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Wednesday, July 24, 2019 @ 8:39 AM  

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Appeal by the Chairperson of the BC Review Board from a decision of a chambers judge refusing to grant the appellant a declaration that the scheme for setting the appellant’s income was unconstitutional as being contrary to the principle of judicial independence. The Chairperson’s income was set by the Attorney General according to a Directive from the Treasury Board. The appellant argued that given the judicial role of the Review Board and its functions and processes in the criminal law system, the unwritten constitutional principle of judicial independence applied to the Board and the principles were also engaged through s. 7 of the Charter. The chambers judge rejected the argument administrative tribunals could derive protected independence from unwritten constitutional principles. She distinguished the appellant from the judicial officers, masters and justices of the peace as she considered the nature of the proceedings before review boards to militate against conferring judicial status on the BC Review Board. She further found that that s. 7 of the Charter could not support the constitutional requirement of independence for the appellant.

HELD: Appeal dismissed. There was a distinction between the highest level of administrative independence, which could be constitutionally required for certain tribunals, and judicial independence. While the BC Review Board was exclusively adjudicative, and it functioned near the judicial end of the divide rather than the administrative end, it did not exercise judicial functions that related to the basis upon which the principle of judicial independence was founded. The chambers judge correctly distinguished the Review Board’s role from that played by justices of the peace. The Review Board did not play a dominant role in the adjudication of criminal cases, interpret legislation and jurisdiction, police the division of powers or determine Aboriginal rights. The fact s. 7 Charter rights were engaged at hearings before a tribunal did not mean the tribunal must enjoy all the essential objective conditions or guarantees of judicial independence. The question whether tribunals were constitutionally required to be independent was not the same as the question whether they were entitled to judicial independence. The jurisprudence clearly established that administrative tribunals adjudicating Charter claims must be independent and that their independence could not be compromised and must be constitutionally protected. The cases did not, however, extend the high degree of judicial independence to all adjudicators to whom s. 11 of the Charter applied or to all adjudicators who were charged with addressing s. 7 Charter issues. Administrative tribunals that must be independent for the purpose of adjudicating specific Charter claims did not require judicial independence for the same purpose and to the same extent.

Walter v. British Columbia (Attorney General), [2019] B.C.J. No. 1100, British Columbia Court of Appeal, P.M. Willcock, J.E.D. Savage and J.J.L. Hunter JJ.A., June 17, 2019. Digest No. TLD-July222019009