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Shofar FTP Archive File: orgs/canadian/bc/Human-Rights-Commission/Collins-01-Press-Council-Submission.11


Archive/File: orgs/canadian/bc/Human-Rights-Commission/Collins-01-Press_Council-Submission.11
Last-Modified: 1998/09/21


225.      In Gould v Yukon Order of Pioneers, [1996] 1 S.C.R.
571, Iacobbucci J. states at 583-586:
          
          As my colleague [La Forest J.] states, the key
          issue in this appeal is whether the exclusion of
          the appellant Gould from membership in the
          respondent Yukon Order of Pioneers ("Order") on
          the ground that she is female contravenes s. 8(a)
          of the Yukon Act, a provision which prohibits
          discrimination "when offering or providing
          services, goods or facilities to the public."
          
          My colleague has also explained that the relevant
          standard of review is correctness.  I agree with
          what he has said on this subject, and would only
          add that the approach taken by the unanimous Court
          in Pezim v British Columbia (Superintendent of
          Brokers), [1994] 2 S.C.R. 557, confirms the use of
          this standard.  In Pezim, the Court stated (at pp.
          590-591):
            
            Having regard to the large number of factors
            relevant in determining the applicable
            standard of review, the courts have
            developed a spectrum that ranges from the
            standard of reasonableness to that of
            correctness.  Courts have also enunciated a
            principle of deference that applies not just
            to the facts as found by the tribunal, but
            also to the legal questions before the
            tribunal in the light of its role and
            expertise.  At the reasonableness end of the
            spectrum, where deference is at its highest,
            are those cases where a tribunal protected
            by a true privative clause, is deciding a
            matter within its jurisdiction and where
            there is no statutory right of appeal.  See
            Canadian Union of Public Employees, Local
            963 v New Brunswick Liquor Corp., [1979] 2
            S.C.R. 227; U.E.S., Local 298 v Bibeault,
            [1988] 2 S.C.R. 1048, at p. 1089 (Bibeault),
            and Domtar Inc. v Quebec (Commission d'apel
            en matiere de lesions professionnelles),
            [1993] 2 S.C.R. 756.
            
            At the correctness end of the spectrum,
            where deference in terms of legal questions
            is at its lowest, are those cases where the
            issues concern the interpretation of a
            provision limiting the tribunal's
            jurisdiction (jurisdictional error) or where
            there is a statutory right of appeal which
            allows the reviewing court to substitute its
            opinion for that of the tribunal and where
            the tribunal has no greater expertise than
            the court on the issue in question, as for
            example in the area of human rights.  See
            for example Zurich Insurance Co. v Ontario
            (Human Rights Commission), [1992] 2 S.C.R.
            321; Canada (Attorney General) v Mossop,
            [1993] 1 S.C.R. 554, and University of
            British Columbia v Berg, [1993] 2 S.C.R. 353
            [emphasis added by Iacobucci J.]
          
          My colleague L'Heureux-Dube J relies heavily upon
          the fact-finding expertise of the Board of
          Adjudication.  To the extent that the deference
          she advocates is predicated on this tribunal's
          expertise in the circumstances of the case at bar,
          I would make, in passing, one observation.  Courts
          customarily defer to tribunals, including human
          rights tribunals, on questions of fact, on the
          ground that these tribunals are situated and
          equipped to make such findings: see, e.g., Berg,
          supra, and Canada (Attorney General) v Mossop,
          [1993] 1 S.C.R. 554.  But in the case at bar, I
          note that the Board of Adjudication heard no
          testimony.  Apart from two facts which were agreed
          upon orally at the hearing, all of the evidence
          was in written form.  Moreover, the evidence of
          the parties was presented entirely by admission
          and agreement.  in these circumstances, where the
          issue is not the facts themselves but rather the
          inferences to be drawn from agreed facts, the
          policy considerations which ordinarily militate in
          favour of deference are significantly attenuated:
          see Workmen's Compensation Board v Greer, [1975] 1
          S.C.R. 347.

226.      In Gould, the majority held that although the Order's
males-only membership policy contravened section 6(f)
(discrimination on the basis of sex) of the Yukon Human Rights
Act, that discrimination was not prohibited by section 8
(prohibited discrimination) of the Act, applying a liberal and
purposive approach.

