ADMINISTRATIVE JUSTICE - Human & Constitutional Rights

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ADMINISTRATIVE JUSTICE
NAMIBIA: ..................................................................................................................................................... 2
Right to a public hearing ............................................................................................................................ 2
Vaatz v Law Society of Namibia 1990 NR 332 ..................................................................................... 2
EUROPEAN COMMUNITY ......................................................................................................................... 2
Evelyne Delauche v Commission of European Communities 111/86: ................................................... 3
Emma Mollet v Commission of the European Communities Case 75/77: ............................................. 3
CALOGERO DIANA v. ITALY (56/1995/562/648) 15 November 1996: monitoring of prisoner's
correspondence; interference by a public authority; Possibility of recourse to administrative courts;
effective remedy. .................................................................................................................................... 3
MAUER v. AUSTRIA (79/1995/585/671 & 80/1995/586/672) 18 February 1997: administrative
criminal proceedings for traffic offences; fair and public hearing .......................................................... 6
FINDLAY v. THE UNITED KINGDOM (110/1995/616/706) 25 February 1997: independence and
impartiality of court-martial; Convening officer central to prosecution and closely linked to
prosecuting authorities ............................................................................................................................ 7
MANTOVANELLI v. FRANCE (8/1996/627/810) 18 March 1997: expert medical report ordered by
an administrative court not prepared in accordance with adversarial principle .....................................11
DE HAAN v. THE NETHERLANDS (84/1996/673/895) 26 August 1997: Tribunal called upon to
decide on an objection against a decision for which he himself is responsible .....................................12
HELLE v. FINLAND (157/1996/776/977) 19 December 1997: applicant’s right to an oral hearing
before an independent and impartial tribunal; failure to state reasons...................................................13
ALLAN JACOBSSON v. SWEDEN (No. 2) (8/1997/792/993) 19 February 1998: refusal by
Supreme Administrative Court to hold an oral hearing ........................................................................14
GAUTRIN AND OTHERS v. FRANCE (38/1997/822/1025-1028) 20 May 1998: – no public
hearing before Île-de-France Regional Council and disciplinary section of National and lack of
impartiality of those bodies ...................................................................................................................16
I. ARTICLE 6 § 1 OF THE CONVENTION ........................................................................................16
Canada ...........................................................................................................................................................19
Canada (Attorney General) v. Canada (Commission of Inquiry on the Blood System) [1997] 3
S.C.R. 440: Whether Commission had jurisdiction to make findings of misconduct ............................19
Mooring v. Canada (National Parole Board) [1996] 1 S.C.R. 75: -- Parole Board revoking
accused's statutory release partly on basis of evidence gathered in manner that may have been
unconstitutional .....................................................................................................................................21
Cooper v. Canada (Human Rights Commission) [1996] 3 S.C.R. 854: Commissions and tribunals
-- Right to decide issues of law, including constitutional issues ...........................................................24
Québec Inc. v. Quebec (Régie des permis d'alcool) [1996] 3 S.C.R. 919: Fair hearing by
independent tribunal -- Administrative tribunals -- Régie des permis d'alcool -- Cancellation of liquor
permits on account of disturbance of public tranquility ........................................................................30
Canadian Pacific Ltd. v. Matsqui Indian Band [1995] 1 S.C.R. 3: Adequacy of tribunal -- Issue of
jurisdiction -- Tribunals set up by First Nations bands to consider issue of assessment for lands located
within reserve -- Whether tribunals meeting criteria of independent judiciary .....................................35
Pezim v. British Columbia (Superintendent of Brokers) [1994] 2 S.C.R. 557: Securities
Commission -- Commission part of larger regulatory framework -- No privative clause and right of
appeal -- Appropriate standard of review of Commission's decisions ..................................................41
Dehghani v. Canada (Minister of Employment and Immigration) [1993] 1 S.C.R. 1053: Right to
counsel -- Examinations at port of entry by immigration officer -- Convention refugee claimants ......45
R. v. Généreux [1992] 1 S.C.R. 259: Courts martial -- Member of Canadian Armed Forces tried by
General Court Martial on narcotics and desertion charges --Independent and impartial tribunal ........46
Just administrative action
33. (1) Everyone has the right to administrative action that is lawful, reasonable and procedurally
fair.
(2) Everyone whose rights have been adversely affected by administrative action has the right to
be given written reasons.
(3) National legislation must be enacted to give effect to these rights, and must a. provide for the review of administrative action by a court or, where appropriate, an
independent and impartial tribunal;
b. impose a duty on the state to give effect to the rights in subsections (1) and (2); and
c. promote an efficient administration.
NAMIBIA:
Right to a public hearing
Vaatz v Law Society of Namibia 1990 NR 332
Levy J:
Objection to in camera disciplinary hearing on grounds of citizen’s right to freedom
of speech and art 12 (relating to criminal and civil proceedings).
Held that the disciplinary proceedings did not constitute an infringement of a
citizen’s right to freedom of speech and further that as the proceedings were neither
criminal nor civil in nature they did not fall within the ambit of art 12 of the Bill of
Fundamental Rights.
EUROPEAN COMMUNITY
Article 6
1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is
entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal
established by law. Judgment shall be pronounced publicly but the press and public may be excluded from
all or part of the trial in the interests of morals, public order or national security in a democratic society,
where the interests of juveniles or the protection of the private life of the parties so require, or to the extent
strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the
interests of justice.
Article 13
Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective
remedy before a national authority notwithstanding that the violation has been committed by persons acting
in an official capacity.
2
Evelyne Delauche v Commission of European Communities 111/86:
Officials-promotion-obligation to give reasons-discretion of administration-judicial
review.
Emma Mollet v Commission of the European Communities Case 75/77:
Recruitment: refusal on grounds of physical unfitness: statement of reasons: professional
secrecy. Prejudice to interests of individual. Obligation on the administration to give
person concerned opportunity to express his point of view.
The above 2 European cases require elaboration.
CALOGERO DIANA v. ITALY (56/1995/562/648) 15 November 1996: monitoring
of prisoner's correspondence; interference by a public authority; Possibility of
recourse to administrative courts; effective remedy.
SUMMARY
Italy - monitoring of prisoner's correspondence, including with his lawyer, and relevant
remedies
II. Article 8 of the Convention
Not contested that there had been "interference by a public authority" with exercise of
applicant's right to respect for his correspondence.
A. "In accordance with the law"
Recapitulation of Court's case-law. In the instant case Law no. 354 of 26 July 1975 left
the authorities too much latitude, in particular going no further than identifying the
category of persons whose correspondence could be censored and the competent court. It
did not indicate with reasonable clarity the scope and manner of exercise of the relevant
discretion conferred on the public authorities, so that the applicant had not enjoyed the
minimum degree of protection to which citizens were entitled under the rule of law in a
democratic society.
Conclusion: violation (unanimously).
IV. Article 13 of the Convention
Application to judge responsible for execution of sentences: could not be regarded as an
effective remedy for the purposes of Article 13.
Allegedly judicial character of the decisions whereby monitoring of the correspondence
was ordered, stemming from nature of authority empowered to take them: did not stand
up to scrutiny either.
Possibility of recourse to administrative courts to challenge measures in question: Court
of Cassation had held that Italian law did not provide any remedies in respect of the
disputed decisions, and no Regional Administrative Court appeared to have delivered a
judgment on the subject.
Conclusion: dismissal, after examination of merits, of the Government's preliminary
objection and violation (unanimously).
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I. Circumstances of the case
7. On 11 September 1970 Mr Diana was arrested on suspicion of having taken part in the
activities of the terrorist organisation known as the "Red Brigades" and immediately
taken into custody. He was convicted on eleven occasions between February 1971 and
January 1987, the heaviest sentences he received being those imposed in the Novara
Assize Court on 5 February 1981 (twenty-seven years' imprisonment and a fine of
200,000 Italian lire) and by the Milan Assize Court of Appeal on 28 November 1985 (life
imprisonment).
Since 11 September 1970 the applicant, pursuant to an aggregation of sentences ordered
on 17 June 1992 by the Principal Public Prosecutor of Cagliari, has been serving the
sentence of life imprisonment and has at the same time been, among other things,
permanently disqualified from holding public office, stripped of his civic rights for the
duration of his prison sentence and removed from parental control.
PROCEEDINGS BEFORE THE COMMISSION
22. Mr Diana applied to the Commission on 30 May 1989. He complained that (1) there
had been infringements of his right to respect for his correspondence (Article 8 of the
Convention); (2) there had been a breach of his right to defend himself and to have all
necessary facilities for the preparation of his defence (Article 6 § 3 (b)); (3) he had not
obtained a decision by an impartial tribunal on his application to have the censorship of
his correspondence ended (Article 6 § 1); and (4) there were no effective remedies in
respect of the alleged breaches of the Convention (Article 13).
23. On 5 July 1994 the Commission declared the second and fourth complaints
admissible and also the first one in so far as it concerned the monitoring of the applicant's
correspondence with his lawyer pursuant to the decisions taken by the Macerata judge
responsible for the execution of sentences (see paragraph 10 above); on the other hand, it
declared the third complaint and the remainder of the first one inadmissible. In its report
of 28 February 1995 (Article 31), it expressed the unanimous opinion that there had been
a breach of Article 8, that the complaint relating to the rights of the defence raised no
separate issue under Article 6 § 3 and that there had been a breach of Article 13.
AS TO THE LAW
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
26. The applicant submitted that the inspection of the letters in question had
infringed Article 8 of the Convention, which provides:
"1. Everyone has the right to respect for ... his correspondence.
2. There shall be no interference by a public authority with the exercise of this
right except such as is in accordance with the law and is necessary in a democratic
society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of
health or morals, or for the protection of the rights and freedoms of others."
27. The Government disputed that contention, whereas the Commission accepted it.
28. There was, quite obviously, "interference by a public authority" with the exercise of
the applicant's right, guaranteed in paragraph 1 of Article 8, to respect for his
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correspondence - in this instance, with his lawyer; and that was not contested. Such an
interference will contravene Article 8 unless it is "in accordance with the law", pursues
one or more of the legitimate aims referred to in paragraph 2 and, furthermore, is
"necessary in a democratic society" in order to achieve them (see the following
judgments: Silver and Others v. the United Kingdom, 25 March 1983, Series A no. 61, p.
32, § 84; Kruslin v. France, 24 April 1990, Series A no. 176-A, p. 20, § 26; Huvig v.
France, 24 April 1990, Series A no. 176-B, p. 52, § 25; and Campbell v. the United
Kingdom, 25 March 1992, Series A no. 233, p. 16, § 34).
A. "In accordance with the law"
29. The Government submitted that section 18 of Law no. 354 of 26 July 1975 ("Law no.
354"), which provides for the possibility of monitoring prisoners' correspondence, was in
conformity with the Court's case-law; the power to order such a measure was vested in
the judiciary - which was independent and impartial - and there was a specific obligation
to give reasons for the decision, so that arbitrariness was excluded.
30. The applicant rejected that argument, maintaining that while it was true that the
censorship of correspondence was in accordance with domestic law, the provision in
question did not specify the circumstances in which it could be ordered or within what
limits.
31. The Commission, even though it doubted that the wording of Law no. 354 satisfied
the requirements of paragraph 2 of Article 8 of the Convention, did not consider it
necessary to determine the issue in its report as at all events the disputed measures were,
in its opinion, contrary to Article 8 in other respects.
32. The Court reiterates that while a law which confers a discretion must indicate the
scope of that discretion, it is impossible to attain absolute certainty in the framing of the
law, and the likely outcome of any search for certainty would be excessive rigidity (see,
among many other authorities, the Silver and Others judgment previously cited, p. 33, §
88). In this instance, however, Law no. 354 leaves the authorities too much latitude. In
particular, it goes no further than identifying the category of persons whose
correspondence may be censored and the competent court, without saying anything about
the length of the measure or the reasons that may warrant it. The gaps in section 18 of the
Law weigh in favour of rejecting the Government's argument.
33. In sum, the Italian law does not indicate with reasonable clarity the scope and manner
of exercise of the relevant discretion conferred on the public authorities, so that Mr Diana
did not enjoy the minimum degree of protection to which citizens are entitled under the
rule of law in a democratic society (see the Kruslin judgment previously cited, pp. 24 and
25, § 36). There has therefore been a breach of Article 8.
IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
39. The applicant complained that in Italian law there was no effective remedy in respect
of the decisions whereby the judge responsible for the execution of sentences ordered that
his correspondence should be censored. He alleged a breach of Article 13 of the
Convention, which provides:
"Everyone whose rights and freedoms as set forth in [the] Convention are violated
shall have an effective remedy before a national authority notwithstanding that the
violation has been committed by persons acting in an official capacity."
40. The Government considered that this complaint was unfounded. They relied, in the
first instance, on the fact that it was possible to apply to the judge responsible for the
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execution of sentences to reconsider his decision and they drew attention to the judicial
nature of the censorship measure provided for in section 18 of Law no. 354, under which
the power to order censorship of a prisoner's correspondence was reserved to the
judiciary. In removing such a sensitive area from the competence of the administrative
authorities, the Italian legislature's purpose had been to provide the safeguards of
independence and impartiality. The Commission's unduly formal approach to the subject
of the effectiveness of the right guaranteed by Article 13, which did not require the
"national authority" to belong to the judiciary, misunderstood the import of the Law in
question.
If that argument was not accepted, the censorship measure had to be classified as an
"administrative decision taken by" the judge responsible for the execution of sentences
"in performance of duties inherent in the supervision of prisons". By interpreting the
case-law of the Court of Cassation, which ruled out any appeal on points of law or to a
criminal judicial authority other than the judge responsible for the execution of sentences,
the Government maintained that it was possible to have recourse to the Regional
Administrative Courts to challenge the measures in question.
41. In the Court's estimation, the possibility of applying to the judge responsible for the
execution of sentences cannot be regarded as an effective remedy for the purposes of
Article 13, as he is required to reconsider the merits of his own decision, taken moreover
without any adversarial proceedings.
The allegedly judicial nature of the disputed decisions, stemming from the nature of the
authority empowered to take them, does not stand up to scrutiny either. The judge
responsible for the execution of sentences at Macerata, in reply to an application from Mr
Diana's lawyer for the censorship order to be rescinded, considered it necessary to submit
a question concerning the interpretation of Law no. 354 to the Prison Service - an
administrative authority, therefore - relating to whether the monitoring of correspondence
between a prisoner and his lawyer was lawful (see paragraph 13 above).
As to the third submission, two points must be noted. Firstly, the Court of Cassation has
held that Italian law does not provide any remedies in respect of decisions whereby
prisoners' correspondence is ordered to be monitored. Secondly, no Regional
Administrative Court would appear hitherto to have delivered a judgment on the subject.
The Court accordingly dismisses the Government's preliminary objection and holds that
there has been a breach of Article 13.
MAUER v. AUSTRIA (79/1995/585/671 & 80/1995/586/672) 18 February 1997:
administrative criminal proceedings for traffic offences; fair and public hearing
Austria - administrative criminal proceedings for traffic offences
II. ALLEGED VIOLATION OF ARTICLE 6 §§ 1, 3 (c) AND 3 (d) OF THE
CONVENTION
29. With regard to the first set of proceedings, the applicant alleged that he had not had a
fair and public hearing before a tribunal and had not been allowed to defend himself in
person. He alleged a violation of Article 6 §§ 1 and 3 (c) of the Convention in this
respect.
6
With regard to the second set of proceedings, he claimed that contrary to Article 6 §§ 1
and 3 (d) he had not had a fair hearing and that witnesses whom he had sought to bring
forward had not been heard.
Article 6 of the Convention, in so far as relevant, provides as follows:
"1. In the determination of ... any criminal charge against him, everyone is
entitled to a fair ... hearing ... by [a] tribunal ...
3. Everyone charged with a criminal offence has the following minimum rights:
(c) to defend himself in person or through legal assistance of his own choosing or,
if he has not sufficient means to pay for legal assistance, to be given it free when
the interests of justice so require;
(d) to examine or have examined witnesses against him and to obtain the
attendance and examination of witnesses on his behalf under the same conditions
as witnesses against him;
The Commission considered that Article 6 had been violated. The Government did not
contest this.
30. The Government acknowledged that the substantive issues under Article 6 of the
Convention raised by the present cases were the same as in the cases of Schmautzer,
Umlauft, Gradinger, Pramstaller, Palaoro and Pfarrmeier v. Austria (judgments of 23
October 1995, Series A nos. 328 A-C and 329 A-C) and should be decided in the same
way for the reasons set out in those judgments.
31. In each of the six earlier cases, the Court found that there had been a violation of the
applicant's right to "access to a tribunal" and, in view of that finding, considered it
unnecessary to rule specifically on the applicant's other complaints under Article 6.
There is no reason to follow a different approach in the present case.
Accordingly, the Court finds that there has been a violation of Article 6 § 1 in each set of
proceedings.
FINDLAY v. THE UNITED KINGDOM (110/1995/616/706) 25 February 1997:
independence and impartiality of court-martial; Convening officer central to
prosecution and closely linked to prosecuting authorities
SUMMARY
United Kingdom - independence and impartiality of court-martial (Army Act 1955)
II. Article 6 § 1 of the Convention
A. Applicability
Article 6 § 1 clearly applicable since proceedings involved determination of sentence
following guilty plea.
