Travelling in Constitutional Circles: The Paradox of Tribunal Independence

Abstract

Since the Supreme Court of Canada’s decision in Matsqui Indian Band courts called upon to assess the fairness of administrative tribunal procedures, or their compliance with fundamental justice, have had to determine whether the tribunal is sufficiently “independent”. The test to be applied for this purpose is derived from that which is employed to preserve the independence of judges: security of tenure, financial security and administrative independence. These factors are applied to administrative tribunals on a spectrum, depending on the nature of the tribunal, its procedures and the issues with which the tribunal deals. However, the point of the test for judicial independence is to determine if the judges are independent from the executive branch of government. We know from the Supreme Court’s decision in Ocean Port Hotel that administrative tribunals form part of the executive branch. Applying this analysis to such tribunals therefore produces a paradox, one that is not overcome by its “spectrum” application. This paradox becomes evident if we follow the four circles of reasoning that courts travel when faced with an allegation that a particular tribunal needs to be independent like a court: the common law circle, the constitutional constraints circle, the quasi-constitutional constraints circle and the unwritten constitutional principles circle. In all four cases the court must begin with the proposition that the tribunal at issue is part of the executive, not the judicial, branch of government but must then go on to apply factors that determine whether the tribunal is sufficiently independent of the executive. This circular line of reasoning, while it has some advantages, produces problems that resonate in both administrative and constitutional law. Possibly as a result the test, while referred to, is seldom actually applied by courts. It is argued here that there is an alternative to assessing an administrative tribunal’s “independence” from its home branch of government. Such an approach would focus, not on independence from the executive branch as a whole, but on whether the tribunal can be said to be free of dependence on the government entity who is actually a party to the tribunal’s proceedings. The aim would be to achieve fair tribunal procedures while preserving the democratic accountability required for a portion of the executive branch, thereby advancing both fundamental justice and public confidence in tribunal decision-making.