How Do Canadian Administrative Law
Protections Measure Up to International
Human Rights Standards?
The Case of Independence
Gerald Heckman and Lorne Sossin*
International human rights law recognizes the right to
have ones rights and obligations adjudicated by an
independent tribunalone free from internal collusion and
external manipulation. Under Canadian law, by contrast,
the right to tribunal independence is watered down.
Interference by the executive in administrative decision
making is tolerated because the constitutionally entrenched
protection of judicial independence is understood not to
extend to the sphere of administrative tribunals, ordinarily
viewed as instruments of governmental policy. The
deference of Canadian courts
tribunals without
constitutional protection for independence means that
many tribunal decisions remain insulated from review by
independent courts. Furthermore, even where a certain
degree of protection exists, the overwhelming emphasis in
Canadian administrative law on guarantees of security of
tenure and financial remuneration of tribunal members
leaves
to external manipulation
through political influence over tribunal appointments and
policy directions.
In this article, the authors ask whether the Canadian
norm of tribunal independence measures up to international
human rights standards. The authors document and
compare
in conventional
international law and Canadian law. They conclude that the
protections for tribunal independence found in Canadian
law likely fall short of the standards embodied in
international human rights instruments and suggest ways in
which Canadian
inspiration from
international sources.
tribunals vulnerable
law might draw
to
the content of
this norm
Le droit international des droits humains reconnat le
droit de faire juger de ses droits et obligations par un tribunal
indpendant un tribunal libre de toute collusion interne et
manipulation externe. En droit canadien,
le droit
lindpendance des tribunaux est quelque peu dulcor en
comparaison. Certaines intrusions par le pouvoir excutif
dans les dcisions administratives sont tolres parce que la
protection constitutionnelle de lindpendance judiciaire est
vue comme ne stendant pas la sphre des tribunaux
administratifs, ordinairement perus comme des instruments
servant les politiques gouvernementales. La dfrence dont
font preuve les cours canadiennes envers des tribunaux dont
lindpendance nest pas protge constitutionnellement a
pour effet de soustraire nombre de dcisions de ces tribunaux
toute rvision par des cours indpendantes. De plus, mme
lorsquune certaine protection existe, lemphase crasante que
met le droit administratif canadien sur les garanties relatives
la dure des mandats et la rmunration financire des
membres des tribunaux rendant ceux-ci vulnrables des
manipulations externes, travers linfluence politique, sur les
nominations et lorientation des politiques.
Dans cet article, les auteurs se demandent si les normes
canadiennes relatives lindpendance des tribunaux sont la
hauteur de celles prescrites par le droit international. Les
auteurs documentent et comparent le contenu de ces normes
en droit international conventionnel et en droit canadien, pour
en venir la conclusion que les protections offertes en
matire dindpendance des tribunaux en droit canadien ne
rencontrent pas les standards contenus dans les instruments
internationaux relatifs aux droits humains et suggrent de
quelles manires le droit canadien pourrait sinspirer de
sources internationales.
* Gerald Heckman, Ph.D. candidate, Osgoode Hall Law School, York University. Lorne Sossin,
Associate Professor and Associate Dean, Faculty of Law, University of Toronto. The authors wish to
thank Leslie Zamojc for her excellent research assistance and Laverne Jacobs for sharing some of her
ongoing research into questions of administrative independence. We are grateful for the constructive
and challenging questions posed by colleagues who reviewed an earlier draft of this paper, including
Harry Arthurs, Colleen Flood, France Houle, Grant Huscroft, David Mullan, and Michael Taggart.
Gerald Heckman gratefully acknowledges the support of a doctoral fellowship from the Social
Sciences and Humanities Research Council of Canada.
Gerald Heckman and Lorne Sossin 2005
To be cited as: (2005) 50 McGill L.J. 193
Mode de rfrence : (2005) 50 R.D. McGill 193
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Introduction
I. The Guarantee of Independence in Conventional
International Law
A. The International Covenant on Civil and Political Rights
1. Scope of the Right to an Independent Tribunal
a. The Travaux Prparatoires
b. The Scope of Article 14(1) in the Committees
Jurisprudence
2. Content of the Right to an Independent Tribunal
a. The Meaning of Tribunal
b.
Independence
B. The European Convention
1. Scope of the Right to an Independent Tribunal
2. Content of the Right to an Independent Tribunal
a. The Meaning of Tribunal
b.
Independence
i. The Manner of Appointment of Tribunal
Members and Their Term of Office
ii. The Existence of Guarantees against
Outside Pressure
of Independence
iii. Whether the Tribunal Presents an Appearance
c. The Role of Judicial Review in Satisfying the
Guarantee of Independence under Article 6(1)
C. Summary
II. The Sort-of-Quasi-Right to Institutional Independence
in Canadian Administrative Law
III. How Does Canadian Administrative Law Measure Up
to International Human Rights Standards?
A. The Deference Problem: Assessing Standards of Review
B. The Political Interference Problem: Independence and
Appointments
Conclusion
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Introduction
A cornerstone of international human rights law is the principle that everyone is
entitled to have their rights and obligations adjudicated by an independent tribunal
one free from internal collusion and external manipulation. An analysis of Canadian
administrative law reveals a slightly less firm procedural foundation: under Canadian
standards, one can claim at most that some people have some right to have some of
their cases heard and adjudicated by a tribunal that is quasi-independent. This
slippage occurs because most Canadians have their disputes heard and adjudicated by
administrative tribunals, boards, commissions, and other executive decision makers
who are, to varying degrees, subject to influence and interference by the government
of the day. This interference is tolerated because the constitutionally entrenched
protection of judicial independence is held not to extend to the sphere of
administrative tribunals. In Canadian constitutional law, the distinction between
tribunals and courts is keyit holds even where there is virtually no functional
distinction between the adjudication conducted in tribunals and courts, and even
where the interests, rights, and obligations at stake in tribunal proceedings may be far
more significant than what is at stake in judicial proceedings. This is not to say that
those in Canada who have their rights adjudicated by administrative tribunals have no
constitutional entitlement to procedural protection: some matters (e.g., refugee
determinations) engage life, liberty, and security of the person concerns and
consequently give rise to Charter1 procedural protections, but the vast majority do
not. While there are some non-Charter statutory protections that might afford
procedural protections for people coming before administrative decision makersthe
Canadian Bill of Rights2 and Quebec Charter of Human Rights and Freedoms3 are the
two salient examplesmost jurisdictions in Canada have not enacted this sort of
legislation. As a result, Canadian administrative law protections resemble a patchwork
quilt with different degrees of protection applicable in different jurisdictions
depending on differing contexts. Even so, the right of affected parties to an
independent hearing can in most cases be vitiated by a simple act of the legislature.
This uncertainty flows from one of the presuppositions of the Canadian constitutional
system, which is that administrative tribunals form part of the executive rather than
the judicial branch of government,4 and are therefore subject to parliamentary
supremacy. James Sprague captured the conventional Canadian position well when he
observed: [A]dministrative agencies are not junior, imitation or quasi-courts. They
1 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B
to the Canada Act 1982 (U.K.), 1982, c. 11 [Charter].
2 Canadian Bill of Rights, S.C. 1960, c. 44.
3 Charter of Human Rights and Freedoms, R.S.Q. c. C-12 [Quebec Charter].
4 See Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing
Branch), [2001] 2 S.C.R. 781, 2001 SCC 52 [Ocean Port cited to S.C.R.].
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are instrumentalities of government policy which are, nonetheless, required to act
fairly.5
[Vol. 50
The question we wish to pose in this paper is whether this state of affairs in
Canadian administrative law measures up to procedural norms in international human
rights instruments. Through an analysis of these instruments and the present state of
Canadian judicial review, we conclude that it likely does not. While the doctrine of
institutional independence has been affirmed on numerous occasions in the last
decade or so by the Supreme Court of Canada, increasingly these affirmations have
come with qualifications. Most importantly, the common law protection of
institutional independence can be trumped by clear statutory language to the contrary.
Where contrary language is present, its effect is to insulate adjudication from review
even where there is an apprehension of vulnerability to influence or manipulation.
Because Canadian courts often defer to expert decision makers even where their
independence may be curtailed by statute, many Canadians will have their rights and
interests adjudicated without the guarantee that the adjudicating body is independent
and impartial. Additionally, even where procedural protections are in force, the
analysis tends to focus on judiciary-oriented concerns of financial independence and
security of tenure rather than more executive-oriented concerns about political
interference from supervising ministries and the partisan political staff of the
government of the day.
As David Dyzenhaus, Murray Hunt, and Michael Taggart have argued, the
principle of legality forms an important bond between the development of Canadian
administrative law and international norms.6 Should anyone care, however, how
Canadian administrative law measures up to those international norms? We argue that
our claim regarding the dissonance between international norms and Canadian
administrative law is important for at least three reasons. First, insofar as the federal
executive, by ratifying international human rights conventions, has made an
international commitment on behalf of the Canadian state that decision making in
Canada would respect the procedural standards expressed in these conventions,
concern is appropriate where Canada is failing to honour its commitment. This is not
to suggest that the executive can bind all governments in Canada through its pen but
rather that, if the government of Canada has undertaken such a commitment, it should
be seen as a legal obligation, albeit often an unenforceable one, from which positive
obligations may flow. This reasoning is less compelling in the case of provincial
governments, which usually will have had no say in the commitments the Canadian
executive has decided to undertake.
5 James L. H. Sprague, Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor
Control and Licensing Branch): Case Comment (2000) 12 Can. J. Admin. L. & Prac. 349 at 356.
6 David Dyzenhaus, Michael Hunt & Murray Taggart, The Principle of Legality in Administrative
Law: Internationalisation as Constitutionalisation (2001) 1 Oxford University Commonwealth Law
Journal 5.
L. SOSSIN & G. HECKMAN ADMINISTRATIVE LAW PROTECTIONS
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Second, international human rights norms, because they are forged from a broad
consensus among disparate nations (including, of course, Canada in some instances),
provide an important measuring rod with which to assess the scope and content of
procedural safeguards in Canadian administrative law. Under this comparative law
approach, we rely on international law for its ability to provoke critical self-
reflection: Comparing the international and domestic approaches to a legal problem
may lead to the recognition of differences and alternatives within domestic law,
thereby promoting engagement with diverse internal perspectives on the problem.7
197
Third and finally, we believe that gaps between public law standards need to be
justifiedin other words, if the content of institutional independence under section 7
of the Charter differs from the content of institutional independence under subsection
2(e) of the Canadian Bill of Rights or section 23 of the Quebec Charter of Human
Rights and Freedoms or the common law, this begs fundamental questions.8 While the
gaps between domestic procedural protections may give rise to similar questions, in
this paper we focus on the gap between domestic procedural protections taken as a
whole on the one hand, and international human rights law procedural protections on
the other. If institutional independence under Canadian administrative law appears to
be a less rigorous standard than in international human rights law, in our view it is
vital to ask why.9 This is especially the case considering that the various sources of
procedural rights recognized in Canadian administrative law interpenetrate with
international law on many levels. Common law principles of procedural fairness and
of tribunal independence form part of the state practice underlying the creation of
customary international law. Given the central role of common law nations in drafting
the principal regional and international human rights instruments, the same common
law principles likely inspired the formulation of the conventional international norms
of procedural fairness and independence. Conversely, conventional international
norms, now shaped through their interpretation by international bodies, may influence
the meaning of Canadian common law principles through application of the
presumption that Canadian law should, where possible, be interpreted in conformity
with Canadas treaty obligations. And, as the Supreme Court observed in Suresh v.
7 Karen Knop, Here and There: International Law in Domestic Courts (2000) 32 N.Y.U.J. Intl L.
& Pol. 501 at 531.
8 Compare the discussion of the Charter in Singh v. Canada (Minister of Employment and
Immigration), [1985] 1 S.C.R. 177 at 212-16, S.C.J. No. 11 [Singh cited to S.C.R.] with the
discussion of the Canadian Bill of Rights in Singh at 229-35; the discussion of the Canadian Bill of
Rights in MacBain v. Canada (Canadian Human Rights Commission), [1985] 1 F.C. 856, 22 D.L.R.
(4th) 119; the discussion of the Quebec Charter in 2747-3174 Qubec Inc. v. Qubec (Rgie des
permis dalcool), [1996] 3 S.C.R. 919, 140 D.L.R. (4th) 577 [Rgie cited to S.C.R.]; and the
discussion of the Charter in Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1
S.C.R. 3, 208 D.L.R. (4th) 1 [Suresh cited to S.C.R.]. The standards of fairness applied in each of
these different settings do not appear to differ in substance.
9 See David Dyzenhaus, Baker: The Unity of Public Law? in David Dyzenhaus, ed., The Unity of
Public Law (Oxford: Hart Publishing, 2004) 1.
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Canada (Minister of Citizenship and Immigration),10 both the common law
procedural fairness rules11 and international human rights norms12 form part of the
principles of fundamental justice for the purposes of the Charter.
[Vol. 50
Other Westminster systems are facing a similar dilemma with respect to
harmonizing or reconciling domestic guarantees and international commitments. In
the UK, the courts have adapted their judicial review doctrines to incorporate the
principle of proportionality from German administrative law (has the authority gone
beyond what is needed to achieve the desired object?) instead of the doctrine of
Wednesbury reasonableness (could a reasonable minister acting reasonably in the
legislative context have done what the minister did?) as the basis of evaluating the
legitimacy of state policy and action.13 In addition, international treaties have had a
significant impact on state-based law and judicial reasoning.14 This impact may
include an increased expectation that judges and lawyers develop the explicit
rationality of their thought in dialogue with a broader global universe of norms,
principles, and methods of reasoning.
If Canadian courts and the federal and provincial governments adopted the goal
of making Canadian administrative law compatible with the procedural requirements
of international human rights instruments, as in our view they should, the content of
Canadian administrative law might substantially alter. This suggestion should not be
confused with the argument that international human rights norms should be given
binding effect in Canadian courts. The Supreme Court has reiterated on a number of
occasions that international treaties and conventions are not part of Canadian law
unless they have been implemented by statute.15 The Court has also accepted,
10 Suresh, supra note 8.
11 Ibid. at para. 113.
12 Ibid. at para. 46.
13 See Lord Slynn of Hadley, The European Union and English Law in Cheryl Saunders, ed.,
Courts of Final Jurisdiction: The Mason Court in Australia (Sydney: Federation Press, 1996) at 176.
14 See M. Moran, Authority, Influence and Persuasion: Baker, Charter Values and the Puzzle of
Method in Dyzenhaus, The Unity of Public Law, supra note 9 at 389, and J. Brunne & S. Toope, A
Hesitant Embrace: Baker and the Application of International Law in Dyzenhaus, The Unity of
Public Law, supra note 9 at 357 [Brunne & Toope, Baker and International Law]. See also Gareth
Evans, The Impact of Internationalisation on Australian Law: A Commentary and Lord Cooke of
Thorndon, The Dream of an International Common Law in Saunders, supra note 13.
15 See e.g. Francis v. The Queen, [1956] S.C.R. 618 at 621, 3 D.L.R. (2d) 641 [Francis cited to
S.C.R.]; Capital Cities Communications Inc. v. Canadian Radio-Television Commission, [1978] 2
S.C.R. 141 at 172-73, 81 D.L.R. (3d) 609 [Capital Cities cited to S.C.R.]; Baker v. Canada (Minister
of Citizenship and Immigration), [1999] 2 S.C.R. 817 at paras. 67-70, 174 D.L.R. (4th) 193 [Baker
cited to S.C.R.]. Jutta Brunne and Stephen J. Toope argue that this is an unduly narrow view of the
requirement that international treaty provisions must be transformed before they become
determinative in the interpretation of domestic legislation (Jutta Brunne & Stephen J. Toope, A
Hesitant Embrace: The Application of International Law by Canadian Courts (2002) Can. Y.B. Intl
Law 3 at 26-27 [Brunne & Toope, Hesitant Embrace]). They suggest that where Canada ratifies a
L. SOSSIN & G. HECKMAN ADMINISTRATIVE LAW PROTECTIONS
2005]
however, that statutes are enacted and read in a legal context that includes the values
and principles contained in customary and conventional international law and should
be interpreted to reflect these values and principles.16 Similarly, the Court has found
that customary and conventional international law may inform Charter interpretation
and, in particular, may constitute evidence of the principles of fundamental justice.17
199
The difference between the binding/nonbinding and persuasive or evidential
value approaches to the role of international legal norms in domestic law was
dramatically illustrated in the case of Ahani v. Canada (Attorney General).18 Facing
imminent removal to Iran based on his alleged terrorist activities and intentions and
having exhausted all other remedies under Canadian law, Ahani filed a petition with
the United Nations Human Rights Committee under the Optional Protocol to the
International Covenant on Civil and Political Rights,19 alleging that his deportation
would breach his rights under the covenant. His application for an injunction to delay
his deportation until his petition could be heard was denied by the Ontario Court of
Appeal, which held that Ahani could not rely on the covenant or the Optional
Protocol as neither was legislatively incorporated into Canadian law and therefore
binding on Canadian courts. While looking at a different constellation of issues, our
analysis is aimed at broadening the discussion about the role of international law
norms
one-dimensional
binding/nonbinding discourse.20
in Canadian
administrative
the
law
beyond
Part I of this article examines the scope and content of the norm of tribunal
independence in conventional international law, in particular under article 14 of the
International Covenant on Civil and Political Rights21 and article 6 of the European
Convention for the Protection of Human Rights and Fundamental Freedoms.22 While
the requirements and sources of tribunal independence under these instruments
treaty based on the prior conformity of Canadian law with the treaty provisions, Canadas
commitments should be considered to have been implemented (ibid. at 28).
16 See Baker, ibid. at para. 70.
17 See Suresh, supra note 8 at para. 60.
18 (2002), 58 O.R. (3d) 107 (C.A.).
19 Optional Protocol to the International Covenant on Civil and Political Rights, 16 December
1966, 999 U.N.T.S. 171, Can. T.S. 1976 No. 47 [Optional Protocol].
20 For analysis on how a broader approach to the role of international law norms could have
informed Ahani, see Gerald P. Heckman, International Human Rights Law Norms and Discretionary
Powers: Recent Developments (2002) 16 Can. J. Admin. L. & Prac. 31 at 59-63. See also A.
Macklin, The State of Laws Borders and the Law of States Borders in Dyzenhaus, The Unity of
Public Law, supra note 9 at 194-95, and Brunne & Toope, Baker and International Law, supra
note 14 at 364-66. For analysis of the decision of the Human Rights Committee on the merits of
Ahanis petition, see Gerald P. Heckman, International Law and Procedural Safeguards in
Deportation Proceedings: Developments in International Law (2005) VII:3 Regulatory Boards and
Administrative Law Litigation 418 [Heckman, Deportation Proceedings].
21 International Covenant on Civil and Political Rights, 19 December 1966, 999 U.N.T.S. 171, Can.
T.S. 1976 No. 47, 6 I.L.M. 368 [ICCPR or Covenant].
22 European Convention for the Protection of Human Rights and Fundamental Freedoms, 4
November 1950, 213 U.N.T.S. 221, Eur. T.S. 5, art. 6 [ECHR or European Convention].
[Vol. 50
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remain contested, we believe Canadian administrative law would be enriched by
greater engagement with these norms and their interpretation by international treaty
bodies. Part II describes the evolution in Canadian law of the principle of institutional
independence of tribunals, with an emphasis on the recent jurisprudential tendency to
limit both the principles scope and content. Part III compares the level of institutional
independence guaranteed by Canadian administrative law to individuals subject to
tribunal decision making to that recognized in international human rights law. The
discussion focuses on the implications for administrative independence of the highly
deferential posture assumed by Canadian courts in their review of administrative
decision makers, especially in settings (such as appointment decisions) where the
vulnerability to political interference may be greatest.
I. The Guarantee of Independence in Conventional International
international declarations and conventions,
Law
It is well established that international human rights law entitles each individual
to a fair and public hearing by an independent and impartial tribunal in the
determination of his or her rights and obligations. This right is expressly guaranteed in
several
the Universal
Declaration of Human Rights,23 the International Covenant on Civil and Political
Rights,24 the European Convention for the Protection of Human Rights and
Fundamental Freedoms,25 and the American Convention on Human Rights.26 It has
been observed, based on a wide-ranging review of state constitutions, legislation and
supporting state practice regarding judicial independence, that the general practice of
providing independent and impartial justice is accepted by states as a matter of law
and is thus a customary norm of international law.27 An exhaustive review of the
sources of the international law norm of tribunal independence falls outside the scope
of this paper. This part will instead focus on how the scope and content of this norm
has been defined under article 14(1) of the ICCPR and article 6(1) of the ECHR.
including
The ICCPR is a key international document for Canada.28 Ratified by Canada
and in force since 1976, the Covenants provisions are binding on Canada under
international law, which means that at the very least, Canadian courts should, where
23 Universal Declaration of Human Rights, GA Res. 217(III) UN GAOR, 3d Sess., Supp. No. 13,
UN Doc. A/810 (1948) 71, art. 10 [UDHR or Declaration].
24 Supra note 21.
25 Supra note 22.
26 American Convention on Human Rights, 22 November 1969, 65 A.J.I.L. 679, art. 8.
27 Commission on Human Rights, Subcommission on Prevention of Discrimination and Protection
of Minorities, Independence and Impartiality of the Judiciary, Jurors and Assessors and the
Independence of Lawyers: Report by the Special Rapporteur Param Cumaraswamy, UN CCPROR,
UN Doc. E/CN.4/1995/39 (1995) at para. 35.
28 Martin L. Friedland, A Place Apart: Judicial Independence and Accountability in Canada
(Ottawa: Canadian Judicial Council, 1995) at 19.
201
L. SOSSIN & G. HECKMAN ADMINISTRATIVE LAW PROTECTIONS
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possible, interpret Canadian law in a manner that comports with Canadas obligations
under the Covenant.29 Moreover, Canada has claimed in its regular reports to the UN
Human Rights Committee to have implemented the terms of the Covenant by, among
other measures, enacting the Charter of Rights and Freedoms.30 The Human Rights
Committee
the
implementation of the Covenant by reviewing the periodic reports of states parties,
and issues commentaries on the meaning and scope of the Covenants provisions. By
ratifying the Optional Protocol, Canada has recognized the jurisdiction of the
Committee to receive and consider communications from individuals alleging a
breach by Canada of their rights under the Covenant. This part will pay close attention
to the Committees pronouncements on the scope and content of the norm of tribunal
independence expressed in article 14.
(Committee), established under
the Covenant, monitors
To date, article 14 of the ICCPR has not been successfully invoked to challenge
Canadas system of administrative justice. In contrast, administrative decision making
in many European states, notably the United Kingdom, has been scrutinized for
compliance with article 6 of the ECHR. The two provisions are broadly analogous,
and although we will argue that the scope of article 14 of the ICCPR is broader than
that now recognized for article 6, the jurisprudence of the European Court of Human
Rights regarding the content of the norm of tribunal independence expressed in article
6 offers valuable insight into the nature and extent of Canadas obligations in
international law.
A. The International Covenant on Civil and Political Rights
Article 14(1) of the ICCPR provides that:
1. All persons shall be equal before the courts and tribunals. In the
determination of any criminal charge against him, or of his rights and obligations
in a suit at law, everyone shall be entitled to a fair and public hearing by a
competent, independent and impartial tribunal established by law. …
1. Scope of the Right to an Independent Tribunal
The right of persons to a fair and public hearing by a competent, independent
and impartial tribunal established by law in article 14(1) applies only to the
29 See Brunne & Toope, Hesitant Embrace, supra note 15 at 51. Toope and Brunne note,
however, that courts have been inclined to treat ratified but unimplemented treaties merely as relevant
and persuasive sources that may inform the interpretation of Canadian law.