B. Compliance
Convening officer central to prosecution and closely linked to prosecuting authorities inter alia he decided which charges should be brought, convened court-martial, appointed
members and prosecuting and defending oficers.
7
Members of court-martial were all military personnel subordinate in rank to convening
officer who, as confirming officer, could vary sentence imposed.
Defects could not be corrected by subsequent review proceedings since applicant entitled
to first instance tribunal meeting requirements of Article 6 § 1.
Conclusion: violation (unanimous)
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
68. The applicant claimed that his trial by court-martial failed to meet the requirements of
Article 6 § 1 of the Convention, which provides (so far as is relevant):
"In the determination of ... any criminal charge against him, everyone is entitled
to a fair and public hearing ... by an independent and impartial tribunal established
by law. ..."
The Commission found that there had been a violation, in that the applicant was not given
a fair hearing by an independent and impartial tribunal, and the Government did not
contest this conclusion.
A. Applicability
69. In the view of the Court, Article 6 § 1 is clearly applicable to the court-martial
proceedings, since they involved the determination of Mr Findlay's sentence following
his plea of guilty to criminal charges; indeed, this point was not disputed before it (see
the Engel v. the Netherlands judgment of 18 June 1976, Series A no. 22, pp. 33-36, §§
80-85, and the Eckle and Others v. Germany judgment of 15 July 1982, Series A no. 51,
pp. 34-35, §§ 76-77).
B. Compliance
70. The applicant complained that the court-martial was not an "independent and
impartial tribunal" as required by Article 6 § 1, because inter alia all the officers
appointed to it were directly subordinate to the convening officer who also performed the
role of prosecuting authority (see paragraphs 14-17 and 36-41 above). The lack of legal
qualification or experience in the officers making the decisions either at the court-martial
or review stages made it impossible for them to act in an independent or impartial
manner.
In addition, he asserted that he was not afforded a "public hearing" within the meaning of
Article 6 § 1, in that the judge advocate's advice to the court-martial board, the
confirming officer and the reviewing authorities was confidential; no reasons were given
for the decisions made at any of these stages in the proceedings; and the process of
confirming and reviewing the verdict and sentence by the confirming officer and
reviewing authorities was carried out administratively, in private, with no apparent rules
of procedure (see paragraphs 42-46 and 48-51 above).
Finally, he claimed that his court-martial was not a tribunal "established by law", because
the statutory framework according to which it proceeded was too vague and imprecise;
for example, it was silent on the question of how the convening officer, confirming
officer and reviewing authorities were to be appointed.
71. The Government had no observations to make upon the Commission's conclusion that
there had been a violation of Article 6 § 1 of the Convention by reason of the width of the
role of the convening officer and his command links with members of the tribunal. They
asked the Court to take note of the changes to the court-martial system to be effected by
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the Armed Forces Act 1996 which, in their submission, more than satisfactorily met the
Commission's concerns.
72. The Commission found that although the convening officer played a central role in
the prosecution of the case, all of the members of the court-martial board were
subordinate in rank to him and under his overall command. He also acted as confirming
officer, and the court-martial's findings had no effect until confirmed by him. These
circumstances gave serious cause to doubt the independence of the tribunal from the
prosecuting authority. The judge advocate's involvement was not sufficient to dispel this
doubt, since he was not a member of the court-martial, did not take part in its
deliberations and gave his advice on sentencing in private.
In addition, it noted that Mr Findlay's court-martial board contained no judicial members,
no legally-qualified members and no civilians, that it was set up on an ad hoc basis and
that the convening officer had the power to dissolve it either before or during the trial.
The requirement to take an oath was not a sufficient guarantee of independence.
Accordingly, it considered that the applicant's fears about the independence of the courtmartial could be regarded as objectively justified, particularly in view of the nature and
extent of the convening officer's roles, the composition of the court-martial and its ad hoc
nature. This defect was not, moreover, remedied by any subsequent review by a judicial
body affording all the guarantees required by Article 6 § 1, since the confirming officer
was the same person as the convening officer, and the reviewing authorities were army
officers, the second of whom was superior in rank to the first. The ineffectiveness of the
post-hearing reviews was further underlined by the secrecy surrounding them and the
lack of opportunity for Mr Findlay to participate in a meaningful way.
73. The Court recalls that in order to establish whether a tribunal can be considered as
"independent", regard must be had inter alia to the manner of appointment of its
members and their term of office, the existence of guarantees against outside pressures
and the question whether the body presents an appearance of independence (see the
Bryan v. the United Kingdom judgment of 22 November 1995, Series A no. 335-A, p. 15,
§ 37.
As to the question of "impartiality", there are two aspects to this requirement. First, the
tribunal must be subjectively free of personal prejudice or bias. Secondly, it must also be
impartial from an objective viewpoint, that is, it must offer sufficient guarantees to
exclude any legitimate doubt in this respect (see the Pullar v. the United Kingdom
judgment of 10 June 1996, Reports of Judgments and Decisions-1996, p. ..., § 30).
The concepts of independence and objective impartiality are closely linked and the Court
will consider them together as they relate to the present case.
74. The Court observes that the convening officer, as was his responsibility under the
rules applicable at the time, played a significant role before the hearing of Mr Findlay's
case. He decided which charges should be brought and which type of court-martial was
most appropriate. He convened the court-martial and appointed its members and the
prosecuting and defending officers (see paragraphs 14-15 and 36-37 above).
Under the rules then in force, he had the task of sending an abstract of the evidence to the
prosecuting officer and the judge advocate and could indicate passages which might be
inadmissible. He procured the attendance at trial of the witnesses for the prosecution and
those "reasonably requested" by the defence. His agreement was necessary before the
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prosecuting officer could accept a plea to a lesser charge from an accused and was
usually sought before charges were withdrawn (see paragraphs 38 and 39 above).
For these reasons the Court, like the Commission, considers that the convening officer
was central to Mr Findlay's prosecution and closely linked to the prosecuting authorities.
75. The question therefore arises whether the members of the court-martial were
sufficiently independent of the convening officer and whether the organisation of the trial
offered adequate guarantees of impartiality.
In this respect also the Court shares the concerns of the Commission. It is noteworthy that
all the members of the court-martial, appointed by the convening officer, were
subordinate in rank to him. Many of them, including the President, were directly or
ultimately under his command (see paragraph 16 above). Furthermore, the convening
officer had the power, albeit in prescribed circumstances, to dissolve the court-martial
either before or during the trial (see paragraph 40 above).
76. In order to maintain confidence in the independence and impartiality of the court,
appearances may be of importance. Since all the members of the court-martial which
decided Mr Findlay's case were subordinate in rank to the convening officer and fell
within his chain of command, Mr Findlay's doubts about the tribunal's independence and
impartiality could be objectively justified (see, mutatis mutandis, the Sramek v. Austria
judgment of 22 October 1984, Series A no. 84, p. 20, § 42).
77. In addition, the Court finds it significant that the convening officer also acted as
"confirming officer". Thus, the decision of the court-martial was not effective until
ratified by him, and he had the power to vary the sentence imposed as he saw fit (see
paragraph 48 above). This is contrary to the well-established principle that the power to
give a binding decision which may not be altered by a non-judicial authority is inherent
in the very notion of "tribunal" and can also be seen as a component of the
"independence" required by Article 6 § 1 (see, mutatis mutandis, the Van de Hurk v. the
Netherlands judgment of 19 April 1994, Series A no. 288, p. 16, § 45).
78. The Court further agrees with the Commission that these fundamental flaws in the
court-martial system were not remedied by the presence of safeguards, such as the
involvement of the judge advocate, who was not himself a member of the tribunal and
whose advice to it was not made public (see paragraphs 45-46 above), or the oath taken
by the members of the court-martial board (see paragraph 35 above).
79. Nor could the defects referred to above (in paragraphs 75 and 77) be corrected by any
subsequent review proceedings. Since the applicant's hearing was concerned with serious
charges classified as "criminal" under both domestic and Convention law, he was entitled
to a first instance tribunal which fully met the requirements of Article 6 § 1 (see the De
Cubber v. Belgium judgment of 26 October 1984, Series A no. 86, pp. 16-18, §§ 31-32).
80. For all these reasons, and in particular the central role played by the convening officer
in the organisation of the court-martial, the Court considers that Mr Findlay's misgivings
about the independence and impartiality of the tribunal which dealt with his case were
objectively justified.
In view of the above, it is not necessary for it to consider the applicant's other complaints
under Article 6 § 1, namely that he was not afforded a "public hearing" by a tribunal
"established by law".
In conclusion, there has been a violation of Article 6 § 1 of the Convention.
10
MANTOVANELLI v. FRANCE (8/1996/627/810) 18 March 1997: expert medical
report ordered by an administrative court not prepared in accordance with
adversarial principle
France - expert medical report ordered by an administrative court not prepared in
accordance with adversarial principle (Article R. 123 - now Article R. 164 - of
Administrative Courts and Administrative Courts of Appeal Code)
Background
8. On 27 January 1981 the applicants' daughter, Jocelyne Mantovanelli, who was then 20,
was admitted to the Nancy Orthopaedic and Accident and Emergency Clinic for an
operation on a whitlow on her left thumb.
On the same day, she was transferred to the surgical ward of the Jeanne d'Arc Hospital
(Nancy Regional Hospital Centre - "CHRN") at Dommartin-lès-Toul, where she had a
second operation the next day. For a year she received periodical treatment there and
underwent surgery seven times in the form of repeat operations and skin grafts, and an
arterio-vascular examination.
Owing to an infection discovered in February 1982, Miss Mantovanelli was operated on
again and a week later the second phalanx of her thumb was removed.
9. On 13 March 1982, having contracted jaundice, Miss Mantovanelli was transferred to
the gastroenterology department of Brabois Hospital (CHRN) at Vandœuvre-lès-Nancy.
Her condition deteriorated and she fell into a hepatic coma. On 27 March she was
transferred to the department for infectious diseases and neuro-respiratory intensive care,
where she died two days later.
10. The surgical operations referred to above and the arterio-vascular examination Miss
Mantovanelli underwent were carried out under a general anaesthetic. On each occasion a
varying combination of seven different drugs was used which always included halothane.
B. The proceedings in the administrative courts
11. Mr and Mrs Mantovanelli were convinced that their daughter's death had been caused
by excessive administration of halothane and applied to the administrative courts for a
ruling that the CHRN was liable for her death.
I. Article 6 § 1 of the Convention
Compliance with adversarial principle, just like observance of the other procedural
safeguards enshrined in Article 6 § 1, relates to proceedings in a "tribunal" - no general,
abstract principle that where an expert has been appointed by a court, parties must in all
instances be able to attend interviews held by him or to be shown documents he has taken
into account.
Convention does not lay down rules on evidence - Court cannot exclude as a matter of
principle and in the abstract that evidence obtained in breach of provisions of domestic
law may be admitted but has to ascertain whether proceedings considered as a whole
were fair.
In the instant case the "purely judicial" proceedings had complied with adversarial
principle - however, Court not convinced that applicants had been afforded a real
opportunity to comment effectively on expert report - question expert had been instructed
to answer pertained to a technical field and was identical with the one that the court had
11
to determine - expert's report likely to have a preponderant influence on court's
assessment of the facts.
Applicants could only have expressed their views effectively before expert report had
been lodged - no practical difficulty had stood in way of their being associated in process
of producing report -applicants had been prevented from cross-examining the people
interviewed by expert, who could legitimately have been expected to give evidence along
same lines as opposing side in proceedings - applicants had only become aware of
documents taken into consideration by expert once report had been completed and
transmitted - they had thus been deprived of opportunity to comment effectively on main
piece of evidence.
Conclusion: violation (five votes to four).
DE HAAN v. THE NETHERLANDS (84/1996/673/895) 26 August 1997: Tribunal
called upon to decide on an objection against a decision for which he himself is
responsible
The Netherlands - impartiality of a judge presiding over a Chamber of the Appeals
Tribunal called upon to decide on an objection against a decision for which he himself is
responsible (sections 141 and 142 of the Appeals Act)
I. ARTICLE 6 OF THE CONVENTION
B. Compliance with Article 6 § 1
The sole responsibility for taking the decision falls to the President (or Acting President)
of the Appeals Board, even when - as in the instant case - he does no more than ratify the
opinion of the permanent medical expert.
Permanent-medical-expert procedure is not comparable to criminal proceedings in
absentia in which the accused is neither present nor represented - applicant was actively
involved in the establishment of the expert's opinion which was to be the basis of the
Acting President's decision.
In the present case, unlike in the Feldbrugge case, it is undisputed that the applicant had
unlimited access to the Appeals Tribunal - it must accordingly be decided whether that
tribunal offered the guarantees required by Article 6 § 1, in particular that of
"impartiality".
Reiteration of Court's case-law on concept of "impartial" tribunal.
Subjective test: nothing to indicate any prejudice or bias on the part of Judge S.
Objective test: decisive feature of the case is that Judge S. presided over a tribunal called
upon to decide on an objection against a decision for which he himself was responsible also significant that the tribunal was composed of a professional judge assisted by two lay
judges - no intervening decision by a higher body - applicant's fears in this regard
objectively justified.
Scope of review of the Central Appeals Tribunal insufficient to make up for the failings
of the procedure before the Appeals Tribunal - possibility exists that a higher or the
highest tribunal may, in some circumstances, make reparation for an initial violation of
one of the Convention's provisions - the Central Appeals Tribunal had the power to quash
the decision appealed against on the ground that the composition of the Appeals Tribunal
had not been such as to guarantee its impartiality and to refer the case back to the
12
Appeals Tribunal for rehearing if necessary - it declined to do so and, as a consequence,
did not cure the failing in question.
Conclusion: violation (6 votes to 3).
HELLE v. FINLAND (157/1996/776/977) 19 December 1997: applicant’s right to
an oral hearing before an independent and impartial tribunal; failure to state
reasons
Finland – consequences of respondent State’s reservation on applicant’s right to an oral
hearing before an independent and impartial tribunal and whether the domestic
proceedings were unfair on account of domestic courts’ alleged failure to state reasons
for their decisions and/or to respect equality of arms principle
I. ARTICLE 6 § 1 OF THE CONVENTION
B. Compliance
1. Absence of oral hearing before independent and impartial tribunal
Supreme Administrative Court was an independent and impartial tribunal with full
appellate jurisdiction to review decisions of Cathedral Chapter and had discretion to
organise an oral procedure - that Cathedral Chapter’s decisions were subject to control of
a court satisfying requirements of Article 6 § 1 is sufficient for the purposes of
compliance with that provision.
Admittedly Finland’s reservation had excluded a right to an oral hearing before Supreme
Administrative Court – nevertheless, that reservation complied with substantive and
procedural requirements of Article 64 of Convention - that applicant did not obtain an
oral hearing at any stage of domestic proceedings must be seen as a consequence of the
operation of a valid reservation - result not therefore incompatible with the Convention.
Conclusion: no violation (unanimously).
2. Alleged unfairness of domestic proceedings
Applicant cannot maintain that there was a breach of "equality of arms" - he availed
himself of possibility to comment on opinions submitted by Cathedral Chapter to
Supreme Administrative Court in both appeal proceedings.
Whether succinctness of reasons given by Supreme Administrative Court for rejecting
applicant’s two appeals complied with Article 6 § 1 requirements to be determined in
light of all circumstances of case - Supreme Administrative Court incorporated in its two
decisions reasons given by Cathedral Chapter and appended latter’s decisions to its own
rulings - Cathedral Chapter had given due consideration to applicant’s arguments on (1)
13
his employment status and (2) level of compensation to which entitled - by incorporating
reasons of Cathedral Chapter to reject applicant’s arguments, Supreme Administrative
Court indicated that it had no reasons of its own to depart from decisions of Cathedral
Chapter and that applicant had not adduced any new arguments - Supreme Administrative
Court had addressed essence of applicant’s arguments and did not merely rubber-stamp
decisions of Cathedral Chapter.
Conclusion: no violation (unanimously).
ALLAN JACOBSSON v. SWEDEN (No. 2) (8/1997/792/993) 19 February 1998:
refusal by Supreme Administrative Court to hold an oral hearing
Sweden - refusal by Supreme Administrative Court to hold an oral hearing (section 1 of
the Act on Judicial Review of Certain Administrative Decisions 1988; section 9 of the
Administrative Procedure Act 1971)
ARTICLE 6 § 1 OF THE CONVENTION
A. Applicability
Dispute was a serious and genuine one and outcome of the proceedings was directly
decisive for the civil rights claimed by applicant.
Conclusion: Article 6 § 1 applicable (unanimously).
B. Compliance
According to Court's case-law, in proceedings before a court of first and only instance the
right to a "public hearing" under Article 6 § 1 entailed an entitlement to an "oral hearing"
unless there were exceptional circumstances that justified dispensing with such a hearing
- evidence in case under consideration did not show that applicant’s submissions to
Supreme Administrative Court were capable of raising any issue of fact or of law
pertaining to his building rights which was of such a nature as to require an oral hearing
for their disposition - on the contrary, given limited nature of issues to be determined by
it, Supreme Administrative Court, although it acted as first and only judicial instance in
case, was dispensed from its normal obligation under Article 6 § 1 to hold an oral
hearing.
