Administrative Tribunals and Constitutional Independence: Walter v BC 2019 BCCA 221

The constitutional status of tribunal independence was squarely in issue in Walter v. British Columbia.[1] Controversy arose about the remuneration of the Chairperson of the British Columbia Review Board. Each Canadian province has a Review Board to make or review dispositions in respect of accused persons found Not Criminally Responsible by reason of Mental Disorder, or unfit to stand trial. For many years, the Chairperson of the British Columbia Review Board was paid well below the minimum rates set out by the Treasury Board for “group 4 tribunals”, of which the Review Board was one.[2] The prospect of litigation seems to have convinced the province to improve the Chairperson’s salary: on the eve of the judicial review hearing, it was increased to the group 4 minimum and, during the hearing, it was increased to the group 4 maximum, retroactively to 2016. Nonetheless, the question of principle remained unresolved: did the principle of judicial independence protect the Chairperson’s salary? At first blush, the argument might seem ambitious: Canadian courts have been resolute in batting away arguments that independence of administrative tribunals and their members have any constitutional status.[3] The conclusion of the British Columbia Court of Appeal in Walter that the Review Board “does not exercise judicial functions that relate to the bases upon which the principle of judicial independence is founded” is unsurprising in this regard.[4]

The Review Board, however, has an important characteristic which distinguishes it from the liquor licence, human rights and labour relations adjudicators whose claims have foundered in the past. The Review Board deals with matters of personal liberty. It determines how long and under what conditions accused persons found Not Criminally Responsible spend in state detention. Section 7 of the Charter of Rights and Freedoms is squarely engaged by the Review Board’s work.

Although the petitioner apparently did not raise the s.7 point at first instance until oral argument, it was the centrepiece of his case on appeal.[5] Once s. 7 is engaged, the “principles of fundamental justice” are also engaged and “[t]o that extent there…appears to be no doubt the BC Review Board requires independence to properly discharge its mandate”.[6] But, Willcock JA held, whereas the constitutional principle of judicial independence is designed to safeguard superior court judges who exercise judicial functions of the highest important, tribunal independence has a different source: “principles of fundamental justice which call for the independence of a decision-maker as an essential part of procedural fairness”.[7] There is thus “a distinction between the highest level of administrative independence, which may be constitutionally required for certain tribunals, and judicial independence”, based on the fact that “the judiciary, unlike administrative tribunals, has a constitutional obligation to maintain at all times a distance from the executive”.[8] Accordingly, tribunal independence is “context specific”:[9] “the courts must adopt a flexible approach to the question of what constitutes procedural fairness in the administrative context”.[10] The Chairperson of the Review Board is entitled to “some guarantee” of independence but not enough to underpin a declaration that the Treasury Board directive is unconstitutional as applied to his office.[11]

Despite Willock JA’s confident assertion that the jurisprudence “clearly establishes” that the Chairperson of the Review Board is not entitled to constitutional protection of his or her independence,[12] the Walter litigation raises a novel issue. There is no Canadian case of which I am aware in which a court has considered whether an administrative decision-maker required to determine an individual’s s. 7 rights must be independent. The Review Board’s role is qualitatively different from the role of band councils,[13] and the liquor licence, human rights and labour relations adjudicators[14] where procedural fairness has been held to be context specific and capable of being ousted by statute.

Indeed, there is a very good argument that an administrative decision-maker whose decisions engage s. 7 must be independent. The closest case on point is Charkaoui v. Canada (Citizenship and Immigration),[15] but the national security certificate regime in issue there was overseen by a judge of unimpeachable independence. A thought experiment based on Suresh v. Canada (Minister of Citizenship and Immigration) may be helpful.[16] There, the Supreme Court of Canada allowed for the possibility that individuals could be deported even to a real risk of torture in “exceptional circumstances”.[17] These were not further defined. But given that the individual’s constitutional rights are engaged, a rigorously fair process would of course be required, “presumably including a final determination by an independent decision-maker”.[18] This issue has not been decided,[19] but it seems blindingly obvious to me that the “principles of fundamental justice” must require an independent and impartial tribunal in circumstances where the – let us not forget – high thresholds of s. 7 have been surmounted,[20] whether to deport someone to a real risk of torture or to prevent their release from detention.

Quite what the seemingly inexorable conclusion that the principles of fundamental justice require an independent tribunal means for the independence of Review Boards might be a difficult question, for it may extend beyond the financial security issue raised in Walter to terms and conditions of appointment and administrative autonomy more generally.[21] But s. 1 of the Charter might provide some flexibility in structuring arrangements which safeguard independence in a manner cognisant of the particular characteristics of Review Boards and similar bodies. More generally, Quebec’s administrative justice system is instructive in this regard, as tribunal independence has long had quasi-constitutional status in that province without causing the system to collapse under the weight of litigation.

Moreover, given that all provinces have, under the Criminal Code, a Review Board, the question raised in Walter is of national importance, a point which surely will not escape the Supreme Court when it decides whether or not to grant leave: it may be that tribunal independence will soon have another moment in the sun and perhaps constitutional status.

[1] 2019 BCCA 221 [Walter].

[2] Walter at paras 2-9.

[3] Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52, [2001] 2 SCR 781; Bell Canada v. Canadian Telephone Employees Association, 2003 SCC 36, [2003] 1 SCR 884; Saskatchewan Federation of Labour v. Government of Saskatchewan, 2013 SKCA 61. A different conclusion was reached in McKenzie v. Minister of Public Safety and Solicitor General, 2006 BCSC 1372 but this had not had widespread impact on Canadian thinking about tribunal independence.

[4] Walter at para 88.

[5] Walter at paras 50-53.

[6] Walter at para 61.

[7] Walter at para 69.

[8] Walter at para 70.

[9] Walter at para 109.

[10] Walter at para 110.

[11] Walter at para 112.

[12] Walter at para 107.

[13] Canadian Pacific Ltd. v. Matsqui Indian Band, 1995 CanLII 145 (SCC), [1995] 1 S.C.R. 3.

[14] Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52, [2001] 2 SCR 781; Bell Canada v. Canadian Telephone Employees Association, 2003 SCC 36, [2003] 1 SCR 884.

[15] 2007 SCC 9, [2007] 1 SCR 350.

[16] 2002 SCC 1, [2002] 1 SCR 3 [Suresh].

[17] Suresh at para 78.

[18] Paul Daly, “Who Decides to Deport You When There’s a Risk of Torture?” (25 May 2014), online (blog): Administrative Law Matters <https://www.administrativelawmatters.com/blog/2014/05/25/who-decides-to-deport-you-when-theres-a-risk-of-torture/>. Emphasis added. See further Ron Ellis, “AN IGNIS FATUUS? The Rule of Law in the Administrative Justice System” (2015) 28:1 Canadian Journal of Administrative Law & Practice 55.

[19] It was raised but not addressed in Muhammad v. Canada (Citizenship and Immigration), 2014 FC 448.

[20] A reminder of the difficulty of making out a breach of s. 7 is provided by Kreishan v. Canada (Citizenship and Immigration), 2019 FCA 223, where the absence of an additional right of appeal for some refugee claimants did not create psychological harm capable of triggering s. 7’s guarantee of the integrity of the person.

[21] Walter at para 59.

[22]

This content has been updated on November 1, 2019 at 19:13.