30 See Anne F. Bayefsky, International Human Rights LawUse in Canadian Charter of Rights
and Freedoms Litigation (Toronto: Butterworths, 1992) at 63. Toope and Brunne observe that the
Canadian government has claimed implementation primarily through the Charter and related
constitutional jurisprudence, complemented by various amendments to existing statutes (Brunne &
Toope, Hesitant Embrace, supra note 15 at 24). See also Human Rights Committee, Consideration
of Reports Submitted by States under Article 40 of the Covenant: Fourth Periodic Report of States
Parties Due in 1995: Canada, UN CCPROR, 1995, UN Doc. CCPR/C/103/Add.5.
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determination of a criminal charge and to the determination of a persons rights and
obligations in a suit at law. Based only on this wording, it is unclear whether article
14(1) applies to proceedings of an administrative nature. However, the travaux
prparatoires to the Covenant and the Committees views and comments indicate that
some administrative proceedings must indeed comply with the requirements of
fairness, independence and impartiality.
[Vol. 50
a. The Travaux Prparatoires
The travaux prparatoires to the Covenant reveal a debate among drafting
committee delegates about the proper scope of article 14(1) in relation to noncriminal
matters. The debate centred around whether to limit the right to a fair hearing before
an independent and impartial tribunal to proceedings that determined civil or
private rights and obligations or to extend it to proceedings between individuals and
the state, including administrative matters.31 The committee accepted a compromise
solution, proposed by Eleanor Roosevelt, the US representative, to remove the
adjective civil but qualify the term rights and obligations with the phrase in a
suit at law, a formulation intended to emphasize that appealing to a tribunal was an
act of a judicial nature.32 The drafters of the UDHR had also removed the qualifier
en matire civile from the French version of article 10 of the UDHR, emphasizing
their intent to avoid any restriction which would excludea priorirights other
than private ones.33
Two conclusions may be drawn regarding the final wording of article 14(1) in
light of the travaux prparatoires. First, the drafters did not intend article 14(1) to
limit the fair hearing guarantee to civil matters between private individuals. The
consensus appeared to be that article 14(1) extends to disputes between individuals
and the state. As van Dijk states:
[O]ne cannot draw any other conclusion than that it was not the intention of the
drafters to restrict the scope of Article 14 of the Covenant, apart from
determinations of a criminal-law character, to determinations of rights and
obligations of a private-law character. … On the contrary, … proposals whose
31 For a more detailed treatment of the travaux prparatoires, see David Weissbrodt, The Right to a
Fair Trial Under the Universal Declaration of Human Rights and the International Covenant on Civil
and Political Rights (The Hague: Kluwer Law International, 2001) at 46, 48 & 51. See also Peter van
Dijk, The Interpretation of Civil Rights and Obligations by the European Court of Human Rights
One More Step to Take in F. Matscher & H. Petzold, eds., Protecting Human Rights: The European
DimensionStudies in Honour of Grard Wiarda, 2d ed. (Berlin: Carl Heymanns Verlag KG, 1990)
131 [van Dijk, One More Step]. See also Heckman, Deportation Proceedings, supra note 20.
32 Weissbrodt, ibid. at 51. Roosevelt had expressed concern that administrative officers, not courts,
determined many civil rights obligations like those connected with military service and taxation.
Pieter van Dijk observes that these particular civil rights and obligations were not of a private law
character and concludes that Roosevelt understood civil to include all nonpenal or noncriminal
matters rather than solely private law matters: van Dijk, One More Step, ibid. at 137.
33 van Dijk, One More Step, ibid. at 136.
2005]
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wording might have entailed the risk of such a restriction, were criticized for
that reason and rejected or amended.34
Second, the term in a suit at law was apparently intended to remove some matters
from the scope of article 14(1). After reviewing the record of the drafting committees,
Weissbrodt concludes that the article may not apply to administrative proceedings in
the first instance as to subject matters unrelated to human-rights concerns, such as
taxation.35
It can be argued that, in their application, the article 14(1) safeguards resemble the
common law duty of procedural fairness in Canadian administrative law. Whether a
decision maker owes a duty of procedural fairness to an individual affected by a
particular decision depends on where the decision falls on a decision-making
spectrum. The duty of procedural fairness undoubtedly applies to decisions that have
a significant impact on substantial individual interests and involve fundamental
human rights of life, liberty, and security of the person, like decisions in criminal
proceedings.36 Similarly, article 14(1) expressly covers criminal charges. At the
bottom end of the decision-making spectrum, legislative actions, including the setting
of rates and rules of taxation, do not attract the duty of fairness in Canadian
administrative law.37 Likewise, such decision making was excluded from the scope of
article 14(1) through the addition of Eleanor Roosevelts in a suit at law wording.
One can read the travaux prparatoires, as Weissbrodt does, as revealing the intent to
extend the protections of article 14(1) to administrative hearings that engage
individual fundamental rights or interests that are closer to the top of the decision-
making spectrum, even if they are less substantial than those at stake in criminal
proceedings.38 The suggestion in the travaux prparatoires that the phrase in a suit at
34 Ibid. at 137.
35 Weissbrodt, supra note 31 at 51.
36 See Baker, supra note 15 at para. 23, where the Supreme Court confirmed that a decision with a
significant impact on the interests of an individual will usually attract a duty of procedural fairness on
the part of the decision maker.
37 See Canada (Attorney General) v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735 at 754, 115
D.L.R. (3d) 1, where the Supreme Court refused to attach a duty of fairness to the decision of the
federal Cabinet to deny an appeal from a decision of the Canadian Radio-Television and
Telecommunications Commission fixing telephone rates for millions of Canadian telephone
subscribers of Bell Canada, because the fixing of rates for a public utility was legislative action in its
purest form. See also Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, 83 Sask.
R. 81: Decisions of a legislative and general nature can be distinguished in this respect from acts of a
more administrative and specific nature, which do not entail such a duty (ibid. at 670). Finally, see
Canadian Association of Regulated Importers v. Canada (A.G.), [1994] 2 F.C. 247, 17 Admin. L.R.
(2d) 121 (F.C.A.), where the Federal Court of Appeal described the setting of import quotas as a
legislative or policy matter, in which courts did not normally interfere. For a critique, see Genevive
Cartier, Procedural Fairness in Legislative Functions: The End of Judicial Abstinence? (2003) 53
U.T.L.J. 217.
38 On the concept of a threshold between administrative and specific decisions and legislative and
general decisions below which decision makers owe no duty of procedural fairness, see David J.
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law was added to emphasize that proceedings subject to article 14(1) would be of a
judicial nature is also reminiscent of the doctrinal efforts of Canadian courts to
determine the threshold for the application of the common law duty of procedural
fairness, and in particular their distinction between judicial or quasi-judicial decisions
and administrative decisions.39 To determine the applicability of procedural fairness,
Canadian judges no longer focus exclusively on whether a particular decision is judicial
or quasi-judicial in nature. However, they do consider the nature of the decision and of
the decision maker, and have held that the more closely the function of the tribunal, the
nature of the decision-making body, and the determinations that must be made to reach a
decision resemble judicial decision making (characterized, for example, by the
application of clear legal standards or criteria to the precise circumstances of an
individual), the more likely it is that the duty of fairness will require procedural
protections closer to a traditional trial model.40
b. The Scope of Article 14(1) in the Committees Jurisprudence
The Human Rights Committee appeared to confirm that article 14(1) applies to
administrative proceedings in Y.L. v. Canada.41 The author of the communication, a
former soldier discharged from the armed forces, applied to the Canadian Pension
Commission for a disability pension and was turned down. He appealed to the
Pension Review Board, which confirmed the commissions rulings and dismissed his
appeal. The author claimed that he had not been granted a fair and public hearing in
violation of article 14(1). Canada replied that the communication was outside the
scope of the ICCPR and thus inadmissible, because proceedings before the Pension
Review Board were not a suit at law. Canada argued that the relationship between
the authora member of the armed forcesand the state was a matter of public law
and did not concern civil rights and obligations, an expression taken from the
French-language version of article 14(1), which refers to contestations sur ses droits
et obligations de caractre civil. While the English-language text appears to focus on
the forum or proceeding in which the rights and obligations are determined (i.e., suit
at law) as the relevant characteristic, the French-language text seems to focus on the
private law nature of the rights and obligations to be determined. Noting this
difference, the Human Rights Committee sought to interpret article 14(1) in a manner
that reconciled the English- and French-language texts:
[T]he concept of a suit at law or its equivalent in the other language texts is
based on the nature of the right in question rather than on the status of one of
the parties (governmental, parastatal or autonomous statutory entities), or else
on the particular forum in which individual legal systems may provide that the
Mullan, Administrative Law: Cases, Text and Materials, 5th ed. (Toronto: Emond Montgomery, 2003)
at 99ff. [Mullan, Administrative Law: Cases, Text and Materials].
39 See ibid. at 100-102.
40 See Baker, supra note 15 at para. 23.
41 Committee on Human Rights, Communication No. 112/1981, Y.L. v. Canada, UN GAOR, 41st
Sess., Supp. No. 40, UN Doc. A/41/40 (1986) 145 [Y.L.].
2005]
L. SOSSIN & G. HECKMAN ADMINISTRATIVE LAW PROTECTIONS
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right in question is to be adjudicated upon, especially in common law systems
where there is no inherent difference between public law and private law and
where the courts normally exercise control over the proceedings either at first
instance or on appeal specifically provided by statute or else by way of judicial
review. In this regard, each communication must be examined in light of its
particular features.42
The Committee therefore examined the right to a fair hearing in relation to the
authors pension claim, and noted that it was clear that the Canadian legal system
subjects the proceedings in [the various administrative bodies before which the author
pursued his pension claim] to judicial supervision and control, because the Federal
Court Act does provide the possibility of judicial review in unsuccessful claims of this
nature.43 It concluded that the first instance hearing before the Pension Review
Board, coupled with the availability of judicial review of the boards decision,
appeared to comply with article 14(1):
It has not been claimed by the author that this remedy would not have complied
with the guarantees provided [in article 14(1)]. Nor has he claimed that this
remedy would not have availed in correcting whatever deficiencies may have
marked the hearing of his case before the lower jurisdictions, including any
grievance that he may have had regarding the denial of access to his medical
file.
… [T]herefore, it would appear that the Canadian legal system does contain
provisions in the Federal Court Act to ensure to the author the right to a fair
hearing in the situation. Consequently, his basic allegations do not reveal the
possibility of any breach of the Covenant.44
A minority of members dissented from the Committees application of article
14(1) to the proceedings for two reasons. First, the right in question, based on the
relationship between a soldier and the Crown (as opposed to an ordinary employment
contract), was of a public rather than private nature. Second, the forum provided to
adjudicate the questionthe Pension Review Boardwas an administrative body
functioning within the executive branch of the Government of Canada, lacking the
quality of a court.45
Although the Committee did not expressly state that the pension proceeding was a
suit at law, this can be implied from its views for several reasons. First, the
Committees decision in Y.L. contains none of the disclaimers commonly found in
other Committee views that expressly state, for example, that in the circumstances,
the Committee need not decide whether the impugned decision was determinative of
42 Ibid. at para. 9.2.
43 Ibid. at para. 9.4.
44 Ibid. at paras 9.4-9.5.
45 Ibid. at para. 3 (Appendix).
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the authors rights and obligations in a suit at law.46 Second, far from avoiding the
question of whether a proceeding before the Pension Review Board was a suit at
law, the Committee asked Canada for additional information to help it determine that
very point.47 Third, the Committee did not simply conclude that the availability of
judicial review satisfied the requirements of article 14(1) without pronouncing itself
on the scope of that provision; instead, the Committee looked into the meaning of
suit at law in some depth. Finding that the concept of suit at law is based on the
nature of the right in question, the Committee attributed a pivotal importance to the
question whether the authors claim was of a kind subject to judicial supervision
and control.48 It found that claims of the nature of pension claims were subject to
judicial review, and again emphasized the importance of determining whether the
authors claim was of a kind subject to judicial supervision and control. It
concluded that the authors right to a fair hearing before the Pension Review Board
could have been secured by having the Federal Court quash the Boards initial
decision on judicial review and order it to decide the claim afresh, in a fair hearing.
Fourth, the three dissenting Committee members evidently believed that the
Committee had found that article 14(1) applied to the Pension Review Board
proceedings, since their dissent focused on establishing that the ex-soldiers pension
claim did not come within the scope of article 14(1). Fifth, many academic observers
commenting on the Y.L. decision have concluded that the Committee recognized that
the Pension Review Board proceedings concerned the determination of rights and
obligations in a suit at law. David Weissbrodt, former special rapporteur on the
rights of noncitizens to the United Nations Subcommission on the Promotion and
Protection of Human Rights, has written that [t]he Committee found an action is a
suit at law in two circumstances: (1) if the forum where the particular question is
adjudicated is one where courts normally exercise control over the proceedings; or (2)
where the right in question is subject to judicial control or judicial review.49 Stephen
Bailey admits that the Committees decision is obscurely reasoned and difficult to
analyze, but concludes that [o]n the facts of Y.L., the Committee majority seems to
have regarded the claim as a suit at law with sufficient protection for the purposes of
46 See e.g. Committee on Human Rights, Communication No. 1051/2002, Ahani v. Canada, 2004,
UN Doc. CCPR/C/80/D/1051/2002 at para. 10.5, and Communication No. 654/1995, Adu v. Canada,
1997, UN Doc. CCPR/C/60/D/654/1995 at para. 6.3 [Adu].
47 Y.L., supra note 41 at para. 5. The Committee sought information on whether the relationship
between a soldier and the state was governed by civil law or public law rights and obligations,
whether the employment of civil servants in Canada was governed by a statutory (public law) or
contractual (private law) regime, whether there was a distinction in Canadian law between persons
employed by private employers under a labour contract and government employees, and information
regarding the judicial review of pension board decisions before the Federal Court of Appeal.
48 Ibid. at para. 9.4.
49 Weissbrodt, supra note 31 at 139.
L. SOSSIN & G. HECKMAN ADMINISTRATIVE LAW PROTECTIONS
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Article 14(1) provided by the right to seek judicial review.50 David John Harris
suggests that the majority of the Committee may have intended a two-part test to
determine whether article 14 applies to a given dispute:
207
First, it looks to the nature of the right, with the determination of private law
rights being within Article 14, but not the determination of public law rights
(i.e. rights that an individual has in his relations with the state). Secondly, if a
case does not involve the determination of a private law right, it will,
nonetheless, involve a suit at law, if, in the legal system concerned, it can be
determined on the merits before a court of law or the executive decision
determining the public law right in question is subject to judicial review.51
Dominic McGoldrick shares this view, and observes that the critical factor in the
Committees decision that article 14(1) applied in Y.L. appears to be that the claim
was of a kind subject to judicial supervision and control.52 Sarah Joseph notes that
the majoritys views certainly hinted that the Pension Review Board proceedings
concerned a suit at law and suggests that the majoritys focus on the nature of the
right and whether the claim was of a kind subject to judicial supervision and control
was preferable to the dissenting opinion, which threatened to dilute article 14(1)
protection by focusing on perverse domestic classifications of a claim.53
Oddly, in its subsequent decision in V.M.R.B. v. Canada,54 the Committee did not
apply the broad interpretation of suit at law it had developed in Y.L. The author was
detained by immigration authorities while investigations were made to determine
whether he posed a danger to national security. He claimed that reviews of his
detention by immigration adjudicators were not fair and impartial and violated article
14(1). Leaving open the question of whether such immigration proceedings were
subject to article 14(1), the Committee held that assuming article 14(1) applied, the
provision had not been infringed because [the author] was given ample opportunity,
in formal proceedings, including oral hearings with witness testimony, both before the
Adjudicator and before the Canadian courts, to present his case for sojourn in
Canada.55
50 Stephen Bailey, Rights in the Administration of Justice in David Harris & Sarah Joseph, eds.,
The International Covenant on Civil and Political Rights and United Kingdom Law (Oxford:
Clarendon Press, 1995) at 212.
51 D. J. Harris, Cases and Materials on International Law, 5th ed. (London: Sweet and Maxwell,
1998) at 672 ×..
52 Dominic McGoldrick, The Human Rights Committee: Its Role in the Development of the
International Covenant on Civil and Political Rights (Oxford: Clarendon Press, 1991) at 416
×.. See also Peter Boeles, Fair Immigration Proceedings in Europe (The Hague:
Martinus Nijhoff, 1997) at 137.
53 Sarah Joseph et al., The International Covenant on Civil and Political Rights: Cases, Materials
and Commentary (Oxford: Oxford University Press, 2000) at 281.
54 Committee on Human Rights, Communication No. 236/1987, V.M.R.B. v. Canada, 1988, UN
Doc. CCPR/C/33/D/236/1987 [V.M.R.B.].
55 Ibid. at para. 6.3.
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The Committee has since held that article 14(1) applies to proceedings involving
governments as parties. In Casanovas v. France, it determined that proceedings filed
by the author before the Administrative Tribunal of Nancy concerning his dismissal
from employment constituted the determination of rights and obligations in a suit at
law.56 In contrast, it found that the selection and appointment of judges by Cyprus
Supreme Council of Judicature was not a determination of rights and obligations in a
suit at law.57 Contrary to Casanovas, which concerned removal of the petitioner from
public employment, Kazantzis concerned the denial of an application for employment
in the judiciary by a body exercising a nonjudicial task.58
Like the travaux prparatoires, which suggest that the phrase suit at law was
added to emphasize that proceedings subject to article 14(1) would be of a judicial
nature, the Committees allusion to nonjudicial and judicial tasks is reminiscent
of the efforts of Canadian courts to determine the threshold for the application of the
common law duty of procedural fairness, and in particular their distinction between
administrative decisions and judicial or quasi-judicial decisions.59 Drawing on this
analogy, the Committees recent focus on whether the impugned decision is of a
judicial nature can be reconciled with its decision in Y.L. In Y.L., the Committee was
essentially preoccupied with the following question: Was the authors claim the kind
of claim over which courts would normally exercise control and supervision to ensure
it was decided fairly? In Kazantzis, it found that the authors application for a judicial
appointment did not entail decision making of a judicial nature. Courts would not
normally recognize that the author was owed a duty of fairness for the determination
of this kind of claim and would not enforce such a duty. Therefore, under the Y.L. test,
claims of this nature were not within the scope of article 14(1).
In sum, to ask whether article 14(1) applies to the determination of an individuals
claim is to ask whether a duty of fairness is owed to the claimant. Under the Y.L. test,
as at common law, the answer to that question depends on the nature of the claim.60 If
the determinations required to reach a decision on the authors claim are closer to
56 Committee on Human Rights, Communication No. 441/1990, Casanovas v. France, 1994, UN
Doc. CCPR/C/51/D/441/1990 at paras. 5.2, 7.4. It held that fair hearings had to be expeditious, but
that the delay between the authors filing of his claim and the tribunals final decision was not long
enough to violate article 14(1). In Communication No. 454/1991, Pons v. Spain, 1995, UN Doc.
CCPR/C/55/D/454/1991 at para. 9.6, the Committee determined that the proceedings to determine a
civil servants entitlement to unemployment benefits had not infringed his article 14 right to a fair
hearing. Though it did not expressly address the point, it presumably assumed that such proceedings
involved the determination of rights and obligations in a suit at law: see Harris, supra note 51 at 672,
n. 20.
57 Committee on Human Rights, Communication No. 972/2001, Kazantzis v. Cyprus, 2003, UN
Doc. CCPR/C/78/D/972/2001 at para. 6.5.
58 Ibid. at para. 6.5.
59 See Mullan, Administrative Law: Cases, Text and Materials, supra note 38 at 100-02.
60 See especially Baker, supra note 15 at paras. 23-25. See also Mullan, Administrative Law: Cases,
Text and Materials, supra note 38 and accompanying text.
L. SOSSIN & G. HECKMAN ADMINISTRATIVE LAW PROTECTIONS
2005]
judicial than legislative decision making, and if that decision significantly impacts the
authors life, the claim is of a kind normally subject to judicial supervision and control
to ensure its fair determination. In that case, the Y.L. test is satisfied and article 14(1)
applies.61
209
2. Content of the Right to an Independent Tribunal
Article 14 requires that determinations of rights and obligations in a suit at law be
made by a competent, independent and impartial tribunal established by law. This part
describes the meaning of tribunal independence under article 14(1), drawing from the
views and observations of the Committee and of other UN bodies.
a. The Meaning of Tribunal
While tribunal usually refers to national civil courts, administrative authorities
may also be considered tribunals under article 14(1).62 A tribunal established by
law is one whose jurisdiction, both in relation to subject matter and territorial
application, is determined generally and independently of the given case rather than
set arbitrarily by administrative fiat.63
b.
Independence
Unless there are compelling circumstances that militate otherwise, adjudicative
tribunals ought to be independent. The Committee has stated that in determining
whether a tribunal is independent, it considers the manner in which judges are
appointed, the qualifications for appointment, and the duration of their terms of office;
the condition[s] governing promotion, transfer and cessation of their functions and the
actual independence of the judiciary from the executive branch and the legislative.64
These criteria were likely inspired by a significant standard-setting exercise initiated
by the United Nations and other international bodies to define the basic principles or
minimum standards flowing from the right to an independent tribunal guaranteed in
61 It should come as no surprise that the factors used to determine whether a claim falls within the
scope of article 14(1) resemble those used by Canadian courts to decide whether its determination is
subject to a duty of procedural fairness: common law courts have been pondering for centuries in
what circumstances to apply the guarantee of a fair hearing. See David J. Mullan, Administrative Law
(Toronto: Irwin Law, 2001) at 156-58, discussing Cooper v. Board of Works for Wandsworth District
(1863), 143 E.R. 414 (C.P.) and Dr. Bentleys Case (1723), 1 Str. 557, 93 E.R. 698 (K.B.).
62 See Manfred Nowak, U.N. Covenant on Civil and Political RightsCCPR Commentary (Kehl
am Rhein: N.P. Engel, 1993) at 244-45.
63 Ibid.
64 Human Rights Committee, General Comment 13, UN GAOR, 21st Sess., Supp. No. 40, CCPR
General Comment #13, UN Doc. HRIGEN1Rev.1 (1994) 14 at para. 3 [emphasis added].
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the UDHR and ICCPR.65 The United Nations principal instrument for defining
judicial independence is a document titled Basic Principles on the Independence of
the Judiciary.66 Adopted at the Seventh UN Congress on the Prevention of Crime and
the Treatment of Offenders, the Basic Principles were endorsed by the UN General
Assembly, which invited states to respect them and to take them into account within
the framework of their national legislation and practice.67 To encourage states to give
effect to these basic principles, the UN Economic and Social Council adopted
Procedures for the Effective Implementation of the Basic Principles on the
Independence of the Judiciary, a document also endorsed by the General Assembly.68
In parallel, the UN Commission on Human Rights Subcommission on Prevention
of Discrimination and Protection of Minorities appointed a special rapporteur, Dr. L.
M. Singhvi, to conduct an exhaustive study of state constitutions, legislation, and
supporting state practice and to produce a report on the independence and impartiality
of the judiciary, jurors, and assessors and the independence of lawyers. In his seminal
final report and a subsequent follow-up report, Dr. Singhvi developed a Draft
Universal Declaration on the Independence of Justice.69 The Basic Principles and the
Singhvi Declaration include the traditional guarantees of security of tenure, financial
security, and administrative control recognized in Canada since Valente.70 However,
65 For a more detailed description of the development of these standards, see R. Brody,
Introduction in R. Brody, ed., C.I.J.L. Bulletin No. 25-26, Special IssueThe Independence of
Judges and Lawyers: A Compilation of International Standards (Geneva: Centre for the
Independence of Judges and Lawyers, 1990) at 3-13 [Brody, C.I.J.L Special Bulletin].
66 United Nations, Basic Principles on the Independence of the Judiciary in Brody, C.I.J.L Special
Bulletin, ibid. at 14 [Basic Principles].
67 Human Rights in the Administration of Justice, GA Res. 40/146, UN GAOR, 40th Sess., UN
Doc. A/RES/40/146 (1986).
68 Human Rights in the Administration of Justice, GA Res. 44/162, UN GAOR, 44th Sess., UN
Doc. A/RES/44/162 (1990).