Conclusion: no violation (unanimously).
44. In the view of the Commission, the Supreme Administrative Court, although it was
the only judicial instance that had acted in the proceedings in issue, had not been under
an obligation to hold an oral hearing. The applicant’s main request to the court, to be
granted a building permit, was dismissed because of lack of competence. The only issue
to be determined on its merits was whether the public authorities had been entitled to
revoke the detailed development plan concerned and the court concluded that they had
been empowered to do so irrespective of the rights that might have accrued during the
plan’s existence. The particular facts pertaining to the applicant’s situation were therefore
of no importance. His appeal had not raised any question of fact or of law that could not
have been adequately dealt with on the case-file. There had therefore been no violation of
Article 6 § 1 of the Convention.
45. The Government, mainly agreeing with the Commission, stressed that the essence of
the matter examined by the Supreme Administrative Court was whether the decision to
14
annul the detailed development plan was contrary to the law. The relevant law had been
clear and the facts undisputed, leaving little scope for judicial discretion. In addition, the
outcome of the proceedings could hardly be said to have been important to the applicant.
Extending the right to an oral hearing to cases such as the present one might have severe
consequences for the expediency and efficiency of the administration of justice, in
particular before the appellate courts where the workload is considerable. There were
thus strong reasons justifying the refusal to hold a hearing.
46. The Court recalls that, according to its case-law, in proceedings, as here, before a
court of first and only instance the right to a "public hearing" under Article 6 § 1 entails
an entitlement to an "oral hearing" unless there are exceptional circumstances that justify
dispensing with such a hearing (see, for instance, the Fredin v. Sweden (No. 2) judgment
of 23 February 1994, Series A no, 283-A, pp. 10-11, §§ 21-22; the Fischer v. Austria
judgment of 26 April 1995, Series A no. 312, pp. 20-21, § 44; and the Stallinger and
Kuso v. Austria judgment of 23 April 1997, Reports of Judgments and Decisions 1997-II,
p. 679-680, § 51).
47. As to the particular circumstances of the proceedings in the applicant’s case, the
Court notes that the Supreme Administrative Court did not consider that it had
jurisdiction to deal with his request to be granted a building permit. It only had
competence to deal with a collateral issue, namely the lawfulness of the revocation of the
detailed development plan of 1938.
48. In rejecting the appeal on this point, the Supreme Administrative Court based its
reasoning on a direct application of the pertinent provisions in Chapter 17, section 4 and
Chapter 5, section 11 of the 1987 Act which were couched in precise and clear terms (see
paragraphs 24 and 26 above). It held that, under these provisions, the plan in question
was to be considered as one whose implementation period had expired and could thus be
amended or annulled without regard to the rights that may have accrued during its
existence. Moreover, this provision was an exception to the general requirement in
Chapter 1, section 5, that when taking planning decisions the authorities must have regard
to individual interests, not only public interests (ibidem). Since the Supreme
Administrative Court adopted this interpretation of the law, it did not need to determine
any issue of fact as to the applicant’s individual interests or, so it appears, any other
factual point concerning his arguments against the revocation of the detailed development
plan (see paragraph 23 above).
49. Thus, in view of the above considerations, the Court does not find on the evidence
before it that the applicant’s submissions to the Supreme Administrative Court were
capable of raising any issue of fact or of law pertaining to his building rights which was
of such a nature as to require an oral hearing for their disposition (cf, the abovementioned Fredin (No. 2) judgment, p. 11, § 22). On the contrary, given the limited
nature of the issues to be determined by it, the Supreme Administrative Court, although it
acted as the first and only judicial instance in the case, was dispensed from its normal
obligation under Article 6 § 1 to hold an oral hearing. Accordingly, there has been no
violation of this provision.
15
GAUTRIN AND OTHERS v. FRANCE (38/1997/822/1025-1028) 20 May 1998: –
no public hearing before Île-de-France Regional Council and disciplinary section
of National and lack of impartiality of those bodies
France – no public hearing before Île-de-France Regional Council and disciplinary
section of National Council of ordre des médecins and lack of impartiality of those bodies
I. ARTICLE 6 § 1 OF THE CONVENTION
A. Applicability
Disciplinary proceedings in which what was at stake was right to continue to practise
medicine as a private practitioner gave rise to "contestations (disputes) over ‘civil’
rights".
B. Compliance
1. Publicity
(a) Government’s preliminary objection (failure to exhaust domestic remedies)
Objection based on failure to appeal on points of law to Conseil d’État – appeal would
not have been an "adequate" and "effective" remedy in case before Court as Decree no.
48-1671 of 26 October 1948 expressly precluded holding in public hearings before
professional disciplinary bodies and it was Conseil d’État’s settled case-law that
provisions of Article 6 § 1 were inapplicable to proceedings before them.
Conclusion: objection dismissed (unanimously).
(b) Merits of complaint
Recapitulation of Court’s case-law.
It was not suggested that circumstances existed to permit dispensing with a public
hearing– fact that hearing before Conseil d’État would have been in public was
irrelevant.
Conclusion: violation (unanimously).
2. Impartiality
(a) Government’s preliminary objection (failure to exhaust domestic remedies)
(i) failure to exercise right of challenge
Remedy not "effective": complaint not of bias on part of any individual member of
disciplinary bodies in question, but of "objective" bias of those bodies; right to challenge
could only be exercised in respect of individual members, impossible to challenge all
members of the disciplinary section of the National Council of the ordre des médecins.
(ii) failure to appeal on points of law
Objection had been raised before Commission: Government not estopped.
Remedy not "adequate": if Conseil d’État had quashed decision of disciplinary section of
National Council of ordre, it would not have been bound to rule on merits of case – if it
had remitted the case, it could only have done so to same body without there being any
requirement that it be differently constituted; it would have been only after a second
appeal on points of law that Conseil d’État would have been required to decide case
finally.
Conclusion: objection dismissed (unanimously).
(b) Merits of complaint
Conferring duty of adjudicating on disciplinary offences on professional disciplinary
bodies did not in itself infringe Convention – it was nevertheless necessary that either
professional disciplinary bodies themselves complied with requirements of Article 6 § 1
16
or that they were subject to subsequent review by a judicial body that had full jurisdiction
and did provide the guarantees of that Article.
There were two tests for assessing whether a tribunal was impartial. First consisted in
seeking to determine personal conviction of a particular judge in a given case. Second –
which was only one applicable in case before Court – consisted in ascertaining whether
judge offered sufficient guarantees: Court verified whether applicants fears were
objectively justified.
There was a worrying connection between competitors of S.O.S. Médecins and
professional disciplinary bodies – composition of latter tended to justify applicants’ fears.
Conclusion: violation (unanimously).
Compliance with Article 6 § 1
(b) Merits of the complaint
(ii) The Court’s assessment
57. The Court reiterates that, even in instances where Article 6 § 1 of the Convention is
applicable, conferring the duty of adjudicating on disciplinary offences on professional
disciplinary bodies does not in itself infringe Article 6 § 1 of the Convention.
Nonetheless, in such circumstances the Convention calls for at least one of the following
two systems: either the professional disciplinary bodies themselves comply with the
requirements of that Article, or they do not so comply but are subject to subsequent
review by a judicial body that has full jurisdiction and does provide the guarantees of
Article 6 § 1 (see the Albert and Le Compte judgment cited above, p. 16, § 29).
It is therefore necessary in the present case to verify whether the Regional Council of the
Île-de-France ordre des médecins was "impartial" within the meaning of Article 6 § 1
and, if it was not, whether the disciplinary section of the National Council of the ordre
was "impartial".
58. There are two tests for assessing whether a tribunal is impartial within the meaning of
Article 6 § 1: the first consists in seeking to determine the personal conviction of a
particular judge in a given case and the second in ascertaining whether the judge offered
guarantees sufficient to exclude any legitimate doubt in this respect (see, among other
authorities, mutatis mutandis, the Saraiva de Carvalho v. Portugal judgment of 22 April
1994, Series A no. 286-B, p. 38, § 33).
The applicants, the Government and the Commission agreed that only the second of those
tests was relevant in the instant case. When applied to a body sitting as bench, it means
determining whether, quite apart from the personal conduct of any of the members of that
body, there are ascertainable facts which may raise doubts as to its impartiality. In this
respect even appearances may be of some importance. It follows that when it is being
decided whether in a given case there is a legitimate reason to fear that a particular body
lacks impartiality, the standpoint of those claiming that it is not impartial is important, but
not decisive. What is decisive is whether the fear can be held to be objectively justified
(ibid., p. 38, § 35).
59. The applicants practise medicine in the Île-de-France region and are members of
S.O.S. Médecins, an organisation which aims to provide emergency medical services on
call to patients (see paragraph 7 above). In that region, other associations, in which a
number of doctors’ unions and département councils of the ordre are involved, are also
17
active in that sector, examples being "Garde médicale de Paris", "SUR-93" and
"ASSUM-94".
The Regional Council of the Île-de-France ordre des médecins, with whom complaints
had been lodged by two doctors’ unions, and subsequently the disciplinary section of the
National Council, had to decide whether, by displaying the name "S.O.S. Médecins" on
their vehicles and prescriptions, the applicants had contravened Article 23 of the Code of
Professional Conduct prohibiting advertising (see paragraph 9 above). It is nonetheless
probable that, as the applicants maintained, the dispute was not simply an issue of
compliance with the Code of Professional Conduct, since it had arisen in the context of
competition between S.O.S. Médecins and the other associations providing "emergency
care" referred to above. The Court notes that the members of the regional council and
thirty-two of the thirty-eight members of the National Council – from among whose
members the disciplinary section is elected – are practitioners directly appointed by the
département councils (see paragraphs 17-19 above). As a result, those two bodies had a
worrying connection with the competitors of S.O.S. Médecins and it is understandable
that the applicants suspected the members of those bodies of bias.
The fact that Dr Boissin and Dr Cash and, to a lesser extent, Dr Barkatz, were members
of the regional council tends to justify the applicants’ fears as regards that body. It is
clear from the case file that Dr Boissin had in 1990, as a representative of the Paris
département Council, been on the board of "Garde médicale de Paris" and Dr Cash a
member of the Seine-Saint-Denis département council, which had been one of the
founders of "SUR-93". Dr Barkatz had been Vice-Chairman of the Seine-et-Marne
département council, whose Chairman, at the twelfth general meeting of the ordre on 28
May 1988, when referring to the use of the name "S.O.S. Médecins" had stressed "the
concern of colleagues who do not accept the discrimination against them and the
economic harm caused them by the fact that the use of a well-publicised name enabled
patients to be enticed away".
The fact that Dr Gatel, Dr Vergeylen and Dr Gilbert were on the disciplinary section of
the National Council of the ordre tends to justify the applicants’ fears as regards that
body also. Dr Gatel was General Secretary and later Chairman of the Rhône département
council of the ordre des médecins when, for infringements similar to those alleged
against the applicants, it lodged a complaint and instituted proceedings against the
Chairman of S.O.S. Médecins, Lyon. In addition, while the proceedings against the
applicants were pending before the disciplinary section of the National Council of the
ordre, he had been Chairman of the Committee for the Provision of Medical Assistance
and Emergency Care at the National Council and had, in that capacity, lodged a report in
which, among other things, the need for a ban on advertising on vehicles and the use of
commercial acronyms had been stressed. Lastly, at the National Council’s 183rd session
on 27-29 June 1991 – which was also attended by Dr Vergeylen –, Dr Gatel had
presented a report on "the state of relations with organisations providing emergency care"
and had said, in particular:
"while there is less cause for dispute, differences of opinion remain...: the name
‘S.O.S. Médecins’ still appears on the association’s vehicles in some
départements; it should be replaced by the generic terms ‘doctor’, ‘doctor on call’
or ‘doctor on emergency’ recommended by the judicial and ministerial
authorities; ... The Council is satisfied with the nature of its relations with the
18
organisations providing emergency services, but considers that it must remain
very vigilant as to the evolution of those relations and their repercussions at local
level."
Dr Vergeylen was Vice-Chairman of the Val-de-Marne département council, which had
been a founder member of "ASSUM-94", one of whose directors was also Chairman of
the Val-de-Marne département council. Dr Gilbert was Chairman and later ViceChairman of the Isère département council, which was one of the founder members of an
association providing emergency medical care in Grenoble, the "AMUAG".
60. Consequently, regard being had mainly to the special context and special nature of the
dispute the professional disciplinary bodies had to decide, neither the Île-de-France
Regional Council of the ordre des médecins, nor the disciplinary section of the National
Council of the ordre was an "impartial" tribunal within the meaning of Article 6 § 1. In
short, there has been a violation of that provision.
Canada
Canada (Attorney General) v. Canada (Commission of Inquiry on the Blood
System) [1997] 3 S.C.R. 440: Whether Commission had jurisdiction to make
findings of misconduct
Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory,
McLachlin, Iacobucci and Major JJ.
ON APPEAL FROM THE FEDERAL COURT OF APPEAL
Administrative law -- Judicial review -- Public inquiry -- Jurisdiction -- Notices of
possible findings of misconduct -- Whether Commission had jurisdiction to make findings
of misconduct -- Inquiries Act, R.S.C., 1985, c. I-11, ss. 2, 6, 12, 13.
Public inquiries -- Jurisdiction -- Notices of potential findings of misconduct -- Whether
notices unfair.
The Commission of Inquiry appointed to examine the blood system after thousands
contracted HIV and Hepatitis C from blood and blood products held exhaustive hearings
governed by rules of procedure agreed to by all parties. Twenty-five interested parties
were granted standing. The Baxter Corporation did not seek standing but subsequently
participated in the proceedings by supplying relevant documents and providing witnesses.
The Commission, on the final day of scheduled hearings, sent out confidential notices
that the Commission might reach certain conclusions based on the evidence before it, that
these conclusions might amount to misconduct with the meaning of s. 13 of the Inquiries
Act (setting out jurisdiction to make findings of misconduct), and that the recipients had
the right to respond as to whether the Commissioner ought to reach these conclusions. A
number of the recipients of notices brought applications for judicial review in the Federal
Court, Trial Division. That court declared that no findings of misconduct could be made
against 47 of the applicants for judicial review, but otherwise dismissed the applications.
Many recipients whose notices were not quashed appealed. The Federal Court of Appeal
quashed one notice but dismissed the remaining appeals. At issue here are: (1) whether
the Commissioner exceeded his jurisdiction by the nature and extent of the allegations of
misconduct set out in the notices; (2) if the Commissioner originally had such
19
jurisdiction, did he lose it by failing to provide adequate procedural protections or by the
timing of the release of the notices; (3) whether Commission counsel should be
prohibited from taking part in the drafting of the final report because of their receipt of
confidential information not disclosed to the Commissioner or the other parties; and, (4)
whether the appellant Baxter Corporation should be treated differently from the other
appellants.
Held: The appeal should be dismissed.
Several basic principles are applicable to inquiries. A commission of inquiry is not a
court or tribunal and has no authority to determine legal liability; it does not necessarily
follow the same laws of evidence or procedure that a court or tribunal would observe. A
commissioner accordingly should endeavour to avoid setting out conclusions that are
couched in the specific language of criminal culpability or civil liability for the public
perception may be that specific findings of criminal or civil liability have been made. A
commissioner has the power to make all relevant findings of fact necessary to explain or
support the recommendations, even if these findings reflect adversely upon individuals.
Further, a commissioner may make findings of misconduct based on the factual findings,
provided that they are necessary to fulfill the purpose of the inquiry as it is described in
the terms of reference. In addition, a commissioner may make a finding that there has
been a failure to comply with a certain standard of conduct, so long as it is clear that the
standard is not a legally binding one such that the finding amounts to a conclusion of law
pertaining to criminal or civil liability. Finally, a commissioner must ensure that there is
procedural fairness in the conduct of the inquiry.
Notices warning of potential findings of misconduct, if issued in confidence to the
recipient, should not be subject to as strict scrutiny as the formal findings because their
purpose is to allow parties to prepare for or respond to any possible findings of
misconduct. The more detail included in the notice, the greater the assistance to the party.
The only possible harm would be to a party's reputation and this could not be an issue if
the notices are released only to the party against whom the finding may be made. Even if
the content of the notice appears to amount to a finding that would exceed the jurisdiction
of the commissioner, it must be assumed that commissioners will not exceed their
jurisdiction. The final report may demonstrate the assumption to be erroneous.
The Commissioner here stated that he would not be making findings of civil or criminal
responsibility and, in the interests of fairness to the parties and witnesses, must be bound
by these statements. It was not necessary, therefore, to deal with the ultimate scope of the
findings that a commissioner might make in a report.
The Commissioner did not exceed his jurisdiction in the notices delivered to the
appellants. The inquiry's mandate was extremely broad and the potential findings of
misconduct covered areas that were within the Commissioner's mandate to investigate.
The appellants' challenge was launched prematurely. As a general rule, such a challenge
should not be brought before the publication of the report unless there are reasonable
grounds to believe that the Commissioner is likely to exceed his or her jurisdiction.
