the judges. Someone mentioned the chief judges. Even there, I think that some judges would be concerned, whereas, if we looked after it, it would perhaps be more neutral.
Senator Dalphond: Meals, because judges have a per diem.
Senator Pratte: I understand that there is a per diem, but I am trying to imagine cases that could be controversial. In the bill, you are the one who has to decide on exceptional cases, are you not? If I recall the testimony from last week correctly, some judges, some judges’ representatives, see that as a major problem. Do you as commissioner see it as a major problem, determining whether publishing this or that adversely affects judicial independence?
Mr. Giroux: My answer is that I am well aware of the concerns of some judges in that regard. I have not taken a position on the matter. My responsibility is to make sure that the bill is enforced as it stands. Currently, exceptions are in my hands and I will have to deal with them. If that changes, it changes, and I will deal with any changes.
However, I can also tell you that, given my duty to reimburse judges’ expenses, a duty that is performed independently of the minister, and given our mandate to protect judicial independence, I am comfortable having the exceptions in my hands. However, if the bill remains in its present form, I can assure you, as I have assured the judges, that I will consult them to find out how they feel and how we can apply the exceptions, and what requirements they have in that respect. If we come to the conclusion that the judiciary should play a role, I have no problems with that either, because I will be doing it anyway.
The only thing is that I believe it is vital for our office to have a key role, given that we make the reimbursements and we have a certain expertise in the area. I believe that the decisions would be better informed if we were involved.
I would like to raise one small point on the meal expenses. The criteria in the bill currently require the total amount of an expense to be published without that amount being broken down into meal expenses, hotel expenses and travel expenses. It is an overall amount, and, in that respect, it is a little different from the requirements for public servants, who have to publish their expenses broken down into meals, and so on.
The Chair: Before we finish, you said that your accounting of the expenses was audited by the Auditor General. Can you tell us more about the nature of that audit and what kind of conclusion you received from the Auditor General?
Mr. Giroux: Thank you, Mr. Chair. Essentially, the Auditor General conducts what are called internal audits on a regular basis. Various departments are subject to audits like that from time to time, and about a year or two ago, when our office was audited, our practices in reimbursing judges’ expenses were examined.
I must tell you that, given the specific role of judges, we had to brief the Auditor General’s officials on the differences from public servants and to explain to them why the Judges Act exists and why Treasury Board guidelines do not really apply to judges. We did all that, and the recommendations were basically administrative.
We were told, for example, that our information bulletins, our guidelines, should include all the information that had been added, if you will. My apologies if I am not explaining clearly; essentially, if an information bulletin is issued for judges and some parts of that bulletin are specified later, the suggestion to us was that we send out a new bulletin, rather than just the additions. In that way, judges would have one source for the information, if you see what I mean. They would find all the information in a single bulletin. That was one of the recommendations.
The Judges Act also stipulates that expenses will be reasonable. Essentially, for all the provisions we have dealt with today, expenses must always be reasonable. The criterion is not always clear and it was suggested to us that we refer to the Treasury Board guidelines in that respect. If I recall correctly, our reply was that we were already using those guidelines as a model and that we would continue to do so.
Those are the two major conclusions that I can remember, but, overall, nothing shocking came out of the examination. The recommendations were about internal control and were more administrative than anything.
The Chair: Has that report been made public, and is it part of the Auditor General’s annual report in the year the audit was conducted?
Mr. Giroux: My apologies if I am not really an expert in this, but the Auditor General produces a report and, with his internal audits, I think that he makes very general observations without necessarily naming particular departments. I think that it is only with an audit whose exact name escapes me, but a formal, direct audit of a department when conclusions are formed on what the department is doing and recommendations from the Auditor General are provided.
The Chair: Are you likely to be audited on a regular basis, or is it unusual for you to be audited?
Mr. Giroux: I have to tell you that it was unusual, because I had never had the experience before. But we were told that they would be coming back to see us. We are also in regular communication with the officials in the Auditor General’s office, essentially to see what we have been doing to respond to his recommendations. In that respect, there is some follow-up on their part and it is not out of the ordinary that they would come to see us to make sure that we have complied with the recommendations.
The Chair: Does your way of operating have any parallels in other countries with a common law tradition, like Great Britain or the United States, in the way they reimburse expenses, determine criteria, and check validity? Do you have any information on that aspect of your operation, or not?
Mr. Giroux: I am aware that, in various jurisdictions abroad, there are organizations like ours. I would not be able to tell you whether they have a Judges Act like ours, or how the reimbursements are made. In Canadian provinces, such as Ontario, for example, reimbursements are made through the chief judge of the Provincial Court. Everything happens under her authority. There is no organization like ours that is charged with that task.
In our case — and I am speculating a little — it is probably because a federal organization looks after reimbursing the expenses of judges who, while they are federally appointed, do their work in the provinces. In that respect, our system is quite unique in that the work is done under Part 1 of the act by an organization that is at arm’s length from the Department of Justice, albeit delegated by the minister.
The Chair: To your knowledge, do any provinces publish the names of judges together with the expenses they each incur?
Mr. Giroux: I do not believe so. I have not checked whether that is the case. I have never heard of the expenses of provincial court judges being published. I do not believe so, but I cannot say that I have checked specifically.
The Chair: Thank you for your participation this afternoon, and thank you for making yourself available. Your testimony certainly adds a dimension to our thinking, because you are right next to the cash register, so to speak. It is your responsibility to make sure that, before you make a payment, the receipts and the requests comply with the standards you have to apply.
Thank you once more for making yourself available.
(The committee adjourned.)