69 Commission on Human Rights, Subcommission on Prevention of Discrimination and Protection
of Minorities, Draft Declaration on the Independence and Impartiality of the Judiciary, Jurors and
Assessors and the Independence of LawyersReport by the Special Rapporteur, Mr. L. M. Singhvi,
Pursuant to Subcommission Resolution 1987/23 of 3 September 1987, Addendum, UN ESCOR, 40th
Sess., UN Doc. E/CN.4/Sub.2/1988/20/Add.1 (1988) in Brody, C.I.J.L Special Bulletin, supra note 63
at 38 [Singhvi Declaration]. This document was greatly influenced by the Universal Declaration on
the Independence of Justice, adopted at the First World Conference on the Independence of Justice
held in Montreal in 1983, and reproduced in Shimon Shetreet & Jules Deschnes, eds., Judicial
Independence: The Contemporary Debate (Dordrecht: Martinus Nijhoff, 1985) at 447ff.
70 Infra note 189. Article 11 of the Basic Principles, supra note 66, provides that [t]he term of
office of judges, their independence, security, adequate remuneration, conditions of service, pensions
and the age of retirement shall be adequately secured by law. See also Singhvi Declaration, supra
note 69, art. 18, which requires that judges be provided with adequate salaries and pensions. Article
12 of the Basic Principles mandates guaranteed tenure until a fixed retirement age or the expiry of the
judges term in office: see also Singhvi Declaration, art. 16. The discipline, suspension, and removal
of judges is governed by strict limits: Basic Principles, arts. 17-20; Singhvi Declaration, arts. 26-31.
Article 14 of the Basic Principles reserves to the judiciary the task of assigning individual cases to
L. SOSSIN & G. HECKMAN ADMINISTRATIVE LAW PROTECTIONS
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both documents place much emphasis on the appointment and promotion of judges,
an issue seldom broached by Canadian courts. For example, article 10 of the Basic
Principles states in part that [p]ersons selected for judicial office shall be individuals
of integrity and ability with appropriate training or qualifications in law. Any method
of judicial selection shall safeguard against judicial appointments for improper
motives.71 Article 11 of the Singhvi Declaration deals more explicitly with the
danger of executive control of the appointments process, and recommends the
involvement of the judiciary in appointing judges:
211
11. (a) The process and standards of judicial selection shall give due
consideration to ensuring a fair reflection by the judiciary of the society in all
its aspects.
(b) Any methods of judicial selection shall scrupulously safeguard
against judicial appointments for improper motives.
(c)
Participation in judicial appointments by the Executive or the
Legislature or the general electorate is consistent with judicial independence so
far as such participation is not vitiated by and is scrupulously safeguarded
against improper motives and methods. To secure the most suitable
appointments from the point of view of professional ability and integrity and to
safeguard individual independence, … [an] endeavour shall be made, in so far
as possible, to provide for consultation with members of the judiciary and the
legal profession in making judicial appointments or to provide appointments or
recommendations for appointments to be made by a body in which members of
the judiciary and the legal profession participate effectively.72
Dr. Singhvi notes that in relation to the principle of independence, the doctrine of
separation of powers postulates, among others, the insulation of the judiciary in
respect of appointment, promotion, posting, transfer, removal, emoluments and other
conditions of work and service from external and extraneous influence of the
legislature and the executive.73 An executive that engages in [n]epotism, favouritism
and partisanship and ignores professional merit in appointing judges undermines
the professional ethos and morale of
judicial
independence.74
judiciary and erodes
the
judges. See Singhvi Declaration, arts. 32-36: article 32 confers on the judiciary or a body on which
the judiciary is represented responsibility for court administration, including control of court staff.
71 Similarly, article 13 of the Basic Principles, supra note 66, states that [p]romotion of judges …
should be based on objective factors, in particular ability, integrity and experience.
72 Similarly, article 14 of the Singhvi Declaration, supra note 69, requires that judges be promoted
based on objective assessment of the judges integrity, independence, professional competence,
experience, humanity and commitment to uphold the rule of law and not for improper motives.
73 Commission on Human Rights, Subcommission on Prevention of Discrimination and Protection
of Minorities, The Administration of Justice and the Human Rights of Detainees: Study on the
Independence and Impartiality of the Judiciary, Jurors and Assessors and the Independence of
LawyersFinal Report by the Special Rapporteur, Mr. L. M. Singhvi, UN ESCOR, 38th Sess., UN
Doc. E/CN.4/Sub. 2/1985/18 (1985) at para. 108 [Singhvi Final Report].
74 Ibid. at para. 109.
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While the Basic Principles and the Singhvi Declaration were developed primarily
in relation to the independence of the judiciary, they are still relevant to the
independence of administrative decision makers:
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In many countries, tribunals such as Fiscal Tribunals, Revenue Boards,
Customs and Excise Tribunals, Income Tax Tribunals and Contentious
Administrative Tribunals perform traditional adjudicative functions. Generally,
tribunals … are judges of facts as well as of law. Members of judicial tribunals
as well as members of many administrative tribunals are a part of the judiciary
within the narrow sense of that term.75
In Dr. Singhvis estimation, [t]he principles of impartiality and independence apply
to both judges and others, who, without being judges in the formal sense, perform
judicial roles and functions.76 In contrast, [t]he impartiality and independence of
such administrators and policymakers who are also entrusted with functions of an
adjudicating nature are vital principles but they cannot be secured in the same way as
in the case of judges and tribunals whose functions are primarily judicial and who
belong by their appointment to the machinery of justice.77 This does not mean that
the principles of independence and impartiality do not apply to administrators and
policymakersthey apply by analogy with suitable modifications and as far as
practicable but not in a full normal sense:78
The terms and tenures of those who are not a part of the judiciary are
necessarily different; so are their background and appointment procedures.
Safeguards applicable to members of the judiciary cannot, therefore, be made
applicable to them. They may nevertheless be called upon to discharge duties
of a judicial and quasi-judicial nature in an impartial and independent manner.
… With regard to those who also perform judicial or quasi-judicial roles but
who are [not] strictly a part of the judiciary, judicial standards and other
safeguards apply as far as possible.79
In sum, the safeguards dictated by the principles of independence and impartiality
apply to the fullest extent to regular courts and to tribunals exercising primarily
judicial functions. In the case of administrators and policy-makers who also have an
adjudicative function, the principles of independence and impartiality apply by
analogy with suitable modifications, and judicial safeguards apply only as far as
possible. The principles of independence and impartiality developed by the United
Nations as applied to the judiciary remain relevant along the entire decision-making
spectrum but require stronger safeguards for decision makers whose functions more
closely resemble that of courts.
The Committee has had occasion to elaborate on the requirements of the article
14(1) guarantee of independence in its concluding remarks on the periodic reports of
75 Ibid. at para. 11.
76 Ibid. at para. 14.
77 Ibid. at para. 13.
78 Ibid. at para. 14.
79 Ibid. at para. 14.
213
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various state parties to the ICCPR and in its views on individual communications.
Underlining that security of tenure was an important prerequisite to independence, it
expressed concern that the President of Belarus could dismiss judges of that nations
constitutional court and supreme court without any safeguards.80 Invoking the Basic
Principles, the Committee observed that the procedures relating to tenure,
disciplining, and dismissal of judges at all levels did not comply with the principle of
independence and urged the Belarus government to take all appropriate measures to
ensure that judges were independent of any political or other external pressure.81 The
Committee has also discussed the impact on judicial independence of inappropriate
state procedures to nominate and promote judges. Where evidence indicated that the
President of Equatorial Guinea directly nominated all judges and magistrates and
controlled the judiciary, it observed that a situation where the functions and
competences of the judiciary and the executive are not clearly distinguishable or
where the latter is able to control or direct the former is incompatible with the notion
of an independent and impartial tribunal … .82 Similarly, the lack of any independent
mechanism responsible for the recruitment and discipline of Congolese judges
threatened their independence.83 The Committee expressed concern that the election
of state judges in the United States adversely impacted article 14(1) guarantees of
independence and impartiality and it welcomed state reforms in favour of merit-based
appointments.84 Concerned that Sudanese judges were not selected primarily on the
basis of their legal qualifications, were subject to pressure through a government-
controlled supervisory authority, and were predominantly Muslim males, the
Committee advised Sudan to improve the independence and technical competence of
80 Human Rights Committee, Consideration of Reports Submitted by State Parties under Article 40
of the CovenantConcluding Observations by the Human Rights Committee: Belarus, UN
CCPROR, Human Rights Committee, 61st Sess., UN Doc. CCPR/C/79/Add.86 (1997) at paras. 13-14.
81 Ibid.
82 Committee on Human Rights, Communication No. 468/1991, Bahamonde v. Equatorial Guinea,
UN GAOR 49th Sess., Supp. No. 14, UN Doc. A/CCPR/C/49/0/468/1991 183 at para. 9.4. The
Committee has encouraged other States to achieve a clearer separation of powers. Concerned about
threats to the independence of the Romanian judiciary through executive interference, it urged
Romania to establish a clear demarcation between the competence of the executive and judicial
bodies (Human Rights Committee, Consideration of Reports Submitted by State Parties under
Article 40 of the CovenantConcluding Observations of the Human Rights Committee: Romania, UN
CCPROR, Human Rights Committee, 65th Sess., UN Doc. CCPR/C/79/Add.III (1999) at para. 10).
83 Human Rights Committee, Consideration of Reports Submitted by State Parties under Article 40
of the CovenantConcluding Observations of the Human Rights Committee: Congo, UN CCPROR,
Human Rights Committee, 66th Sess., UN Doc. CCPR/C/79/Add.118 (2000) at para. 14.
84 Human Rights Committee, Consideration of Reports Submitted by State Parties under Article 40
of the CovenantConcluding Observations of the Human Rights Committee: United States of
America, UN CCPROR, Human Rights Committee, 53rd Sess., UN Doc. CCPR/C/79/Add.50 (1995)
at para. 23.
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its judges and to recruit more judges from among women and ethnic minorities.85
Regarding the promotion of judges, the Committee expressed concern at the
requirement under Lithuanian law that district judges be reviewed by the executive
after five years of service before securing a permanent appointment.86 In light of the
threats that this process posed to judicial independence, the Committee recommended
that reviews be carried out by an independent professional body looking only at the
judges competence.87
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The independence guarantee in article 14(1) has seldom been discussed by the
Committee in the context of administrative decision making. In arguing before the
Committee that the Immigration and Refugee Board was an independent tribunal,
Canada observed that board members were appointed for seven-year terms and could
only be removed on limited grounds in the context of an inquiry presided by a judge,
and that the board had its own budget, operated autonomously, and was subject to
judicial supervision.88 In Torres v. Finland, an asylum seeker, detained pending his
extradition to Spain, complained that he had been deprived of a review of his
detention by a court contrary to article 9(4) of the ICCPR.89 The Committee agreed
that Finnish law, which allowed the asylum seeker to appeal his detention to the
minister of the interior, did not meet the requirements of article 9(4), which aimed to
achieve a higher level of objectivity and independence in the review of detentions.90
An appellate hearing before a tribunal that complies with article 14(1) may cure
the defects of an initial hearing before a noncompliant tribunal. In Karttunen v.
Finland, the Committee found a lack of impartiality when one of the lay judges sitting
on a panel considering charges of fraudulent bankruptcy against a petitioner should
have been disqualified under the Finnish Code of Judicial Procedure since he was
related to one of the complainants in the case.91 The Committee noted that this
85 Human Rights Committee, Consideration of Reports Submitted by State Parties under Article 40
of the CovenantConcluding Observations of the Human Rights Committee: Sudan, UN CCPROR,
Human Rights Committee, 61st Sess., UN Doc. CCPR/C/79/Add.85 (1997) at para. 21.
86 Human Rights Committee, Consideration of Reports Submitted by State Parties under Article 40
of the CovenantConcluding Observations of the Human Rights Committee: Lithuania, UN
CCPROR, Human Rights Committee, 61st Sess., UN Doc. CCPR/C/79/Add.87 (1997) at para. 16.
87 Ibid. See also Human Rights Committee, Consideration of Reports Submitted by State Parties
under Article 40 of the CovenantConcluding Observations of the Human Rights Committee:
Slovakia, UN CCPROR, Human Rights Committee, 61st Sess., UN Doc. CCPR/C/79/Add.118
(1997) at para. 18, where the Committee asked the Slovakian government to protect the judiciary by
adopting laws regulating the appointment, remuneration, tenure, dismissal, and disciplining of judges.
Of particular concern were the election of judges on a probationary basis and the power of the Justice
minister to dismiss the president and vice-president of the Supreme Court.
88 See Adu, supra note 46 at para. 4.15.
89 Committee on Human Rights, Communication No. 291/1988, Torres v. Finland, UN GAOR,
45th Sess., Supp. No. 40, UN Doc. A/45/40 (1990).
90 Ibid. at para. 7.2.
91 The Committee has stated that impartiality implies that judges must not harbour preconceptions
about the matter put before them, and that they must not act in ways that promote the interests of one
L. SOSSIN & G. HECKMAN ADMINISTRATIVE LAW PROTECTIONS
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deficiency could have been corrected had an impartial and independent appeal court
been willing to rehear the evidence in a public, in-person hearing.92
215
To date, as noted earlier, article 14 of the ICCPR has not successfully been
invoked to challenge Canadas system of administrative justice. In contrast,
administrative decision making in many European states, notably the United
Kingdom, has been scrutinized for compliance with article 6 of the European
Convention for the Protection of Human Rights and Fundamental Freedoms.93 The
next Section reviews the jurisprudence of the European Court of Human Rights
(European Court) regarding the scope and content of the right to a fair hearing
before an independent tribunal.
B. The European Convention
Textually analogous to article 14 of the ICCPR, article 6 of the European
Convention states in part:
1. In the determination of his civil rights and obligations or of any criminal
charge against him, everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal established by law. …
The European Courts jurisprudence under article 6(1) of the ECHR provides
evidence of the scope and content of the norm of tribunal independence in states with
highly developed systems of administrative justice.
1. Scope of the Right to an Independent Tribunal
As in the case of article 14(1) of the ICCPR, the extent to which article 6(1) of the
ECHR applies to public law disputes is a contentious question. Generally, the
European Court has found that article 6(1) applies outside the criminal context where
(1) the impugned proceedings involve a dispute (contestation) over a right or
obligation; (2) the impugned proceedings lead to a determination of the right or
obligation; and (3) the right or obligation in issue is of a civil nature.
The court must decide whether there is a dispute over a right which can be said
on arguable grounds to be recognized under domestic law. The concepts of right
and obligation have an autonomous meaning under the European Convention and
while the European Court takes into account whether the national legal system
of the parties (Committee on Human Rights, Communication No. 387/1989, Karttunen v. Finland,
UN GAOR, 46th Sess., Supp. No. 40, UN Doc. A/46/40 (1991) at para. 7.2 [Karttunen]).
92 Ibid. at para. 7.3.
93 The Committee has recently hinted that it is prepared to equate article 14(1) of the ICCPR with
article 6(1) of the ECHR in cases where it has given effect to reservations of European parties to the
Optional Protocol that deny the Committee competence to consider communications regarding
matters previously examined under the ECHR: Committee on Human Rights, Communication No.
989/2001, Kollar v. Austria, UN GAOR, 58th Sess., Supp. No. 40, UN Doc. A/58/40 at para. 8.6. On
the subject of such reservations to the Optional Protocol, see generally Joseph, supra note 53 at 69-73.
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classifies an interest or privilege as a right, it is not bound by this determination but
must also consider the substantive content and effects of the interest or privilege
and the object and purpose of the ECHR.94 An entitlement or right expressly provided
for by statute is clearly recognized under domestic law. A right may also be found
to exist in the face of a broad statutory discretion to confer a benefit or issue a licence,
even where the applicant cannot claim entitlement to a specific outcome. For
example, when a property owner sought to challenge a building committees refusal
to exempt him from the criteria governing the issuance of a building permit, the
European Court decided that a dispute over a right arose where the applicant could
arguably claim that the state authority had exercised its statutory discretion in a
manner contrary to generally recognized legal and administrative principles.95 The
court has further held that the contestation must be of a genuine and serious nature,
may relate to the actual existence of a right, to its scope, or to the manner in which the
right may be exercised, and may concern questions of both fact and law.96
The impugned proceedings must lead to a determination of the civil right or
obligation. While the link between the outcome of the proceedings and the impact on
the exercise of the right may not be tenuous or remote, the impugned proceedings
need not be designed for the specific purpose of restricting or defining an individuals
civil right. Rather, the outcome of the impugned proceedings must be decisive
for, affect, or relate to the determination or exercise of a civil right.97 For
example, disciplinary proceedings against a doctor, although designed primarily to
protect patients and promote public confidence in the medical profession, had a
sufficient impact on the doctors right to practice his profession that it effectively
determined this civil right.98
The general entitlement to a fair and public hearing within a reasonable time by
an independent and impartial tribunal is limited to cases involving the determination
of individuals civil rights and obligations or of criminal charges against them. The
French-language version of the text states that article 6(1) applies to proceedings to
decide contestations sur ses droits et obligations de caractre civil. This
terminology is identical to that in article 14(1) of the ICCPR, even though the
English-language versions of the two conventions differ. The European Court has not
94 See Kaplan v. U.K. (1980), 21 Eur. Comm. H.R.D.R. 5.
95 Skrby v. Sweden (1990), 13 E.H.R.R. 90 at para. 28, 180 Eur. Ct. H.R. (Ser. A) 28. But see
Masson and van Zon v. Netherlands (1996), 22 E.H.R.R. 491, 327 Eur. Ct. H.R. (Ser. A) 1, and
Leutscher v. Netherlands (1996), 24 E.H.R.R. 181, 39 Y.B. Eur. Conv. H.R. 209, where the court
decided there was no right to compensation for loss of liberty while in unlawful detention under the
Dutch Code of Criminal Procedure, because it conferred on Dutch courts a discretion to grant such
compensation on equitable grounds. See also P. van Dijk & G. J. H. van Hoof, Theory and Practice of the
European Convention on Human Rights, 3d ed. (The Hague: Kluwer Law International, 1998) at 395.
96 Benthem v. Netherlands (1985), 8 E.H.R.R. 1 at para. 32, 97 Eur. Ct. H.R. (Ser. A) 1 [Benthem].
97 van Dijk & van Hoof, supra note 95 at 397.
98 Le Compte, Van Leuven and De Meyere v. Belgium (1981), 4 E.H.R.R. 1 at paras. 47-48, 43 Eur.
Ct. H.R. (Ser. A) 1 [Le Compte].
217
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comprehensively defined the meaning of civil right or obligation, opting instead to
develop the concept in a piecemeal fashion, perhaps to the detriment of clarity and
certainty.99 The major point of contention is whether civil right should be equated
with private right, limiting the application of article 6(1) to proceedings meant to
determine rights of a private nature, such as individual property rights or rights
arising in tort or contract law. There are strong arguments, based on the travaux
prparatoires and drafting history of articles 14(1) of the ICCPR and 6(1) of the
ECHR, that this was not the intention of the drafters of either provision,100 and that the
term civil rights was intended to cover the determination of all legal rights that were
not of a criminal nature.101 However, the European Court has created the impression
that it started from the assumption that civil meant private, and that it employed
these terms as synonyms.102 The court has developed four principles in relation to the
question of whether a right or obligation can be characterized as civil.103 First, the
concept of civil right or obligation has its own meaning in European convention
law and cannot be interpreted solely by reference to whether the domestic law of the
respondent state classifies a right as private instead of public. Second, article 6(1)
does not only cover private law disputes in the traditional sense (i.e., disputes
between individuals), excluding disputes between individuals and the state acting in
its sovereign capacity. Third, the character of the legislation governing the matter to
be determined, and the nature of the authority having jurisdiction in the matter (either
ordinary court or administrative body), are of little consequence in determining
whether the right or obligation is civil in character. Fourth, whether a right is to be
regarded as civil must be determined by reference to its substantive content and
effects.
Applying these principles on a case by case basis, the European Court has
extended the application of article 6(1) beyond disputes concerning traditional private
rights to cases involving proceedings with a strong public flavour but whose
outcomes impact on private rights. For example, the court applied article 6(1) to the
withdrawal of a liquor permit despite Swedens claim that the regulation of alcohol
distribution and consumption was an important part of its social policy and fell within
an essential field of public law.104 The permit conferred civil rights because it was
essential for the applicant to carry on its business activities as a restaurant and its
revocation impacted on a private commercial activity based on the contractual
relationship between the permit holder and its customers.105 Similarly, article 6(1) was
99 See van Dijk & van Hoof, supra note 95 at 404.
100 See ibid. at 392-94. See also van Dijk, One More Step, supra note 31 and accompanying text.
101 This view is set out convincingly in the dissenting opinion of Judge Loucaides in Maaouia v.
France (2000), 33 E.H.R.R. 42 at paras. O-IV3O-IV8, [2000] 10 Eur. Ct. H.R. 301 [Maaouia].
102 van Dijk & van Hoof, supra note 95 at 404 ×..
103 See Benthem, supra note 96 at para. 34.
104 Tre Traktrer Aktiebolag v. Sweden (1989), 13 E.H.R.R. 309 at para. 42, 159 Eur. Ct. H.R. (Ser.
A) 1.
105 Ibid. at para. 43.
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found to govern zoning decisions that subjected the future use by a property holder of
his or her property to government preauthorization,106 as well as decisions of
professional disciplinary tribunals to restrict or eliminate individuals right to exercise
professions.107 A dispute regarding a persons entitlement to health insurance under
social security legislation was also found to concern a civil right.108 The compulsory
nature of health insurance, the comprehensive statutory scheme regulating health
insurance, and the states large role in the scheme gave the applicants claim a strong
public flavour. However, taken cumulatively, the schemes private law features
including its resemblance to private insurance schemes, the connection between the
availability of benefits and the applicants employment under a private law contract,
and most importantly, the personal, economic and individual nature of the right, of
crucial importance to a person who by reason of illness has no other source of
incomeconfer[red] on the asserted entitlement the character of a civil right … .109
In Salesi v. Italy,110 the court went further, applying article 6(1) to a claim of
entitlement to welfare allowances. This time, it did not advert to any similarities
between Italys statutory welfare assistance program and private schemes, but relied
almost exclusively on the fact that Salesi suffered an interference with her means of
subsistence and was claiming an individual, economic right flowing from specific
rules laid down in a statute giving effect to the constitution.111 The court recently
confirmed that complaints of discrimination in hiring or tendering processes brought
under human rights codes involve the determination of civil rights.112
The broadening scope of article 6(1) does not extend to all proceedings of a
public law nature. The European Court recently determined in Maaouia v. France that
decisions regarding the entry, stay, and, deportation of aliens do not concern the
determination of their civil rights or obligations or of a criminal charge against them
106 Oerlemans v. Netherlands (1991), 15 E.H.R.R. 561, 219 Eur. Ct. H.R. (Ser. A) 1.
107 Le Compte, supra note 96.
108 Feldbrugge v. Netherlands (1986), 8 E.H.R.R. 425, 99 Eur. Ct. H.R. (Ser. A) 1.
109 Ibid. at para. 40.
110 (1993), 26 E.H.R.R. 187, 257 Eur. Ct. H.R. (Ser. A) 54 [Salesi].
111 The court noted that, under the Italian statute, disputes over the right to welfare came within the
jurisdiction of the ordinary courts (Salesi, ibid. at para. 19). See also Schuler-Zgraggen v. Switzerland
(1993), 16 E.H.R.R. 405 at para. 46, 263 Eur. Ct. H.R. (Ser. A) 1, where the court applied the same
reasoning to an applicants entitlement to a disability pension, which it found to be an individual
economic right flowing from specific rules laid down in a federal statute. As in Canadian
administrative law, the significance of the decisions impact on the individuals fundamental interests
or rights is central to the courts decision to apply article 6(1).