Further consideration of this issue might have been warranted if the Commissioner's
report had made findings worded in the same manner as the notices. Even if the
challenges were not premature, the notices would not be objectionable. While many of
the notices come close to alleging all the necessary elements of civil liability, none
appeared to exceed the Commissioner's jurisdiction. The use of the words «failure» and
20
«responsible» in the notices does not mean, absent something more indicating legal
responsibility, that the person breached a criminal or civil standard of conduct. The use of
these words was not objectionable.
The procedural protections offered to parties to the Inquiry and to individual witnesses
were extensive and eminently fair. The appellants could not have been misled or suffered
prejudice as a result of any «misunderstanding» about the type of findings which would
be made by the Commissioner.
Although the notices of potential findings of misconduct should be given as soon as it is
feasible, it is unreasonable to insist that the notice of misconduct must always be given
early. So long as adequate time is given to the recipients of the notices to allow them to
call the evidence and make the submissions they deem necessary, the late delivery of
notices will not constitute unfair procedure. The timing of notices will always depend
upon the circumstances. Here, it was within the discretion of the Commissioner to issue
notices when he did because, given the enormous amount of information gathered and the
nature and purposes of this Inquiry, it was impossible to give adequate detail in the
notices before all the evidence had been heard. The appellants were given an adequate
opportunity to respond to the notices, and to adduce additional evidence, if they deemed
it necessary.
It was premature to forbid Commission counsel from taking part in the drafting of the
report. The Commissioner did not indicate that he intended to rely upon his counsel to
draft the final report. In addition, it is not clear from the record what was contained in the
confidential submissions reviewed by counsel.
Baxter Corporation should not be treated any differently than the other appellants.
Although it must have realized that its conduct would be under scrutiny in the
proceedings it took a calculated risk and elected not to seek standing before the
Commission. It should not now be allowed to escape the consequences of that decision.
Mooring v. Canada (National Parole Board) [1996] 1 S.C.R. 75: -- Parole
Board revoking accused's statutory release partly on basis of evidence gathered
in manner that may have been unconstitutional
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA
Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory,
McLachlin, Iacobucci and Major JJ.
Constitutional law -- Charter of Rights -- Exclusion of evidence -- Jurisdiction -- Parole - Parole Board revoking accused's statutory release partly on basis of evidence gathered
in manner that may have been unconstitutional --Whether Parole Board "court of
competent jurisdiction" for purpose of excluding evidence under s. 24(2) of Canadian
Charter of Rights and Freedoms.
Constitutional law -- Charter of Rights -- Court of competent jurisdiction -- National
Parole Board -- Exclusion of evidence -- Canadian Charter of Rights and Freedoms, s.
24.
The respondent, who had been serving a term of imprisonment following convictions for
robbery and other related offences, was released on mandatory supervision and obtained
21
work as a roofer. When responding to a call reporting that two men had been seen
attempting to break into a car, police officers found the respondent in his van with
another man. They searched the van and found a stolen handgun as well as what could
have been housebreaking equipment. The respondent was arrested and ultimately charged
with possession of housebreaking instruments, being the occupant of a motor vehicle
containing a restricted weapon and possession of stolen property. When interviewed by a
parole officer, he claimed that the tools and equipment found in the van were required for
his profession as a roofer and that he was unaware that a gun was in the van. Following
the interview the parole officer recommended that the respondent's statutory release be
revoked. Proceedings on all charges against the respondent were later stayed, apparently
because Crown counsel believed that the search of the van violated the Canadian Charter
of Rights and Freedoms, and that evidence concerning the search would not be
admissible in a trial. The Parole Board nevertheless revoked the respondent's statutory
release, and the Appeal Division affirmed the Board's decision. The British Columbia
Supreme Court dismissed the respondent's application for an order for relief in the nature
of habeas corpus with certiorari in aid. The Court of Appeal, in a majority decision,
allowed the respondent's appeal from that decision. According to the majority, the Board
was a court of competent jurisdiction within the meaning of s. 24 of the Charter, with the
ability to exclude evidence where such evidence was obtained by a Charter violation.
The Board's decision was quashed and the respondent was released from custody.
Held (McLachlin and Major JJ. dissenting): The appeal should be allowed on the ground
that the National Parole Board is not a court of competent jurisdiction for the purpose of
excluding evidence under s. 24(2) of the Charter.
Per L'Heureux-Dubé, Sopinka, Gonthier, Cory and Iacobucci JJ.: A court or tribunal will
only be a "court of competent jurisdiction" within the meaning of s. 24 of the Charter
where it has jurisdiction over the parties, the subject matter, and the remedy sought. Even
assuming that the Parole Board has jurisdiction over the parties and the subject matter,
both its structure and function and the language of its constituting statute show that it is
not empowered to make the order sought. The Board acts in neither a judicial nor a quasijudicial manner. It does not hear and assess evidence, but instead acts on information.
The Board acts in an inquisitorial capacity without contending parties. From a practical
perspective, neither the Board itself nor the proceedings in which it engages have been
designed to engage in the balancing of factors that s. 24(2) demands. In the Board's risk
assessment function, the factors which predominate are those which concern the
protection of society. In assessing the risk to society, the emphasis is on ensuring that all
reliable information is considered provided it has not been obtained improperly. The
language of the Corrections and Conditional Release Act also confers on the Board a
broad inclusionary mandate. Not only is the Board not bound to apply the traditional
rules of evidence, but it is required to take into account "all available information that is
relevant to a case". As a result, the Parole Board lacks jurisdiction over the "remedy"
within the meaning of this Court's decision in Mills. It follows that the Board is not a
"court of competent jurisdiction" for the purposes of s. 24(2) of the Charter.
The law is well settled that statutory tribunals such as the Parole Board are bound by a
duty of fairness in deciding upon the rights or privileges of individuals. The Board must
ensure that the information upon which it acts is reliable and persuasive. While decisions
of the courts on the admissibility of evidence, including admissibility under s. 24(2) of
22
the Charter, are pertinent regarding the exclusion of relevant evidence, they are not
binding on the Board. As a statutory tribunal, the Board is also subject to the dictates of s.
7 of the Charter and must comply with the principles of fundamental justice in the
conduct of its proceedings. This does not mean, however, that it must possess or exercise
a power to exclude evidence that has been obtained in a manner that contravenes the
Charter. While the principles of fundamental justice are not limited to procedural justice,
it does not follow that a tribunal that applies the rules of fairness and natural justice does
not comply with s. 7.
Per Lamer C.J.: For the reasons given by Sopinka J., the National Parole Board is not a
court of competent jurisdiction for the purposes of excluding evidence under s. 24(2) of
the Charter. Contrary to the majority view in Mills, however, it can be assumed that the
Court would now conclude that a preliminary inquiry judge is a court of competent
jurisdiction for such purposes. The primary purpose of the preliminary inquiry, which is
clearly spelled out in s. 548(1) of the Criminal Code, is to ensure that before an
individual is placed on trial, the Crown has gathered sufficient evidence to establish a
prima facie case. Since "sufficient evidence" means sufficient admissible evidence, by
necessary implication the Code empowers a preliminary inquiry judge to apply the
traditional rules of evidence and in some cases to exclude inadmissible evidence.
Moreover, this role of the preliminary inquiry judge is clearly spelled out by s. 542(1) of
the Code in the context of confessions.
Per La Forest J.: Sopinka J.'s reasons were agreed with. This case is not in any way
inconsistent with the decision of the majority in Mills.
Per McLachlin and Major JJ. (dissenting): The purpose of s. 24 of the Charter is to
ensure that Charter rights and guarantees are respected by providing a just and
appropriate remedy for Charter breaches. The section is to be interpreted in such a way
that there will always be a court of competent jurisdiction to award such relief where
there is a final determination of the rights and duties of the citizen. There are a number of
practical advantages to allowing administrative tribunals to decide constitutional issues in
spite of the lack of formal evidentiary rules and legal training of tribunal members. The
primary advantage is to ensure that a citizen can rely on Charter guarantees when the
tribunal is in a position to determine the rights of that citizen. Further, the Charter issue
can be dealt with in the context in which it arises without necessitating duplicate,
expensive and time-consuming application to a court. A specialized tribunal in reaching
its decision sifts the facts and compiles a record for the benefit of a reviewing court. The
expertise and specialized competence of the tribunal can also be of invaluable assistance
in constitutional interpretation. These practical advantages should not apply with any less
force to a tribunal granting a remedy under s. 24 than to a tribunal declining to enforce a
constitutionally invalid statutory provision.
An administrative tribunal can be a "court of competent jurisdiction" where the enabling
statute grants jurisdiction over the parties, the subject matter and the remedy sought. It is
clear that the Board has jurisdiction over the party and the subject matter. The remedy to
be considered under the third stage of the test is the specific remedy the applicant seeks
under the Charter for the breach of a Charter right, which in this case is the exclusion of
evidence. The legislation governing the Board confers the jurisdiction to grant this
remedy, since it contemplates that the Board must exclude from its consideration any
information which is irrelevant or unreliable. The fact that the Board meets the three
23
requirements of the test is sufficient to establish that it is a court of competent jurisdiction
under s. 24 of the Charter. The governing statute also contemplates that Charter
principles should be applied, as it requires the Board to observe the principles of
fundamental justice in making its decision. Finally, policy considerations militate in
favour of recognizing this body as a court of competent jurisdiction to grant a just and
appropriate Charter remedy. The test of bringing the administration of justice into
disrepute in s. 24(2) is flexible and designed to allow specific exclusionary principles to
be developed in the particular context in which the evidence is being received. This
limited basis for exclusion protects the right of a parolee to rely upon the constitutional
guarantees and obtain an effective remedy while also providing an appropriate
contextualization to the particular role of the Parole Board, whose paramount concern is
public safety.
Cooper v. Canada (Human Rights Commission) [1996] 3 S.C.R. 854:
Commissions and tribunals -- Right to decide issues of law, including
constitutional issues
Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, McLachlin and
Iacobucci JJ.
ON APPEAL FROM THE FEDERAL COURT OF APPEAL
Administrative law -- Commissions and tribunals -- Right to decide issues of law,
including constitutional issues -- Human Rights Commission considering allegation of
discrimination based on age -- Act providing that no age discrimination occurring if
mandatory retirement set at industry standard -- Investigator appointed by Commission
recommending that complaint not proceed to tribunal -- Whether provision excusing age
discrimination contrary to equality provisions of s. 15 of the Canadian Charter of Rights
and Freedoms -- Whether Commission implicitly empowered to refer the matter to a
tribunal and so in essence rule on constitutionality of the provision -- Canadian Charter of
Rights and Freedoms, ss. 1, 15, 24(1) -- Constitution Act, 1982, s. 52 -- Canadian Human
Rights Act, R.S.C., 1985, c. H-6, s. 15(c).
The appellants, who were being retired as airline pilots at age 60 pursuant to their
collective agreement, alleged age discrimination, given that most employees in
Canada are required to retire only at age 65. They filed complaints with the Canadian
Human Rights Commission in April and July 1990 and an investigator was
appointed. The employer submitted that no discrimination occurred in that the
employment policy was a bona fide occupational requirement. The investigator
recommended that the Commission dismiss the appellants' complaints. Section 15(c) of
the Canadian Human Rights Act (the Act), which provided that no discrimination would
occur if persons were retired at a normative industrially determined age, would
effectively be struck by the Commission as being contrary to the Charter if it were to
refer the matter to a tribunal for determination. The appellants applied for judicial review
in the Federal Court Trial Division, seeking an order to quash the Commission's decision
24
and to direct it to request the President of the Human Rights Tribunal Panel to appoint a
tribunal to inquire into their complaints. The motion was dismissed and that finding was
upheld on appeal. The employer was granted party status after leave to appeal was
granted. After hearing oral submissions from the parties, who were all of the view that
the Commission had at least a limited jurisdiction to question the constitutionality of the
Act, the Court appointed an amicus curiae to present the argument against such a
jurisdiction. At issue was whether the Canadian Human Rights Commission or a
tribunal appointed by it to investigate a complaint has power to determine the
constitutionality of a provision of their enabling statute. In particular, could the
Commission ignore s. 15(c) of the Act?
Held (L'Heureux-Dubé and McLachlin JJ. dissenting): The appeals should be
dismissed.
Per La Forest, Sopinka, Gonthier and Iacobucci JJ.: The Canadian Human Rights
Commission has no jurisdiction under the Act to subject the Act's provisions to
constitutional scrutiny. The Commission is limited in its jurisdiction by the dictates of the
Act. Similarly, a tribunal appointed at the request of the Commission is also without
jurisdiction to determine the constitutional validity of a limiting provision of the Act.
No administrative tribunal has an independent source of jurisdiction pursuant to s.
52(1) of the Constitution Act, 1982.1 A court must, therefore, as a matter of statutory
interpretation determine whether Parliament has granted the administrative tribunal
through its enabling statute, either explicitly or implicitly, the power to determine
questions of law. If so, the administrative tribunal by the operation of s. 52(1) must be
able to address constitutional issues, including the constitutional validity of its enabling
statute. There is no need to determine if either the Commission or a tribunal under the
Act is a court of competent jurisdiction under s. 24(1) of the Charter.
In considering whether an administrative tribunal has the power to determine
questions of law, various practical matters such as the composition and structure of
the tribunal, the procedure before the tribunal, the appeal route from the tribunal, and the
expertise of the tribunal can appropriately be taken into account. These practical
considerations, in so far as they reflect the scheme of the enabling statute, provide an
insight into the mandate given to the administrative tribunal by the legislature. At the
same time there may be pragmatic and functional policy concerns that argue for or
against the tribunal's having constitutional competence, though such concerns can never
supplant the intention of the legislature.
The Act sets out a complete mechanism for dealing with human rights complaints.
Central to this mechanism is the Commission. There is no provision in the Act
which explicitly gives the Commission power to determine questions of law and nothing
in the scheme of the Act implies that the Commission has this power. Looking at the Act
as a whole, the role of the Commission is to deal with the intake of complaints and to
1
52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the
provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.
25
screen them for proper disposition. The Commission is not an adjudicative body; that is
the role of a tribunal appointed under the Act. The Commission's striking down s. 15(c)
of the Act (which is what a referral to a tribunal would amount to) would be an
assumption by the Commission of an adjudicative role for which it has no mandate.
Administrative bodies and tribunals are creatures of statute; the will of the legislature as it
appears in that statute must be respected. The role of the Commission as an
administrative and screening body, with no appreciable adjudicative role, is a clear
indication that Parliament did not intend the Commission to have the power to consider
questions of law.
Sections 27, 40 and 41 of the Act do no more than enable the Commission to interpret
and apply its enabling statute. It does not follow that it then has a jurisdiction to address
general questions of law. Every administrative body, to one degree or another, must have
the power to interpret and apply its own enabling statute. Determining jurisdiction over a
given complaint through reference to the provisions of the Act is conceptually different
from its subjecting the same provisions to Charter scrutiny. The former represents an
application of Parliament's intent as reflected in the Act while the latter involves ignoring
that intent.
The practical advantages in having the Commission consider the constitutionality of
its own statute are limited. First, since the Commission is not an adjudicative body it
cannot be considered a proper forum in which to address fundamental constitutional
issues. Allowing the parties to raise such issues would of necessity require a more
involved and lengthy process that would interfere with the Commission's screening
process. Second, the Commission has no special expertise with respect to questions of
law. Having the complainant seek a declaration of constitutional invalidity in either the
Federal Court or a provincial superior court would be more efficient, both to the parties
and to the system in general, given that any ruling of the Commission on the
constitutional validity of a provision of the Act would be the subject of judicial review
proceedings. In such a setting, the question can be debated in the fullness it requires in
such a setting and the proper expertise can be brought to bear on its resolution.
Given the limited jurisdiction of the Commission it logically follows that a tribunal
appointed under the Act must also lack the jurisdiction to declare unconstitutional a
limited provision of the Act. It could not have been the intent of Parliament to grant a
tribunal a jurisdiction that could never be exercised.
Sections 50(1) and 53(2) of the Act empower a tribunal appointed under the Act to
inquire into a complaint referred by the Commission. This is primarily and
essentially a fact-finding inquiry. In the course of such an inquiry a tribunal has the
jurisdiction to consider questions of law, including questions of statutory
interpretation and constitutional questions. Where a tribunal does make legal findings it is
not entitled to deference by a reviewing court.
Per Lamer C.J.: Judicial review, while necessary to preserve important constitutional
values, is inherently controversial in a democracy like Canada because it confers on
26
unelected officials the power to question decisions arrived at through the democratic
process. As a matter of constitutional principle that power must accordingly be reserved
to the courts and should not be given over to bodies that are mere creatures of the
legislature, whose members are usually vulnerable to removal with every change of
government, and whose decisions in some circumstances are made within the parameters
of guidelines established by the executive branch of government. The previous judgments
of this Court may have misunderstood and distorted the web of institutional relationships
between the legislature, the executive and the judiciary by giving administrative tribunals
access to s. 52 of the Constitution Act, 1982. The application of this section should be
reserved to the courts because the task of declaring invalid legislation enacted by a
democratically elected legislature is within the exclusive domain of the judiciary. (The
role of administrative tribunals in relation to s. 24(1) was not addressed.)
