Revisiting the Commissioner's reports: It's supernumeraryman!

Still on the subject of past CSE Commissioners' reports...

In his final annual report (2002-03), the first CSE Commissioner, the Hon. Claude Bisson, expressed concern about the possibility that a supernumerary judge might be appointed to be Commissioner:

Paragraph 273.63 (1) of the National Defence Act provides that the Governor in Council may appoint either a supernumerary judge or a retired judge of a superior court as Commissioner of the Communications Security Establishment. However, I am concerned that a supernumerary judge would face serious limitations in carrying out the full range of duties and responsibilities involved.

These limitations arise from the blurring of lines between the executive and legislative arms of government on the one hand, and the judiciary on the other, that would result from appointing a supernumerary judge. For example, a supernumerary judge would not be in a position to comment on proposed legislation – as I have had occasion to do from time to time. Similarly, a supernumerary judge ought not to appear as a witness before parliamentary committees. Although I am somewhat disappointed not to have been called as a witness before parliamentary committees to discuss my annual reports, as a retired judge I would at least have been able to do so.

A supernumerary judge (someone correct me if I'm wrong here) is one who no longer performs regular judicial duties but still holds office as a judge and is available to perform part-time duties.

Of the six individuals who have been appointed CSE Commissioner since the office was created in 1996, only one wasn't fully retired from the judiciary at the time of his appointment.

The sole supernumerary judge appointed to the position is the current officeholder, the Hon. Jean-Pierre Plouffe. According to his biography on the CSE Commissioner website, "He will remain a supernumerary Justice until April 2014, when he will then retire."

Was Commissioner Bisson correct when he wrote that a supernumerary judge ought not to appear as a witness before parliamentary committees or to comment on proposed legislation?

I certainly don't know, but the question is far from irrelevant: Commissioner Plouffe has already appeared before the Standing Senate Committee on National Security and Defence.