The Federal Court of Appeal recently released a decision in Democracy Watch v. Canada, denying two appeals, from two separate complaints, regarding Canada’s first Commissioner of Lobbying. The court concluded that the Governor in Council’s interpretation of the Lobbying Act was reasonable, and rejected the allegations of bias.
Though it might come as a surprise to some, the general principles of independence and impartiality, though clearly principles of natural justice, are not necessarily required throughout our justice system in the same way.
International human rights law generally entitles individuals to a fair and public hearing, by an independent and impartial tribunal. This can be found in several documents, including Article 10 of the Universal Declaration of Human Rights, Article 14 of the International Covenant on Civil and Political
Rights, Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, and Article 8.1 of the American Convention on Human Rights.
In Canada, this value is expressed in the Charter under s. 11(d), as follows,
11. Any person charged with an offence has the right
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
There are some noticeable limits in this independence, as illustrated by numerous cases that have interpreted this provision.
In Valente v. The Queen, the Court reviewed the tenure of post-retirement reappointment judges of the Provincial Court (Criminal Division). The Court considered the perception of impartiality as whether the tribunal was reasonably perceived as independent,
22. Although judicial independence is a status or relationship resting on objective conditions or guarantees, as well as a state of mind or attitude in the actual exercise of judicial functions, it is sound, I think, that the test for independence for purposes of s. 11(d) of the Charter should be, as for impartiality, whether the tribunal may be reasonably perceived as independent. Both independence and impartiality are fundamental not only to the capacity to do justice in a particular case but also to individual and public confidence in the administration of justice. Without that confidence the system cannot command the respect and acceptance that are essential to its effective operation. It is, therefore, important that a tribunal should be perceived as independent, as well as impartial, and that the test for independence should include that perception. The perception must, however, as I have suggested, be a perception of whether the tribunal enjoys the essential objective conditions or guarantees of judicial independence, and not a perception of how it will in fact act, regardless of whether it enjoys such conditions or guarantees.
However, the Court also rejected a uniform standard of independence, indicating that this increased measure of administrative autonomy or independence, though desirable, may not be essential for s. 11(d) purposes,
25. …It would not be feasible, however, to apply the most rigorous and elaborate conditions of judicial independence to the constitutional requirement of independence in s. 11(d) of the Charter, which may have to be applied to a variety of tribunals. The legislative and constitutional provisions in Canada governing matters which bear on the judicial independence of tribunals trying persons charged with an offence exhibit a great range and variety. The essential conditions of judicial independence for purposes of s. 11(d) must bear some reasonable relationship to that variety. Moreover, it is the essence of the security afforded by the essential conditions of judicial independence that is appropriate for application under s. 11(d) and not any particular legislative or constitutional formula by which it may be provided or guaranteed.
The Court found that the provisions regarding security of tenure may fall short of the ideal or highest degree of security, it still reflected what would be reasonably perceived as essentials of security of tenure for the purposes of s. 11(d).
Similarly, in R. v. Lippé, the Court reviewed a s. 11(d) challenge to the independence and impartiality of the municipal court system, where part-time judges were allowed to practice law. The Court emphasized the importance of independence to the reasonable perception of impartiality,
The overall objective of guaranteeing judicial independence is to ensure a reasonable perception of impartiality; judicial independence is but a “means” to this “end”. If judges could be perceived as “impartial” without judicial “independence”, the requirement of “independence” would be unnecessary. However, judicial independence is critical to the public’s perception of impartiality. Independence is the cornerstone, a necessary prerequisite, for judicial impartiality.
Despite this, the Court found that the the Charter does not guarantee an ideal system in all circumstances, as it would not be feasible to apply the most rigorous and elaborate conditions of judicial independence to the constitutional requirements to all legal venues. Instead, the legislative safeguards, which include an oath, a Code of Ethics, and rules regarding conflicts of interests, all help to alleviate any reasonable apprehension of bias in the mind of a reasonable, well-informed person.
This type of derogation can be found in the international context as well. For example, the European Court of Human Rights stated in Case of Le Compte, Van Leuven and De Meyere,
Whilst Article 6 par. 1 (art. 6-1) embodies the “right to a court” (see paragraph 44 above), it nevertheless does not oblige the Contracting States to submit “contestations” (disputes) over “civil rights and obligations” to a procedure conducted at each of its stages before “tribunals” meeting the Article’s various requirements. 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 said 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.
