Supreme Court of Canada Chief Justice Richard Wagner has been clear about wanting to bolster his Court’s public outreach. Since he assumed the top role, his Court has held highly-publicized sittings in Winnipeg and Québec City and begun issuing glossy “Year in Review” recaps. Another sign of this outreach is the 56 conferences the justices attended last year – more than the actual number of decisions they authored during the same period.
Given the Court generally grants leave to appeal in only 6-9% of leave applications, this emphasis on public outreach begs an important question about the job description of Supreme Court justices these days.
Another example that raises this same question is the visit by several justices to a luxury resort in Arizona in January to celebrate former Justice Louise Arbour’s receipt of the Sandra Day O’Connor Justice Prize. Ignoring the issue of Justice Russell Brown’s alleged behavior at the resort, which has been the focus of most media reports, we might ask why he and several other justices were even there. Was their attendance part of their job?
Asking about the connection between a justice’s job and attendance at such events is relevant since one’s behavior while traveling as a justice should attract a different level of scrutiny than as a private citizen. Moreover, there appears to be only a weak connection between one’s role as a justice and the justification for taking a trip to a luxury resort in Arizona to celebrate a former member of the Court.
Then there is the money issue. When the justices travel as part of their job, they are entitled to be reimbursed for it. The Court’s policies even let the justices choose their own class of air travel and bring their spouses when it is deemed appropriate for protocol reasons or requested by official invitation. But, as with the rest of their government, Canadians should be entitled to know when and how such money is spent.
Unfortunately, the Court has released little information to shed light on either of these items. To be sure, the Court complies with the requirements of the Access to Information Act by releasing limited disclosures of various allowance expenditures following each quarter. Last week, the Court published the summary of these expenses from January 1 to March 31, 2023.
But these disclosures are relatively opaque. For example, the disclosure relating to representational allowances last quarter merely states the justices were reimbursed $38,811 for “discharging the special extra-judicial obligations and responsibilities that devolve on the judge[s]” – with basically no explanation of what those actually were. The Arizona trip is not mentioned in the disclosures, but there is no indication the trip was not paid for by the Court. Opacity makes it impossible to know anything other than the total sum reimbursed.
Given that several justices and some spouses appeared to attend the event at the luxury resort in Arizona that has been grabbing headlines – not to mention impacting the Court’s operation – it is surprising the Court has not yet taken the opportunity to confirm whether the Arizona trip was considered part of the justices’ jobs and paid for by the Court.
Silence from the Court on these items speaks to a broader problem. The Court’s public outreach efforts are intended to draw attention to the Court. A lack of transparency about what public outreach efforts are reimbursed is intended to remove attention. The combination of these two is not a good recipe. The Chief Justice’s own practice of extolling the importance of a transparent judiciary – for example, in places like Singapore last November and Harvard University in March – only highlights how his Court’s conduct back home with the Brown matter has not exemplified transparency.
This also leads us to a broader conversation about what sort of travel activities should be properly considered part and parcel of a justice’s job. But that conversation – like the one about any return on investment from such travel activities – will only be possible with better transparency.
As for Justice Brown, whether his future in the investigative and disciplinary processes he faces is one of shunning or survival, the episode offers a broader opportunity to think about transparency and accountability for all justices. Although the processes Justice Brown faces conceive responsibility as a purely individual matter, he is hardly the only justice whose travel itineraries and expenses require better transparency.