Balancing Transparency and Independence in the Judiciary

On July 28, 2020, the Office of the Commissioner for Federal Judicial Affairs is expected to publish for the first time expenses of federally-appointed judges.

The changes come about from amendments to the Access to Information Act as a result 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, which was first tabled on June 19, 2017.

The Bill followed various political promises to prioritize federal access to information, to create a more open government, including providing greater powers to the Information Commissioner, ensuring it applied to the Prime Minister and cabinet, and the administrative functions behind the justice system.

The House of Commons Standing Committee on Access to Information, Privacy, and Ethics held consultations, and released a report in June 2016. The report only contained one recommendation in relation to the judiciary,

RECOMMENDATION 9
That in the first phase of the reform of the Access to Information Act, the application of the Act be extended to include bodies providing administrative support to the courts, such as the Registrar of the Supreme Court of Canada, the Courts Administration Service, the Office of the Commissioner for Federal Judicial Affairs Canada and the Canadian Judicial Council, except in regards to court files, the records and personal notes of judges, as well as communications or draft
decisions prepared by or for persons acting in a judicial or quasi-judicial capacity.

The remainder of the recommendations focused on the political institutions in Canada, and those institutions established by statute. A mandatory exemption for Cabinet confidences still contained various exemptions, which would allow for disclosure of even this information in certain circumstances. This level of transparency was unprecedented in Canada, with the last review of the Act occurring in 2006, and no real updates since 1983.

The amended statute states in s. 2(1) that its purpose is,

…to enhance the accountability and transparency of federal institutions in order to promote an open and democratic society and to enable public debate on the conduct of those institutions.

[emphasis added]

The debate about how and why we spend the money that we do is essential in a democracy. The Supreme Court of Canada discussed the Act in Dagg v. Canada (Minister of Finance), where they expanded further on the purpose of this legislation prior to the amendments,

60 As society has become more complex, governments have developed increasingly elaborate bureaucratic structures to deal with social problems. The more governmental power becomes diffused through administrative agencies, however, the less traditional forms of political accountability, such as elections and the principle of ministerial responsibility, are able to ensure that citizens retain effective control over those that govern them; see David J. Mullan, “Access to Information and Rule-Making”, in John D. McCamus, ed., Freedom of Information: Canadian Perspectives (1981), at p. 54.

61 The overarching purpose of access to information legislation, then, is to facilitate democracy. It does so in two related ways. It helps to ensure first, that citizens have the information required to participate meaningfully in the democratic process, and secondly, that politicians and bureaucrats remain accountable to the citizenry. As Professor Donald C. Rowat explains in his classic article, “How Much Administrative Secrecy?” (1965), 31 Can. J. of Econ. and Pol. Sci. 479, at p. 480:

Parliament and the public cannot hope to call the Government to account without an adequate knowledge of what is going on; nor can they hope to participate in the decision-making process and contribute their talents to the formation of policy and legislation if that process is hidden from view.

…

62 Access laws operate on the premise that politically relevant information should be distributed as widely as reasonably possible. Political philosopher John Plamenatz explains in Democracy and Illusion (1973), at pp. 178-79:

There are not two stores of politically relevant information, a larger one shared by the professionals, the whole-time leaders and persuaders, and a much smaller one shared by ordinary citizens. No leader or persuader possesses more than a small part of the information that must be available in the community if government is to be effective and responsible; and the same is true of the ordinary citizen. What matters, if there is to be responsible government, is that this mass of information should be so distributed among professionals and ordinary citizens that competitors for power, influence and popular support are exposed to relevant and searching criticism.
[Emphasis in original.]

63 Rights to state-held information are designed to improve the workings of government; to make it more effective, responsive and accountable. Consequently, while the Access to Information Act recognizes a broad right of access to “any record under the control of a government institution” (s. 4(1)), it is important to have regard to the overarching purposes of the Act in determining whether an exemption to that general right should be granted.

Although the purpose provisions in the Act prior to the amendments did not focus on an open and democratic debate on institutions, it did emphasize the right of access to information by the public, with limited and specific exceptions reviewed independently of the government.

Before receiving Royal Assent on June 21, 2019, the Bill received several amendments at the Senate, including changes that would only publish high-level financial information about the judiciary.

During the debate at the Senate on May 1, 2019, Hon. Serge Joyal cited the Supreme Court of Canada decision in Canada (Information Commissioner) v. Canada (Minister of National Defence), to emphasize that access to government information is essential, connected to s. 2(b) of the Charter, and has quasi-constitutional status. However,

The conclusion was that the bill could be amended to maintain and satisfy the objective of transparency that the government was aiming to get, while at the same time balancing it with the capacity of the judiciary to manage its own affairs and to protect the fact that the judges cannot defend themselves when they are alleged to have overspent. They have the obligation of restraint.

[emphasis added]

Senator Joyal also expressed concern about the personal security of judges, in light of the murder of a former judge and his wife, who was unhappy about the judge’s decision a decade prior. A similar attack this past week in the U.S. illustrates that these are not incidents entirely outside the realm of possibilities, but what makes it most shocking is that it was by a member of the bar.

The Senate’s amendments to aggregate judicial expenses was directly tied to the safety and security of judges, but also their independence,

The Registrar, the Chief Administrator or the Commissioner, as applicable, may, on an exceptional basis, decline to cause to be published information or any part of the information described in any of sections 90.03 to 90.09, 90.11 to 90.13 and 90.15 to 90.21 if they determine that the publication, even in the aggregate, could interfere with judicial independence.

A similar proviso around judicial independence was raised by the Information Commissioner of Canada.

