How do Canadian administrative law protections measure up to international human rights standards? The case of independence.

• Author: Heckman, Gerald

International human fights law recognizes the right to have one's fights and obligations adjudicated by an independent tribunal--one free from internal collusion and external manipulation. Under Canadian law, by contrast, the fight 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 to 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 tribunals vulnerable 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 fights standards. The authors document and compare the content of this norm 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 fights instruments and suggest ways in which Canadian law might draw inspiration from international sources.

Le droit international des droits humains reconnait le droit de faire juger de ses droits et obligations par un tribunal independant--un tribunal fibre de toute collusion interne et manipulation externe. En droit canadien, le droit h l'independance des tribunaux est quelque peu edulcore en comparaison. Certalnes intrusions par le pouvoir executif dans les decisions administratives sont tolerees parce que la protection constitutionnelle de l'independance judiciaire est vue comme ne s'etendant pas a la sphere des tribunaux administrafifs, ordinairement percus comme des instruments servant les politiques gouvernmentales. La deference dont font preuve les cours canadiennes envers des tribunaux dont l'independance n'est pas protegee constitutionnellement a pour effet de soustraire nombre de decisions de ces tribunaux a toute revision par des cours independantes. De plus, meme lorsqu'une certaine protection existe, l'emphase ecrasante que met le droit administratif canadien sur les garanties relatives la duree des mandats et a la remuneration financiere des membres des tribunaux rendant ceux-ci vulnerables a des manipulations externes, a travers l'influence politique, sur les nominations et l'orientation des politiques.

Dans cet article, les auteurs se demandent si les normes canadiennes relatives a l'independance des tribunaux sont a 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 canadian, pour en venir a la conclusion que les protections offertes en matiere d'independance des tribunaux en droit canadien ne rencontrent pas les standards contenus dans les instruments internationaux relatifs aux droits humains et suggerent de quelles manieres le droit canadien pourrait s'inspirer de sources internationales.

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 Preparatoires b. The Scope of Article 14(1) in the Committee's 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 iii. Whether the Tribunal Presents an Appearance of Independence 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 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 key--it 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 Charte (1) 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 makers--the Canadian Bill of Rights (2) and Quebec Charter of Human Rights and Freedoms (3) are the two salient examples--most 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 are instrumentalities of government policy which are, nonetheless, required to act fairly." (5)

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...