112 Tinnelly & Sons Ltd v. United Kingdom (1998), 2 E.H.R.R. 249, [1998] 79 Eur. Ct. H.R. 1633.
The European Court observed that the human rights code guaranteed persons a right not to be
discriminated against … in the job market including … when bidding for a public works contract
(ibid. at para. 61). Moreover, the Fair Employment Tribunal was empowered to assess the applicants
losses and order damages for loss of profits. The clearly defined statutory right not to be discriminated
against, having regard to the context in which it applied and to its pecuniary nature, could be
classified as a civil right (ibid.). See also Devlin v. United Kingdom (2001), 34 E.H.R.R. 43,
29545/95 (HUDOC).
L. SOSSIN & G. HECKMAN ADMINISTRATIVE LAW PROTECTIONS
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under article 6(1).113 Its decision was based primarily on the Council of Europes
adoption, twenty-four years after the ratification of the European Convention, of a
separate protocol providing minimal procedural administrative safeguards to aliens in
expulsion proceedings. A majority of the court accepted that the state parties to the
convention had not intended immigration proceedings to be covered by article 6(1),
reasoning that the protocol was adopted precisely to fill the gap resulting from the
lack of article 6(1) guarantees.114
219
In dissent, Judges Loucaides and Traja roundly criticized the majority judgment.
First, they rejected the majoritys interpretation of the concept of civil rights and
obligations as unduly narrow and at odds with both the purposive interpretation of
treaties required by the Vienna Convention and the drafting history of article 6(1).115 It
would be preferable to read civil right to include all legal rights that were not of a
criminal nature, because this interpretation enhanced individual rights in line with the
object and purpose of the European Convention.116 Further, it was inconceivable that a
convention intended to implement the rule of law could provide for the fair
administration of justice in respect of rights between individuals but fail to do so in
respect of rights and obligations vis–vis the administration where an independent
judicial control is especially required for the protection of individuals against the
powerful authorities of the State.117 Second, the dissenting judges questioned the
majoritys reliance on the protocol, arguing that while its procedural protections for
the expulsion of aliens were intended to govern proceedings before competent
administrative authorities, they did not purport to restrict any judicial guarantees that
aliens enjoyed under article 6(1), but instead supplemented these guarantees.118 In
other words, the Council of Europes decision to require states to put in place an
administrative authority governed by minimal procedural guarantees could not be
taken, without express language, to restrict or remove aliens right to a fair hearing
under article 6(1). A protocol entered into long after the ratification of the European
113 Maaouia, supra note 101 at para. 40. It found that proceedings for the rescission of exclusion
orders did not concern the determination of a criminal charge or the determination of aliens civil
rights, even though exclusion orders significantly affected their private and family life and prospects
of employment (ibid. at paras. 38-39).
114 The court relied on an explanatory report on the protocol, which noted that the protocol d[id]
not affect the European Commissions interpretation of article 6, denying that it applied to
deportation proceedings (ibid. at paras. 35-37).
115 Maaouia, supra note 101 at paras. O-IV4O-IV11. See van Dijk, One More Step, supra note 31.
116 Maaouia, supra note 101 at para. O-IV7.
117 Ibid. According to the dissent, the majoritys narrow view of the meaning of civil rights had
obliged the court to adopt artificial distinctions in order to extend article 6 protection to proceedings
that did not involve private law, such as claims for pensions, social security and social assistance
(ibid. at para. O-IV6).
118 Ibid. at O-IV15O-IV17.
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Convention and meant to form part of the convention could not qualify or abolish the
human rights previously safeguarded in the main body of the convention.119
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The Maaouia dissent advances powerful reasons against excluding immigration
proceedings from the scope of article 6(1) based on a narrow interpretation of the
term civil rights. The broad interpretation urged by the dissenting judges is even
more compelling in the context of article 14(1) of the ICCPR, whose drafters
expressly dropped the adjective civil from the English-language version to include
public law proceedings within the scope of the provision.120 The broad interpretation
is also consistent with the provisions of other regional human rights instruments.121
The result in Maaouia is driven less by the text of article 6(1) and the courts article
6(1) jurisprudence than by the implied effect of a specific protocol, and should not
change our assessment of the scope of the international norm of tribunal
independence under article 14(1) of the ICCPR.
2. Content of the Right to an Independent Tribunal
Article 6(1) of the ECHR guarantees to individuals whose civil rights are to be
determined a right of access to proceedings before a tribunal whose organization and
composition meet minimum standards of independence and impartiality:
Article 6(1) secures to everyone the right to have any claim relating to his civil
rights and obligations brought before a court or tribunal. In this way the Article
embodies the right to a court, of which the right of access, that is the right to
institute proceedings before courts in civil matters, constitutes one aspect only.
To this are added the guarantees laid down by Article 6(1) as regards both the
organisation and composition of the court, and the conduct of the proceedings.
In sum, the whole makes up the right to a fair hearing.122
119 As the dissenting judges put it: Protocols add to the rights of the individual. They do not restrict
or abolish them (ibid. at para. O-IV14).
120 Commentators have criticized the majority judgment for similar reasons: see Hanneke
Steenbergen, Pieter Boeles & Christa Wijnakker, Case Reports of the European Court of Human
Rights (2001) 3 Eur. J. Migr. & L. 97 at 101.
121 Article XVIII of OAS, Ninth International Conference of American States, American
Declaration of the Rights and Duties of Man (1948), 43 A.J.I.L. 133, makes no distinction between
civil or private and public law rights but simply provides that every person may resort to the
courts to ensure respect for his legal rights. While it does not specify a right to a fair hearing before
an independent and impartial tribunal, resort to a court would likely provide such guarantees.
Similarly, article 8(1) of OAS, Inter-American Specialized Conference on Human Rights, American
Convention on Human Rights (1969), 65 A.J.I.L. 679, extends the right to a hearing to the
determination of his rights and obligations of a civil, labor, fiscal, or any other nature. On their face,
both provisions are broad enough to extend the fair hearing guarantees to refugee determination or
removal proceedings.
122 Golder v. United Kingdom (1975), 1 E.H.R.R. 524 at para. 36, 18 Eur. Ct. H.R. (Ser. A) 1.
L. SOSSIN & G. HECKMAN ADMINISTRATIVE LAW PROTECTIONS
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The European Court has held that access to the courts in civil matters is essential to
maintain the rule of law and that, to fulfill this purpose, article 6 must be interpreted
broadly.
221
a. The Meaning of Tribunal
A tribunal is a decision-making body that must be established by law, a
requirement premised on the principle that judicial organization in a democratic
society must not depend on the discretion of the Executive, but … should be regulated
by law emanating from Parliament.123 To be recognized as a tribunal under article 6,
the decision-making bodys function must be to determine matters within its
competence on the basis of rules of law, following proceedings conducted in a
prescribed manner.124 It must have a power of binding decision in its area of
jurisdiction125 over questions of fact and questions of law.126 However, it need not be
a court of law of the classic kind, integrated within the standard judicial machinery
of the country.127 In sum, administrative decision makers may qualify as tribunals.
b.
Independence
Article 6(1) provides that the tribunal must also be independent. Independence
requires that decision-making bodies be free to exercise their powers without
interference from the states executive or legislature or from the parties to the
dispute.128 The European Court recently held that article 6 does not require states to
comply with any theoretical constitutional concepts regarding the separation of the
judicial from the legislative or executive powers.129 However, the concept of
separation of powers is increasingly mentioned in dissenting and majority judgments
as an important foundation of the principle of independence.130
123 Crociani v. Italy (1980), 22 Eur. Comm. H.R.D.R. 147 at para. 8 [Crociani].
124 Sramek v. Austria (1984), 7 E.H.R.R. 351 at para. 36, 84 Eur. Ct. H.R. (Ser. A) 1, where the
court determined that a statutory body established to review land transfers was a tribunal.
125 Campbell and Fell v. United Kingdom (1984), 7 EHRR 165 at para. 76, 80 Eur. Ct. H.R. (Ser. A)
1 [Campbell and Fell].
126 Le Compte, supra note 98 at para. 51. But see Bryan v. United Kingdom (1995), 21 E.H.R.R.
342, 44/1994/491/573 (HUDOC) [Bryan].
127 Campbell and Fell, supra note 125 at para. 76.
128 See Crociani, supra note 123 at para. 10, and Campbell and Fell, supra note 125 at para. 78.
Strictly speaking, independence from the parties is more closely related to impartiality.
129 Kleyn v. Netherlands (2003), 38 E.H.R.R. 14 at para. 193, [2003] 6 Eur. Ct. H.R. 61 [Kleyn].
130 In relation to the separation of legislative and judicial powers, see Stran Greek Refineries and
Stratis Andreadis v. Greece (1994), 19 E.H.R.R. 293, 301 Eur. Ct. H.R. (Ser. A) 62, and McGonnell v.
United Kingdom (2000), 30 E.H.R.R. 289, [2000] 2 Eur. Ct. H.R. (Ser. A) 107. Regarding the
separation of executive and judicial powers, see V. v. United Kingdom (1999), 30 E.H.R.R. 121,
[1999] 9 Eur. Ct. H.R. (Ser. A) 111; Stafford v. United Kingdom (2002), 35 E.H.R.R. 32 at para. 78,
[2002] 4 Eur. Ct. H.R. (Ser. A) 115; and Easterbrook v. United Kingdom (2003), 37 E.H.R.R. 40,
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In the seminal case of Campbell and Fell, the court sought to determine whether a
prisons board of visitors, charged with supervising the administration of a prison
and adjudicating prisoners alleged violations of prison regulations, was independent.
In determining whether a tribunal is independent, the court held, three criteria were
relevant: the manner of appointment of the tribunals members and their term of
office, the existence of guarantees against outside pressure, and whether the tribunal
presents an appearance of independence.
[Vol. 50
i. The Manner of Appointment of Tribunal Members and Their
Term of Office
The court observed that the fact that tribunal members are appointed by the
executive does not deprive them of independence. The executive can even provide
them with guidelines regarding the performance of their functions without imperiling
their independence as long as they are not subject to instructions in their adjudicatory
role. While the three-year term of members of the board of visitors in Campbell and
Fell was relatively short, the court made allowance for the fact that they were unpaid,
and might refuse longer appointments.131 In Ettl v. Austria, a land reform board was
found to be independent despite the fact that a majority of its members were civil
servants because Austrias constitution and federal law stipulated that board members
discharged their duties independently and were not subject to any instructions from
the executive.132 The boards independence was strengthened by the five-year terms of
its members and their virtual irremovability guaranteed by federal law.133 In these
circumstances, the court noted, it was appropriate for Austria to rely on civil servants
with expertise in the complex field of land consolidation.134
48015/99 (HUDOC) [Easterbrook], where the European Court determined that the power of the
United Kingdoms Home Secretary to fix the minimum duration of an offenders prison sentence (the
tariff) and to decide on the prisoners release following expiry of the sentence violates article 6(1).
The court expressly invoked in its reasons the United Kingdoms failure to comply with the
separation of powers:
The Court would observe that the sentencing exercise carried out in criminal cases
must necessarily be carried out by an independent and impartial tribunal, namely, a
court offering guarantees and procedure of a judicial nature. It was not a court that
fixed the applicants tariff in a public, adversarial hearing and in the circumstances it is
not sufficient to satisfy the fundamental principle relating to the separation of powers
that the member of the executive who issued the decision was guided by judicial opinion
(ibid. at para. 28).
131 Campbell and Fell, supra note 125 at paras. 79-80. But see Belilos v. Switzerland (1988), 10
E.H.R.R. 466 at para. 67, 132 Eur. Ct. H.R. (Ser. A) 1, where a complainant before a police board
could legitimately doubt the boards independence and organizational impartiality because it
consisted of a single member, a municipal civil servant likely to return to other departmental duties.
132 (1987), 10 E.H.R.R. 255 at para. 38, 117 Eur. Ct. H.R. (Ser. A) 1 [Ettl]. See also Stallinger and
Kuso v. Austria (1997), 26 E.H.R.R. 81, [1997] 35 Eur. Ct. H.R. (Ser. A) 666.
133 Ettl, ibid. at paras. 20, 41.
134 Ibid. at para. 40.
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ii. The Existence of Guarantees against Outside Pressure
The irremovability of judges by the executive during their term of office is
generally a corollary of independence and is guaranteed by article 6(1). Formal
recognition of the irremovability of tribunal members in a statute or regulation
governing the removal of tribunal members is the strongest indicator of independence.
In the absence of formal guarantees of independence, such as security of tenure, the
court examines whether these guarantees are recognized in practice and whether other
guarantees are present. A tribunal may still be regarded as independent provided its
members are irremovable in practice.135 In Campbell and Fell, the prison boards
independence was not threatened by the Home Secretarys power to require board
members to resign because, in practice, he could only exercise it in exceptional
circumstances.
The presence of additional guarantees against outside pressure played a crucial
role in the European Courts assessment of the independence of military tribunals in
the United Kingdom. In Morris v. United Kingdom,136 the permanent president of the
court martial, appointed for a four-year term to serve on panels with an independent
judge advocate and two serving officers, did not enjoy formal security of tenure.
However, the European Court found that this did not call into question the court
martials independence for several reasons: permanent presidents had never been
removed from office and thus enjoyed de facto security of tenure; officers accepted
the position of permanent president as the last appointment of their careers, which
meant that they could not be influenced by any reports and promotions concerns; and
permanent presidents worked outside the chain of command.137 In contrast, serving
officers were appointed on an ad hoc basis for individual proceedings. Relatively
junior officers with no legal training, they remained subject to army discipline and
reports and were not protected by statute from external army influence while hearing
a case. Despite rules governing their selection, the requirement that they swear an
oath promising impartiality, the right of the accused to object to any member of the
court martial, the confidentiality of deliberations, and the rule that the most junior
members expressed their view on verdict and sentence first, the court found that there
were insufficient safeguards against outside pressure being brought to bear on serving
officers.138 They were exposed to outside pressure that jeopardized their independence
because they belonged to the army, which takes its orders from the executive, and
more importantly because they were subject to military discipline and assessment
reports that impacted on their careers.
The court revisited the Morris decision in Cooper v. United Kingdom,139 which
dealt with the Royal Air Force Court Martial, a tribunal similar in most respects to
135 See Campbell and Fell, supra note 125 at para. 80.
136 (2002), 34 E.H.R.R. 52, [2002] 1 Eur. Ct. H.R. (Ser. A) 387 [Morris].
137 Ibid. at paras. 68-69.
138 Ibid. at para. 72.
139 (2003), 39 E.H.R.R. 8, 48843/99 (HUDOC) [Cooper].
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that in Morris. Considering additional safeguards newly disclosed by the United
Kingdom, the court was satisfied that the independence of the ordinary members of
the court martial (equivalent to the serving officers in Morris) was sufficiently
protected. The most important safeguard was the distribution by the Court Martial
Administration Unit of training material to the members of the court martial. Briefing
notes provided the ordinary members a step-by-step guide to court martial procedures,
their role in the proceedings, and those of the judge advocate and permanent
president. Most importantly, they underlined the importance of independent decision
making:
[T]he Briefing Notes fully instructed ordinary members of the need to function
independently of outside or inappropriate influence or instruction and of the
importance of this being seen to be done, providing practical and precise
indications of how this could be achieved or undermined in a particular
situation. The Court considers that those instructions served not only to bring
home to the members the vital importance of independence but also to provide
a significant impediment to any inappropriate pressure being brought to bear.140
Finally, the court noted that court martial members were prohibited from disclosing
any opinion expressed or vote cast during court martial proceedings, a fact which
effectively prevented
their
performance to assessment reports.141
the ordinary officers superiors from subjecting
iii. Whether
the Tribunal Presents an Appearance of
Independence
inmates. This contact was not enough, however,
In Campbell and Fell, the court observed that a penitentiarys board of visitors
could still be viewed as independent despite its dual supervisory and adjudicatory
roles. The boards supervisory role of exercising independent oversight of the
prisons administration meant that it was frequently in contact with prison officials
and
its
independence.142 In contrast, in a case involving the independence of an inspector
charged with adjudicating town-planning appeals, the existence of a power of the
secretary of state to revoke the inspectors power to decide an appeal, irrespective of
evidence showing that the secretarys power was rarely used and had not been used in
the case at bar, was enough to deprive the inspector of the requisite appearance of
independence.143
to compromise
140 Ibid. at para. 124.
141 Ibid. at para. 125. See also Incal v. Turkey (1998), 29 E.H.R.R. 449 at para. 68, [1998] 78 Eur.
Ct. H.R. 1547, and iraklar v. Turkey (1998), 32 E.H.R.R. 23 at para. 39, [1998] 94 Eur. Ct. H.R.
3059.
142 Campbell and Fell, supra note 125 at paras. 81-82.
143 Bryan, supra note 126 at para. 38.
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c. The Role of Judicial Review in Satisfying the Guarantee of
Independence under Article 6(1)
Article 6(1) of the ECHR does not guarantee parties the opportunity to directly
submit disputes over civil rights to independent and impartial tribunals. The European
Court recognizes that:
Demands of flexibility and efficiency, which are fully compatible with the
protection of human rights, may justify the prior intervention of administrative
or professional bodies and, a fortiori, of judicial bodies which do not satisfy the
[article 6] requirements in every respect; the legal tradition of many member
States of the Council of Europe may be invoked in support of such a system.144
However, for a particular decision-making process to comply with article 6(1), the
dispute must eventually be reviewed by a tribunal meeting the requirements set out in
that provision. This principle, referred to as the composite approach,145 was first
adopted by the European Court in Albert and Le Compte, a case involving the
decision of a professional discipline tribunal to suspend the applicant doctors from
medical practice:
In many member States of the Council of Europe, the duty of adjudicating on
disciplinary offences is conferred on jurisdictional organs of professional
associations. Even in instances where Article 6(1) is applicable, conferring
powers in this manner does not in itself infringe the Convention. Nonetheless,
in such circumstances the Convention calls at least for one of the two following
systems: either the jurisdictional organs themselves comply with the
requirements of Article 6(1), or they do not so comply but are subject to
subsequent control by a judicial body that has full jurisdiction and does
provide the guarantees of Article 6(1).146
But what did full jurisdiction mean? In Albert and Le Compte, the disciplinary
proceedings involved three stages: an initial hearing before a provincial council
composed of medical practitioners, an appeal before an Appeals Council composed of
ten medical practitioners and ten Court of Appeal judges, one of whom had the
casting vote, and finally, an appeal on questions of law before the Court of Cassation.
The Belgian government submitted that the Appeals Council did not have to meet the
requirements of article 6(1) because a final appeal lay to the Court of Cassation,
which met these requirements. The European Court rejected this argument, reasoning
144 Le Compte, supra note 98 at para. 51. See McMichael v. United Kingdom (1995), 20 E.H.R.R.
205 at para. 80, 307 Eur. Ct. H.R. (Ser. A) 26, where the court acknowledged that in the sensitive
domain of family law there may be good reasons for opting for an adjudicatory body that does not
have the composition or procedures of a court of law of the classic kind. For administrative decision
making in patent applications, see British American Tobacco Company Limited v. Netherlands (1995),
21 E.H.RR. 409 at para. 77, 331 Eur. Ct. H.R. (Ser. A) 1.
145 See M. Poustie, The Rule of Law or the Rule of Lawyers? Alconbury, Article 6(1) and the Role
of Courts in Administrative Decisionmaking (2001), 6 Eur. H.R.L. Rev. 657 at 663.
146 Albert and Le Compte v. Belgium (1983), 5 E.H.R.R. 533 at para. 29, 58 Eur. Ct. H.R. (Ser. A) 1
[Albert and Le Compte, emphasis added].
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that both bodies were required to meet the requirements of article 6(1), including
independence and impartiality, because the Appeals Councils findings of fact were
binding and the Court of Cassations legal determinations were binding:
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Article 6(1) draws no distinction between questions of fact and questions of
law. Both categories of question are equally crucial for the outcome of
proceedings relating to civil rights and obligations. Hence, the right to a
court and the right to a judicial determination of the dispute cover questions of
fact just as much as questions of law. Yet the Court of Cassation does not have
jurisdiction to rectify factual errors or to examine whether the sanction is
proportionate to the fault … . It follows that Article 6(1) was not satisfied unless
its requirements were met by the Appeals Council itself.147
In a series of cases from the United Kingdom, the European Court determined
that the judicial review of local authorities child access orders failed to satisfy the
composite approach under article 6(1).148 Each case was brought by natural parents
contesting the decision of a local authority to restrict or eliminate their access to a
child in the authoritys care (under a care order) as an infringement of their right to
private and family life under article 8 of the ECHR. The local authorities had acted
based on their view of the childs best interests, but without involving the natural
parents, and in some cases without notice. Two remedies were open to the parents
under English law. First, they could apply for judicial review of the authorities
decision. This remedy was available if, in making its decision, the authority had acted
illegally, ultra vires or in bad faith; failed to consider relevant considerations, took
into account irrelevant considerations, or came to a decision that no reasonable
authority could have made (the standard of Wednesbury unreasonableness); or failed
to act fairly or to observe statutory procedural rules. The European Court observed
that judicial review was concerned with reviewing not the merits of the decision in
question but rather the decision-making process itself.149 The second possible remedy
was a wardship application to the English courts, but here again the courts could not
review the merits of local authority decisions on child access matters because they
were exercises of discretion within the authorities statutory jurisdiction.150 As a result,
wardship applications were as limited as judicial review. Since it was common ground
that the local authorities were not tribunals, the European Court examined whether
the two remedies before the English courts complied with article 6(1). It decided that
they did not:
In a case of the present kind, however, there will in the Courts opinion be
no possibility of a determination in accordance with the requirements of
147 Le Compte, supra note 98 at para. 51.
148 See W. v. United Kingdom (1987), 10 E.H.R.R. 29, 121 Eur. Ct. H.R. (Ser. A) 1; O. v. United
Kingdom (1987), 10 E.H.R.R. 82, 120 Eur. Ct. H.R. (Ser. A) 1; B. v. United Kingdom (1987), 10
E.H.R.R. 87, 121 Eur. Ct. H.R. (Ser. A) 57; and R. v. United Kingdom (1987), 10 E.H.R.R. 74, 121
Eur. Ct. H.R. (Ser. A) 100.
149 W. v. United Kingdom, ibid. at para. 48.
150 Ibid. at para. 49.
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Article 6(1) of the parents right in regard to access … unless he or she can have
the local authoritys decision reviewed by a tribunal having jurisdiction to
examine the merits of the matter. And it does not appear from the material
supplied by the Government or otherwise available to the Court that the powers
of the English courts were of sufficient scope to satisfy fully this requirement
during the currency of the parental rights resolution.151
In a series of cases concerning the decisions of planning authorities, the European
Commission and the European Court qualified the approach to judicial review set out
in the child welfare cases. In Zumtobel v. Austria,152 a provincial government office
decided, after a hearing, to expropriate some of the Zumtobel partnerships land to
build a highway. Such expropriations could be ordered if there was no other more
suitable solution from the standpoint of environmental protection, among other
criteria. Zumtobel unsuccessfully challenged
the decision before Austrias
Administrative Court, arguing that the office did not consider environmental
protection when it assessed the various relevant interests and refused to disclose
expert reports. Zumtobel complained that it had not received a fair hearing from an
independent and impartial tribunal, arguing that the Administrative Court did not have
full jurisdiction on review because it only examined the lawfulness of the offices
decision and could neither correct nor supplement the facts or decide on the merits in
the offices stead. The European Court disagreed with Zumtobel. In deciding that the
scope of the competence of the Administrative Court satisfied the requirements of
Article 6(1),153 it observed that the Administrative Court had in fact considered [the]
submissions on their merits, point by point, without ever having to decline jurisdiction
in replying to them or in ascertaining various facts.154 The Administrative Court had
indeed ruled that, on the evidence, the office had taken environmental protection into
account in its decision and had not relied on the undisclosed documents or treated
these as material to its decision. Regard being had to the respect which must be
accorded to decisions taken by the administrative authorities on grounds of
expediency and to the nature of the complaints made by the Zumtobel partnership,
the Administrative Courts review had fulfilled the requirements of article 6(1).155
Zumtobel indicates that to comply with article 6(1), and in particular the requirement
of full jurisdiction, reviewing courts do not need the power to decide policy
questions afresh and on the merits, but must simply be able to consider the grounds
of review on their merits, point by point, without having to decline jurisdiction in
replying to them. In ISKCON v. U.K.,156 another planning case, the European
Commission confirmed that it is not the role of Article 6 of the Convention to give
access to a level of jurisdiction which can substitute its opinion for that of the
151 Ibid. at para. 82.
152 (1993), 17 E.H.R.R. 116, 268 Eur. Ct. H.R. (Ser. A) 1 [Zumtobel].
