How to Achieve Tribunal Independence: A Canadian Perspective

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How to Achieve Tribunal Independence A Canadian
Perspective
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How to Achieve Tribunal Independence A Canadian
Perspective

• A Presentation to the International Tribunals
  WorkshopCanberra, April 5, 2006
• Professor Philip Bryden
• Dean of Law, University of New Brunswick

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Introduction

• Goals
• To discuss four distinct aspects of tribunal
  independence as recognized in Canada
• To comment on the strengths and limitations of
  different mechanisms for promoting tribunal
  independence

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Alternative Rationales for Tribunal Independence

• Ensure that adjudicators base their decisions on
  the evidence and the law before them, and not on
  extraneous considerations including fear, self
  interest and prejudice (Judith McCormack)
• Establish governance relationships that enable a
  tribunal to carry out its statutory mandate with
  integrity

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The Relationship Between Independence and
Accountability

• Accountability is the mirror image of
  independence
• Issue is what mechanisms for accountability are
  appropriate for what types of activity
• Traditional reliance on lack of independence
  instead of structured accountability mechanisms

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The Institutional Structure of Canadian Tribunals

• Varied arrangements for security of tenure and
  full-time and part-time tribunal membership
• No consensus on an ideal tribunal structure that
  meets the needs of all jurisdictions, caseloads,
  disputants and subject matters

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Instruments for Defining and Safeguarding
Independence

• Constitutional and Quasi-Constitutional
  Guarantees
• Common Law Principles
• Generic and Tribunal-Specific Legislation
• Voluntary Policies and Practices

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Types of Independence (1)

• Adjudicative Independence
• Ability of individual adjudicator hearing a case
  to decide it without improper interference from
  others
• Institutional Independence
• Structural guarantees designed to satisfy parties
  and public that tribunal members are protected
  from improper governmental interference in their
  decisions

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Types of Independence (2)

• Administrative Autonomy
• Ability of tribunals to secure and manage
  resources needed to perform their adjudicative
  functions effectively
• Independent Policy-making
• Independence in choosing policy direction to be
  pursued in interpreting and carrying out
  statutory mandate

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Institutional Independence

• Guarantees of security of tenure, security of
  remuneration, administrative independence
• Means to achieve institutional independence
• General constitutional guarantee of institutional
  independence
• Specific constitutional and quasi-constitutional
  principles
• Common law independence principle
• Statutory regimes guaranteeing independence
• Are flexible guarantees consistent with genuine
  independence?

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Administrative Autonomy

• Modern institutional independence requires more
  sophisticated approach to tribunal management
• Elements of modern administrative autonomy
• Open and merit-based appointment process
• Tribunal chair input into selection of appointees
• Adequate procedural and rule-making authority
• Appropriate management authority
• Budgeting process gives due consideration to
  tribunals need for staff, facilities and finance

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Conclusions (1)

• Strong Canadian consensus favouring adjudicative
  independence
• Growing but uneven view that institutional
  independence should be strengthened
• Growing but uneven recognition of value of
  administrative autonomy
• Some recognition of value of independent
  policy-making

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Conclusions (2)

• Common law rules provide reasonable protection
  for adjudicative autonomy
• Limited role for judges in strengthening
  guarantees of institutional independence
• Some recognition of value of taking an integrated
  approach to independence
• Role of legislature and executive in promoting
  independence is vital but difficult to achieve