The premise relied on by the other members of the Court -- that the intent to confer a
power to interpret general law on tribunals implies an intent to confer on
tribunals a power to refuse systematically to apply laws which violate the Charter --is
suspect. Firstly, this inference is artificial. Many, if not most of the tribunals which have
been set up by Parliament and the provincial legislatures were created before the
enactment of the Charter in 1982. Granting the power to tribunals to refuse systematically
to apply laws which violate the Charter could not have possibly been within the
contemplation of Canada's legislatures. Secondly, this inference is profoundly illogical.
A legislature could only intend to confer on a tribunal the power to judge the
constitutionality of that tribunal's enabling legislation if the legislature had knowingly
passed a constitutionally suspect law; otherwise, the conferral of the power would be
unnecessary. A legislature would not knowingly pass constitutionally suspect legislation.
The presumption of constitutionality suggests that legislatures assume the
constitutionality of their enactments. In any event, if the legislature did know that a piece
of legislation was constitutionally suspect, and nonetheless enacted it into law, it is not
readily apparent why the legislature would also confer on the tribunal to which the
legislature assigns the responsibility of giving effect to the legislation the power to hold
various provisions of the legislation inoperative.
First principles of the Constitution must be revisited in order to comprehend properly
the relationship between s. 52 and administrative tribunals.
Douglas College, Cuddy Chicks and Tétreault-Gadoury offend the constitutional
principle of separation of powers which is one of the defining features of the
Canadian Constitution. Although the separation of powers under the Canadian
Constitution is not strict, Canadian constitutional law recognizes some notion of the
separation of powers. The existence of courts flows from the separation of powers as is
evidenced from the jurisprudence on s. 96 of the Constitution Act, 1867
and from the case law interpreting the preamble of the Constitution Act, 1867 which
states that Canada is to have "a Constitution similar in Principle to that of the
United Kingdom".
27
The constitutional status of the judiciary, flowing as it does from the separation of
powers, requires that certain functions be exclusively exercised by judicial bodies. The
judiciary, while it does not have an interpretive monopoly over questions of law, must
nevertheless have exclusive jurisdiction over challenges to the validity of legislation
under the Constitution of Canada, and particularly the Charter. Only courts have the
requisite independence to be entrusted with the constitutional scrutiny of legislation when
that scrutiny leads a court to declare invalid an enactment of the legislature. Mere
creatures of the legislature, whose very existence can be terminated at the stroke of a
legislative pen, whose members usually serve at the pleasure of the government of the
day and whose decisions in some circumstances are properly governed by guidelines
established by the executive branch of government, are not suited to this task. Security of
tenure, financial security, and independence with respect to matters of administration
bearing directly on the exercise of the courts' judicial function define judicial
independence. In the context of Charter adjudication, these features help to insulate the
courts from interference, inter alia, by elected legislatures, and thus ensure that courts can
safeguard the supremacy of Charter rights through the vehicle of s. 52.
The case law relies on a distinction between refusals to apply legislation and declarations
of invalidity in order to claim that tribunals are not encroaching upon the
judicial role. Many tribunals, however, operate according to an informal doctrine of
precedent. The de facto equivalence between refusals to apply legislation and
declarations of invalidity decisively demonstrates that tribunals, when they refuse to
apply their enabling legislation under s. 52 of the Constitution Act, 1982, are
improperly exercising the role of the courts. This Court's decisions authorizing tribunals
to overstep their constitutional role are, accordingly, in serious need of revision. And for
the same reasons, tribunals cannot be expressly given the power to consider the
constitutionality of their enabling legislation.
This conclusion does not detract from the power of the Commission to determine
whether complaints fall within federal jurisdiction according to the division of
powers. An important conceptual difference exists between the Commission's
interpreting its enabling legislation in light of the division of powers, and the
Commission's questioning the validity of that legislation in light of the Charter. When it
performs the former role, the Commission is merely determining whether it
has jurisdiction over a matter, because the clear intent of Parliament was that the
Commission should only operate within the confines of federal jurisdiction. As
well, these comments should not to be construed as detracting from the general duty to
interpret statutes in light of Charter values.
Douglas College, Cuddy Chicks and Tétreault-Gadoury also offend a second defining
feature of the Canadian Constitution, its commitment to Parliamentary democracy. The
Constitution Act, 1867 incorporated those aspects of Parliamentary democracy that have
taken legal form. One of those aspects is the legal relationship between the executive and
the legislature. The role of the executive is to effectuate legislative intent. The
justification for this hierarchical relationship, in present-day Canada, is a respect for
democracy because legislatures are representative institutions accountable to the
electorate. The assumption by administrative tribunals of jurisdiction over the Charter,
28
however, inverts this hierarchical relationship. Instead of putting the intent of the
legislature into effect, the case law of this Court enables tribunals to challenge the
decisions of the democratically elected legislature. A tribunal has, in these
circumstances, unconstitutionally usurped power which it did not have. The framers of
the Charter did not intend to alter so fundamentally the nature of the relationship between
the executive and the legislature.
Per L'Heureux-Dubé and McLachlin JJ. (dissenting): Every tribunal charged with the
duty of deciding issues of law has the concomitant power to decide those issues. The fact
that the question of law concerns the effect of the Charter does not change the matter.
Two related principles of general application apply. First, all decision-making
tribunals, whether courts or administrative tribunals, are bound to apply the law,
including the Charter. Second, a tribunal's ruling that a law is inconsistent with the
Charter is nothing more than a case of applying the law.
Douglas College, Tetréault-Gadoury and Cuddy Chicks stand for two related
propositions. First, an administrative tribunal which has the power to decide
questions of law has the power to decide the validity of particular laws under the Charter.
Second, an administrative tribunal provided that it is discharging a function assigned to it
by its legislation may, in the course of doing so, consider and decide Charter issues. As a
corollary, the cases affirm a third proposition: no express term is required for the tribunal
to apply the Charter. The power of the Commission to consider legal questions, while
not expressly stated, may be inferred from the Act. Many of its duties could not be
accomplished without the power to consider issues of law generally and the effect of the
Charter on human rights law more particularly. Parliament did not intend that the
Commission, which was required to interpret the law for the purposes of Part I of the Act
(Proscribed Discrimination), should be forbidden from making legal interpretation in
discharging its Part III (Discriminatory Practices and General Provisions) duties. The
Commission accordingly has the power to interpret the law in determining whether to
refer a complaint to a tribunal or dismiss it. The Act confers the same power to consider
and decide issues of law on the tribunals appointed to investigate and decide particular
complaints.
A tribunal may consider the Charter in carrying out the mandate conferred upon it by
Parliament or the legislature. Several provisions of the Act support the conclusion that
not only is the Commission empowered to consider questions of law but also that it is
obliged to do so. This obligation extends to permitting boards and tribunals appointed
under human rights legislation to hold that provisions of the law are invalid. Often this
has been assumed without challenge. The Commission functions as gatekeeper to the
tribunal process and accordingly cannot be barred from considering questions of law
which the tribunal is permitted to consider for the Commission must first consider that
question.
The Commission accordingly has the power to consider the issue of whether the
Charter renders invalid the "normal age of retirement" defence. Given that the
29
Commission's only duty is to screen the complaint, it need not decide the question finally
but only determine whether it has a reasonable chance of success. In the context of its
duties under the Act, the Commission has the expertise to carry out its duty in this regard.
The Commission should refer the matter to a tribunal which can hear full representations
on the matter and make its decision accordingly if it decides that the complaint has a
reasonable chance of success. The tribunal's decision on the issue of law may in turn be
reviewed by the review tribunal. The review tribunal's decision in turn may be filed as a
decision of the Federal Court, from which appeal lies to the Federal Court of Appeal.
The argument that McKinney v. University of Guelph (which held a provision setting
mandatory retirement at age 65 to be contrary to s. 15 of the Charter but saved under s. 1)
was based on the conclusion of the Court that age 65 was the "normal" age of retirement
for the occupation at issue and that, similarly, a statute providing for retirement at the
normal age for the occupation in question must also be saved under s. 1, oversimplifies
the process envisaged under s. 1 of the Charter. Section 1 is about much more than what
is usual or "normal". The usual practice may be unjustifiable, having regard to the
egregiousness of the infringement or the insubstantiality of the objective alleged to
support it. Each case must be looked at on its own circumstances.
Québec Inc. v. Quebec (Régie des permis d'alcool) [1996] 3 S.C.R. 919: Fair
hearing by independent tribunal -- Administrative tribunals -- Régie des permis
d'alcool -- Cancellation of liquor permits on account of disturbance of public
tranquility
Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory,
McLachlin, Iacobucci and Major JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC
Civil rights -- Fair hearing by independent tribunal -- Administrative tribunals -- Régie
des permis d'alcool -- Cancellation of liquor permits on account of disturbance of public
tranquility -- Structure and operating procedures of Régie -- Whether Régie complies
with guarantees of independence and impartiality set out in s. 23 of Charter of Human
Rights and Freedoms -- Scope of s. 23 of Charter -- Charter of Human Rights and
Freedoms, R.S.Q., c. C-12, ss. 23, 56(1) -- Act respecting liquor permits, R.S.Q., c. P-9.1,
ss. 2, 75, 86(8).
Following a hearing, the directors of the Régie des permis d'alcool du Québec revoked
the respondent's liquor permits on the ground of disturbance of public tranquility -- a
penalty provided for in ss. 75 and 86(8) of the Act respecting liquor permits (the "Act").
The respondent brought a motion in evocation in the Superior Court in which it asked (1)
that the Régie's decision be quashed and (2) that s. 2 of the Act, which established the
Régie, be declared invalid on the basis that the Régie did not comply with the guarantees
of independence and impartiality set out in s. 23 of the Charter of Human Rights and
Freedoms. The Superior Court granted the motion and, by declaring the impugned
30
provision invalid and of no force or effect, called the very existence of the Régie into
question. However, the court suspended the effect of the declaration of invalidity for a
period of 12 months. The Attorney General of Quebec and the Régie appealed the
decision. In 1993, the Régie des alcools, des courses et des jeux replaced the Régie des
permis d'alcool, but the parties considered the Superior Court proceedings to be as
important as ever because of the similarity between the two bodies. The Court of Appeal
allowed the appeal in part, declaring s. 2 of the Act to be valid. However, the majority of
the court held the reference to s. 75 in s. 86(8) of the Act to be invalid and of no force or
effect.
Held: The appeal should be allowed.
Per Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and
Major JJ.: Section 23 of the Charter entrenches in Quebec the right of every citizen to a
public and fair hearing by an independent and impartial tribunal. The word "tribunal"
used in that section is defined in s. 56(1) of the Charter as including "any person or
agency exercising quasi-judicial functions". Section 56(1) applies to every agency that
exercises quasi-judicial functions, even incidentally. Whether or not s. 23 is applicable
therefore depends on the characterization of the functions of the agency that are in
question. If they are quasi-judicial, the agency is a "tribunal" and must in exercising them
comply with the requirements of impartiality and independence. In this case, s. 23 is
applicable to the Régie because a decision to cancel a permit on account of disturbance of
public tranquility is the result of a quasi-judicial process. The permit holder's rights are
clearly affected by the cancellation. While the issuance of a permit may in certain
respects be regarded as a privilege, its cancellation has a significant impact on the
livelihood of the permit holder, who loses the right to operate his or her business. It is
also significant that the process leading to the cancellation of a permit on account of
disturbance of public tranquility is similar to that in a court. The Régie may make its
decision only after a hearing in the course of which witnesses may be heard, exhibits filed
and submissions made. Although there is strictly speaking no lis inter partes before the
Régie, individuals with conflicting interests may present contradictory versions of the
facts at the hearing. Finally, a decision to cancel a permit on the ground of disturbance of
public tranquility results from the application of a pre-established standard to specific
facts adduced in evidence and is a final judgment protected by a privative clause.
Although in making such a decision the Régie may to some extent establish a general
policy that it has itself developed, it does so by means of a standard imposed by and set
out in the Act. The application of such a policy to specific circumstances, with the
assessment of the facts it presupposes, is a quasi-judicial act.
Although flexibility must be shown toward administrative tribunals when it comes to
impartiality, a detailed review of the Régie's structure and multiple functions raises a
reasonable apprehension of bias on an institutional level. The Act authorizes employees
of the Régie to participate at every stage of the process leading up to the cancellation of a
liquor permit, from investigation to adjudication. While a plurality of functions in a
single administrative agency is not necessarily problematic, here a person informed about
the role of the Régie's lawyers would have a reasonable apprehension of bias in a
31
substantial number of cases. Although the Act and regulations do not define the duties of
these jurists, the Régie's annual report and the description of their jobs at the Régie show
that they are called upon to review files in order to advise the Régie on the action to be
taken, prepare files, draft notices of summons, present arguments to the directors and
draft opinions. The annual report and the silence of the Act and regulations leave open
the possibility of the same jurist performing these various functions in the same matter.
The annual report mentions no measures taken to separate the lawyers involved at
different stages of the process. Yet such measures seem essential in the circumstances.
The possibility that a jurist who has made submissions to the directors might then advise
them in respect of the same matter is disturbing, especially since some of the directors
have no legal training. Such a lack of separation of functions in a lawyer raises a
reasonable apprehension of bias. Prosecuting counsel must never be in a position to
participate in the adjudication process. The functions of prosecutor and adjudicator
cannot be exercised together in this manner. Moreover, the Act and regulations authorize
the chairman to initiate an investigation, decide to hold a hearing, constitute the panel that
is to hear the case and include himself or herself thereon if he or she so desires.
Furthermore, the annual report suggests that other directors sometimes make the decision
to hold a hearing, and it does not rule out the possibility that they might then decide the
case on its merits. While the fact that the Régie, as an institution, participates in the
process of investigation, summoning and adjudication is not in itself problematic, the
possibility that a particular director could, following the investigation, decide to hold a
hearing and could then participate in the adjudication process would cause an informed
person to have a reasonable apprehension of bias in a substantial number of cases. As
with the Régie's jurists, a form of separation among the directors involved in the various
stages of the process seems necessary to eliminate that apprehension of bias.
The three main components of judicial independence are financial security, security of
tenure and institutional independence. Only the last two are in question in this case and,
as is the case with impartiality, a certain degree of flexibility is appropriate where
administrative agencies are concerned. In interpreting s. 23 of the Charter, it is necessary
to consider the functions and characteristics of the administrative agencies in question. In
the instant case, the directors have sufficient security of tenure within the meaning of
Valente, since sanctions are available for any arbitrary interference by the executive
during a director's term of office. The directors' conditions of employment meet the
minimum requirements of independence. These do not require that all administrative
adjudicators, like judges of courts of law, hold office for life. Fixed-term appointments,
which are common, are acceptable. However, the removal of adjudicators must not
simply be at the pleasure of the executive. The orders of appointment provide expressly
that the directors can be dismissed only for certain specific reasons. In addition, it is
possible for the directors to apply to the ordinary courts to contest an unlawful dismissal.
Finally, in light of the evidence as a whole, the large number of points of contact between
the Régie and the Minister of Public Security does not raise a reasonable apprehension
with respect to the Régie's institutional independence. It is not unusual for an
administrative agency to be subject to the general supervision of a member of the
executive with respect to its management. The essential elements of institutional
32
independence may be summed up as judicial control over the administrative decisions
that bear directly and immediately on the exercise of the judicial function. It has not been
shown how the Minister of Public Security might influence the decision-making process.
The chairman is responsible for monitoring the Régie's day-to-day activities and its
various employees, and for preparing the rolls. The fact that the Minister is ultimately
responsible for both the Régie and the various police forces conducting investigations
would not cause an informed person to have a reasonable apprehension with respect to
the independence of the directors. The directors swear an oath requiring them to perform
the duties of their office honestly and fairly. The Minister's links with the various parties
involved are accordingly not sufficient to raise concerns.
Although the structure of the Régie does not meet the requirements of s. 23 of the
Charter, the various shortcomings that have been identified are not imposed by the
constituent legislation or the regulations made thereunder. It is thus not necessary to
declare specific provisions of the Act to be inconsistent with the Charter. It is sufficient to
grant the respondent's motion in evocation and quash the Régie's decision.
Per L'Heureux-Dubé J.: This case is governed solely by administrative law.
Administrative law is part of public law and the common law generally applies in
Quebec public law, subject to legislative amendments. The common law methodology
must therefore be used rather than a methodology based on the civil law. The Charter has
legal preeminence over the common law because of its quasi-constitutional status. To
determine what interaction there is between the common law and quasi-constitutional
statute law, it is necessary to begin by analysing, identifying and setting out the
applicable common law; the effect of the quasi-constitutional statute law on the common
law must then be specified.