153 Ibid. at para. 32.
154 Ibid.
155 Ibid.
156 (1994), 76A Eur. Comm. H.R.D.R. 90.
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administrative authorities on questions of expediency and where the courts do not
refuse to examine any of the points raised … .157
[Vol. 50
In Bryan v. United Kingdom,158 the European Court further elucidated its new
flexible approach to article 6(1). Bryan erected house-like buildings on his property
without the necessary planning permission. The local borough council ordered him to
remove them. Bryan appealed and an inspector, appointed to conduct an inquiry and
determine the appeal, upheld the boroughs decision, finding that the buildings had
not been designed for the purposes of agriculture but for residential use, that they did
not enhance or preserve the appearance of the area and that they should be removed.
Bryan applied for judicial review.159 The High Court rejected his application,
observing that it did not sit on appeal from the judgment of inspectors, that certain
aspects of the inspectors decision were entirely a matter of planning judgment for
him, and that there was nothing irrational about the decision. Bryan claimed that he
had not been afforded a hearing by an independent tribunal in accordance with article
6(1). The European Court decided that the secretary of states executive power to
revoke the inspectors authority to decide the appeal at any time deprived the
inspector of the appearance of independence required by article 6(1). It then examined
whether the inspectors decision was subject to subsequent control by a judicial body
with full jurisdiction meeting the article 6(1) requirements.160 It decided that in
assessing the sufficiency of judicial review of an administrative decision, it would
have regard to the subject matter of the decision appealed against, the manner in
which that decision was arrived at, and the content of the dispute, including the
desired and actual grounds of appeal.161 Addressing the manner in which the
inspectors decision was arrived at, the European Court observed that the decision
was carefully reasoned and that the procedure before the inspector had a number of
safeguards, including the quasi-judicial character of the decision-making process; the
inspectors duty to exercise independent judgment and not to be subject to improper
influence; and the obligation on the inspector to uphold the principles of openness,
fairness, and impartiality.162 Regarding the content of the dispute and, in particular, the
actual grounds of appeal, the European Court noted that Bryan had disputed neither
the primary facts nor the inspectors factual inferences regarding the nature of the
157 Ibid. at para. 4. An appeal of a local authoritys planning decision to the High Court on points of
law met the requirements of article 6(1) because the court had dealt with each of the grounds of
appeal on the merits without having to decline jurisdiction. The High Court could intervene if the
administrative authorities failed to observe the statutory conditions and policies required to issue the
planning order, failed to take into account an actual fact, considered an immaterial fact, or rendered an
irrational decision.
158 Bryan, supra note 126.
159 Bryan did not seek review of the inspectors factual finding that his buildings were not for
purposes of agriculture, a significant omission in the eyes of the European Court (ibid. at paras. 39-42).
160 Ibid. at para. 40.
161 Ibid. at para. 45.
162 Ibid. at para. 46.
L. SOSSIN & G. HECKMAN ADMINISTRATIVE LAW PROTECTIONS
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buildings. The remaining grounds of Bryans appeal, which involved questions
relating to a panoply of policy matters, were within the High Courts jurisdiction, and
Bryans submissions in this respect had been adequately dealt with point by
point.163 Finally, it observed that even if Bryan had sought review of questions of
fact, the High Court, though unable to substitute its own findings of fact for those of
the inspector, would have had the power to satisfy itself that the inspectors findings
of fact or the inferences based on them were neither perverse nor irrational:
229
Such an approach by an appeal tribunal on questions of fact can reasonably be
expected in specialised areas of the law such as the one at issue, particularly
where the facts have already been established in the course of a quasi-judicial
procedure governed by many of the safeguards required by Article 6(1). It is
also frequently a feature in the systems of judicial control of administrative
decisions found throughout the Council of Europe Member States. Indeed, in
the instant case, the subject matter of the contested decision by the inspector
was a typical example of the exercise of discretionary judgment in the
regulation of citizens conduct in the sphere of town and country planning.164
The upshot of Bryan is a relaxation of the requirement under article 6(1) that an
applicant have access to an independent tribunal with full jurisdiction over
questions of law and fact. When challenging a town planning decision (subject matter
of the decision) on a question of fact (content of the dispute), as long as the first-
instance decision was made in the course of a quasi-judicial procedure governed by
many of the safeguards required by article 6(1) (the manner in which the decision is
arrived at), a reviewing court need not have full jurisdiction over questions of fact, in
the sense of substituting its own findings of fact for those of the decision maker. It is
enough for the court to intervene if these findings of fact are perverse or irrational.
The European Court has followed Bryan in subsequent judgments involving
administrative decision making165 but has not extended its relaxed approach to the
criminal context.166 In De Cubber v. Belgium, Belgium argued that a trial court sitting
on a criminal trial did not have to satisfy the requirement of objective impartiality
because its decision could be appealed to an appeal court that fully complied with
article 6(1). The European Court disagreed:
At first sight, this plea contains an element of paradox. Article 6(1) concerns
primarily courts of first instance; it does not require the existence of courts of
further instance. It is true that its fundamental guarantees, including
impartiality, must also be provided by any courts of appeal or courts of
cassation which a Contracting State may have chosen to set up. However, … it
does not follow that the lower courts do not have to provide the required
guarantees. Such a result would be at variance with the intention underlying the
163 Ibid. at para. 47.
164 Ibid.
165 See Kingsley v. United Kingdom (2000), 33 E.H.R.R. 13, [2002] 4 Eur. Ct. H.R. (Ser. A) 57,
involving administrative decision making in the gaming industry.
166 De Cubber v. Belgium (1984), 7 E.H.R.R. 236, 86 Eur. Ct. H.R. (Ser. A) 1 [De Cubber].
230
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creation of several levels of courts, namely to reinforce the protection afforded
to litigants.167
The court decided that it was inappropriate to apply the composite approach outlined
in Albert and Le Compte because DeCubber concerned a criminal charge under
Belgian law and because the Belgian trial court was a proper court in both the formal
and the substantive meaning of the term, integrated within the standard judicial
machinery of the country.168 The reasoning adopted in Albert and Le Compte and
Campbell and Fell could not justify reducing the requirements of Article 6(1) in its
traditional and natural sphere of application.169
After Bryan and De Cubber, it remained unsettled whether English administrative
decision making subject to the traditional judicial review jurisdiction of English
courts satisfied article 6(1). The enactment of the Human Rights Act 1998 gave
English courts the opportunity to clarify this area of law.170 The HRA prohibits local
authorities from acting in contravention of the European Convention, allows courts to
declare laws to be incompatible with the convention,171 and requires them to take into
account European Court decisions insofar as they are relevant. Many individuals and
companies have challenged administrative decisions, arguing that the decision makers
involved lacked the independence and impartiality guaranteed by article 6(1). English
courts responded to these challenges by adopting an approach to the interpretation of
article 6(1), based on Zumtobel and Bryan, that upholds the traditional structure of
administrative decision making and judicial review in the United Kingdom.
In the Alconbury case,172 the House of Lords was asked to assess whether the
statutory regime under which ministers take planning decisions was compatible with
article 6(1). Under the Town and Country Planning Act 1990,173 local authorities
usually hear applications for planning permissions at first instance and adjudicators
appointed by the secretary of state for the environment, transport, and the regions
usually hear appeals of their decisions. The secretary of state may, however, decide to
deal himself with first instance applications or appeals. In such cases, the secretary of
state appoints an inspector who holds an inquiry and produces a report stating
conclusions and making recommendations. The secretary of state then decides the
application or appeal on the basis of the report. If she or he proposes to decide against
the recommendations of the inspector, he must allow the parties to make submissions.
167 Ibid. at para. 32.
168 Ibid. In contrast, the disciplinary litigation in Albert and Le Compte fell at the periphery of the
expanded, autonomous concept of civil rights and obligations and the professional authorities
involved were not courts of the classic kind (De Cubber, ibid.).
169 Ibid. See also Findlay v. United Kingdom (1997), 24 E.H.R.R. 221, [1997] 30 Eur. Ct. H.R. 263.
170 Human Rights Act 1998 (U.K.), 1998, c. 42 [HRA].
171 Ibid., s. 6 and s. 4 respectively.
172 R. (on the application of Alconbury Developments Ltd.) v. Secretary of State for the
Environment, Transport, and the Regions [2001] 2 All E.R. 929, [2001] 2 W.L.R. 1389 (H.L.)
[Alconbury].
173 Some planning decisions at issue in Alconbury were taken under other similar statutes.
231
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Parties aggrieved by the secretary of states decision have a statutory right to
challenge its validity before the High Court on the grounds that it is not within the
powers of the Town and Country Planning Act or that relevant requirements have not
been complied with.174 The appellants in Alconbury claimed that the secretary of state
was not independent or impartial because his department laid down the policies and
guidelines that planning officials were required to follow. As policy-maker, he could
not also be a decision maker in specific cases. Further, they argued that the statutory
judicial review powers of the High Court were insufficient. Unlike the inspector in
Bryan, they claimed, the secretary of state did not approach the status of an
independent and impartial tribunal because his decision making was not surrounded
by the same statutory protections. Without such protections at first instance, the High
Court, with its limited review powers, could not be considered to be a tribunal with
full jurisdiction as required by the European Courts composite approach.
Accepting these arguments, the English Divisional Court held that the Town and
Country Planning Act and other similar planning statutes were incompatible with
article 6(1).175
On appeal to the House of Lords, the secretary of state conceded that his role in
making policy and applying it in particular cases meant that in deciding applications
or appeals, he was not an independent or impartial tribunal. The only remaining
question, therefore, was whether the High Court, in reviewing the secretary of states
decision, had full jurisdiction. Each of the Law Lords answered this question in the
affirmative. Relying on Zumtobel, Lords Hoffman and Clyde underlined that article
6(1) required only that reviewing courts have full jurisdiction to deal with the case as
the nature of the decision requires,176 not that they be empowered to decide the
matter afresh. In other words, the safeguards required of first-instance decision
makers and the scope of review jurisdiction required of reviewing courts varied
depending on the context of the case, including the content of the dispute, the subject
matter of the decision, and the manner in which it was taken.177 Regarding the content
of the dispute, Zumtobel had decided that policy decisions could be taken by decision
makers lacking independence and impartiality without any safeguards as long as
traditional judicial review of the decisions legality is available. Bryan had held that
decisions involving findings of fact must be taken by a decision maker who wears
some, if not all, of the badges of independence in a quasi-judicial process whose
fairness is subject to ordinary judicial review.178 Depending on the subject matter of
the decision, article 6(1) may require more substantial safeguards and a more
exhaustive judicial review. For example, disciplinary proceedings would attract higher
safeguards than planning decisions because the right to use land is not absolute but
174 Town and Country Planning Act 1990 (U.K.), 1990, c. 8, s. 288.
175 Alconbury, supra note 170 at para. 58, Nolan L.J. This effectively meant that the secretary of
states discretion to intervene in planning permission applications and appeals should be removed.
176 Ibid. at para. 87.
177 Ibid. at paras. 154-58.
178 Ibid. at paras. 128-30.
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subject to the controls of a planning regime.179 Finally, where the decisions were taken
after a public inquiry and subject to rules designed to ensure fairness, article 6(1)
required a less intense level of scrutiny on judicial review. The Law Lords also noted
that the traditional scope of judicial review was broader than the Divisional Court had
assumed, and that factual mistake was an accepted ground of review that gave courts
the jurisdiction to quash the secretary of states decisions for misunderstanding or
ignoring an established and relevant fact.180
[Vol. 50
The House of Lords elaborated on its approach to article 6(1) in Begum v. Tower
Hamlets London Borough Council.181 Begum, a homeless person, refused a flat
offered by the Tower Hamlets London Borough Council, complaining that it was
located in an area plagued by drug addiction, crime, and racism. The council decided
that she had unreasonably refused suitable accommodation and that it had discharged
its duty under the Housing Act to secure accommodation for her. She requested a
review of the councils decision. A reviewing officer not involved in the original
decision and senior to the original decision maker investigated Begums reasons for
refusing the flat, rejected these as unreasonable, and made findings of fact and
credibility unfavourable to Begum. She appealed the officers decision to the County
Court, which was empowered under the Housing Act to review the decision on points
of law. Begum claimed that the decision-making process, including judicial review on
points of law, did not meet the requirements of article 6(1).
Lord Hoffman, with whom Lords Bingham, Walker, Hope, and Millett agreed,
concluded that the reviewing officer, as an officer of the council conducting an
internal review for that same council, was not an independent tribunal. The only
remaining question was whether the appellate County Court had full jurisdiction to
deal with the case as the nature of the decision requires.182 Begum argued that the
reviewing officers decision raised disputed questions of fact, as in Bryan, rather than
the interpretation and application of planning policy, as in Alconbury. Therefore, as in
Bryan, article 6(1) would be satisfied only if the appellate court had full jurisdiction to
review the facts or if the primary decision-making process was attended with
sufficient safeguards to make it virtually judicial.183 Lord Hoffman noted that the
findings of fact in Begum were made in a very different context than Bryan:
The inspectors decision that Bryan had acted in breach of planning control
was binding upon him in any subsequent criminal proceedings for failing to
comply with the notice. This part of the appeal against the enforcement notice
was closely analogous to a criminal trial and, as I noted in … Alconbury …, used
to come before the magistrates.
179 Ibid. at paras. 154-55.
180 Ibid. at para. 53, per Slynn L.J.; ibid. at para. 61, per Nolan L.J.; and ibid. at para. 169, per Clyde L.J.
181 [2003] 1 All E.R. 731, [2003] 2 A.C. 430 (H.L.) [Begum].
182 Ibid. at para. 33, citing Alconbury, supra note 170 at para. 87.
183 Ibid. at para. 37.
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A finding of fact in this context seems to me very different from the
findings of fact … made by central or local government officials in the course
of carrying out regulatory functions (such as licensing or granting planning
permission) or administrative schemes of social welfare such as Part VII [of the
Housing Act]. The rule of law rightly requires that certain decisions, of which
the paradigm examples are findings of breaches of the criminal law and
adjudications as to private rights, should be entrusted to the judicial branch of
government. This basic principle does not yield to utilitarian arguments that it
would be cheaper or more efficient to have these matters decided by
administrators. Nor is the possibility of an appeal sufficient to compensate for
lack of independence and impartiality on the part of the primary decision-
maker (see De Cubber v. Belgium).184
Lord Hoffman observed that the judicialization of dispute procedures was appropriate
in the realm of criminal law and private rights but that in designing a statutory scheme
for regulation or social welfare, Parliament was justified on grounds of efficient
administration in providing fewer procedural and institutional safeguards.185 It was
therefore not necessary for the reviewing court to apply a more intensive approach to
review of fact going beyond conventional principles of judicial review. Or, in terms of
the European Courts approach in Bryan, conventional judicial review was sufficient
given the subject matter of the decision appealed againstthe suitability of
accommodation for Runa Beguma classic exercise of an administrative
discretion that engaged no human rights other than article 6.186
C. Summary
In sum, conventional international law generally entitles individuals to have their
rights and obligations adjudicated by an independent tribunal. Under the European
Convention for the Protection of Human Rights and Fundamental Freedoms and the
International Covenant on Civil and Political Rights, the right to an independent
tribunal is limited to the determination of civil rights and obligations or of rights
and obligations in a suit at law. However, the Human Rights Committee, other UN
bodies, and the European Court have interpreted the right to an independent tribunal
purposively, and have recognized its application to decision making by administrative
tribunals in public law contexts ranging from town planning and economic regulation
to social assistance and human rights protection. While these bodies have recognized
the importance of formal guarantees of security of tenure, financial security, and
administrative independence to ensure tribunal independence, they also emphasize the
need to ensure that tribunals are actually independentin appearance and
practicefrom the executive branch and the legislature, particularly in the
appointment process. The power of states to design decision-making schemes
184 Ibid. at paras. 41-42 [citations omitted].
185 Ibid. at paras. 43-46, citing the US Supreme Court in Mathews v. Eldridge, 424 U.S. 319 at 347
(1976).
186 Begum, supra note 181 at para. 52.
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involving adjudicative bodies that do not fully comply with the requirements of
tribunal independence has been upheld under the ECHR and ICCPR,187 so long as
their decisions are subject to subsequent review by a tribunal that meets these
requirements and has sufficient jurisdiction over the merits of the dispute. It is
difficult to pinpoint precisely what degree of jurisdiction over the merits is
sufficient for judicial review of administrative decision making to satisfy the
international norm of tribunal independence since, as demonstrated by our review of
the European Courts jurisprudence, the meaning of these concepts is continuously
evolving. However, it would appear that disputes involving fundamental human rights
adjudicated at first instance by non-independent decision makers will require more
intense review by independent tribunals with jurisdiction over questions of fact and
law. We return to these questions in Part III of this article. But first, we explore how
Canadian norms of tribunal independence have developed relative to their
counterparts in international human rights law. In particular, Part II examines the
evolution in Canada of the principle of institutional independence and recent judicial
efforts to limit its application in the context of administrative decision making.
Institutional
in
II. The Sort-of-Quasi-Right to
Canadian Administrative Law
There is no general constitutional right to institutional independence for
adjudicative decision makers in Canada. There are however a number of common
law, quasi-constitutional and constitutional guarantees which in some circumstances
and in some jurisdictions in the country provide a right to an independent decision
maker. Below, I explore this partial and patchwork quilt of legal protections.
Independence
It should be stated at the outset that the right of institutional independence is not
a right enjoyed by a tribunal but rather a right enjoyed by those whose claims and
disputes are adjudicated by that tribunal.188 Tribunals do not constitute a separate
branch of government with jurisdictional integrity to guard. Much of the particularity
and the peculiarity of institutional independence in Canadian administrative law,
however, arise because the institutional independence protection at common law has
been modelled on the constitutional norm of judicial independence. In Valente v. The
Queen,189 the Supreme Court of Canada noted that, broadly speaking, the test for
independence in the judicial setting is the one for reasonable apprehension of bias,
adapted to the requirement of independence.190 The Court further noted that,
although there is obviously a close relationship between independence and
impartiality, they are nevertheless separate and distinct values or requirements:
187 See Karttunen, supra note 91.
188 Once again, in this sense, the analogy to judicial independence holds. See Binnie J. (in dissent)
in Mackin v. New Brunswick (Minister of Finance), [2002] 1 S.C.R. 405, 245 N.B.R. (2d) 299.
189 [1985] 2 S.C.R. 673, 24 D.L.R. (4th) 161 [Valente cited to S.C.R.].
190 Ibid. at 684.
2005]
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The word impartial … connotes absence of bias, actual or perceived. The
word independent in s. 11(d) [of the Charter] reflects or embodies the
traditional constitutional value of judicial independence. As such, it connotes
not merely a state of mind or attitude in the actual exercise of judicial
functions, but a status or relationship to others, particularly to the executive
branch of government, that rests on objective conditions or guarantees.191
While administrative tribunals are viewed as part of the executive branch in a
separation of powers context,192 the Court chose to adopt the framework of
institutional independence for administrative bodies directly from this judicial
framework.193 According to that framework, there are three essential conditions of
judicial independence: security of tenure, financial security, and administrative
independence. The Court described the essentials of security of tenure as follows:
[T]hat the judge be removable only for cause, and that cause be subject to
independent review and determination by a process at which the judge affected
is afforded a full opportunity to be heard. The essence of security of tenure for
purposes of s. 11(d) [of the Charter] is a tenure, whether until an age of
retirement, for a fixed term, or for a specific adjudicative task, that is secure
against interference by the Executive or other appointing authority in a
discretionary or arbitrary manner.194
In Canadian Pacific Ltd. v. Matsqui Indian Band,195 the Supreme Court of Canada
held that the test for institutional independence enunciated in Valente applied, with
added flexibility, to administrative tribunals. Chief Justice Lamer196 stated:
I begin my analysis of the institutional independence issue by observing
that the ruling of this Court in Valente provides guidance in assessing the
independence of an administrative tribunal.
This court has considered Valente in at least one case involving an
administrative tribunal, IWA v. Consolidated-Bathurst Packaging Ltd., in which
the independence of the Ontario Labour Relations Board was at issue. There,
Gonthier J. stated at p. 332:
191 Ibid. at 685.
192 As Katrina Wyman put it, The doctrine of tribunal independence is not concerned with
establishing administrative tribunals as a fourth branch of government: K. Wyman, The
Independence of Tribunals in an Era of Ever Expansive Judicial Independence (2000) 14 C.J.A.L.P.
61 at 100. See also Donald J. M. Brown & John M. Evans, Judicial Review of Administrative Action
in Canada, looseleaf (Toronto: Canvasback, 1998) at 11:4120, who note that where an executive
body appears before an executive tribunal, a conflict does not inherently arise.
193 In earlier cases, such as International Woodworkers of America, Local 2-69 v. Consolidated-
Bathurst Packaging Ltd., [1990] S.C.R. 282 at 332-33, 68 D.L.R. (4th) 524 [Consolidated-Bathurst],
the term judicial independence was used by this Court to characterize the common law standards
applicable to a labour tribunal.
194 Valente, supra note 189 at 698.
195 (1995), 122 D.L.R. (4th) 129 [Matsqui].
196 While Justice Sopinka appeared to write for the greatest number of judges on this point, it is
Chief Justice Lamers decision that has become the dominant articulation of institutional
independence in Canada.
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Judicial independence is a long standing principle of our
constitutional law which is also part of the rules of natural justice
even in the absence of constitutional protection.
I agree and conclude that it is a principle of natural justice that a party
should receive a hearing before a tribunal which is not only independent, but
also appears independent. Where a party has a reasonable apprehension of bias,
it should not be required to submit to the tribunal giving rise to this
apprehension. Moreover, the principles for judicial independence outlined in
Valente are applicable in the case of an administrative tribunal, where the
tribunal is functioning as an adjudicative body settling disputes and
determining the rights of parties. However, I recognize that a strict application
of these principles is not always warranted.197
Chief Justice Lamer concluded that the Valente principles apply to administrative
tribunals on the basis of natural justice principles, but that the test for institutional
independence may be less strict than for courts:
Therefore, while administrative tribunals are subject to the Valente
principles, the test for institutional independence must be applied in light of the
functions being performed by the particular tribunal at issue. The requisite level
of institutional independence (i.e., security of tenure, financial security and
administrative control) will depend on the nature of the tribunal, the interests at
stake, and other indices of independence such as oaths of office.
In some cases, a high level of independence will be required. For example,
where the decisions of a tribunal affect the security of the person of a party
(such as the Immigration Adjudicators in Mohammad), a more strict application
of the Valente principles may be warranted. In this case, we are dealing with an
administrative tribunal adjudicating disputes relating to the assessment of
property taxes. In my view, this is a case where a more flexible approach is
clearly warranted.198
The analogy between tribunal independence and judicial independence cuts at
least two ways. First, it reflects an understanding of the functional similarity of
adjudication between courts and tribunals. On this view, whether a dispute is
adjudicated before a tribunal or a court should be less important than that the
adjudication, wherever it occurs, complies with the rules of natural justice. The
second dimension of the analogy is to the methodology employed to assess whether
the requisite standard of independence has been breached. While early cases such as
Consolidated-Bathurst focused on the former sense of the analogy,199 the Court
shifted steadily toward the latter. The Court has pursued the methodological analogy
to judicial independence while downplaying the functional similarity between the
two.