The Canadian Bar Association made a submission to the Senate that recommended that the judiciary and courts be exempt entirely from the Act,

The courts and federally appointed judges fill a unique role under the Canadian Constitution. They serve as the arbiters on issues that arise between individuals and the state and are the protectors of the rights and liberties of individuals as against state intrusion, whether by legislative action or the application of criminal law. This balance safeguards the rule of law, a fundamental pillar of democracy, and one which Canada has championed at home and throughout the world.

An independent judiciary is a key aspect of the rule of law. As put by Justice Canada:

Judicial independence is a cornerstone of the Canadian judicial system. That is why, under the Constitution, the judiciary is separate and independent of the other two branches of Government, the Executive and the Legislature. Judicial independence guarantees that judges will be able to make decisions free of influence and based solely on fact and law. However, the foundation of judicial independence can be easily eroded. One of the three recognized components of judicial independence is administrative independence.

…

The CBA believes that the prudent course of action would be to exempt the judiciary and the courts from ATIA. As noted in a research report commissioned by the 2002 Task Force, there is concern about “including the judiciary at all, particularly since it is not clear where a line can be drawn between the judicial function and administrative matters.”

In the alternative, we support the recommendation of the [Canadian Superior Courts Judges Association] CSCJA that the Office of the Commissioner of Federal Judicial Affairs publish, by court, in aggregate amounts only, the expenditures for each category of expense allowed under the Judges Act.

The Justice Minister did not accept these submissions, and resisted the Senate’s amendments, stating that aggregating data would make the information about specific judges almost meaningless. Ultimately, the aggregation of this data was accepted, but the judiciary was not exempted.

The Charter Statement for the Bill points out that this question of independence is also related to other provisions of the Charter,

Section 11(d) of the Charter provides that individuals charged with an offence have the right to a hearing before an independent and impartial tribunal. The right to an independent and impartial tribunal includes the right to a court with judicial control over administrative matters bearing directly on the exercise of the judicial function. The obligation to disclose certain expense information of the federally appointed judiciary could, by making public the expense information of individual judicial decision-makers, engage the section 11(d) right.

The Bill purports to retain this independence through s. 90.22, which allows for information to be excluded if data could interfere with judicial independence. The strong privative clause in s. 90.24 is intended to provide greater deference to the decisions of the Registrar, the Chief Administrator or the Commissioner, but post-Vavilov, these seem to carry far less (or no) weight.

Travel expenses expected this week are anticipated to be lower than usual, given the use of virtual courts and remote hearings during the pandemic. What that means is that in subsequent publications, it will appear as if the travel expenditures of the judiciary are unnaturally increasing.

As the CBA submission points out, judges are not responsible for their case assignments and scheduling. Some judges are required to have certain residency requirements, and others are required to constantly travel throughout Canada,

Although the Bill would not require details other than a description, dates, and total amounts of expenses, it may be possible to determine additional details from patterns of expenditure or in combination with the more detailed reporting required of court administrators. All of this information, in the public domain, puts the security of individual judges at risk.

It’s still unclear how any of this information will achieve the new purposes in the amended Act, as the expenditures of the judiciary should not be subject to a public debate. The judiciary is an institution like no other in a democracy, and it is not one for which we should be promoting debate on spending without a context as to what this spending is for.

Existing control mechanisms are already in place to ensure that judicial expenses are legitimate, reasonable, and independently verifiable, as the Judges Act already enumerates eligible expenditures. The Commissioner of Federal Judicial Affairs or Registrar of the Supreme Court of Canada reviews these expenses to ensure they are reasonable. The submission by the CSCJA points out that even these expenses must also be approved by the Chief Justice on which the judge serves, in advance. 

Can you imagine the public holding a debate on whether a specific conference that a judge attended was necessary (s. 41), without knowing anything about whether there was content necessary to a matter before the court, or was important to convey a message or update to the bar? Or whether a judge should be taking the train from Vancouver to Ottawa, because it would allow them to save a few hundred dollars? It’s the type of scrutiny that even in a democracy has the potential to compromise judicial independence.

The CSJA states that the safeguard clause under s. 90.22 is “a glaring, fundamental constitutional defect,” as the Registrar and the Commissioner are members of the executive branch,

It is not acceptable from a constitutional perspective to seek to give members of the executive branch final say on the question of whether the principle of judicial independence could be undermined.

Even with the aggregated data, it would be relatively easy for anyone within the justice system to ascertain patterns, and eventually create trouble, if they were so inclined. The CSJA states,

The work of judges involves emotionally fraught issues of criminal conviction and sentencing, custody of children, disputes over wills and estates, and bankruptcy matters, to give a few examples. By definition, the judicial function results in at least one party being dissatisfied with the result. The potential for mischief in the use of publicly available individualized expense information is enormous. And unlike persons working in other branches of government, judges may not defend themselves publicly when they stand attacked. Moreover, there are real concerns about the security of individual judges if it were publicly disclosed where they stay and eat while travelling on judicial duties, or where they gather for judicial education conferences.
[emphasis added]

These are not the things that the judiciary should be concerning themselves with, when they are already burdened by the very heavy matters presented before them. They should not be looking over their shoulder, wondering if that young lawyer approaching them from behind is simply heading to the same destination, or intends to do them harm.

We compromise our judiciary when we treat it like an institution that is under control of the government like all other institutions. There is no true public debate when the institution being debated, by its very nature, is excused from participation.

While well intended, these provisions of the Act take freedom of information too far. Society may be more complex than in the past, but the judiciary cannot be accountable to the public through an accounting exercise. The open and democratic nature of our society is in fact diminished by doing so.