New judicial expense disclosures strike ‘right balance,’ say legal advocates

Federal judges are releasing their expenses for the first time following a law passed during the last Parliament, and the new numbers show the move struck “the right balance,” according to judicial advocates and one Senator who previously opposed the legislation. The first version of the law would have released spending totals by judge, but that was flagged as potentially unconstitutional and changed to disclose spending by court instead. Since April, these disclosures have been published quarterly With two such reports now public, it represents a “good compromise” between being transparent about the use of public money and protecting judicial independence, said Progressive Senator Pierre Dalphond (De Lorimier, Que.), a former Quebec Court of Appeal judge who sat on the committee that studied the bill. “I certainly feel this is what the numbers are showing. We get the picture, but we don’t single out any single judge so we don’t expose any judge to a campaign by a disgruntled party,” said Sen. Dalphond, adding though that the picture is not yet reflective of reality given COVID-19 has drastically impacted their work, with cancelled conferences, virtual sittings, and many judges stationary rather than on the circuit. “We have to wait until we go back to normality to have a better reflection of what is the reality of the courts.” Concerned over the law's first draft, Sen. Dalphond is responsible for having proposed the accepted amendments to have disclosures be by court instead of by judge. The disclosures cover more than 1,250 judges and 22,000 annual claims, according to the Commissioner for Federal Judicial Affairs, paid out through various allowances granted under the Judges Act. Though the office has the power to exempt expenses from the reports, it hasn’t yet done that and would report the total if deemed necessary in the future. The second quarter of judicial expenses were released Oct. 30 by the Office of the Commissioner for Federal Judicial Affairs, with federally appointed judges spending at least $3.8-million on travel, incidental, and conference claims. That’s down from the $4.2-million claimed in the first quarter. Incidental claims, for one, dropped from $1.7-million to $1-million in the second quarter. Travel is up to $800,000 compared to $491,670 early in the pandemic. Conferences posted the biggest price tag between July and October at $2-million, with 444 of 813 events listed as cancelled, and 168 as being conducted online. That’s close to the $1.9-million claimed in conferences between April and June, where 51 of 170 meetings or seminars were listed as cancelled and 33 were online. The shift in expenses could be because incidental costs related to setting up virtual hearings were made in the first quarter, suggested the Canadian Bar Association (CBA) by email. “Travel expenses for superior courts were higher than in the first quarter, which is perhaps a reflection of the gradual re-opening of some courthouses and the need for judges to be present,” the CBA added. “Generally, the expenses appear to be on the low end, which likely reflects ongoing pandemic restrictions and cancellations.” The Supreme Court's total expenses, meanwhile, were a little more than $5,300 between July and September, down slightly from $10,400 the quarter before. Every claim is audited to ensure it complies with the act, and reimbursements must adhere to four principles: value for money, accountability, transparency, and respect for judicial independence, said Philippe Lacasse, executive director for judicial appointments in the commissioner's office. Progressive Senator Pierre Dalphond, pictured with Senator Elaine McCoy at the Senate Legal Affairs Committee during the last Parliament, suggested the amendments that made disclosures be by court rather than by individual judge. The Hill Times photograph by Andre Meade Osgoode Hall Law School professor Trevor Farrow echoed Sen. Dalphond’s caution against drawing too many conclusions from the numbers or using these as a baseline for future comparisons. He also noted that the reports reflect money claimed during that quarter, not necessarily all expenses incurred during the quarter since it’s the onus of judges to file claims, and some might file months or a year after the fact. “We are early days, particularly in the context of a global pandemic, when travel has changed, different kinds of educational problems have been cancelled or postponed,” said Prof. Farrow. “The world’s turned upside down and that includes the kinds of things that judicial exceptions would be used for so we need to temper either our excitement or our concerns.” The cost of the justice system as a public good Public information around courts, especially financial information, is “quite poor” so Matthew Hennigar, a political science professor at Brock University, said he welcomes the shift. The data can give better insight to researchers and academics about how judges are using their allowances, he said. It’s useful to see what is being spent, for example on the training side of things, when you can see what seminars are being taken at conferences, said Prof. Hennigar. It also offers a better picture to the question: “what does our justice system cost as a public good?” For each type of allowance, it’s broken down by court and the number of judges from that court who made claims by category. The data breaks down to incidentals, like electronic and office equipment, telecommunications, membership and legal