197 Matsqui, supra note 195 at paras. 75, 79-80 [citations omitted].
198 Ibid. at paras. 83-84 [citations omitted].
199 Consolidated-Bathurst, supra note 193.
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One of the cases that extended the analogy to the judicial independence
methodology was 2747-3174 Quebec Inc. v. Quebec (Rgie des permis dalcool).200 In
Rgie, the Court clarified and refined the suggestion in Matsquithat administrative
tribunals are subject to the Valente principles of institutional independence but that the
requisite level of institutional independence may be lower than for a courtand
concluded that the directors (adjudicators) of the Rgie had sufficient security of
tenure because they could not be simply removed at pleasure (i.e., without cause):
237
In my view, the directors conditions of employment meet the minimum
requirements of independence. These do not require that all administrative
adjudicators, like judges of courts of law, hold office for life. Fixed-term
appointments, which are common, are acceptable. However, the removal of
adjudicators must not simply be at the pleasure of the executive.201
Thus, in Rgie, the focus of the Court was on objective guarantees and the
perceptions of an independent branch of government, not the realities of intra-
executive, political interference. This focus shifted somewhat in Hewat v. Ontario,202
where the Ontario Court of Appeal considered the issue of institutional independence
in the context of a labour relations tribunal.203 The appellants were vice-chairs of the
Ontario Labour Relations Board who had been appointed by order-in-council for a
fixed term of three years. For reasons that were widely understood to be political
incompatibility, the Ontario government revoked their appointments mid-term by way
of an order-in-council, and the vice-chairs challenged the validity of these orders. The
Ontario Divisional Court found that the orders revoking the appointments were
invalid but declined to order that the vice-chairs be reinstated, awarding damages
instead. The vice-chairs appealed, arguing that, if they were not reinstated to their
positions, then the government is putting tribunal officers in the same position as
employees generallythey can be dismissed at will so long as the employer is
prepared to pay damages.204 The Ontario Court of Appeal noted the impracticality of
ordering reinstatement as a remedy given the length of time that had passed since the
revocations had occurred. However, the court acknowledged the validity of the vice-
chairs arguments regarding the institutional independence of the board if the
government were able to revoke appointments at will, on payment of compensation:
I do not see the issues before this court as bringing into play constitutional
safeguards against the conduct of government. Indeed, it would be
intellectually nave not to recognize that elected governments must have room
200 Rgie, supra note 8.
201 Ibid. at para. 67 [emphasis added]. The Court then went on quoting Justice Le Dains summary
of the requirements of security of tenure in Valente, reproduced above at note 194.
202 [1998] 37 O.R. (3d) 161 (C.A.), 7 Admin. L.R. (3d) 257 [Hewat cited to O.R.].
203 For discussion of the significance of this case, see Katrina Miriam Wyman, Appointments to
Adjudicative Tribunals: Politics and the Courts (1999) 57 U.T. Fac. L. Rev. 101 [Wyman,
Appointments to Adjudicative Tribunals]. See also Craig Flood, Case Comment: Hewat v.
Ontario Case Comment (1998) C.L.E.L.J. 263.
204 Hewat, supra note 202 at 166.
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to make political decisions and to conduct themselves in a manner to assure
that their political policies are implemented. We were told by counsel that, until
recently, the practice over the past 25 years has been to make appointments to
tribunals that have quasi-judicial functions for a fixed period of three years
with the expectation gleaned from experience that in normal circumstances
there would be repeated renewals of that term. There are many tribunals,
agencies and boards in this province, each with different responsibilities, and it
would be difficult to lay down any single rule or practice that would be suitable
for all. That having been said, the Ontario Labour Relations Board in its quasi-
judicial functions must of necessity maintain a public perception of
independence from government if the public is to have any respect for its
decisions. Indeed, it is difficult to imagine how any tribunal with quasi-judicial
functions could maintain the appearance of integrity to those who appear
before it, without some degree of independence.205
Could Hewat be construed so as to suggest that no adjudicative tribunal in
Canada could escape the requirement of some degree of independence? Whatever
the answer to this question, the Supreme Courts landmark decision in Ocean Port
indicated otherwise.206 In Ocean Port, the Court confirmed that the guarantee of
institutional independence in adjudicative tribunal settings is not a constitutional right,
but rather a common law protection, and as such, is vulnerable to the government
overriding it through ordinary statutory language, at any time and for any reason.207
Ocean Port involved an investigation by a senior inspector with the Liquor
Control and Licensing Branch, which led to allegations that Ocean Port Hotel Ltd.
(Ocean Port) the operator of a hotel and pub, had committed five infractions of the
Liquor Control and Licensing Act and regulations.208 Following a hearing, another
senior inspector with the branch concluded that the allegations had been substantiated
and imposed a penalty that included a two-day suspension of the respondents liquor
licence. Ocean Port appealed to the Liquor Appeal Board by way of a hearing de
novo. The findings on four of the five allegations were upheld, and the penalty was
confirmed. Ocean Port appealed to the Court of Appeal arguing, inter alia, that the
Liquor Appeal Board lacked the requisite institutional independence. Pursuant to
section 30(2)(a) of the Act, the chair and members of the Liquor Appeal Board serve
at the pleasure of the Lieutenant Governor in Council. In practice, members are
appointed for a one-year term and serve on a part-time basis. All members but the
chair were paid on a per diem basis. The chair established panels of one or three
members to hear matters before the board as the chair considers advisable.
205 Ibid. at 169 [emphasis added].
206 Supra note 4.
207 For a more detailed appraisal of Ocean Port, see Philip Bryden, Structural Independence of
Administrative Tribunals in the Wake of Ocean Port (2002) 16 Can. J. Admin. L. & Prac. 125, and
Lorne Sossin, Developments in Administrative Law: the 2001-2002 Term (2002) 18 Sup. Ct. L.
Rev. (2d) 41.
208 Liquor Control and Licensing Act, R.S.B.C. 1979, c. 237; Liquor Control and Licensing
Regulation, B.C. Reg. 608/76.
L. SOSSIN & G. HECKMAN ADMINISTRATIVE LAW PROTECTIONS
2005]
The Court of Appeal concluded that members of the board lacked the necessary
guarantees of independence required of administrative decision makers imposing
penalties, and set aside the boards decision.209 However, the Supreme Court of
Canada pointed out that, even if the tribunal did not meet the common law natural
justice requirements for institutional independence, this was not fatal to its ability to
function:
239
It is well established that, absent constitutional constraints, the degree of
independence required of a particular government decision maker or tribunal is
determined by its enabling statute. It is the legislature or Parliament that
determines the degree of independence required of tribunal members. The
statute must be construed as a whole to determine the degree of independence
the legislature intended.
Confronted with silent or ambiguous legislation, courts generally infer that
Parliament or the legislature intended the tribunals process to comport with
principles of natural justice. In such circumstances, administrative tribunals
may be bound by the requirement of an independent and impartial decision
maker, one of the fundamental principles of natural justice. Indeed, courts will
not lightly assume that legislators intended to enact procedures that run
contrary to this principle, although the precise standard of independence
required will depend on all the circumstances, and in particular on the
language of the statute under which the agency acts, the nature of the task it
performs and the type of decision it is required to make (Rgie [supra note 8]
at para. 39).
However, like all principles of natural justice, the degree of independence
required of tribunal members may be ousted by express statutory language or
necessary implication. Ultimately, it is Parliament or the legislature that
determines the nature of a tribunals relationship to the executive. It is not open
to a court to apply a common law rule in the face of clear statutory direction.
Courts engaged in judicial review of administrative decisions must defer to the
legislatures intention in assessing the degree of independence required of the
tribunal in question.210
In Ocean Port, the Court concluded that the provincial legislature spoke directly
to the nature of the appointments to the Liquor Appeal Board; under its enabling
legislation, the chair and members of the board were expressly stated to serve at the
pleasure of the Lieutenant Governor in Council.211 With respect to this language,
Chief Justice McLachlin stated:
In my view, the legislatures intention that Board members should serve at
pleasure, as expressed through s. 30(2)(a) of the Act, is unequivocal. As such, it
does not permit the argument that the statute is ambiguous and hence should be
read as imposing a higher degree of independence to meet the requirements of
natural justice, if indeed a higher standard is required. … Where the intention of
the legislature, as here, is unequivocal, there is no room to import common law
209 (1999), 68 B.C.L.R. (3d) 82 (C.A.), 174 D.L.R. (4th) 498.
210 Ocean Port, supra note 4 at paras. 20-22 [emphasis added, citations omitted].
211 Ibid. at para. 25.
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doctrines of independence, however inviting it may be for a Court to do so
(Re W.D. Latimer Co. and Bray (1974), 6 O.R. (2d) 129 (C.A.) at p. 137).212
The Court clarified the scope and implication of Ocean Port in Bell Canada v.
Canadian Telephone Employees Association213particularly in the context of
purely adjudicative administrative settings. Bell involved complex pay equity
litigation, which has dragged on for years, often ending up in Federal Court based on
challenges to the impartiality and independence of the Canadian Human Rights
Tribunal, which is conducting the hearing.214 This appeal raised two such concerns:
first, that the tribunal lacked independence because the Canadian Human Rights
Commission, a party of interest in the proceedings, has the power to issue binding
guidelines interpreting the Canadian Human Rights Act215 in classes of cases; and
second, that the tribunal lacked independence because the chair of the tribunal has
discretion over whether sitting members can continue to hear cases that will run on
past the expiry of their terms. While the Canadian Human Rights Act clearly
authorized both powers, Bell argued that because the tribunal is purely adjudicative, it
should enjoy the constitutional protections of adjudicative independence, and
alternatively, that section 2(e) of the Canadian Bill of Rights,216 which guarantees a
fair hearing, is a quasi-constitutional protection that renders inoperative statutory
provisions inconsistent with the standards of independence and impartiality.
The tribunal rejected Bells position and directed that the hearings should
proceed. The Federal Court, Trial Division allowed Bells application for judicial
review, holding that even the narrowed guideline-making power of the commission
unduly fettered the tribunal, and that the chairpersons discretionary power to extend
appointments did not leave tribunal members with a sufficient guarantee of tenure.217
The trial judge based her remedy, which was to quash the proceedings, on the fact that
the institutional structure of the tribunal was inconsistent with the protection afforded
under section 2(e) of the Canadian Bill of Rights.218 The Federal Court of Appeal
reversed that judgment.219
The Supreme Court of Canada unanimously upheld the judgment of the Court of
Appeal. The Court used its decision in Bell to reiterate two principles of
administrative independence. First, the Court affirmed its position in Ocean Port that
adjudicative tribunals do not enjoy any constitutionally rooted protection of judicial
212 Ibid. at para. 27.
213 [2003] 1 S.C.R. 884, 227 D.L.R. (4th) 193 [Bell cited to S.C.R.].
214 See e.g. Bell Canada v. Canadian Telephone Employees Association, [1998] 3 F.C. 244, 10
Admin. L.R. (3d) 116.
215 R.S.C. 1985, c. H-6.
216 S.C. 1960, c. 44, reprinted in R.S.C. 1985, App. III.
217 Bell Canada v. Canada (Human Rights Commission), [2001] 2 F.C. 392, 194 D.L.R. (4th) 499.
218 Ibid. at para. 129-30.
219 Bell Canada v. Canada (Human Rights Commission), [2001] 3 F.C. 481 (F.C.A.), 199 D.L.R.
(4th) 664.
L. SOSSIN & G. HECKMAN ADMINISTRATIVE LAW PROTECTIONS
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independence or impartiality. Writing jointly for the Court, Chief Justice McLachlin
and Justice Bastarache also rejected the attempt by Bell to delineate a category of
tribunals, known as quasi-judicial or purely adjudicative, which would be subject
to higher requirements of independence and impartiality. They made clear that the
determination of the particular standard of independence and impartiality required in a
particular setting must involve a contextual rather than a categorical analysis:
241
To say that tribunals span the divide between the executive and the judicial
branches of government is not to imply that there are only two types of
tribunalsthose that are quasi-judicial and require the full panoply of
procedural protections, and those that are quasi-executive and require much
less. A tribunal may have a number of different functions, one of which is to
conduct fair and impartial hearings in a manner similar to that of the courts, and
yet another of which is to see that certain government policies are furthered. In
ascertaining the content of the requirements of procedural fairness that bind a
particular tribunal, consideration must be given to all of the functions of that
tribunal. It is not adequate to characterize a tribunal as quasi-judicial on the
basis of one of its functions, while treating another aspect of the legislative
scheme creating this tribunalsuch as the requirement that the tribunal follow
interpretive guidelines that are laid down by a specialized body with expertise
in that area of lawas though this second aspect of the legislative scheme
were external to the true purpose of the tribunal. All aspects of the tribunals
structure, as laid out in its enabling statute, must be examined, and an attempt
must be made to determine precisely what combination of functions the
legislature intended that tribunal to serve, and what procedural protections are
appropriate for a body that has these particular functions.220
In light of their analysis of the Human Rights Tribunal, Chief Justice McLachlin
and Justice Bastarache conclude that a high degree of independence applies to the
tribunal and that neither of the powers challenged infringes that standard. In
particular, they characterize the guideline-making power as akin to the power of
Cabinet or a ministry to make regulations. An administrative tribunals impartiality
cannot be said to be compromised because it is bound to apply the law relevant to a
particular setting. They conclude that [t]he Act therefore evinces a legislative intent,
not simply to establish a Tribunal that functions by means of a quasi-judicial process,
but also to limit the interpretive powers of the Tribunal in order to ensure that the
legislation is interpreted in a non-discriminatory way.221 The fact that the
commissions guidelines were subject to the Statutory Instruments Act,222 and that the
process for developing guidelines involved consultations analogous to the legislative
process, further distinguished them from mere administrative guidelines in the Courts
eyes.223 The Court also was not persuaded that the chairs power to extend the term of
220 Bell, supra note 213 at para. 22 [emphasis in original].
221 Ibid. at para. 26.
222 R.S.C. 1985, c. S-22.
223 McLachlin C.J. and Bastarache J. elaborate in Bell, supra note 213:
While it may have been more felicitous for Parliament to have called the Commissions
power a power to make regulations rather than a power to make guidelines, the
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members past its expiry adversely affected the independence or impartiality of the
tribunal, especially since a similar power in relation to provincial court judges was
upheld as not inconsistent with judicial independence in Valente.224
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Because the common law standard of independence and impartiality was held not
to be infringed, the Court saw no reason to embark on a discussion of section 2(e) of
the Canadian Bill of Rights. This result implies that the standards of independence
and impartiality contained in that provisions fair hearing right are identical to the
common law standards for impartiality and independence, or put differently, it
confirms that the Canadian Bill of Rights serves merely to entrench already existing
common law rights rather than create new ones. Chief Justice McLachlin and Justice
Bastarache stopped short of explicitly endorsing this view, finding instead that since
none of the parties suggested the standards differed, the issue did not arise. This
approach reveals how much unfinished business remains in relation to clarifying the
distinctiveness, if any, of the procedural guarantees contained in the Canadian Bill of
Rights. Also noteworthy is the fact that Bell raised before the Court the higher
standard imposed by international human rights of institutional independence.225 The
Supreme Court, however, chose not to address this argument.
Bell illustrates the ongoing convergence between the procedural and substantive
aspects of administrative law.226 In approaching the requirements of administrative
independence and impartiality, the Courts emphasis on a functional and purposive
approach and the contextual nature of the analysis appears to reinforce the
discipline of the pragmatic and functional approach to judicial review discussed
below. Similarly, the Court in this context is interested in administrative realities and
not simply legislative language. It is not the possibility of the commission having a
conflict in its prosecutorial and legislative functions that interests the Court, but the
likelihood of such a conflict. Chief Justice McLachlin and Justice Bastarache
comment, This version of Bells objection might have been stronger had Bell
provided some evidence that, in practice, the Commission had attempted to use the
guidelines to influence the Tribunals views toward it.227
The degree to which the Court should delve into administrative realities in the
course of formulating administrative law standards once again calls into question the
claim that the only issue for the Court is or should be legislative intent. Bell thus
represents both the trend toward formalism on the one hand, as the Court reiterated
legislative intent is clear. A functional and purposive approach to the nature of these
guidelines reveals that they are a form of law, akin to regulations. It is also worth
noting that the word used in the French version of the Act is ordonnancewhich
leaves no doubt that the guidelines are a form of law (ibid. at para. 37).
224 See Valente, supra note 189.
225 See Bell, supra note 213 (Factum of the Appellant at paras. 40-47).
226 For discussion of this trend, see David Dyzenhaus & Evan Fox-Decent, Rethinking the
Process/Substance Distinction: Baker v. Canada (2001) 51 U.T.L.J. 193.
227 Bell, supra note 213 at para. 45.
L. SOSSIN & G. HECKMAN ADMINISTRATIVE LAW PROTECTIONS
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that the boundary between judicial and administrative adjudication is formal rather
than functional, and the trend away from formalism on the other hand, as the Court
affirmed that the actual practices of tribunals, rather than just their legislative
authority or institutional structure, will guide the analysis of independence and
impartiality.
243
The Supreme Court of Canada considered the issue of institutional independence
again, this time in the context of provincial justices of the peace, in Ell v. Alberta.228
The issues were whether the principle of institutional independence applied to justices
of the peace and, if so, whether the legislated removal of certain respondent justices
from office contravened the principle. The Court concluded that the principle applied
to the respondents, but that their removal did not contravene the principle because it
was necessary for institutional reform and was not a disguised attempt to remove any
particular justices of the peace from office.229 In coming to this conclusion, the Court
stated:
In modern times, it has been recognized that the basis for judicial
independence extends far beyond the need for impartiality in individual cases.
The judiciary occupies an indispensable role in upholding the integrity of our
constitutional structure. In Canada, like other federal states, courts adjudicate
on disputes between the federal and provincial governments, and serve to
safeguard the constitutional distribution of powers. Courts also ensure that the
power of the state is exercised in accordance with the rule of law and the
provisions of our Constitution. In this capacity, courts act as a shield against
unwarranted deprivations by the state of the rights and freedoms of individuals.
Dickson C.J. described this role in Beauregard at p. 70:
[Courts act as] protector of the Constitution and the fundamental
values embodied in itrule of law, fundamental justice, equality,
preservation of the democratic process, to name perhaps the most
important.
This constitutional mandate gives rise to the principles institutional dimension:
the need to maintain the independence of a court or tribunal as a whole from
the executive and legislative branches of government.230
While this reasoning appears sound, the Court clarified that it applied only to
presiding justices of the peace, who were said to be responsible for judicial functions.
Non-presiding justices of the peace, who were said to be responsible for
administrative functions, would not have the benefit of the independence protection.
At the same time, however, there are hints in Ell that the boundary between judicial
and administrative independence may not be as well-defined. For example, when
referring to the fact that independence is a relative rather than absolute standard,
228 [2003] 1 S.C.R. 857, 227 D.L.R. (4th) 217 [Ell].
229 Ibid. at para. 38.
230 Ibid. at para. 22.
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Justice Major cites both administrative and judicial case law.231 He concludes that
[t]he level of security of tenure that is constitutionally required will depend upon the
specific context of the court or tribunal.232
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Justice Major thus appears to envision a spectrum of judicial independence, akin
to the sliding scale of administrative independence applicable to tribunals recognized
in Matsqui233 and Rgie.234 Superior court judges enjoy the most stringent
independence protections, according to this view, while provincial court judges enjoy
less rigorous conditions and finally, justices of the peace are entitled to less
stringent conditions. These are vague distinctions at best, and it is not clear that,
viewed from the perspective of an accused whose Charter rights hang in the balance,
a flexible and shifting set of independence requirements is sufficient. After Bell and
Ell, nor is the logic of the stark boundary between judicial and administrative
independence demarcated in Ocean Port any more compelling. The result of the
Courts post-Ocean Port jurisprudence in Bell and Ell further illustrates the dilemmas
to which the quilt of independence requirements in Canadian public law gives rise.
In our view, none of Ocean Port, Bell or Ell provides a satisfactory account of
why the Court opts for a formalist over a functionalist approach to the requirements of
independence in the administrative sphere. In Ocean Port, Chief Justice McLachlin
does not adequately distinguish the principle at issue in the Provincial Court Judges
Reference235 from the principle at issue regarding the independence of adjudicative
tribunal members. Both are creatures of statute charged not with implementing
policy but with resolving disputes by making findings of fact and law on an impartial
basis. Moreover, both bodies may interpret the Charter and provide remedies to
aggrieved parties.236 It is difficult to sustain a constitutional divide between these two
types of adjudicative bodies; and is it not clear how administrative justice is served by
attempting to do so. Put differently, the question the Court should have asked is
whether there could ever be any legitimate policy rationale behind a government
seeking to influence an adjudicative tribunal.
231 He writes:
The manner in which the essential conditions of independence may be satisfied varies
in accordance with the nature of the court or tribunal and the interests at stake. See
Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3, at para. 83, per
Lamer C.J. and Therrien (Re), [2001] 2 S.C.R. 3, 2001 SCC 35, at para. 65, where the
Court advocated a contextual approach to judicial independence (ibid. at para. 30).
232 Ibid. at para. 31 [emphasis added].
233 Supra note 195.
234 Supra note 8.
235 Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3
S.C.R. 3, 150 D.L.R. (4th) 577.
236 Not all administrative tribunals may make findings and provide remedies under the Charter.
This issue is discussed in more detail in Cooper v. Canada (Human Rights Commission), [1996] 3
S.C.R. 854, 140 D.L.R. (4th) 193. Justice McLachlin (as she then was) dissented in Cooper, and
argued for a broader approach to the jurisdiction of tribunals to decide Charter issues.
L. SOSSIN & G. HECKMAN ADMINISTRATIVE LAW PROTECTIONS
2005]
In Ocean Port, Chief Justice McLachlin characterized tribunals as spanning the
constitutional divide between the executive and judicial branches of government.237
This very metaphor suggests a set of institutions which, functionally at least, operates
within both the judicial and executive spheres. While conceding that courts and
tribunals may share similar functions, Chief Justice McLachlin stressed that it is the
constitutional status of each that was at issue in this case. Of tribunals, she stated,
While they may possess adjudicative functions, they ultimately operate as part of the
executive branch of government, under the mandate of the legislature.238
245
It is not at all clear why an element of natural justice as fundamental as
institutional independence should flow from the categorization of a decision maker,
rather than from her function. It is easy to say that courts are courts and tribunals are
tribunals, but far more difficult to say that the adjudication that occurs in courts is any
more significanteither for the parties involved or for the public interestthan the
adjudication that occurs in tribunals. For example, consider that, as indicated above,
most tribunals may now decide Charter issues.239 Indeed, the Court has confirmed
that a range of tribunals constitute courts of competent jurisdiction pursuant to
subsection 24(2) of the Charter.240 The effect of Ocean Port would be that a tribunal
member appointed at the pleasure of Cabinet and who decided a Charter issue may be
dismissed if a government is unhappy with the interpretation given, but a judge who
decided the very same Charter issue would be protected from any political
interference. Surely if a party has the right to claim the protection of the Charter, they
have a corresponding right to an independent and impartial resolution of that claim.
While Chief Justice McLachlin
left open a Charter-based requirement of
independence on the part of some tribunals, it is unclear how many tribunals would be
affected by this requirement, and in what circumstances.
It is also worth noting that the British Columbia Court of Appeal in its decision in
Ocean Port did not declare that adjudicative tribunals enjoy a constitutionally
entrenched standard of institutional independence, but rather attempted to apply the
Supreme Courts earlier ruling in the analogous case of Rgie. Rgie also involved a
challenge to the institutional independence of a liquor appeal board, and Justice
Gonthier, writing for the Court in that case, stated that appointments at pleasure
were not consistent with the requirements of institutional independence. Chief Justice
McLachlin distinguished Rgie because in that case, the Quebec Charter of human
rights and freedoms was invoked, a quasi-constitutional statute that entrenched the
237 Ocean Port, supra note 4 at para. 24.
238 Ibid. at para. 32.
239 See Nova Scotia (Workers Compensation Board) v. Martin, [2003] 2 S.C.R. 504, 231 D.L.R.
(4th) 385, and Paul v. British Columbia (Forest Appeals Commission), [2003] 2 S.C.R. 585, 231
D.L.R. (4th) 449.