227.      In Ross v School District No. 15, [1996] 1 S.C.R. 826,
decided only weeks after Gould, the Supreme Court of Canada
unanimously held that section 21(1) of the New Brunswick Human
Rights Act imported a "limited privative effect only" to the
considerations applicable on judicial review.  Per La Forest J:
          
          The expertise of the [human rights] tribunals_is
          limited to fact-finding and adjudication in human
          rights matters.  In the process of performing its
          adjudicative function, a human rights tribunal
          will be called on to apply general legal reasoning
          and statutory interpretation, matters which are
          ultimately within the province of the judiciary.
          
          That having been said, I do not think the fact-
          finding expertise of human rights tribunals should
          be restrictively interpreted and it must be
          assessed against the backdrop of the particular
          decision the tribunal is called upon to make.
          Here, inquiry into the appropriate standard of
          review is largely governed by the fact that the
          administrative law issue raised calls upon this
          Court to consider whether the finding of
          discrimination by the Board of Inquiry was beyond
          its jurisdiction.  A finding of discrimination is
          impregnated with facts, facts which the Board of
          Inquiry is in the best position to evaluate.  The
          Board heard considerable evidence relating to the
          allegation of discrimination and was required to
          assess the credibility of the witnesses' evidence
          and to draw inferences from the factual evidence
          presented to it in making a determination as to
          the existence of discrimination.  Given the
          complexity of the evidentiary inferences made on
          the basis of the facts before the Board, it is
          appropriate to exercise a relative degree of
          deference to the finding of discrimination, in
          light of the Board's superior expertise in fact-
          finding, a conclusion supported by the existence
          of words importing a limited privative effect into
          the constituent legislation.

228.      In the result, in Ross the Supreme Court of Canada
declined to interfere with the Tribunal's decision that anti-
Semitic statements made by Ross in his off-duty time constituted
discrimination entitling the Board to remove him from his
classroom teaching position.  That provision of the Board of
Inquiry's order directing that Ross be fired immediately if he
published or wrote anti-Semitic publications or materials was,
however, held to be invalid pursuant to section 2(b) of the
Charter, and did not constitute a reasonable infringement.

229.      If the decision of this Tribunal is that section 7(1)
was violated by the Swindler's List Column, and the decision on
the Charter issues is adverse to the Press Council, on a judicial
review the Press Council would undoubtedly argue that the
deference shown by the Supreme Court of Canada in Ross should not
apply to either a finding of "group defamation" or the Charter
issues.  Nevertheless, the Press Council is concerned that the
absence of a statutory right of appeal in the Human Rights Code
provides inadequate protection for free speech rights in a free
and democratic society and therefore is a factor to be taken into
account when assessing the Charter validity of the scheme of the
Human Rights Code.

(L)  The Members of the Human Rights Tribunal, Who Are Appointees
     Of The Provincial Cabinet, Do Not Enjoy The Constitutional
     Independence and Tenure Prescribed For Superior Court Judges
     By Section 96 Of The Constitution Act, 1867 [Formerly The
     British North America Act]

230.      The Press Council respectfully submits that any
Tribunal called upon to judge the content of news stories or
opinion columns published by the news media in a free and
democratic society must have the same constitutional independence
from the Executive and the Legislative as The Constitution Act,
1867 confers on superior court judges of the judiciary.  This
Tribunal does not have that degree of independence.

231.      An independent judiciary, which developed in England
decades before the cabinet system of government was established,
is an extremely important component of our free and democratic
society.  When the Canadian Confederation was formed, the British
North America Act, 1867, entrenched the jurisdiction,
independence and security of tenure of superior court judges.
This independence is of special importance in a federation, where
jurisdictional disputes between the federal Parliament  and the
provincial Legislatures must be resolved by the courts, and where
constitutional issues such as freedom of speech are litigated.

232.      The relevant legal principles relating to judicial
independence are conveniently summarized in Craig v The Queen (12
June 1997), Vancouver Registry No. A943590 , where Parrett J.
declared that 1989 amendments which repealed the provision
permitting Provincial Court Judges to elect supernumerary status
constituted an arbitrary interference with and violated the
security of tenure which was a condition of the judicial
independence of the plaintiff Provincial Court judge.  In
arriving at this conclusion, Parrett J first discussed the
principle of judicial independence as defined in authorities:
          
           [15] A great deal has been written on the concept
          of judicial  independence, yet the meaning and
          importance of the principle remains disturbingly
          misunderstood by the public.
          