publications, formal court attire, and judicial education. Then there’s the travel allowance (including meals, transportation, and accommodation), the conference allowance (including description of the seminar and location), and representational allowances for chief justices, and expenses made by those who sit on the Canadian Judicial Council. When things go back to normal, Canadians are going to see that judges from federal courts have to travel a lot, noted Sen. Dalphond, because the law provides that they have to live in Ottawa, even though the federal and tax courts sit all across the country. “This may come as an expensive way to run courts and maybe some people will have questions, but it’s too early,” said Sen. Dalphond. While questions may be raised in the public, Prof. Hennigar said the matter is more for the chief justice to determine if any shift must happen if, for example, one judge is spending unexplained amounts. Still, he’d like to see more information in some areas, like the “other” categories in some sections that represent large unexplained fees. Alberta’s Court of Queen's Bench, for example, posted $26,582 under other expenses for conferences. There’s likely a good explanation, said Prof. Hennigar, for example, cancelled flights or accommodations that couldn't be reimbursed, but it would be good to have some of that spelled out. There can be a tendency to be “over-vigilant” on the question of judicial independence from Canada’s legal associations, said Prof. Hennigar. “I think it’s right to be vigilant but there's a tendency to view any sort of transparency as a threat,” said Prof. Hennigar, who didn’t see the prospect of publishing individual expenses as “beyond the pale.” For Prof. Farrow, it’s still “early days” to decide whether concerns around “impartiality and independence of different courts have been jeopardized.” He said he didn’t see a problem in the first place, and individual disclosures would not have improved the administration of justice or the public’s confidence in the justice system. “This was more of a solution in search of a problem,” he said, though he added he understands the demand for increasing transparency to maintain trust in public institutions. The 'right balance,' says Judicial Council The disclosure requirement comes through changes to the Access to Information Act and the Privacy Act made under Bill C-58, which was first introduced in 2017 and was among the last pieces of legislation to pass in June 2019 before MPs rose for the summer and headed towards an election. A troubled bill criticized by successive information commissioners, it stalled in the Red Chamber, in part because Senators refused to move forward without hearing from the then-justice minister—now Independent MP Jody Wilson-Raybould (Vancouver Granville, B.C.)—on what Senators argued was a question of judicial independence. They worried reporting by judge would unfairly target those required to regularly travel for hearings and could jeopardize their safety, a position shared by three legal bodies at the time: the Canadian Superior Courts Judges Association, the Canadian Judicial Council (CJC), and the CBA, which also argued the changes could jeopardize judicial independence. Following the SNC-Lavalin fallout and Ms. Wilson Raybould’s departure from cabinet and caucus, her successor, Justice Minister David Lametti (LaSalle-Émard-Verdun, Que.), quickly appeared before the Senate Legal Affairs Committee and signalled the ball was in its court, later accepting its volley of amendments. Mr. Lametti’s press secretary, Rachel Rappaport, said the law enhances accountability and transparency, while also protecting the "fundamental" constitutional principle of judicial independence. "In keeping with the principle of judicial independence, we will leave comment on specific disclosures to the administrative bodies that support the courts," Ms. Rappaport said by email. Ms Wilson-Raybould’s office said she was unavailable for an interview and didn’t respond to questions. Of the move, NDP MP Alistair MacGregor (Cowichan-Malahat-Langford, B.C.), his party’s deputy critic for justice, said by email it’s important that Canadians have faith in our justice system, and “a part of this includes transparency and confidence that public funds are being spent appropriately.” In its email, the CBA said it generally supports the proactive publication of expenses incurred by parliamentary entities and government institutions, including federal judges’ expenses, as long as the numbers are published on an anonymous or aggregate basis. “This approach protects the security of individual judges and the independence of the judiciary, while remaining consistent with the overall objectives of transparency and accountability,” it wrote. The Canadian Superior Courts Judges Association declined to comment, while CJC spokesperson Johanna Laporte said by email the way expenses are being published now “strikes the right balance” between openness and protecting judicial independence. “Be assured that the Canadian Judicial Council is mindful of its use of public funds and administers its activities with the highest standards of integrity and prudent stewardship,” she said. swallen@hilltimes.com The Hill Times

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New judicial expense disclosures strike ‘right balance,’ say legal advocates

Brock University professor Matthew Hennigar says these new disclosures help answer the question: ‘what does our justice system cost as a public good?’

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