The respondent's allegations against the Régie des permis d'alcool du Québec fall
under the heads of impartiality and independence. An agency's independence from the
executive is a prerequisite for, but is not sufficient to guarantee, impartiality. Tribunals
are never perfectly independent; their independence is relative and varies with their
decision-making level. When the issue of independence is raised in a judicial review
context, the courts must therefore assess the necessary degree of independence in each
case based on the nature of the administrative tribunal, the institutional constraints it
faces and the peremptory nature of its decisions. While independence can be seen as a
continuum, the same is not true of impartiality. An agency can be either impartial or
biased: there is no intermediate option. Reasonable apprehension of bias is the indicator
that allows this issue to be resolved judicially. If the agency would cause an informed
person to have a reasonable apprehension of bias in a substantial number of cases, a legal
finding of bias will result. Flexibility comes into play in the specific content of the test
for reasonable apprehension of bias in each case. However, such flexibility must not be
shown in respect of impartiality: the requirement of impartiality cannot be relaxed. It is
thus the reasonableness of the apprehension that will vary among administrative
tribunals, not their intrinsic impartiality. In the present case, the issue of independence is
subordinate to that of impartiality for the purposes of analysis. If bias is found, the issue
of independence becomes totally moot.
33
Agencies that perform quasi-judicial or administrative acts are subject to the nemo
judex in propria sua causa debet esse rule in accordance, respectively, with the duty to act
in accordance with natural justice and the duty to act fairly. Since the acts alleged against
the Régie are either administrative or quasi-judicial, they are subject to the duty of
impartiality included in the nemo judex rule. Here, the evidence has clearly shown that
the Régie would cause an informed person to have a reasonable apprehension of bias in a
substantial number of cases. It should therefore be found that the Régie is biased on an
institutional, organizational level. By implication, the Régie has violated the nemo judex
rule and thus breached its duty to act fairly. This breach opens the door to the common
law remedies applicable in the circumstances: the Régie's decision can be quashed
through a motion in evocation under art. 846 C.C.P. and the provisions of the enabling
statute can be declared of no force or effect inter partes under arts. 453 et seq. C.C.P.
Before examining the effect of the Charter's provisions on the common law, it must
first be determined whether those provisions are applicable to the instant case. In
interpreting ss. 23 and 56(1) of the Charter, particularly the concept of a quasi-judicial
tribunal, the "modern" methodological approach must be applied. It is time to abandon
the method based on the "plain meaning" of words as the basic approach to legal
interpretation. According to the modern approach, consideration must be given at the
outset not only to the words themselves but also, inter alia, to the context, the statute's
other provisions, provisions of other statutes in pari materia and the legislative history in
order to correctly identify the legislature's objective. It is only after reading the provisions
with all these elements in mind that a definition will be decided on. This "modern"
interpretation method has the advantage of bringing out the underlying premises and thus
preventing them from going unnoticed, as they would with the "plain meaning" method.
In light of the dynamic development of our law and the plurality of perspectives on legal
analysis, the era of concealed underlying premises is now over. However, the "plain
meaning" method, with its methodological estoppel that prevents the initiation of legal
reasoning, is justified in a technical field such as tax law because of the imperatives of
stability and predictability of the law; moreover, the use of the "plain meaning" in that
area does not have any undesirable side effects.
When ss. 23 and 56(1) of the Charter are interpreted in an informed manner using the
modern legal interpretation approach, the definition of the term "quasi-judicial" that must
be adopted is one that limits its denotation to the "matters of penal significance" category.
Section 23 is therefore applicable only to "agencies exercising quasi-judicial functions
involving `matters of penal significance'". The common law remedies are available when
an administrative agency makes a quasi-judicial decision in the matters of penal
significance category, and ss. 23 and 56(1) of the Charter provide other remedies. In
particular, in the event of a breach of the duty to be impartial in this category, the
aggrieved individual may have the enabling statute struck down erga omnes, in whole or
in part, under s. 52 of the Charter. In the present case, the Régie's decision to cancel the
respondent's liquor permit was not a quasi-judicial decision in the matters of penal
significance category. This type of decision falls within the "non-penal" category.
Accordingly, s. 23 of the Charter is not applicable to this case and the erga omnes
34
declaratory remedy is not available. The case is governed rather by administrative law
and the remedies of evocation and declaration. Since the respondent's application is well
founded, there is no reason to decline to exercise the remedial discretion conferred on the
courts by the Code of Civil Procedure. The motion in evocation must therefore be
allowed and the Régie's decision set aside.
Canadian Pacific Ltd. v. Matsqui Indian Band [1995] 1 S.C.R. 3: Adequacy of
tribunal -- Issue of jurisdiction -- Tribunals set up by First Nations bands to
consider issue of assessment for lands located within reserve -- Whether
tribunals meeting criteria of independent judiciary
Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory,
McLachlin, Iacobucci and Major JJ.
ON APPEAL FROM THE FEDERAL COURT OF APPEAL
Administrative law -- Tribunals -- Adequacy of tribunal -- Issue of jurisdiction -Tribunals set up by First Nations bands to consider issue of assessment for lands located
within reserve -- Appeal process culminating with review by courts -- Tribunal members
without fixed salary and security of tenure -- Claim that land not within reserve -Whether consideration of issue compelled to follow alternative appeal route or whether
courts can grant immediate judicial review -- Whether tribunals meeting criteria of
independent judiciary -- Indian Act, R.S.C., 1985, c. I-5, s. 83(1), (3) -- Federal
Court Act, R.S.C., 1985, c. F-7, ss. 18, 18.3(1), 18.5, 24(1).
Aboriginal law -- Tribunals set up by First Nations bands to consider issue of
assessment for lands located within reserve -- Appeal process culminating with review by
courts -- Tribunal members without fixed salary and security of tenure -- Claim that land
not within reserve – Whether consideration of issue compelled to follow alternative
appeal route or whether courts can grant immediate judicial review -- Whether tribunals
meeting criteria of independent judiciary.
Amendments to the Indian Act enabled First Nations bands to pass their own by-laws
for the levying of taxes against real property on reserve lands. The appellant bands each
developed taxation and assessment by-laws which were implemented following the
Minister's approval. The Matsqui Band's assessment by-law provided for the appointment
of Courts of Revision to hear appeals from the assessments, the appointment of an
Assessment Review Committee to hear appeals from the decisions of the Courts of
Revision and, finally, an appeal on questions of law to the Federal Court, Trial Division
from the decisions of the Assessment Review Committee. The other bands provided for a
single hearing before a Board of Review, with an appeal to the Federal Court, Trial
Division. All the by-laws provided that members of the appeal tribunals could be paid,
but did not mandate that they indeed be paid, and gave no tenure of office so that
35
members might not be appointed to sit on future assessment appeals. Members of the
bands could be appointed to the tribunals.
The appeals were heard concurrently at all levels and turned on essentially identical
facts. Each apellant sent the respondent, Canadian Pacific Limited ("CP"), a notice of
assessment in respect of the land forming its rail line which ran through the reserves. The
Matsqui Band also sent a notice of assessment to the respondent, Unitel Communications
Inc., which laid fibre optic cables on the CP land.
The respondents commenced an application for judicial review in the Federal Court,
Trial Division, requesting that the assessments be set aside. CP claimed that its land could
not be taxed by the appellant bands because it possessed fee simple in the rail line and the
rail line therefore formed no part of the reserve lands. The appellants brought a motion to
strike the respondents' application for judicial review on the grounds that: (a) the
application was directed against a decision which could not be the subject of judicial
review because of an eventual right of appeal to the Federal Court, Trial Division or,
alternatively; (b) the assessment by-laws provided for an adequate alternative remedy -an eventual right of appeal to the Federal Court, Trial Division. The motions judge
accepted the second of these arguments and struck out the respondents' application for
judicial review. The Federal Court of Appeal allowed an appeal from this decision, set it
aside and dismissed the appellants' motion to strike. At issue was whether the motions
judge properly exercised his discretion to strike the respondents' application for judicial
review, thereby requiring them to pursue their jurisdictional challenge through the appeal
procedures established by the appellant bands. The determination of whether or not the
land was "in the reserve" was not at issue.
Held (L'Heureux-Dubé, Sopinka, Gonthier and Iacobucci JJ. dissenting): The appeal
should be dismissed.
Adequacy of the Appeal Tribunals and the Exercise of Discretion on Judicial Review
Per Lamer C.J. and L'Heureux-Dubé, Sopinka, Gonthier, Cory and Iacobucci JJ.:
Administrative tribunals can examine the boundaries of their jurisdiction although their
decisions in this regard lack the force of res judicata. Their determinations are reviewable
on a correctness standard and will generally be afforded little deference. Here, the
jurisdiction of the appeal tribunals includes both the classification of taxable property and
the valuation of that property, as the words "assessment"/"évaluation" used in s. 83(3) of
the Indian Act refer to the entire process undertaken by tax assessors. A purposive
analysis favours this "process approach". Parliament clearly intended the bands to assume
control over the assessment process on the reserves, since the entire scheme would be
pointless if assessors were unable to engage in the preliminary determination of whether
land should be classified as taxable and thereby placed on the taxation rolls.
The Federal Court, Trial Division and the appeal tribunals established under s. 83(3)
of the Indian Act have concurrent jurisdiction to hear and decide the question of whether
the respondents' land is "in the reserve". In keeping with the traditionally discretionary
36
nature of judicial review, judges of the Federal Court, Trial Division have discretion in
determining whether judicial review should be undertaken. In determining whether to
undertake judicial review rather than requiring an applicant to proceed through a statutory
appeal procedure, courts should consider: the convenience of the alternative remedy, the
nature of the error, and the nature of the appellate body (i.e., its investigatory, decisionmaking and remedial capacities). The category of factors should not be closed, as it is for
courts in particular circumstances to isolate and balance the factors that are relevant.
The adequacy of the statutory appeal procedures created by the bands, and not simply the
adequacy of the appeal tribunals, had to be considered because the bands had provided
for appeals from the tribunals to the Federal Court, Trial Division. Certain factors are
relevant only to the appeal tribunals (i.e., the expertise of members, or allegations of bias)
or to the appeal to the Federal Court, Trial Division (i.e., whether this appeal is intra vires
the bands). In applying the adequate alternative remedy principle, all these factors must
be considered in order to assess the overall statutory scheme.
It was not an error for the motions judge to consider the policy underlying the scheme
in determining how to exercise his discretion to undertake judicial review. He could
reasonably conclude that, since the scheme was part of the policy promoting Aboriginal
self-government, allowing the respondents to circumvent the appeal procedures would be
detrimental to the overall scheme.
The bands have jurisdiction to create by-laws with appeals to the Federal Court, Trial
Division. Section 18.5 of the Federal Court Act does not set down conditions for the
creation of statutory appeals from decisions of federal tribunals; it only limits the judicial
review powers of the Federal Court, Trial Division where a statutory right of appeal
exists. Section 24(1) provides that the Trial Division has exclusive original jurisdiction to
hear and determine all appeals that, under any Act of Parliament, may be taken to the
court. The appeal procedures here fell squarely within this section because they were
authorized "under" s. 83(3) of the Indian Act.
Parliament intended the bands to have considerable scope for creating appeal
procedures through their by-laws, with the caveat that such procedures would be
"subject to the approval of the Minister" (s. 83(1)). The Minister approved all of the bylaws at issue, clearly believing that the power to create appeals to the Federal Court, Trial
Division was intra vires the bands. The courts should not narrow the scope of possible
appeal procedures available to the bands.
The question to be determined was whether the appeal tribunals here were adequate
fora; it was not necessary to consider whether they were better fora than the courts. They
allowed for a wide-ranging inquiry into all of the evidence and were considered by
Parliament to be equipped to deal with complex issues that might come before them.
Section 18.3(1) of the Federal Court Act allows an appeal tribunal to seek the guidance of
the courts if it encounters legal, procedural or other issues which it cannot resolve.
It was reasonable for the motions judge to consider the following factors in exercising
this discretion: (1) the tribunals were adequate for purposes of conducting a far-reaching
37
and extensive inquiry at first instance; (2), the statutory appeal procedure provided an
appeal from the tribunals to the Federal Court, Trial Division where a decision could be
taken with the force of res judicata; and (3), the policy of promoting the development of
Aboriginal governmental institutions favoured resolving the dispute within the statutory
appeal procedures.
Per La Forest J.: The Federal Court, Trial Division and the appeal tribunals established
under s. 83(3) of the Indian Act have concurrent jurisdiction to address the question
whether the respondents' land is "in the reserve". The motions judge, however, did not
exercise his discretion properly in deciding that the band appeal tribunal system
constitutes an adequate alternative remedy in this context. Determining whether the
respondents' land is "in the reserve" is a jurisdictional question that brings into play
discrete and technical legal issues falling outside the specific expertise of the band appeal
tribunals. It is ultimately a matter for the judiciary. The band appeal procedure is not an
adequate remedy since any decision by a band appeal tribunal regarding this question will
lack the force of res judicata and will be reviewable by the Federal Court, Trial Division
on a standard of correctness. The respondents should be allowed the opportunity to have
this jurisdictional question determined with the force of res judicata by the Federal Court
at the outset without being compelled to proceed through a lengthy, and possibly
needless, band appeal process.
Per McLachlin and Major JJ.: The adequate alternative remedies principle does not
apply to a jurisdictional issue. Here, the assessment review board has jurisdiction to
determine all questions relating to the valuation of land "within the reserve" but has no
jurisdiction to determine whether a parcel of land is "within the reserve". Deciding
whether land is "within the reserve" or not requires consideration of a variety of factors,
such as real property law, survey results, and treaty interpretations, in which the board
has no expertise and over which there is no evidence that Parliament had any intention to
grant the board jurisdiction.
The board here would be deciding upon its jurisdiction when deciding whether or not
the land was "within the reserve" as opposed to acting within its jurisdiction. A court, on
an application for judicial review on this issue, could apply the standard of correctness.
Where the fundamental issue of lack of jurisdiction is raised as the only issue, the
respondent should not be compelled to proceed needlessly to the appeal tribunal because
it is not an adequate alternative remedy in that it cannot determine the question. Rather, a
party can either have the tribunal consider the jurisdictional matter (but this option is not
mandatory) or have recourse directly to court on the jurisdictional matter.
Institutional Impartiality
Per Lamer C.J. and L'Heureux-Dubé, Sopinka, Gonthier, Cory and Iacobucci JJ.:
Impartiality refers to the state of mind or attitude of the decison-maker whereas
independence involves both the individual independence of members of the tribunal and
the institutional independence of the tribunal. Institutional impartiality and institutional
independence were both at issue here. With respect to impartiality, if no reasonable
38
apprehension of bias arises in the mind of a fully informed person in a substantial number
of cases, allegations of an apprehension of bias cannot be brought on an institutional level
but must be dealt with on a case-by-case basis. This determination must be made having
regard for a number of factors including, but not limited to, the potential for conflict
between the interests of tribunal members and those of the parties who appear before
them.
No apprehension of bias arose from want of structural impartiality. It is appropriate to
have band members sit on appeal tribunals to reflect community interests. A pecuniary
interest that members of a tribunal might be alleged to have, such as an interest in
increasing taxes to maximize band revenue, is far too attenuated and remote to give rise
to a reasonable apprehension of bias at a structural level. No personal and distinct interest
in money raised exists on the part of tribunal members, and any potential for conflict
between the interests of members of the tribunal and those of parties appearing before
them was speculative at this stage. Any allegations of bias which might arise should be
dealt with on a case-by-case basis.
Institutional Independence
Per L'Heureux-Dubé, Sopinka, Gonthier and Iacobucci JJ.: The reasons of Lamer C.J.
were agreed with on all issues, except the issue of lack of institutional independence, as a
ground for finding the motions judge erred in exercising his discretion to refuse judicial
review.
First, the issue of bias was not properly raised at first instance. Second, appellate
courts must defer to the exercise of the motion judge's discretion to strike out unless the
conclusion is unreasonable or has been reached on the basis of irrelevant or erroneous
considerations, a wrong principle or as a result of insufficient or no weight having been
given to a relevant consideration. The discretion to exercise judicial review is not being
assessed de novo in this Court. The motions judge here did not err in declining to
consider the question of reasonable apprehension of lack of institutional independence at
this stage. The essential conditions of institutional independence in the judicial context
need not be applied with the same strictness in the case of administrative tribunals.
Conditions of institutional independence must take into account their operational context.
This context includes that the band taxation scheme was part of a nascent attempt to
foster Aboriginal self-government. This contextual consideration applies to assessing
whether the bias issue was premature and extends to the entire exercise of judicial
discretion. Furthermore, before concluding that the by-laws in question deprive the band
taxation tribunals of institutional independence, they should be interpreted in the context
of the fullest knowledge of how they are applied in practice. The reasonable person,
before making a determination of whether or not he or she would have a reasonable
apprehension of bias, should have the benefit of knowing how the tribunal operates in
actual practice. Case law has tended to consider the institutional bias question after the
tribunal has been appointed and/or actually rendered judgment. It is not safe to form final
conclusions as to the workings of this institution on the wording of the by-laws alone.
Knowledge of the operational reality of these missing elements may very well provide a
39
significantly richer context for objective consideration of this institution and its
relationships.
Per Lamer C.J. and Cory J.: Allegations of bias arising from the want of institutional
independence cannot be avoided by simply deferring to the exercise of discretion by the
motions judge. A lack of sufficient institutional independence in the bands' tribunals is a
relevant factor which must be taken into account in determining whether the respondents
should be required to pursue their jurisdictional challenge before those tribunals.