          [16] The 1992 [Compensation Advisory Committee
          appointed pursuant to the  1986 Provincial Court
          Act to created a mechanism for the remuneration of
          judges], in its Report on Process, adopted as its
          own the language of the summary contained in the
          1988 Report of the Ontario Provincial Courts
          Committee:
            
                 We begin by affirming the surpassing
            importance of an independent judiciary.  Of
            all the propositions put before us, this was
            the least controversial. Judicial
            independence is an integral part of the
            heritage on which our legal system is built;
            it is a constitutive element of our
            political culture.  It is in the courtroom
            that the rule of law is given its most
            concrete expression in the lives of
            individuals. It is crucial that those who
            preside in courts of law be able to do so
            without any appearance of interference from
            anyone.  Only the law itself, as applied to
            a set of particular facts, must lead to the
            outcome of the dispute that the court is
            asked to resolve.  As Chief Justice Dickson
            said recently, on behalf of a unanimous
            Supreme Court of Canada:
            
                 The role of the courts as resolver of
            disputes, interpreter of the law and
            defender of the Constitution requires that
            they be completely separate in authority
            and function from all other participants
            in     the justice system.
          
          [17] This latter quotation is taken from The Queen
          v. Beauregard, [1986] 2 S.C.R. 56 at 73.
          
          [28]_in Beauregard, supra, at 69-70, the analysis
          by Dickson C.J.C. turned to the purpose of
          judicial independence:
            
            Historically, the generally accepted core of
            the principle of judicial independence has
            been the complete liberty of individual
            judges to hear and decide the cases that
            come before them:  no outsider - be it
            government, pressure group, individual or
            even another judge - should interfere in
            fact, or attempt to interfere, with the way
            in which a judge conducts his or her case
            and makes his or her decision.  This core
            continues to be central to the principle of
            judicial independence.  Nevertheless, it is
            not the entire content of the principle.
            
                 Of recent years the general
            understanding of the principle of judicial
            independence has grown and been transformed
            to respond to the modern needs and problems
            of free and democratic societies.  The
            ability of individual judges to make
            decisions in discrete cases free from
            external interference or influence
            continues, of course, to be an important and
            necessary component of the principle.
            Today, however, the principle is far
            broader.  In the words of a leading academic
            authority on judicial independence,
            Professor Shimon Shetreet:
               
                    The judiciary has developed from a
               dispute-     resolution mechanism, to a
               significant      social institution with
               an important     constitutional role
               which participates     along with other
               institutions in shaping     the life of
               its community.
        
        ("The Emerging Transnational Jurisprudence on
        Judicial Independence: the IBA Standards and
        Montreal Declaration", in S. Shetreet and J.
        Deschenes (eds.), Judicial Independence:  The
        Contemporary Debate (1985), at p. 393).  There
        is, therefore, both an individual and a
        collective or institutional aspect to judicial
        independence.  As stated by Le Dain J. in Valente
        v The Queen, [1985] 2 S.C.R. 673, at pp. 685 and
        687:
          
          [Judicial independence] connotes not merely a
          state of mind or attitude in the actual
          exercise of judicial functions, but a status
          or relationship to others, particularly to
          the Executive Branch of government, that
          rests on objective conditions or guarantees.
          
          _It is generally agreed that judicial
          independence involves both individual and
          institutional relationships:  the individual
          independence of a judge, as reflected in such
          matters as security of tenure, and the
          institutional independence of the court or
          tribunal over which he or she presides, as
          reflected in its institutional or
          administrative relationships to the executive
          and legislative branches of government.
        
        The rationale for this two-pronged modern
        understanding of judicial independence is
        recognition that the courts are not charged
        solely with the adjudication of individual cases.
        That is, of course, one role.  It is also the
        context for a second, different and equally
        important role, namely as protector of the
        Constitution and the fundamental values embodied
        in it - rule of law, fundamental justice,
        equality, preservation of the democratic process,
        to name perhaps the most important.  In other
        words, judicial independence is essential for
        fair and just dispute-resolution in individual
        cases.  It is also the lifeblood of
        constitutionalism in democratic societies.
     
     [29] The second purpose or role identified here is, in
     effect, to function as a third, independent branch of
     government to protect the constitution as it embodies
     those fundamental values which can be subsumed
     generally in the concept of the rule of law.
     