240 See Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, 125 D.L.R. (4th) 583. The Court justified this
finding, in part, due to the French version of subsection 24(2) which refers to tribunal rather than
cour.
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right to a full and equal, public and fair hearing by an independent and impartial
tribunal,241 while British Columbia had no comparable quasi-constitutional statutory
provision.
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The degree of independence required of a tribunal under article 23 of the Quebec
Charter depends on where the tribunal falls on a spectrum ranging from regulatory to
purely adjudicative tribunals.242 A tribunals place on that spectrum is determined by
reference to several factors, including the tribunals function,243 its attributes and
procedures,244 its powers,245 the parties to its proceedings and their interests,246 and the
attributes of its members.247 In Barreau de Montral, the Quebec Court of Appeal
concluded that members of the Tribunal administratif du Qubec (TAQ), a super-
tribunal with appellate jurisdiction in decision-making contexts, including social
assistance, municipal property assessments, and economic regulation, required a high
level of independence:
le TAQ exerce une
[I]l reste … un faisceau dlments suffisamment significatifs pour justifier une
application plus stricte des principes dvelopps par la jurisprudence en
matire dindpendance judiciaire et pour conclure que des membres du TAQ
doivent bnficier dun niveau de garantie plus lev que celui gnralement
retenu pour les tribunaux administratifs en vertu de larticle 23 de la charte
qubcoise. Dabord,
fonction exclusivement
juridictionnelle qui exige, malgr les objectifs noncs de clrit et
daccessibilit, la mise en place de procdures sapparentant celles des cours
de justice ; ensuite le TAQ dispose de comptences habituellement confies
aux cours de justice telles celles de trancher des questions constitutionnelles et
dvaluer les motifs dune demande de secret administratif ; enfin et surtout, le
TAQ est appel trancher un trs grand nombre de recours qui mettent en jeu
les intrts financiers ou politiques de ltat en tant que partie au litige. Pris
dans leur ensemble, ces lments me paraissent justifier quon situe le TAQ, sur
le spectre des tribunaux administratifs, un niveau suprieur dexigence en ce
qui concerne lindpendance judiciaire de ses membres.248
241 Charter of human rights and freedoms, R.S.Q. c. C-12, s. 23 [Quebec Charter]. This provision
was cited in Ocean Port, supra note 4 at para. 28.
242 See Barreau de Montral v. Qubec (P.G.), [2001] R.J.Q. 2058 (C.A.) at para. 115, 48 Admin.
L.R. (3d) 82 [Barreau de Montral cited to R.J.Q.].
243 Tribunals that exercise traditional administrative functions, such as making discretionary or
policy-based decisions, require lower levels of independence than tribunals with an essentially
appellate function. Ibid. at paras. 118-23.
244 Tribunals that exercise inherent powers in addition to powers expressly conferred by statute or
that employ court-like procedures require greater levels of independence. Ibid. at paras. 124-29.
245 Tribunals with the power to decide constitutional questions and to find parties contravening its
orders in contempt require higher levels of independence. Ibid. at paras. 130-37.
246 Tribunals that regularly hear cases affecting state interests and in which the state acts as a party
require enhanced guarantees of independence. Ibid. at paras. 144-49.
247 Tribunals whose members wield special expertise in contrast to generalist courts may require
lower levels of independence. Ibid. at paras. 150-54.
248 Ibid. at para. 156.
247
L. SOSSIN & G. HECKMAN ADMINISTRATIVE LAW PROTECTIONS
2005]
The court scrutinized regulations governing the reappointment of tribunal
members and found that an informed observer would have a reasonable apprehension
that tribunal members may not be sufficiently independent to adjudicate cases
objectively, because the committee struck to decide their reappointment included a
Justice Ministry official and the tribunal chair.249 It ruled that an independent
committee be struck to make reappointment recommendations and that tribunal
members be afforded an opportunity to be heard by the committee.250 The court was
equally concerned with provisions linking members salary increases with the
outcome of periodic performance evaluations conducted by the tribunal chair. It found
that such a regime imperilled the tribunal members independence and recommended
that the members salaries be automatically stepped up throughout their tenure.251
The resulting picture of institutional independence in Canada is something of a
dogs breakfast. Institutional independence for administrative tribunals is clearly
recognized at common law, but how much of this common law protection can survive
a statutory attempt at ouster, if any, remains unclear. Institutional independence for
administrative tribunals also has constitutional status that could potentially impugn an
attempted statutory ouster, but only where required under the Charter. Constitutional
status of institutional independence for administrative tribunals would also appear
separately to constrain Quebecs legislature where the Quebec Charter of human
rights and freedoms applies, and presumably also the federal parliament, where the
equivalent provision in the Canadian Bill of Rights applies (depending on the scope
of that protection in the Canadian Bill of Rights, which remains uncertain).252 Imagine
if a constitutional protection in respect of search and seizure applied in BC but not in
Alberta, or if aboriginal rights applied to hunting but not to fishing, or if an equality
guarantee protected a disabled person in Manitoba trying to access public records but
not the same disabled person in Nova Scotia trying to access public transit.
Part II has outlined the directions in which Canadian norms of institutional
independence are currently evolving under the guidance of Canadas Supreme Court.
The Courts recent jurisprudence has important ramifications for both the scope and
content of the right to institutional independence. The Ocean Port and Bell Canada
decisions signal the adoption of a formalist approach to delimiting the reach of
institutional independence in the sphere of administrative decision making. Under this
249 Ibid. at para. 182.
250 Ibid. at paras. 188-89.
251 Ibid. at para. 206.
252 Canadian Bill of Rights, supra note 216. Subsection 1(a) recognizes as a human right and
fundamental freedom the right of the individual to life, liberty, security of the person and enjoyment
of property, and the right not to be deprived thereof except by due process of law; and subsection
2(e) provides that no law of Canada shall be construed so as to deprive a person of the right to a fair
hearing in accordance with the principles of fundamental justice for the determination of his rights
and obligations. Depending on the interpretation of subsection 1(a), this protection might extend to
Alberta, whose Alberta Bill of Rights has language identical to subsection 1(a) of the Canadian Bill of
Rights. See Alberta Bill of Rights, R.S.A. 2000, c. A-14, s. 1(a).
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approach, some adjudicative tribunals are open to executive or legislative interference
because of their constitutional status as part of the executive branch of government.
With the Rgie decision, the Court borrowed heavily from its jurisprudence on
judicial independence to define a framework for the institutional independence of
administrative tribunals focused almost exclusively on the objective guarantees of
judicial independence: security of tenure, financial security, and administrative
independence. Part III examines these aspects of the Canadian law on institutional
independence in light of the international approach to tribunal independence
described in Part I, not to determine whether Canada is breaching any of its
binding international law obligations, but to identify divergences between domestic
and international norms of independence and to assess their significance in the
Canadian context.
III. How Does Canadian Administrative Law Measure Up to
International Human Rights Standards?
We suggest that the Canadian administrative law guarantees of institutional
independence set out in Part II may diverge from the procedural requirements of
international human rights law as elaborated in Part I in at least two significant
respects: first, the deference of Canadian courts to tribunal decisions means that many
bodies that enjoy no constitutional protection for independence will nonetheless be
insulated from review by independent courts. Second, the emphasis in Canadian
administrative law on viewing the independence of tribunals through the lens of
judicial independence and the objective guarantees of security of tenure and financial
remuneration leaves tribunals vulnerable to external manipulation through the
significant political influence over tribunal appointments and tribunals policy
directions.253 We briefly discuss each of these potential deficiencies below.
A. The Deference Problem: Assessing Standards of Review
As elaborated in the first section, international law norms do not dictate that all
phases of every adjudicative process engaging human rights must be conducted to the
standard of a court, but rather that there must be recourse, at some stage of such a
process, to a court or to an independent and impartial body able to adjudicate the
merits of the dispute. This is where the Canadian law on standard of review becomes
253 Or, as Chief Justice McLachlin stated in Ocean Port, supra note 4, Administrative tribunals, by
contrast, lack this constitutional distinction from the executive. They are, in fact, created precisely for
the purpose of implementing government policy (ibid. at para. 24). For a discussion of the dynamics
of tribunal appointments and policy-making in Canada, see France Houle & Lorne Sossin, Policy
Making in Tribunals (Paper prepared for the Canadian Institute for the Administration of Justice and
presented to the Administrative Law Roundtable, June 2004), online: Canadian Institute for the
Administration of Justice
L. SOSSIN & G. HECKMAN ADMINISTRATIVE LAW PROTECTIONS
2005]
germane, as it dictates the level of deference that a reviewing court will show to an
administrative tribunal or decision maker, which in turn defines the level of actual
recourse an unsatisfied litigant has to an independent body with authority to review
the merits of a decision.
249
The importance of the Canadian standard of review jurisprudence to the
compatibility of Canadian administrative law with international human rights norms
may be illustrated by returning to Y.L. v. Canada.254 In that case, the United Nations
Human Rights Committee considered a claim by a Canadian citizen who was denied
certain disability pension benefits, based in part on medical records that had not been
disclosed to him. The claimant maintained that the adjudication of his case before the
Pension Review Board did not constitute a fair public hearing by a competent,
independent and impartial tribunal pursuant to article 14(1) of the ICCPR. The
Human Rights Committee held that the adjudicative process relating to pension
disputes, which contained several stages, had to be viewed within the context of the
availability of judicial review under the Federal Court Act. As we have seen in Part I,
the Committee concluded:
It has not been claimed by the author that [judicial review] would not have
complied with the guarantees provided in [article 14(1)]. Nor has he claimed
that this remedy would not have availed in correcting whatever deficiencies
may have marked the hearing of his case before the lower jurisdictions,
including any grievance that he may have had regarding the denial of access to
his medical file.
… [T]herefore, it would appear that the Canadian legal system does contain
provisions in the Federal Court Act to ensure to the author the right to a fair
hearing in the situation. Consequently, his basic allegations do not reveal the
possibility of any breach of the Covenant.255
the standard of
in circumstances where
But what if the issue of the sufficiency of judicial review had been before the
Committee
review was patent
unreasonableness? In such settings, the court is precluded from revisiting the merits of
an administrative decision and typically will only reverse an administrative
determination where a mistake amounting to a jurisdictional error is discovered. The
Supreme Court of Canada characterized a patently unreasonable decision in Suresh as
one that [is] made arbitrarily or in bad faith, … cannot be supported on the evidence,
or [in which] the Minister failed to consider the appropriate factors, adding that
[t]he court should not reweigh the factors or interfere merely because it would have
come to a different conclusion.256
The nature of the pragmatic and functional approach, by which the Canadian
courts determine whether the standard of review of correctness, reasonableness, or
254 Supra note 41.
255 Ibid. at paras. 9.4-9.5.
256 Suresh, supra note 8 at para. 29.
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patent unreasonableness applies, is deeply contextual.257 That is to say, it may vary
across tribunals (for example, labour boards tend to attract a more deferential standard
of review than human rights boards) and across the same tribunal depending on the
subject matter of the case (a refugee board may attract deference when assessing the
credibility of an applicant, but not when interpreting international human rights
norms). While determining the standard of review is in part an exercise in construing
the standard intended by the legislature, it also includes an appreciation of how the
decision-making process works in practice.258 As Chief Justice McLachlin asserted in
Dr. Q. v. College of Physicians and Surgeons of British Columbia:
To determine [the] standard of review [based] on the pragmatic and
functional approach, it is not enough for a reviewing court to interpret an
isolated statutory provision relating to judicial review. Nor is it sufficient
merely to identify a categorical or nominate error, such as bad faith, error on
collateral or preliminary matters, ulterior or improper purpose, no evidence, or
the consideration of an irrelevant factor. Rather, the pragmatic and functional
approach calls upon the court to weigh a series of factors in an effort to discern
whether a particular issue before the administrative body should receive
exacting review by a court, undergo significant searching or testing, or be left
to the near exclusive determination of the decision maker.259
Thus, the question is whether judicial deference to the near exclusive determination
of the decision maker falls short of international human rights standards where those
decision makers are not independent.260 Put another way, Canadian administrative law
contains no guarantee that affected parties will have recourse to an independent body
257 The pragmatic and functional approach calls on courts to determine the standard of review by
recourse to four related factors: (1) the presence or absence of a clause negating the right of appeal;
(2) the relative expertise of the decision maker; (3) the purpose of the provision and the legislation
generally; and (4) the nature of the question. See Pushpanathan v. Canada (Minister of Citizenship
and Immigration), [1998] 1 S.C.R. 982 at paras. 29-38, 160 D.L.R. (4th) 193.
258 For an elaboration of the tensions in the jurisprudence with respect to how significant a role
practices as opposed to statutory provisions should play in this analysis, see Lorne Sossin, Empty
Ritual, Mechanical Exercise or the Discipline of Deference? Revisiting the Standard of Review in
Administrative Law (2003) 27 Advocates Q. 478.
259 Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226 at para.
22, 11 B.C.L.R. (4th) 1 [citations omitted]. This passage could be read as suggesting that some basis
for deference would even arise if a court believed an error to be jurisdictional in nature. Some
commentators have blanched at this suggestion. As David Mullan has argued, [T]here are certainly
domains where the claims of the decision maker to deference based on legislative choice and
comparative institutional competence and practical advantage run out. Under accepted Canadian
constitutional law principles, they run out when the statutory decision maker is dealing with questions
as to the scope of its jurisdiction or behaves in such a way as to lose or exceed its jurisdiction (David
Mullan, Deference from Baker to Suresh: Interpreting the Conflicting Signals in Dyzenhaus, The
Unity of Public Law, supra note 9 at 53-54).
260 One way to remedy this deficiency could be to add to the pragmatic and functional approach a
criterion under which the court actually considered the relative independence of the administrative
body as part of its decision to defer. I am grateful to David Mullan for raising this possibility in his
comments on an earlier draft of the paper.
L. SOSSIN & G. HECKMAN ADMINISTRATIVE LAW PROTECTIONS
2005]
to have their rights adjudicated on the merits. Does this omission go against
international human rights standards? As discussed in the first section, this question is
not as cut and dry as perhaps it should be.
251
In some decision-making contexts, the European Court has gradually relaxed the
requirements of its composite approach to the guarantee of tribunal independence.
Courts reviewing a first-instance decision that does not comply with article 6(1) of the
ECHR,261 perhaps because the administrative decision maker is not independent, no
longer need full jurisdiction over the claim; they only need enough jurisdiction to
deal with the grounds of review point by point. Whether a reviewing court has
enough jurisdiction depends on the manner in which the first-instance decision was
arrived at, the content of the dispute including the grounds of review, and the subject
matter of the decision. The first two factors are usually considered together. Thus, if
the dispute is over a policy question, the initial decision could be made by a decision
maker lacking independence as long as Wednesbury-like review is available. If the
dispute concerns findings of fact, such limited judicial review is sufficient only if the
initial decision is taken in a quasi-judicial process (i.e., a hearing) by a decision maker
bearing some of the badges of independence. The third factor, the subject matter of
the decision under review, is crucial. Proceedings that involve fundamental rights or
interests demand more safeguards at first instance and more intensive review. These
include child access proceedings, for which Wednesbury reasonableness review was,
according to the European Court, insufficient to satisfy article 6(1).262 According to
the House of Lords, article 6(1) requires the highest standards of independence for
decisions touching on basic rights such as liberty rights engaged by the criminal
process, private rights, and rights protected by the European Convention, including
the right to a private and family life. Controversially, the House of Lords suggests that
decisions regarding the allocation of state resources, like statutory entitlements to
public welfare or social housing, are at the lower end of the independence spectrum
and attract minimum standards of independence.
It is not possible to make a general statement about how the Canadian standard of
review jurisprudence measures up to international standards. Any assessment of
whether Canadian administrative law is consistent with the international law norm of
independence as formulated by the European Court and House of Lords is a
contextual exercise that must be performed on a tribunal-by-tribunal basis. However,
several recent decisions of the Supreme Court of Canada on the appropriate standard
of review raise the prospect that in some instances, Canadian law may deviate from
international norms.
261 Supra note 22.
262 See W. v. United Kingdom, O. v. United Kingdom, B. v. United Kingdom, R. v. United Kingdom,
supra note 148.
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that
immigration decided
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In Baker v. Canada,263 an immigration officer acting on behalf of the minister of
citizenship and
there were no humanitarian and
compassionate reasons to suspend Mavis Bakers removal from Canada, leading to
her potential separation from her Canadian-born children. The Supreme Court
decided that the appropriate standard of review for the officers decision was
reasonableness, which allows no reweighing of the factors relevant to the exercise of
discretion. Given that the subject matter of the decision involves state interference
with Mavis Bakers family lifean interest protected by conventional international
human rights law264and that the immigration official who made the decision, a civil
servant and delegate of the minister, was likely not independent, it is questionable
whether court review on a reasonableness standard complied with the right to a fair
hearing before an independent tribunal any more than did Wednesbury review of the
English authorities child access decisions.265 Even greater concerns are raised by the
decision of the Supreme Court in Ahani v. Canada (Minister of Citizenship and
Immigration) that a determination by the minister of citizenship and immigration
whether a convention refugee faces a substantial risk of torture upon deportation to
his country of origin may only be reviewed on a patent unreasonableness standard.266
Under the approach outlined by the European Court and House of Lords, the
fundamental nature of the human rights involved in this context would likely require
more safeguards at first instance and more intensive review. Despite the fact that the
decision maker involved in Ahani was undoubtedly not independent, the Supreme
Court applied the least intrusive and most deferential standard of review available.
The independence of immigration adjudicators was considered by the Federal
Court in Mohammad v. Canada (Minister of Employment and Immigration).267 The
minister ordered an inquiry into whether Mohammad should be removed because he
belonged to an inadmissible class, having been convicted of offences relating to a
terrorist attack prior to entering Canada, and because he failed to disclose these
convictions when he applied for a visa. Mohammad sought to prohibit the deportation
inquiry on the ground that the immigration adjudicator conducting it lacked the
263 Supra note 15.
264 See e.g. article 17 of the ICCPR, which protects individuals from arbitrary or unlawful
interference with their family. See Committee on Human Rights, Communication No. 1011/2001,
Madafferi v. Australia, UN Doc. CCPR/C/81/D/1011/2001 (2004).
265 Admittedly, one would need to consider the manner in which the first-instance decision was
made. The European Courts decision in Bryan, supra note 126, contemplates that in addition to
rendering their decisions after a fact-finding process that complies with the principle of procedural
fairness, immigration officers would have to display at least some badges of independence for
humanitarian and compassionate decision making to live up to the international norm.
266 Ahani v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 72 at para. 17, 208
D.L.R. (4th) 57.
267 [1989] 2 F.C. 363 (F.C.A.), 55 D.L.R. (4th) 321 [Mohammad (F.C.A.) cited to F.C.], affd
[1988] 3 F.C. 308 (F.C.T.D.), 50 D.L.R. (4th) 594 at 597 [Mohammad (F.C.T.D.) cited to F.C.], leave
to appeal to S.C.C. refused, [1989] 1 S.C.R. xi.
L. SOSSIN & G. HECKMAN ADMINISTRATIVE LAW PROTECTIONS
2005]
institutional independence required by the rules of natural justice and by section 7 of
the Charter. Among other things, he claimed that:
253
1. Both the Adjudicators and the Case Presenting Officers, who are part of the
Enforcement Branch, are under the direction of the same Associate Deputy
Minister. …
2. The same Legal Services Branch of the Department gives advice to both the
Adjudicators and the Case Presenting Unit. …
5. Adjudicators are ordinary public servants with no unusual tenure or oath of
office.
6. Adjudicators may be given acting assignments as Immigration Appeal
Officers who represent the Minister before the Immigration Appeal Board.
Case Presenting Officers may be given acting assignments as Adjudicators.268
The motions judge dismissed Mohammads application. He recognized that
the Canada Employment and Immigration
adjudicators were employees of
Commission (CEIC) and enjoyed a relatively low level of independence. However,
in reasoning reminiscent of the European Courts composite approach, he concluded
that in light of the existence of a right of appeal to the more independent Immigration
Appeals Tribunal,269 whose decisions could be appealed to the Federal Court of
Appeal, it was acceptable that, at the stage of the adjudicators decision, the tribunal
be somewhat less independent.270 The Court of Appeal dealt systematically with
Mohammads claims and, having regard to the scheme of the Immigration Act
1976,271 the regulations, administrative directives, job descriptions, and the sworn
testimony of a former adjudicator regarding the operation of the adjudication system,
determined that immigration adjudicators had sufficient institutional independence. It
held that while adjudicators and case-presenting officers (who played a prosecutorial
role) were civil servants under the direction of the same minister, de facto they
268 Mohammad (F.C.T.D.), ibid. at para. 54.
269 Members of the tribunal were not CEIC employees. Appointed by the governor in council for
fixed terms not exceeding ten years, they held office during good behaviour.
270 Mohammad (F.C.T.D.), supra note 267 at 331. The motions judge relied on the judgment of
Justice McIntyre in R. v. MacKay, [1980] 2 S.C.R. 370 at 404-405, 114 D.L.R. (3d) 393 [MacKay
cited to S.C.R.], who found that MacKays trial by court martial on charges under the Narcotics
Control Act did not violate his right to be tried by an independent and impartial tribunal under s. 2(f)
of the Canadian Bill of Rights. In R. v. Gnreux, [1992] 1 S.C.R. 259 at 292, 88 D.L.R. (4th) 110
[Gnreux cited to S.C.R.], the Supreme Court questioned the validity of MacKay, preferring the
dissenting judgment of Laskin C.J., who found that the court martial was not independent because of
the presiding officers close involvement with the prosecution and with the entire military
establishment (ibid. at 379). In Gnreux, the Court concluded that the structure of the court martial
infringed a servicemans right to be tried by an independent and impartial tribunal under s. 11(d) of
the Charter. The Judge Advocate of the court martial did not have sufficient security of tenure, was
not protected against the discretionary or arbitrary interference of the executive, and was appointed on
a case-by-case basis by the Judge Advocate General, who served as an agent of the executive in
supervising prosecutions.
271 Immigration Act, 1976, S.C. 1976-77, c. 52.
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operated within separate divisions of CEICthe adjudication directorate and the
enforcement branchand did not report to a common superior. It also dismissed
Mohammads claim that seconding case-presenting officers to the adjudication
directorate and vice versa undermined the institutional separation between the
functions of adjudicator and prosecutor, and concluded:
[Vol. 50
… I have the view that reasonable persons, reasonably informed, would view
adjudicators … as being independent, keeping in mind that they are, for the
most part layman in the hierarchy of quasi-judicial tribunals, that their
decisions are subject to judicial review by this Court, and that they have all
taken an oath of office to faithfully and honestly fulfil the duties … devolving
upon them.272
In effect, the Court held that where appropriate safeguards were in place, the
adjudication of certain immigration matters by public servants reporting to the
minister of employment and immigration could satisfy an applicants right to a
hearing before an independent and impartial tribunal. Such safeguards included
placing the adjudicators within an adjudication directorate operating relatively
autonomously from the staff charged with enforcing Canadas immigration laws,
ensuring that the adjudicators had recourse to the grievance procedures available to
public servants, specifying in administrative directives and position descriptions273
that adjudicators were independent and that this independence had to be respected,
and requiring adjudicators to swear an oath to faithfully and honestly fulfill their
duties as public servants.
It is unlikely that Baker and Ahani would meet even the minimal standards of
independence set out in Mohammad. First, the decision maker in Baker was
exercising a statutory humanitarian and compassionate discretion on the ministers
behalf; he was not operating within a de facto independent branch of Citizenship and
Immigration Canada (CIC), akin to the adjudication directorate in Mohammad. In
Ahani, the decision maker was the minister herself. Second, there was no right of
appeal on the merits to an independent administrative tribunal in either Baker or
Ahanionly judicial review on a very deferential standard.