The Supreme Court of Canada held in Canadian Pacific Ltd. v. Matsqui Indian Band that the same principles discussed in the foregoing Canadian cases also applied to administrative tribunals,
80 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…
The Court has taken this further, indicating in Ocean Port Hotel Ltd. v. British Columbia that,
21 Confronted with silent or ambiguous legislation, courts generally infer that Parliament or the legislature intended the tribunal’s process to comport with principles of natural justice: Minister of National Revenue v. Coopers and Lybrand, 1978 CanLII 13 (SCC),  1 S.C.R. 495, at p. 503; Law Society of Upper Canada v. French, 1974 CanLII 24 (SCC),  2 S.C.R. 767, at pp. 783-84. 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: Matsqui, supra (per Lamer C.J. and Sopinka J.); Régie, supra, at para. 39; Katz v. Vancouver Stock Exchange, 1996 CanLII 177 (SCC),  3 S.C.R. 405. 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”: Régie, at para. 39.
22 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. See generally: Innisfil (Corporation of the Township of) v. Corporation of the Township of Vespra, 1981 CanLII 59 (SCC),  2 S.C.R. 145; Brosseau v. Alberta Securities Commission, 1989 CanLII 121 (SCC),  1 S.C.R. 301; Ringrose v. College of Physicians and Surgeons (Alberta), 1976 CanLII 172 (SCC),  1 S.C.R. 814; Kane v. Board of Governors of the University of British Columbia, 1980 CanLII 10 (SCC),  1 S.C.R. 1105. Ultimately, it is Parliament or the legislature that determines the nature of a tribunal’s 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 legislator’s intention in assessing the degree of independence required of the tribunal in question.
23 This principle reflects the fundamental distinction between administrative tribunals and courts. Superior courts, by virtue of their role as courts of inherent jurisdiction, are constitutionally required to possess objective guarantees of both individual and institutional independence…
24 Administrative tribunals, by contrast, lack this constitutional distinction from the executive. They are, in fact, created precisely for the purpose of implementing government policy. Implementation of that policy may require them to make quasi-judicial decisions. They thus may be seen as spanning the constitutional divide between the executive and judicial branches of government. However, given their primary policy-making function, it is properly the role and responsibility of Parliament and the legislatures to determine the composition and structure required by a tribunal to discharge the responsibilities bestowed upon it. While tribunals may sometimes attract requirements of independence, as a general rule they do not. Thus, the degree of independence required of a particular tribunal is a matter of discerning the intention of Parliament or the legislature and, absent constitutional constraints, this choice must be respected.
Citing this passage, the court in Democracy Watch found that any arguments of bias were inevitable given the statutory scheme and the function of the Governor in Council.
The Lobbying Act does not require consultation on the appointee selection process for the Commissioner of Lobbying, but rather provide Members of the Senate and the House of Commons an opportunity to speak to the appointment of the nominated appointee in order to have confidence in them as an Officer of Parliament. The role of the court was not to step into the role of the Ethics Commissioner, to consider whether the Commissioner of Lobbying was in breach of the Conflict of Interest Act.
In 2005, Heckman & Sossin compared in the McGill Law Journal the understanding of the need for independence Canadian in administrative tribunals to international human rights standards, and said,
We suggest that the Canadian administrative law guarantees of institutional independence… may diverge from the procedural requirements of international human rights law… 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.
Their comments on the standard of review precede both Dunsmuir and Vavilov, and therefore employ an analysis of the pragmatic and functional approach used at the time. What they do consider is for courts to utilize an analysis of the actual relative independence of the administrative
body as part of its decision to defer.
For example, in discussing Baker v. Canada, Heckman & Sossin point out that the subject matter of state interference with the applicant’s rights to family life involved an interest protected by international human rights such as Article 17 of the International Covenant on Civil and Political Rights. The immigration official making the decision was a civil servant who lacked independence. In this context, the standard of review of reasonableness used by the Court may have fallen below the indicia of right to a fair hearing before an independent tribunal as understood in international law.
Although the case in Democracy Watch may lack the type of fundamental nature of human rights or interests, the presumption made in Vavilov at para 16 of a reasonableness standard, without any consideration of the need for greater independence outside of the criteria enunciated in para 17, may give rise to future deficiencies.
Of greater concern, especially in the contemporary climate, is of political interference in the administrative tribunal regime, as explained by Heckman & Sossin,
…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.
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, their familiarity with the importance of the concept of tribunal independence, and whether frequent day-to-day contacts between tribunal members and state administrators deprived the former of the requisite appearance of independence.
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 policymaking. 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 parttime members to serve on a per diem basis is of little relevance.
Perhaps it’s still too soon to consider reformulating or expanding the framework in Vavilov, but it’s also tantalizing to consider how a court may incorporate these aspects of independence into the rebuttal of a presumption of reasonableness.