Although the larger context of Aboriginal self-government informs the determination of
whether the statutory appeal procedures established by the appellants constitute an
adequate alternative remedy, this context is not relevant to the question of whether the
bands' tribunals give rise to a reasonable apprehension of bias at an institutional level.
Principles of natural justice apply to the bands' tribunals and are not diluted by a federal
policy of promoting Aboriginal self-government.
Judicial independence is a long standing principle of our constitutional law which is
also part of the rules of natural justice even in the absence of constitutional protection.
Natural justice requires that a party be heard by a tribunal that not only is independent but
also appears to be so. The principles for judicial independence accordingly apply in the
case of an administrative tribunal functioning as an adjudicative body. A strict
application of the principles for judicial independence is, however, not always warranted.
Therefore, while administrative tribunals are subject to these principles, the test for
institutional independence must be applied in light of the functions being performed by
the particular tribunal at issue. The requisite level of institutional independence (i.e.,
security of tenure, financial security and administrative control) depends on the nature of
the tribunal, the interests at stake, and other indices of independence such as oaths of
office. Cases dealing with the security of the person require a high level of independence
and warrant a stricter application of the applicable principles. Here, the bands'
administrative tribunals are adjudicating disputes about property taxes and a more
flexible approach is clearly warranted.
Even given a flexible application of the principles for judicial independence, a
reasonable and right-minded person, viewing the whole procedure in the
assessment by-laws, would have a reasonable apprehension that members of the appeal
tribunals are not sufficiently independent. Three factors lead to this conclusion: (1) the
complete absence of financial security for members of the tribunals; (2) the complete
absence of security of tenure (in the case of Siska), or ambiguous and therefore
inadequate security of tenure (in the case of Matsqui); and (3) the fact that the tribunals,
whose members are appointed by the Band Chiefs and Councils, are being asked to
adjudicate a dispute pitting the interests of the bands against outside interests. Effectively,
the tribunal members must determine the interests of the very people, the bands, to whom
they owe their appointments. These three factors in combination lead to the conclusion
that the tribunals lack sufficient independence in this case; any one factor in isolation
would not necessarily lead to the same conclusion.
40
Although the allegations of an absence of institutional impartiality were premature,
the allegations surrounding institutional independence were not. The two concepts are
quite distinct. It is mere speculation to suggest that members of the tribunals will lack
impartiality, since it is impossible to know in advance of an actual hearing what these
members think. In assessing the institutional independence of the appeal tribunals,
however, the inquiry focuses on an objective assessment of the legal structure of the
tribunals, of which the by-laws are conclusive evidence. The by-laws merely afford the
Band Chiefs and Councils the discretion to provide institutional independence. It is
inappropriate to leave issues of tribunal independence to the discretion of those who
appoint tribunals.
Pezim v. British Columbia (Superintendent of Brokers) [1994] 2 S.C.R. 557:
Securities Commission -- Commission part of larger regulatory framework -- No
privative clause and right of appeal -- Appropriate standard of review of
Commission's decisions
Present: Lamer C.J. and La Forest, Sopinka, Gonthier, McLachlin, Iacobucci and Major
JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA
Administrative law -- Judicial review -- Securities Commission -- Commission part of
larger regulatory framework -- No privative clause and right of appeal -- Appropriate
standard of review of Commission's decisions -- Whether standard properly applied -Securities Act, S.B.C. 1985, c. 83, ss. 1(1) "material change", "material fact", 14(1), (2),
44(1), 45(2), 49(1), 50(1), 67, 68, 144(1)(a), (b), (c), (d), 149(a), (b), (c), 154.2.
Securities -- Securities Commission -- Statutory duty on issuers of stock to disclose
nature and substance of material change -- Prohibition against insider trading -- Series
of transactions allegedly breaching duty to disclose -- Whether transactions breaching
duty to disclose and/or prohibition against insider trading.
Respondents were, respectively, the chair of the board, the vice president responsible for
internal administration and the president of Prime, a company holding several wholly
owned subsidiaries and controlling or managing about 50 public junior resource
companies. Respondents were also directors of Calpine, a company controlled and
managed by Prime. Both companies were reporting issuers listed on the Vancouver Stock
Exchange and subject to the VSE's rules and policies concerning public disclosure of
information and pricing of options. Both were subject to the continuing and timely
disclosure requirements under s. 67 of the Securities Act and to the insider trading
provisions under s. 68. The British Columbia Securities Commission administers the Act
and ensures compliance with its requirements. It also regulates the VSE.
In the spring of 1990, the Superintendent of Brokers (the Commission's chief
administrative officer) instituted proceedings against the respondents in connection with
various types of transactions which occurred between July and October, 1989. The
Superintendent alleged that the respondents had violated the timely disclosure provisions
and insider trading provisions in three categories of impugned transactions: the drilling
41
results and share options transactions, the private placement, and the ALC withdrawal.
Respondents were prevented from having information relative to assay results by a
"Chinese Wall".
In the first category, Prime or Calpine allegedly failed to disclose all material changes in
four transactions in that assay results were publicly disclosed after the company had
granted or repriced options. The fifth option transaction, although made after a detailed
news release of assay results, allegedly violated a pricing formula under the VSE options
policy.
The second series of impugned transactions involved the private placement of Calpine
units. Calpine allegedly failed to disclose, contrary to s. 67, that Prime was the purchaser
and that the sale significantly increased Prime's interest in Calpine. It was also alleged
that Calpine had misled the VSE as to the firm brokering the private placement.
The third impugned transaction occurred when a broker disputed its contractual
obligation either to find a purchaser or to buy a set number of Prime units on offer
following the withdrawal of a firm (ALC) from a deal to purchase them. Prime was
alleged to have violated s. 67 by not making timely and adequate disclosure of the dispute
following ALC's withdrawal.
The Commission concluded that the respondents contravened s. 67 of the Act by failing
to disclose material changes in their affairs. No insider trading contrary to s. 68 of the Act
was found, however. The respondents were found responsible for these breaches as senior
managers of the companies, were suspended from trading in shares for one year and were
required to pay part of the costs incurred by the Commission and Superintendent.
Respondents' appeal was limited to whether the Commission had erred as a matter of law
in its conclusions on s. 67 (disclosure of material change), s. 144 (power of Commission
to make orders) and s. 154.2 (power of Commission to make orders regarding costs) of
the Act. The Court of Appeal allowed the appeal and set aside the Commission's orders.
The Superintendent and the Commission now appeal from that decision.
These appeals dealt mainly with the appropriate standard of review for an appellate court
reviewing a decision of a securities commission which is not protected by a privative
clause when there exists a statutory right of appeal and where the case turns on a question
of statutory interpretation. The appeals also raised issues of compliance with the timely
disclosure requirements under applicable securities legislation.
Held: The appeals should be allowed.
The Securities Act is part of a much larger framework which regulates the securities
industry throughout Canada primarily for the protection of the investor but also for
capital market efficiency and ensuring public confidence in the system.
The central question in ascertaining the standard of review is to determine the legislative
intent in conferring jurisdiction on the administrative tribunal. The analysis must consider
the tribunal's role or function, whether the agency's decisions are protected by a privative
clause, and whether the question goes to the tribunal's jurisdiction. The courts have
developed a spectrum that ranges from the standard of patent unreasonableness (where
deference is at its highest, for example, where a tribunal is protected by a privative clause
in deciding a matter within its jurisdiction) to that of correctness (where deference is at its
lowest, for example, where there is a statutory right of appeal or where the issue concerns
the interpretation of a provision limiting the tribunal's jurisdiction). The case at bar falls
between these two extremes. On one hand lies a statutory right of appeal pursuant to s.
42
149 of the Securities Act. On the other lies an appeal from a highly specialized tribunal
on an issue which arguably goes to the core of its regulatory mandate and expertise. Even
where there is no privative clause and where there is a statutory right of appeal, the
concept of the specialization of duties requires that deference be shown to decisions of
specialized tribunals on matters which fall squarely within the tribunal's expertise.
The breadth of the Commission's expertise and specialisation is reflected in the
provisions of the Securities Act. The Commission is responsible for the administration of
the Act, has broad powers with respect to investigations, audits, hearings and orders, and
any decision, when filed in the Supreme Court of British Columbia Registry, has the
force and effect of a decision of that court. The Commission has the power to revoke or
vary any of its decisions. It also has a very broad discretion to determine what is in the
public's interest. The definitions in the Act exist in a factual or regulatory context and
must be analysed in context, not in isolation. This is yet another basis for curial
deference. A higher degree of judicial deference is also warranted with respect to a
tribunal's interpretation of the law where it plays a role in policy development. Here, the
Commission's primary role is to administer and apply the Act. It also plays a policy
development role but its policies are not to be treated as legal pronouncements absent
statutory authority mandating such treatment. Thus, on precedent, principle and policy,
those decisions of the Commission falling within its expertise generally warrant judicial
deference.
Sections 67, 144 and 154.2 of Act were specifically considered with an eye to the
tribunal's expertise and its need for deference. The decision to make an order and the
precise nature of that order, under s. 144, as well as any decision obliging a person to pay
the costs of a hearing necessitated by his or her conduct, pursuant to s. 154.2, are clearly
within the jurisdiction and expertise of the Commission. The other provision at issue was
s. 67 which involves an interpretation of the words "material change" and "as soon as
practicable".
Both "material change" and "material fact" are defined in s. 1 of the Act. They are
defined in terms of the significance of their impact on the market price or value of the
securities of an issuer. The definition of "material fact" is broader than that of "material
change"; it encompasses any fact that can "reasonably be expected to significantly affect"
the market price or value of the securities of an issuer, and not only changes "in the
business, operations, assets or ownership of the issuer" that would reasonably be
expected to have such an effect.
This case turned partly on the definition of "material change". Three elements emerge
from that definition: the change must be (a) "in relation to the affairs of an issuer", (b) "in
the business, operations, assets or ownership of the issuer" and (c) material, i.e., would
reasonably be expected to have a significant effect on the market price or value of the
securities of the issuer. Not all changes are material changes; the latter are set in the
context of making sure that issuers keep investors up to date. The determination of what
information should be disclosed is an issue which goes to the heart of the regulatory
expertise and mandate of the Commission, i.e., regulating the securities markets in the
public's interest.
This case also turns on the meaning of the words "as soon as practicable", in s. 67 of the
Act, as to when a material change should be disclosed to the public. The timeliness of
disclosure also falls within the Commission's regulatory jurisdiction.
43
Given the nature of the securities industry, the Commission's specialization of duties and
policy development role, and the nature of the problem before the court, considerable
deference was warranted in the present case notwithstanding the facts that there was a
statutory right of appeal and that there was no privative clause.
The determination of what constitutes a material change for the purposes of general
disclosure under s. 67 of the Act falls squarely within the regulatory mandate and
expertise of the Commission. New information relating to a mining property (which is an
asset) bears significantly on the question of that property's value. A change in assay and
drilling results can amount to a material change as was the case here.
The obligation to disclose "as soon as practicable" takes on a different meaning when an
issuer is about to engage in a securities transaction. Although a duty to inquire is not
expressly stated in s. 67, such an interpretation contextualizes the general obligation to
disclose material changes and guarantees the fairness of the market, which is the
underlying goal of the Act. The Commission had jurisdiction to interpret s. 67 in this
manner and was entitled to the court's deference.
A duty to inquire under s. 67 is not incompatible with the Act's insider trading provision
(s. 68). If an issuer wishes to engage in a securities transaction, its directors must inquire
about all material changes in the issuer's affairs. Consequently, the directors will have, at
one point in time, knowledge of undisclosed material facts and material changes which
constitute inside information. As long as the material facts and material changes are
adequately disclosed prior to the transaction, there will be no possibility of insider
trading. The directors' duty to inquire about material changes is not erased by the erection
of a Chinese Wall because the disclosure requirements under s. 67 are on the issuer.
Each of the Commission's findings were supported by overwhelming evidence and
should not be disturbed. The Commission concluded that information contained in
drilling results can constitute a material change in a reporting issuer's affairs and that s.
67 imposes a duty on senior management to inquire as to the existence of material
changes before causing a reporting issuer to engage in a securities transaction. It found
that the respondents breached s. 67 by failing to disclose various material changes in the
affairs of Prime and Calpine before causing these two companies to engage in securities
transactions. The Commission also concluded that the non-disclosure of information
concerning the private placement issue and the withdrawal of ALC constituted a failure
to disclose a material change. Although the material change arising from the controversy
surrounding the withdrawal of ALC was self-evident, not all material changes are selfevident.
Section 144 of the Act gives the Commission a broad discretion to make orders that it
considers to be in the public interest. Thus, a reviewing court should not disturb an order
of the Commission unless the Commission has made some error in principle in exercising
its discretion or has exercised its discretion in a capricious or vexatious manner.
The Commission exercised its discretion in a judicial manner. Further, it could make the
orders it did with respect to the respondents even though the duty to make timely
disclosure under s. 67 of the Act applies to a "reporting issuer". Although responsibility
for timely disclosure is vested in the reporting issuer, effective responsibility rests with
the senior officers and the directors of the reporting issuer. In addition, s. 144 of the Act
not only gives the Commission a broad power to make orders it considers to be in the
public interest but also confers upon the Commission the authority to make orders with
44
respect to "a person". The Commission's order with respect to costs was well within its
jurisdiction; considerable deference was in order.
Dehghani v. Canada (Minister of Employment and Immigration) [1993] 1
S.C.R. 1053: Right to counsel -- Examinations at port of entry by immigration
officer -- Convention refugee claimants
Present: Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ.
ON APPEAL FROM THE FEDERAL COURT OF APPEAL
Constitutional law -- Charter of Rights -- Right to counsel -- Examinations at port of
entry by immigration officer -- Convention refugee claimants -- Secondary examination -Whether claimant detained and having right to counsel under s. 10(b) of Canadian
Charter of Rights and Freedoms.
Constitutional law -- Charter of Rights -- Fundamental justice -- Right to counsel -Examinations at port of entry by immigration officer -- Convention refugee claimants -Secondary examination -- Whether claimant having right to counsel under s. 7 of
Canadian Charter of Rights and Freedoms.
Immigration -- Examinations at port of entry by immigration officer -- Convention
refugee claimants -- Secondary examination -- Whether claimant having right to counsel
under ss. 7 or 10(b) of Canadian Charter of Rights and Freedoms.
The appellant, a citizen of Iran, arrived in Canada without valid travel or identity
documents and claimed Convention refugee status. At the airport, he entered a primary
examination line and was subsequently referred to a secondary examination before an
immigration officer in another part of the airport, where he waited approximately four
hours before the examination took place. In answering questions as to his claim to
Convention refugee status, the appellant omitted important factual details. At the
conclusion of the secondary examination, he was advised of his right to counsel to help
him put forward his refugee claim. Following an inquiry, an adjudicator and an
immigration refugee board member concluded that he did not have a credible basis for his
refugee claim and issued an exclusion order. The Federal Court of Appeal dismissed the
appellant's application to review and set aside the decision under s. 28 of the Federal
Court Act and upheld the order. The majority of the court held that the appellant had not
been "detained" in a manner contemplated by s. 10(b) of the Canadian Charter of Rights
and Freedoms prior to or during the secondary examination at the airport and,
accordingly, that no obligation to inform him of his right to counsel arose. This appeal
raises two issues: (1) whether the appellant was detained within the meaning of s. 10(b)
of the Charter during his secondary examination at the airport; and (2) whether the
appellant's rights under s. 7 of the Charter were infringed by the failure to provide him
with counsel at the port of entry.
Held: The appeal should be dismissed.
(1) Section 10(b)
A secondary examination by an immigration officer at a port of entry does not constitute
a "detention" within the meaning of s. 10(b) of the Charter. The element of state
compulsion is insufficient. The appellant's questioning in the secondary examination was
45
a routine part of the general screening process for persons seeking entry to Canada. The
questioning was purely for the purpose of processing his application for entry and
determining the appropriate procedures which should be invoked in order to deal with his
application for Convention refugee status. Travellers seeking to cross national boundaries
fully expect to be subject to a screening process. In this case, there was no action on the
part of the immigration authorities to indicate that the restriction on the appellant's
freedom had gone beyond that required for the processing of his application for entry and
had become a restraint of liberty. Further, there is no stigma associated with a referral to a
secondary examination. The absence of stigma is another factor indicating that no
detention of constitutional consequence occurs during routine questioning.
It would be unreasonable to expect the screening process for all persons seeking entry
into Canada to take place in the primary examination line. For those persons who cannot
immediately produce documentation indicating their right of entry, the screening process
requires more time and a referral to a secondary examination is therefore necessary. The
secondary examination is a continuation or completion of the initial examination which
takes place in the primary inspection line and remains a routine part of the general
screening process.
Neither the existence of a statutory duty to answer the questions posed by the
immigration officer nor the existence of criminal penalties for both the failure to answer
questions and knowingly making a false or misleading statement necessitates the
conclusion that the appellant was detained within the meaning of s. 10(b). These
provisions are both logically and rationally connected to the role of immigration officials
in examining those persons seeking to enter the country. Indeed, they are required to
ensure that border examinations are taken seriously and are effective.
