In Walter v. British Columbia (Attorney General), 2019 BCCA 221, the British Columbia Court of Appeal upheld the decision of a chambers judge denying the extension of the constitutional principle of judicial independence to the Chairperson of the British Columbia Review Board
Background
The BC Review Board is a quasi-judicial body that was established pursuant to the Administrative Tribunals Act, SBC 2004, c 45, to make or review dispositions concerning any accused in respect of whom a verdict of not criminally responsible by reason of mental disorder or unfit to stand trial is rendered. The Attorney General sets the BC Review Board Chairperson’s income according to a Directive from the Treasury Board.
The Chairperson, whose income at the time had been set below the Treasury Board’s recommended minimum, had filed a petition challenging the legislative scheme and process for setting his income as unconstitutional—asserting that it inadequately protected his judicial independence, including financial security. The Attorney General opposed the petition, arguing that the constitutional principle of judicial independence applies only to judicial officers, and not to administrative tribunals.
The Chairperson based his claim for constitutionally protected judicial independence on three grounds.
First, the Chairperson argued that he should be afforded judicial independence on the basis of unwritten constitutional principles, given that review boards fulfill a judicial function. The chambers judge disagreed, concluding that the unwritten constitutional principle of judicial independence cannot apply to members of administrative tribunals—which are part of the executive branch—no matter how similar in adjudicative functions they are to courts. The chambers judge distinguished the Chairperson’s position from those that have been extended judicial independence, including judicial officers, masters and justices of the peace. The chambers judge reasoned that review boards do not occupy a critical role at the point of entry into the criminal justice system, they are not linked historically to the source of the unwritten constitutional principles, and the nature of their dispositions is not intended to be punitive.
Second, the Chairperson argued that since the BC Review Board can issue warrants of committal, its independence is protected by way of s. 7 of the Charter, which provides that a person cannot be deprived of the right to liberty except in accordance with the principles of fundamental justice. The chambers judge rejected this claim, finding that s. 7 Charter rights are not engaged before the BC Review Board because the functions performed by the BC Review Board are insufficiently similar to those carried out by judges.
Third, the Chairperson asserted that since the BC Review Board plays a central role in determining how a person charged with an offence is dealt with by the state, he was entitled to judicial independence on the basis of s. 11(d) of the Charter, which provides that a person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal. The chambers judge disposed of this claim on the basis that s. 11(d) only applies to courts and tribunals that determine the guilt of persons charged with criminal offences, and that review boards do not determine guilt.
The chambers judge therefore dismissed the petition.
The Chairperson appealed the decision, arguing that the chamber judge erred in holding that the unwritten constitutional principle of judicial independence and s. 7 of the Charter cannot support his claim for judicial independence.
Court of Appeal Decision
The Court of Appeal dismissed the appeal, holding that the unwritten constitutional principle of judicial independence does not extend to the Chairperson of the BC Review Board.
The Court of Appeal confirmed that a high level of administrative independence may be constitutionally required for certain tribunals, but emphasized that this is distinct from constitutionally protected judicial independence. The purpose behind the requirement for judicial independence is to ensure fulfillment of the judiciary’s constitutional role and commitment to the separation of powers. Judicial independence is founded on judicial functions such as interpreting legislation and jurisdiction, policing the division of powers, determining Aboriginal rights, and playing a “dominant role in the adjudication of criminal cases”. The independence of administrative tribunals, on the other hand, has its source in the principles of fundamental justice, which require a decision-maker to be independent as a part of procedural fairness.
The Court of Appeal held that although the BC Review Board is exclusively adjudicative and functions near the judicial rather than administrative end of the constitutional divide, it does not exercise judicial functions that relate to the bases upon which the principle of judicial independence is founded. Therefore, even though liberty interests are engaged at review hearings, the chambers judge correctly distinguished the BC Review Board’s role from that played by justices of the peace. Similarly, while the jurisprudence establishes that administrative tribunals which adjudicate s. 7 Charter claims – such as the BC Review Board – must have some degree of constitutionally protected independence, the jurisprudence does not extend the high degree of judicial independence to all adjudicators who are charged with addressing s. 7 Charter issues.
The Court of Appeal concluded that the Chairperson of the BC Review Board was entitled to some measure of constitutionally protected administrative independence, and that a strong argument could be made that his financial independence was inadequately protected. However, as the Chairperson did not seek such a declaration, the Court did not find it necessary or appropriate to comment on how the Province should provide him with a measure of financial independence.
The Supreme Court of Canada has denied leave to appeal from this decision.
Takeaways
This decision confirms that while some administrative tribunals may enjoy a high level of constitutionally protected independence, this will not rise to the level of constitutionally protected judicial independence.
Christopher Wirth is a Partner and Shamim Fattahi is an Articling Student at Keel Cottrelle LLP.