There is reason to doubt that Mohammad reflects current Canadian standards of
independence, let alone international standards. First, the reasoning in Mohammad is
deficient in several respects. While the Court of Appeal was right to review the
272 Mohammad (F.C.A.), supra note 267 at 396.
273 The position description stated that:
As adjudicators are independent decision makers the Director must foster a flexible,
collegial form of management. To ensure consistent application of the law, policy
positions regarding the interpretation of the Immigration Act … must be developed by
means of discussion and persuasion
to promote acceptance and
implementation by Adjudicators. … [A]s Adjudicators are a quasi-judicial tribunal it is
necessary to ensure the impartiality and independence of the Adjudication Directorate
and its policies (ibid. at 391).
in order
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administrative realities of immigration adjudication, it gave short shrift to the
substantial connections between CEICs adjudication and enforcement branches and
accorded too much weight to a generic oath of office and the content of a job
description. Additionally, while it purported to apply a test focusing on the objective
guarantees that establish a perception of sufficient institutional distance between the
adjudicators and the executive branch, the court relied extensively on the subjective
opinion of a single retired adjudicator that he felt that the final decision on a case
was solely his.274 Second, Parliament moved in January 1993 to amend the
Immigration Act and, addressing the issue of independence, created an Adjudication
Division within the Immigration and Refugee Board (IRB).275 While adjudicators
remained civil servants and continued to be appointed or employed under the Public
Service Employment Act,276 they no longer reported to the minister but to the chair of
the IRB, an independent tribunal.277 Third, the Federal Court of Appeal has openly
questioned whether Mohammad is still good law. In Ahumada v. Canada (Minister of
Citizenship and Immigration),278 Justice John Evans, for a unanimous court, found
that the relationship between CIC and one member of the Convention Refugee
Determination Division (CRDD) of the IRB, who had previously worked as an
appeals officer279 in CICs Enforcement Branch before her appointment to the IRB on
a temporary leave of absence from CIC, gave rise to a reasonable apprehension that
she was likely to be biased. The court reasoned that the member might well be
mindful of how her [CIC] colleagues were likely to view her decisions as a CRDD
member and what effect her decisions might have on her career prospects or
opportunities when she returned to CIC.280 The minister had argued that if the
obvious mingling of adjudicative and prosecutorial roles among adjudicators and
case-presenting officers had passed Charter scrutiny in Mohammad, then the much
more tenuous connection between the seconded IRB member and CIC could not
274 Ibid. at 393. The adjudicator also testified that a superior officer discussed with him the fact that
he was more likely than other adjudicators to release persons facing removal pending an inquiry, and
that many of these had failed to show for the hearing. This one example of questionable conduct,
concluded the court, was not fatal to the overall perception of independence (ibid. at 396).
275 Bill C-86, An Act to amend the Immigration Act and other Acts in consequence thereof, 3d Sess.,
34th Parl., 1992, cl. 47(1).
276 Ibid. at cl. 53.
277 Immigration Act, R.S.C. 1985, c. I-2, s. 58(3). The changes were hailed by some as ending the
enforcement bias and lack of independence of adjudicators under the general supervision of
immigration enforcement officials: Canada, House of Commons, Legislative Committee on Bill C-
86, Commentary on Bill C-86 by the Law Union of Ontario in Minutes of Proceedings and
Evidence (5 November 1992) at 18:66.
278 [2001] 3 F.C. 605 (C.A.), 199 D.L.R. (4th) 103.
279 Appeals officers advise on whether the minister of citizenship and immigration should intervene
in proceedings before the IRB and represent the minister at the hearing if he or she does intervene.
They appear before the IRB in order to represent the public interest in opposing a claim in order to
keep the claimant out of Canada (ibid. at para. 31).
280 Ibid. at para. 57.
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raise a reasonable apprehension of bias.281 The court rejected this argument in part
because Mohammad was out of step with current standards of institutional
independence:
[Vol. 50
… Mohammad … predates the cases in which statutory provisions respecting
administrative adjudication have been impugned before the Supreme Court of
Canada for failing to ensure institutional independence and impartiality [e.g.,
Matsqui and Rgie]. There must be some doubt, therefore, whether it would be
decided the same way today as it was nearly 15 years ago.282
It also raised a note of caution regarding the conferral of adjudicative powers to
public servants:
[O]fficials responsible for enforcing the law … almost inevitably tend to view
matters from an enforcement perspective. …
It is precisely to avoid the danger of enforcement-minded adjudication that,
like many statutory administrative schemes, the Immigration Act entrusts
adjudicative functions to a tribunal that is independent of, and separate from,
the agency responsible for enforcement.283
These post-Mohammad developments suggest that both Parliament and the Federal
Court may eventually reassess and heighten standards of institutional independence
for administrative decision making in the context of immigration and refugee
determination.284 In our view, they would do well to take into account international
norms of independence.
While we have focused primarily on independence concerns in immigration
decision making, it is noteworthy that the right to a hearing before an independent
tribunal at international law extends to human rights adjudication, professional
discipline, the regulation of liquor licenses, and other contexts where the Supreme
Court has not yet recognized a wide scope of application for section 7 of the
Charter.285 Accordingly, while there may be no constitutional obstacle to the
281 Ibid. at para. 40.
282 Ibid. at para. 46 [citations omitted].
283 Ibid. at paras. 54-55.
284 But see C. Clark, Critics assail Coderres proposals for refugee system The Globe and Mail
(21 March 2003) A15. In 2003, former Immigration Minister Denis Coderre proposed removing
initial decision making authority over refugee claims from the independent IRB and conferring it on
CIC officials.
285 In the human rights adjudication context, see Blencoe v. British Columbia (Human Rights
Commission), [2000] 2 S.C.R. 307, 190 D.L.R. (4th) 513. In the disciplinary context, see Robert A.
Sharpe, Katherine E. Swinton & Kent Roach, The Charter of Rights and Freedoms, 2d ed. (Toronto:
Irwin Law, 2002), who suggest that the weight of authority, however, is to the effect that section 7
does not protect a right to engage in a particular type of professional activity (ibid. at 201) ×.. See also Siemens v. Manitoba (A.G.), [2003] 1 S.C.R. 6 at para. 46, 221 D.L.R. (4th) 90,
where the Supreme Court refused to accept that restaurant owners had a protected liberty interest
under section 7 to operate video lottery terminals at their place of business. Arguably, like the
L. SOSSIN & G. HECKMAN ADMINISTRATIVE LAW PROTECTIONS
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implementation of statutory regimes that do not meet even the requirements of
independence mandated by the common law rules of procedural fairness, such
regimes, combined with deferential standards of review, could be at variance with
international norms.
257
In sum, we conclude that the approach to the standard of review in Canadian
administrative law may fall short of international human rights standards. There are,
however, hopeful signs, particularly in Baker, where the Court appeared to accept that
international human rights norms could be relied upon to guide the judicial review of
broad discretion in the context of imprecise statutes.
B. The Political Interference Problem: Independence and Appointments
In addition to the concern about Canadian administrative law arising from the
legitimating of deference to administrative bodies that may themselves not be
independent, a second concern arises because of the strong and arguably unjustified
analogy to judicial independence as the basis for assuring the independence of
administrative decision makers. Our review of the content of the international law
norm of independence suggests that the Valente286 principles of security of tenure,
financial security, and administrative independence are certainly recognized as
important guarantees of tribunal independence in international law. However,
international norms place an equal emphasis on the existence of guarantees against
the danger of executive control and manipulation of the process for appointing and
promoting tribunal members, and more generally on the existence of formal and
practical guarantees against outside pressure, typically by the executive branch of
government. This emphasis is illustrated most strikingly by the importance attributed
in the Basic Principles on the Independence of the Judiciary287 and in the Draft
Declaration on the Independence and Impartiality of the Judiciary288 to the
implementation of a formal, merit-based appointments and promotion process for
members of the judiciary. The Human Rights Committee is similarly preoccupied
with the potential for executive and legislative interference in the judicial
appointments process, expressing its concerns about the systems in place in both
burgeoning and established democracies. In addition to examining the manner of
appointment and the term of office of tribunal members, the European Court also
looks for guarantees against outside pressure and asks whether a tribunal presents
an appearance of independence. Accordingly, the court has focused on issues
seldom canvassed by Canadian courts, such as the degree of legal training afforded
tribunal members,289 their familiarity with the importance of the concept of tribunal
operation of video lottery terminals, serving liquor is a purely economic interest disqualified from
section 7 protection.
286 Supra note 189.
287 Supra note 66.
288 Supra note 69.
289 See Cooper, supra note 139 at paras. 123-25.
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independence,290 and whether frequent day-to-day contacts between tribunal members
and state administrators deprived the former of the requisite appearance of
independence.291
[Vol. 50
We submit that tribunals are most vulnerable to political capture not through the
absence of objective guarantees such as fixed term appointments but through the
potential for political control over the appointments process and tribunal policy-
making. In other words, if tribunal members are appointed in a partisan fashion in
order to advance policy objectives or ideological perspectives, then whether the
appointment is for full-time members to serve a fixed term of two years or for part-
time members to serve on a per diem basis is of little relevance.
We touched on the issue of appointments and institutional independence above in
the context of Hewat.292 There, while holding that dismissals during a fixed term
without cause violated the common law guarantee of institutional independence, the
Ontario Court of Appeal had observed that it would be intellectually nave not to
recognize that elected governments must have room to make political decisions and to
conduct themselves in a manner to assure that their political policies are
implemented.293 Additionally, since the process of appointing judges is not
constrained through judicial supervision, it would seem an odd inversion to establish
judicial supervision over the independence of administrative appointments.294 Even if
a court were inclined to assume such a mantle, it is not clear that courts have the
capacity or expertise to distinguish legitimate political interests (advancing a policy
agenda the government was duly elected to pursue) from illegitimate political interests
(usurping an adjudicative function to further partisan interests).295
290 Ibid.
291 See Campbell and Fell, supra note 125 at para. 77.
292 Supra note 202.
293 Ibid. at 169.
294 Katrina Wyman makes a similar point: However, the Supreme Courts decision to use the
criteria for judicial independence to assess the independence of adjudicative tribunals has come at a
price. The common law that has emerged in the wake of judicial interpretation of s.11(d) of the
Charter simply does not regulate the process for selecting the members of adjudicative tribunals
because the constitutional jurisprudence on judicial independence does not regulate the procedure
and criteria for the appointment, of judges (Wyman, Appointments to Adjudicative Tribunals,
supra note 203 at 112).
295 See Sethi v. Canada (Minister of Employment and Immigration), [1988] 2 F.C. 552 (F.C.A.) 52
D.L.R. (4th) 681, where the Federal Court of Appeal found that the executives introduction of a bill
that proposed to terminate the employment of all members of the Immigration Appeal Board without
compensation and regardless of tenure while holding out the prospect of their appointment to another
tribunal did not support Sethis claim that his refugee claim could not be decided fairly due to the
existence of a reasonable apprehension of bias by the board in favour of the government. The court
accepted that, in light of the governments stated intention, the financial security of board members
(and thus, one would assume, their independence) was threatened. However, it found that no
informed, right-minded person would believe that the board members would decide a refugee claim
against the claimant and in favour of the government because, in the courts view, the government had
259
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The issue of appointments reached the Supreme Court in C.U.P.E. v. Ontario
(Minister of Labour), involving a challenge to discretionary ministerial appointments
of interest arbitrators in the hospital sector.296 The Retired Judges case concerned the
appointment of interest arbitration chairs under the Ontario Hospital Labour Disputes
Arbitration Act.297 This Act provides that where the management and labour nominees
to a board of arbitration cannot agree on the appointment of a chair, then the Minister
shall appoint as a third member a person who is, in the opinion of the Minister,
qualified to act.298 In 1998, the minister of an ideologically neoliberal provincial
government in Ontario broke with the historical practice, which was to appoint
individuals possessing labour relations expertise and recognition in the labour
relations community as being generally acceptable to both management and labour,
and appointed retired superior court judges, at least some of whom were characterized
as lacking expertise and general acceptability. The unions involved in the dispute
found the retired judges to be unacceptable, and they challenged the appointment both
on procedural fairness and substantive grounds. The application failed at the
Divisional Court,299 but succeeded at the Ontario Court of Appeal.300 The Court of
Appeal held that the retired judges appointed by the minister lacked the requisite
institutional independence and that the ministers undertaking to the unions created a
legitimate expectation that the system of appointing chairs from a mutually acceptable
group of arbitrators would not be altered.301
The Supreme Court of Canada reached the same result as the Court of Appeal but
for distinctly different reasons. While the Court of Appeal viewed the case principally
as about institutional independence and procedural fairness, the Supreme Court
unanimously found the appointments to be valid on procedural grounds. Rather, the
Supreme Courts concern with the appointments focused on the substantive standard
by which such exercises of ministerial discretion should be reviewed. The Court was
no interest in seeing refugee claims defeated but sought only their fair adjudication (ibid. at 561-62).
It is unclear whether the Court of Appeal would come to the same conclusion if there were evidence
of executive pressure on board members to decide cases in accordance with government policies to
restrict the influx of migrants, including refugees, as has been the case in Australia: see Susan
Kneebone, Is the Australian Refugee Review Tribunal Institutionally Biased? (Paper presented to
the Eighth International Association for the Study of Forced Migration Conference, Chiang Mai,
Thailand, 5 January 2003) [unpublished].
296 Canadian Union of Public Employees v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539, 226
D.L.R. (4th) 193 [Retired Judges].
297 Hospital Labour Disputes Arbitration Act, R.S.O. 1990, c. H.14.
298 Ibid. at s. 6(5).
299 Canadian Union of Public Employees v. Ontario (Minister of Labour) (1999), 117 O.A.C. 340
(Div. Ct.).
300 Canadian Union of Public Employees v. Ontario (Minister of Labour) (2000), 51 O.R. (3d) 417
(C.A.), 194 D.L.R. (4th) 265.
301 For more discussion on the Court of Appeal judgment, see Bryden, supra note 203, and Lorne
Sossin, The Constitution and Administrative Independence: CUPE v. Ontario and Its Implications
for Administrative Boards and Tribunals (2000) 4 Regulatory Boards and Administrative Law
Litigation 214.
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unanimous in concluding that, by virtue of the pragmatic and functional approach, a
standard of patent unreasonableness applied to the ministers discretion to appoint
chairs of arbitration panels. However, the different approaches to applying that
standard in the context of tribunal appointments illustrate the complexity of deference
under Canadian administrative law.
[Vol. 50
Justice Binnie concluded that the ministers appointment of the retired judges was
patently unreasonable because it failed to consider criteria that the minister was
required to consider. He traced the requirement that relevant criteria be considered by
discretionary decision makers from the seminal Roncarelli v. Duplessis302 through to
Suresh303 and concluded:
In applying the patent unreasonableness test, we are not to reweigh the
factors. But we are entitled to have regard to the importance of the factors that
have been excluded altogether from consideration. Not every relevant factor
excluded by the Minister from his consideration will be fatal under the patent
unreasonableness standard. The problem here, as stated, is that the Minister
expressly excluded factors that were not only relevant but went straight to the
heart of the [Hospital Labour Disputes Arbitration Act] legislative scheme.304
Justice Binnie looked to the cross-examination of government officials who
confirmed that the minister did not inquire into the experience or expertise of the
retired judges in the field of labour relations. For the minister, their qualification arose
simply from their judicial background and the expertise in neutral decision making
that such experience suggested. Justice Binnie declared, [w]e look in vain for some
indication in the record that the Minister was alive to these labour relations
requirements.305 Just as the Court was required to quash a decision that frustrated the
objects and purposes of the ministers statutory discretion in Roncarelli, so Justice
Binnie argued similar judicial intervention was required in this case.
For the dissenting justices, the legislative provision itself indicated that there were
no obvious factors of particular relevance to the formation of the ministers opinion
on who was qualified to act. Because there were no obvious factors implied by this
broad grant of authority, there could be no obvious or immediate defect in the fact
that the minister chose one particular factor (the generalist expertise of retired judges)
over another (the specialized knowledge of labour abritrators). In such circumstances,
Justice Bastarache concluded the ministers decision could not be characterized as
clearly irrational or, to use the turn of phrase coined in Ryan,306 so flawed that no
amount of curial deference could allow it to stand.307 Indeed, the degree of analysis
of the record required by Justice Binnie to reach the conclusion that the decision was
302 [1959] S.C.R. 121, 16 D.L.R. (2d) 689 [Roncarelli].
303 Supra note 8.
304 Retired Judges, supra note 296 at para. 176 [emphasis in original].
305 Ibid. at para. 181.
306 Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, 223 D.L.R. (4th) 577.
307 Retired Judges, supra note 296 at para. 36.
L. SOSSIN & G. HECKMAN ADMINISTRATIVE LAW PROTECTIONS
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patently unreasonable represented for Justice Bastarache precisely the kind of
significant searching
the standard of patent
unreasonableness.
261
for
that
is
inappropriate
Justice Bastarache concluded that, because the factors that may or may not be
relevant to forming the ministers opinion on who is qualified to act as chair are
themselves not obvious and uncontroversial, courts should intervene sparingly in
these settings:308
[A] reviewing court should not, in my view, find too readily that a
discretionary decision was patently unreasonable. To do so dilutes the value of
the patent unreasonableness standard and promotes inappropriate judicial
intervention. Recognition of the seriousness of quashing a decision as patently
unreasonable is crucial to maintaining the discipline of judicial restraint and
deference. This is especially the case where there were few indicators in the
enabling legislation of the scope of the power and in an area where this Court
has repeatedly counselled deference towards political and other expertise. I do
not think that the Ministers appointments demand our intervention.309
On the issue of political interference in tribunal appointments, the courts are
caught on the horns of a dilemma. On the one hand, it is difficult to see how the rule
of law may be upheld unless courts are prepared to wade into vaguely and broadly
defined discretions to delineate the boundaries of lawful conduct. Justice Bastarache
himself underscores this principle by noting that the ministers discretion is not
unfettered. He indicates, in obiter, that his conclusions do not imply that a minister
could decide to appoint only members of his own political caucus, hospital CEOs or
union business agentswhich he refers to as extreme examples.310 On the other
hand, what basis would Justice Bastarache have to curtail the discretion of the
minister in such extreme scenarios if he were unwilling to second-guess the ministers
judgment on which factors are relevant to administrative appointments?
As the Retired Judges case illustrates, the standard of review doctrine cannot be
disentangled from the separation of powers doctrine more broadly. According to this
constitutionally rooted division of labour, legislatures demarcate the institutional
structure and legislative authority of administrative bodies, judges must restrict
executive action to accord with the purposes and objects of legislative intent but
refrain from interfering with the institutional and legislative autonomy accorded to
administrative bodies, and administrative policy-makers and decision makers, in turn,
are charged with implementing and elaborating both legislative authority and
judicially articulated standards. At its best, this conceptual framework of deference
308 Ibid. at para. 36.
309 Ibid. at para. 46 [emphasis added].
310 Ibid. at para. 40. While it is true that these are not the facts before the Court in the Retired
Judges case, the legitimacy of purely patronage appointments or the decision not to reappoint for
partisan reasons may well surface as the next sites of litigation of the standard of review for
ministerial appointments.
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allows for legislative, executive, and judicial priorities to be developed, interpreted
and justified. At its worst, this framework may permit judicial whim to masquerade as
fidelity to legislative intent in order to interfere with the policies and priorities of
executive decision makers. Finally, it should be noted that in Canada, with some
notable exceptions, judicial appointments also are a product of virtually unfettered
executive discretion. It would be odd indeed for a court to insist on arms length
appointments as a condition of institutional independence of tribunals without any
similar guarantee in place for judges.
In short, the Canadian administrative law doctrine of institutional independence
has raised the question of political interference without resolving it. As Chief Justice
Lamer observed in Matsqui, the point of the institutional independence doctrine is to
ensure that tribunal independence is not left to the discretion of those who appoint the
tribunals. … Independence premised on discretion is illusory.311 We suggest that one
way around the stalemate reflected in the Retired Judges split on the Court is recourse
to international human rights norms. These norms provide additional justification for
courts to subject allegations of political interference in administrative decision making
to judicial scrutiny. To say that an administrative body has sufficient objective
guarantees such as security of tenure does not and should not end the inquiry into that
bodys freedom from political interference (whether through tribunal appointments,
tribunal policy-making, or other means). While Canadian courts have been vigilant in
specific cases where there is evidence of political tampering, they have preferred to
turn a blind eye to the broader question of political appointments to adjudicative
bodies.
Lastly, it is necessary to deal with the concern that by entrenching greater
independence protections, especially in contexts such as administrative appointments,
regulatory or adjudicative bodies that have no legitimacy to pursue policy preferences
of their own will be too insulated from legitimate executive policy direction. We do
not find this argument compelling. Government retains more than sufficient levers to
shape policy direction for tribunals and agencies. It can modify the mandate and
discretion of decision makers by statute or regulation. Ultimately, it can create or
eliminate decision-making bodies and transfer jurisdiction from one to the other. Of
course, in all these cases, these changes in policy direction are explicit and transparent
and subject to political accountability of one kind or another. The lever removed from
governmentif independence is to have substanceis the option to inculcate policy
changes in non-explicit and opaque ways, for example, through removing unwanted
adjudicators and appointing like-minded ones at the governments whim.
311 Matsqui, supra note 195 at para. 104.
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Conclusion
In this paper, we have claimed that Canadian administrative law may fail to live
up to the international human rights standards that guarantee to every person an
adjudication of his or her rights and obligations before an independent tribunal. We
further claim that this deficiency reflects both a failure of elected governments, which
too often undermine the independence of tribunals through statutes that provide
appointment at pleasure, and a failure of Canadian courts, which have relied too often
on highly formal distinctions between courts and administrative tribunals.
By asserting these claims, we are not suggesting that the constitutional norm of
judicial independence is appropriate for tribunals in Canada, nor that courts are, by
virtue of a constitutionally entrenched doctrine of independence, free from political
influence (consider the appointment process of judges, which in many cases has fewer
merit safeguards than most labour boards). By the same token, we are not suggesting
that international law has a clear and unwavering commitment to the independence of
administrative decision makers (as the wooliness of international law jurisprudence
on this point, discussed above, demonstrates), nor even that the commitments
contained in international human rights instruments have an effective track record of
curbing political interference. Rather, our concern in this paper is that Canadas legal
regime governing administrative justice is viewed too often as simply another
malleable tool for policy-making. As stated in the introduction, locating questions of
impartiality and independence within an international human rights discourse can lead
to a more rigorous and constructive dialogue on the proper role for and constraints on
executive influence of adjudicative decision making.
The specific divergences between Canadian administrative law and international
norms of independence identified in this paper in the areas of judicial deference and
executive interference (through, among others, the appointments process) are perhaps
symptomatic of a more basic distinction between how independence is understood in
international law as opposed to Canadian law. Whereas Canadian law proceeds from
the assumption that, absent a constitutional or quasi-constitutional imperative,
Canadian legislatures may disregard the guarantee of institutional independence in
administrative decision making because of the formal place of administrative tribunals
in our constitutional order as part of the executive branch, an individuals entitlement
to an independent tribunal at international law arises from the nature of the right or
interest to be adjudicated. If an individuals fundamental human rights, private rights,
or public rights of a kind normally subject to judicial supervision and control are
imperilled, he or she is entitled to a fair hearing before an independent tribunal, be it a
traditional court or administrative board.
To be clear, we are not advocating the judicialization of all administrative
decision making, nor are we suggesting that Canada should be hauled before some
international body for failing to discharge its international law obligations. Our point
is that administrative justice ought to be founded on the values of impartiality and
independence, not because international instruments say so, but because political and
executive interference represents a grave and enduring threat to the rule of law and
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the fairness of administrative decision making. The appeal of international law is that
when the independence and impartiality of administrative decision making is
understood as a core human rights value, the cost of political and executive
interference may rise and public confidence in administrative decision making may be
enhanced. Our broader point is that international human rights norms provide a
measuring rod against which to assess the aspiration of Canadian administrative law.
We believe that Canada should be a beacon to other nations in terms of the protections
afforded to individuals whose rights (and, for that matter, obligations and interests)
are at issue. It is hoped that this paper will remind readers of the distance Canadian
administrative law must travel before this hope is realized.