(2) Section 7
Assuming that s. 7 of the Charter is engaged in the circumstances of this case, the
principles of fundamental justice do not require that the appellant be provided with
counsel at the pre-inquiry or pre-hearing stage of the refugee claim determination
process. While the right to counsel under s. 7 may apply in other cases besides those
which are encompassed by s. 10(b), in an immigration examination for routine
information-gathering purposes, the right to counsel does not extend beyond those
circumstances of arrest or detention described in s. 10(b). An inquiry to determine
whether the appellant's claim to Convention refugee status had a credible basis was held
and, pursuant to s. 30(1) of the Immigration Act, the appellant was informed of his right
to counsel. He was in fact represented by counsel during the credible basis inquiry and
had the opportunity to state his case and know the case he had to meet. The principles of
fundamental justice do not include a right to counsel for routine information gathering
and to allow counsel at port of entry interviews would constitute unnecessary duplication.
R. v. Généreux [1992] 1 S.C.R. 259: Courts martial -- Member of Canadian
Armed Forces tried by General Court Martial on narcotics and desertion charges
--Independent and impartial tribunal
46
Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory,
McLachlin, Stevenson and Iacobucci JJ.
ON APPEAL FROM THE COURT MARTIAL APPEAL COURT OF CANADA
Constitutional law -- Charter of Rights -- Application -- Courts martial -- Member of
Canadian Armed Forces tried by General Court Martial on narcotics and desertion
charges -- Whether s. 11 of Canadian Charter of Rights and Freedoms applicable to
General Court Martial proceedings -- National Defence Act, R.S.C., 1985, c. N-5, ss. 166
to 170.
Constitutional law -- Charter of Rights -- Independent and impartial tribunal -- General
Court Martial -- Member of Canadian Armed Forces tried by General Court Martial on
narcotics and desertion charges -- Whether structure of General Court Martial infringes
s. 11(d) of Canadian Charter of Rights and Freedoms -- If so, whether infringement
justifiable under s. 1 of Charter -- National Defence Act, R.S.C., 1985, c. N-5, ss. 166 to
170.
Constitutional law -- Charter of Rights -- Fundamental justice -- Right to be tried by
independent and impartial tribunal -- Member of Canadian Armed Forces tried by
General Court Martial on narcotics and desertion charges -- Whether General Court
Martial an independent and impartial tribunal -- Whether s. 7 of Canadian Charter of
Rights and Freedoms offers greater protection than s. 11(d) of Charter -- National
Defence Act, R.S.C., 1985, c. N-5, ss. 166 to 170.
Constitutional law -- Charter of Rights -- Equality before the law -- Military personnel -Member of Canadian Armed Forces charged with narcotics offences and tried before
military tribunal under National Defence Act -- Civilian charged with same offences
entitled to trial before ordinary criminal court -- Whether trial by military tribunal
infringed s. 15 of Canadian Charter of Rights and Freedoms -- National Defence Act,
R.S.C., 1985, c. N-5, s. 130.
Constitutional law -- Charter of Rights -- Admissibility of evidence -- Bringing
administration of justice into disrepute -- Narcotics found following search of accused's
home -- Procedure for obtaining search warrant unacceptable -- Accused's right against
unreasonable search infringed -- Whether narcotics evidence should be excluded -Canadian Charter of Rights and Freedoms, ss. 8, 24(2).
The accused, a corporal with the Canadian Armed Forces, was charged with possession
of narcotics for the purpose of trafficking contrary to s. 4 of the Narcotic Control Act and
with desertion contrary to s. 88(1) of the National Defence Act. He was tried by a General
Court Martial and convicted. His appeal to the Court Martial Appeal Court was
dismissed. The main issue raised in this appeal is whether a General Court Martial is an
independent and impartial tribunal for the purposes of s. 11(d) of the Canadian Charter
of Rights and Freedoms. Both the judge advocate and the majority of the Court Martial
Appeal Court found that the General Court Martial met the standard of independence
required by s. 11(d) of the Charter.
Held (L'Heureux-Dubé J. dissenting): The appeal should be allowed and a new trial
ordered. The structure of the General Court Martial at the time of the accused's trial
infringed his right to be tried by an independent and impartial tribunal guaranteed by s.
11(d) of the Charter. The infringement was not justifiable under s. 1 of the Charter.
(1) Application of s. 11 of Charter
47
An accused who is charged with offences under the Code of Service Discipline and is
subject to the jurisdiction of a General Court Martial may invoke the protection of s. 11
of the Charter. Although the Code of Service Discipline is primarily concerned with
maintaining discipline and integrity in the Canadian Armed Forces, it also serves a public
function by punishing specific conduct which threatens public order and welfare,
including any act or omission punishable under the Criminal Code or any other Act of
Parliament. In any event, since the accused faced a possible penalty of imprisonment in
this case, even if the matter dealt with was not of a public nature, s. 11 would nonetheless
apply by virtue of the potential imposition of true penal consequences.
(2) Section 11(d)
Per Lamer C.J. and Sopinka, Gonthier, Cory and Iacobucci JJ.: A parallel system of
military tribunals, staffed by members of the military who are aware of and sensitive to
military concerns, is not, by its very nature, inconsistent with s. 11(d). The existence of
such a system, for the purpose of enforcing discipline in the military, is deeply
entrenched in our history and is supported by compelling principles. The accused's right
to be tried by an independent and impartial tribunal must thus be interpreted in this
context and in the context of s. 11(f) of the Charter, which contemplates the existence of
a system of military tribunals with jurisdiction over cases governed by military law. In
view of s. 11(f), the content of the constitutional guarantee of an independent and
impartial tribunal may well be different in the military context than it would be in the
context of a regular criminal trial. An individual who challenges the independence of a
tribunal under s. 11(d) need not prove an actual lack of independence. The question is
whether a reasonable person, familiar with the constitution and structure of the General
Court Martial, would perceive that tribunal as independent. The independence of a
tribunal is to be determined on the basis of the objective status of that tribunal. This
objective status is revealed by an examination of the legislative provisions governing the
tribunal's constitution and proceedings, irrespective of the actual good faith of the
adjudicator.
The structure and constitution of the General Court Martial, as it existed at the time of the
accused's trial, did not comply with the requirements of s. 11(d) of the Charter. The
essential conditions of judicial independence described in Valente were not met. First, the
judge advocate at the General Court Martial did not enjoy sufficient security of tenure.
The National Defence Act and regulations fail to protect a judge advocate against the
discretionary or arbitrary interference of the executive. The Judge Advocate General,
who had the legal authority to appoint a judge advocate at a General Court Martial, is not
independent of but is rather a part of the executive. The Judge Advocate General serves
as the agent of the executive in supervising prosecutions. Furthermore, under the
regulations in force at the time of the trial, the judge advocate was appointed solely on a
case by case basis. As a result, there was no objective guarantee that his career as military
judge would not be affected by decisions tending to favour an accused rather than the
prosecution. A reasonable person might well have entertained an apprehension that the
person chosen as judge advocate had been selected because he had satisfied the interests
of the executive, or at least not seriously disappointed executive expectations, in previous
proceedings. Although a General Court Martial is convened on an ad hoc basis, it is not a
"specific adjudicative task". The General Court Martial is a recurring affair. Military
judges who act periodically as judge advocates must therefore have a tenure that is
48
beyond the interference of the executive for a fixed period of time. Security of tenure
during the period of a specific General Court Martial is not adequate protection for the
purposes of s. 11(d). It would not be reasonable, however, in this context, to require a
system in which military judges are appointed until the age of retirement. The
requirements of s. 11(d) are sensitive to the context in which an adjudicative task is
performed. The Charter does not require uniform institutional standards for all tribunals
subject to s. 11(d).
Second, the judge advocate and members of the General Court Martial did not enjoy
sufficient financial security. A military legal officer's salary is determined in part
according to a performance evaluation. There were no formal prohibitions at the time
against evaluating an officer on the basis of his performance at a General Court Martial.
The executive thus had the ability to interfere with the salaries and promotional
opportunities of officers serving as judge advocates and members at a court martial.
Although the practice of the executive may very well have been to respect the
independence of the participants at the court martial in this respect, this was not sufficient
to correct the weaknesses in the tribunal's status. A reasonable person would perceive that
financial security was not present in this case.
Third, certain characteristics of the General Court Martial system were likely to cast
doubt on the institutional independence of the tribunal in the mind of a reasonable and
informed person. While the idea of a separate system of military tribunals obviously
requires substantial relations between the military hierarchy and the military judicial
system, the principle of institutional independence requires that the General Court Martial
be free from external interference with respect to matters that relate directly to the
tribunal's judicial function. An examination of the legislation governing the General
Court Martial reveals that military officers, who are responsible to their superiors in the
Department of Defence, are intimately involved in the proceedings of the tribunal. In
particular, it is unacceptable that the authority that convenes the court martial, i.e. the
executive, which is responsible for appointing the prosecutor, should also have the
authority to appoint members of the court martial, who serve as the triers of fact. The
appointment of the judge advocate by the Judge Advocate General also undermines the
institutional independence of the General Court Martial. The close ties between the Judge
Advocate General, who is appointed by the Governor in Council, and the executive, are
obvious. To comply with s. 11(d) of the Charter, the appointment of a military judge to
sit as judge advocate at a particular General Court Martial should be in the hands of an
independent and impartial judicial officer.
Per La Forest, McLachlin and Stevenson JJ.: Section 11(d) of the Charter imports a
flexible standard which must take into account the nature of the tribunal under
consideration. The difficulty in applying the concepts in Valente to assess military
tribunals is largely attributable to the difficulty in defining the concept of the "executive"
from which there must be independence. If the executive is defined to include the entire
hierarchy, military tribunals will always be subject to executive influence.
A General Court Martial is convened for a single adjudicative task and, given the
requirement of flexibility, a tenure for that "specific adjudicative task" could be a
sufficient guarantee of security of tenure. A tenure beyond executive interference for a
judge advocate could only be achieved by tenured appointments roughly equivalent to
49
those given to the professional judiciary. This aspect of a military judgeship should not,
however, be so institutionalized.
To meet the requirement of "institutional independence" under s. 11(d), an ad hoc
military tribunal, composed of military personnel, operating within a military hierarchy,
must be free to make its decisions on the merits. No one who has an interest in seeing that
the prosecution succeeds or fails should be in a position of influence. The accused, the
"complainants", the prosecutor and the military personnel engaged in the investigation of,
or in formulating or approving the charges clearly have such an interest. There must be
found some point within the military hierarchy where an officer or official has no real or
apparent concern about the outcome of a case. There is, at that point, sufficient
independence in the setting of military tribunals.
While the convening authority is sufficiently far removed from the investigative and
complaint stages to convene the court martial and appoint its members, it also appoints,
with the concurrence of the Judge Advocate General, the prosecutor. The convergence of
responsibilities in appointing the prosecutor and judge advocate is objectionable as it fails
to meet the requirement that those appointing the tribunal have no apparent concern in the
outcome. Further, under the scheme in force when these proceedings took place, there
was nothing to prevent those who made decisions in relation to salaries and promotions
from taking into consideration the outcome of a court martial. This could well include
persons with an interest in that outcome and thus be perceived as an apparent
infringement of the "financial security" requirement under s. 11(d).
L'Heureux-Dubé J. (dissenting): This case arises in the context of a military tribunal and,
in interpreting s. 11(d) of the Charter, sufficient weight must be given to that context.
The contextual approach is a tenet of constitutional interpretation which is of paramount
importance. While the virtues of this approach have been discussed principally with
respect to s. 1 of the Charter, context is also important at the initial stage of deciding
whether or not a breach of a given right or freedom has occurred. A right or freedom may
have different meanings in different circumstances. Where military tribunals are at issue,
the contextual approach is not merely advantageous but clearly required. The wording of
s. 11(f) illustrates that the Charter contemplates a separate system of military justice. So,
when measuring the General Court Martial against the requirements of the Charter,
certain considerations must be kept in mind. Among those considerations are that the
Armed Forces depend upon the strictest discipline in order to function effectively and
that alleged instances of non-adherence to rules of the military need to be tried within the
chain of command.
The three criteria of judicial independence described in Valente were not meant to apply
to each and every form of tribunal. Valente exhibits a concern for flexibility and a
recognition that differences in tribunals form an acceptable and even desirable part of the
Canadian legal landscape. It would thus be an error to adopt a uniform formula for all the
tribunals subject to s. 11(d). In this case, given the transitory nature of a General Court
Martial and peculiar circumstances surrounding the financial remuneration (or lack
thereof) of its members, the criteria of security of tenure and financial security are
especially ill-suited to the task of assessing the constitutionality of that tribunal.
Nonetheless, even if these criteria are accurate indicia of its constitutionality, they were
amply satisfied by the structure of the General Court Martial as it existed at the time of
the accused's trial.
50
The judge advocate at the General Court Martial enjoyed sufficient security of tenure.
The performance of a judge advocate can pass constitutional muster even though he is
appointed by the executive. The framers of the Charter could not have intended s. 11(d)
to prevent the executive from appointing members of the judiciary when other sections of
the Constitution explicitly give the executive authority to do so. A General Court Martial
is a "specific adjudicative task" as contemplated in Valente and is not part of a "recurring
affair". The National Defence Act and its regulations contemplate each court as an
entirely distinct entity. Further, while the General Court Martial is taking place, there are
sufficient guarantees of the tenure of the persons involved from the executive. Under the
regulations, only if the judge advocate is, for some reason, unable to attend the General
Court Martial, may the convening authority appoint a replacement judge advocate.
Otherwise, once appointed, the judge advocate is at complete liberty to proceed with the
undertaking with which he has been entrusted. This provides sufficient insulation to the
judge advocate to perform his duty.
The judge advocate and the members of the General Court Martial also enjoyed sufficient
financial security. While it may be desirable that certain discretionary benefits or
advantages should not be under the control of the executive, such potential discretion is
not sufficient to constitute arbitrary interference by the executive in a manner that could
affect judicial independence and hence to give rise to a reasonable apprehension that the
essential condition of financial security was not met. As stated in Valente, executive
control over certain discretionary benefits or advantages does not go to the heart of s.
11(d).
The criterion of institutional independence was satisfied. Section 11(d) of the Charter
permits a sufficient degree of connection between the executive and the participants in a
General Court Martial. It is unrealistic under s. 11(d) to demand the absolute separation
of the judiciary from the other branches of government. While s. 11(d) might not condone
a civilian system of justice where the same body which appointed the prosecutor also
appoints the triers of fact, or where the executive and the presiding judge maintain close
ties, in the context of the Armed Forces these characteristics may well be a necessary part
of the chain of command which, when followed link by link, ultimately leads to the same
destination no matter where one begins. The constitutional standard applicable in the
civilian system of justice is wholly inapplicable to measuring a trial by General Court
Martial.
(3) Section 1
Per Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, McLachlin, Stevenson and
Iacobucci JJ.: The infringement of s. 11(d) cannot be justified under s. 1 of the Charter.
While the goal of maintaining order and discipline within the Armed Forces is of
sufficient importance to warrant overriding a constitutional right, the scheme of the
General Court Martial, as it existed at the time of the accused's trial, failed to meet the
proportionality test. There may well exist a rational connection between the challenged
structure of the General Court Martial and the goal of the maintenance of military
discipline, but this structure did not impair the accused's s. 11(d) rights "as little as
possible". The structure incorporated features which were not necessary to attain either
military discipline or military justice. Under normal circumstances, it is not necessary to
try alleged military offenders before a tribunal in which the judge, the prosecutor, and the
triers of fact are all chosen by the executive. As well, it is not necessary that promotional
51
opportunities, and hence the financial prospects within the military establishment, for
officers serving on such tribunals should be capable of being affected by senior officers'
assessments of their performance in the course of the trial.
(4) Section 7
The accused's challenge to the independence of the General Court Martial falls squarely
within s. 11(d). The accused's argument is thus not strengthened by pleading the more
open language of s. 7 of the Charter. Section 7 does not, in this case, provide a more
comprehensive protection than s. 11(d).
(5) Section 15
The General Court Martial proceedings did not violate the accused's equality rights under
s. 15 of the Charter. In the context of this appeal, the accused cannot claim to be a
member of a "discrete and insular minority" so as to bring himself within the meaning of
s. 15(1) of the Charter.
(6) Section 24(2)
The evidence of the illegal drugs discovered in the accused's home was obtained in
breach of his right under s. 8 of the Charter. The alleged "reasonable and probable
grounds" for the issuance of the search warrant were revealed by the police officer only
to the Crown Attorney and not to the justice of the peace. The procedure followed by the
police was unacceptable and constituted an infringement of the accused's right against
unreasonable search and seizure. The evidence of the illegal drugs, however, should not
be excluded under s. 24(2) of the Charter. The evidence is real evidence, which preexisted the violation of s. 8. The evidence was essential to substantiate a very serious
criminal charge. Moreover, while the procedure followed by the police was unacceptable,
there was a good faith attempt to comply with a procedure which was evidently believed
to be correct. The exclusion, rather than the admission, of the evidence would have
brought the administration of justice into disrepute.
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