     [30]  Chief Justice Dickson concludes, after a review
     of the evolution of judicial independence in Canada, at
     73:
        
        In summary, Canadian constitutional history and
        current Canadian constitutional law establish
        clearly the deep roots and contemporary vitality
        and vibrancy of the principle of judicial
        independence in Canada.  The role of the courts
        as resolver of disputes, interpreter of the law
        and defender of the Constitution requires that
        they be completely separate in authority and
        function from all other participants in the
        justice system.
     
     [31] These objective conditions must be in place at
     both the individual and institutional levels.  It is
     equally important that individual judges are free from
     any suggestion of pressure, favour, or influence, and
     that the courts composed of those judges, as
     institutions, are, and are seen to be, independent of
     government in all its essential respects.

233.      The Plaintiff Craig submitted that the elimination of
the right to elect supernumery status, with its loss of certain
financial benefits, constituted a prima facie interference with
their financial security.  Moreover, it left a judge who wishes
to sit part time no alternative but to retire and seek
reappointment as an ad hoc judge.  The plaintiff submitted that
this constitutes an interference with judicial impartiality as
people "may reasonably perceive" that judges who are approaching
the age of retirement as well as those who have sought
reappointment are likely to act out of consideration for the
interests of the executive branch of government rather than out
of concern for the administration of justice generally.  The
defendant noted that the Judicial Council would make the
recommendation for re-appointment in Canada.

234.      Parrett J noted at para 64 that the 1989 amendments to
the Provincial Court Act, R.S.B.C. 1979, C. 341 did not interfere
with the conduct of judicial duties but rather altered the way in
which a judge could continue in office sitting less than full
time.  The option available to a judge after the 1989 amendments
was to continue sitting full time until age 70 or to retire and
seek reappointment on an ad hoc basis.

235.      Parrett J held that the 1989 amendments constituted an
interference by the Executive with judges who had worked for up
to 14 or 15 years with the legislative assurance of a particular
pattern of retirement, and that the amendments represented
nothing more or less than an "arbitrary decision not to pay the
piper" [paras 79-83].  Parrett J also held that the judge's right
to salary or other remuneration was not "established by law"
within the meaning of Valente supra ["The essence of such
security is that the right to salary and pension should be
established by law and not be subject to arbitrary interference
by the Executive in a manner which could affect judicial
independence."] [para 89]  Parrett J therefore found that the
amendments violated the financial security condition of the
judicial independence of Provincial Court judges.

236.      The Press Council respectfully submits that this
Tribunal does not possess the requisite degree of financial
independence from the Executive.

237.      With respect to the plaintiff's claims concerning
institutional impartiality in Craig v The Queen, Parrett J
states:
          
          [92] The heart of the plaintiff's submissions on
          this issue is that s. 5(1)(b), by requiring a
          judge wishing to sit part time to seek
          reappointment, would lead a reasonable person to
          perceive that a judge in such circumstances might
          act out of consideration for the interests of the
          executive branch of government.
          
          [96] There is nothing, in my view, inherently
          objectionable to part-time appointments or ad hoc
          appointments which can be used to alleviate
          workload pressures or unusual problems provided
          that safeguards are maintained to ensure
          institutional impartiality.
          
          [97] Such safeguards would include the involvement
          of the Judicial Council in the selection of
          candidates for part time appointments.
          
          [98] The present provision does not impose a
          requirement for a sitting judge of seeking re-
          appointment as it applies only to judges who have
          resigned or retired, and operates within a system
          that permits the judge to continue sitting full-
          time until he reaches the age of retirement.  The
          problem emerges because of a combination of events
          including the removal of the right to elect
          supernumerary status.  In my respectful view, s.
          5(1)(b), if utilized as envisioned, with the
          involvement of the Judicial Council and with
          respect to retired judges who wish to pursue an
          appointment as an ad hoc judge, does not infringe
          the principle of institutional impartiality.

238.      In the case of a Human Rights Tribunal, there is of
course no involvement of a Judicial Council or anything like it.
Accordingly, the Press Council respectfully submits that the
provisions concerning reappointment in the Human Rights Code
would lead a reasonable person to perceive that a Tribunal member
in such circumstances might act out of consideration for the
interests of the Executive branch of government

239.      In this connection, the British North America Act
provides for the appointment of superior court judges by the
federal Governor General (in reality the federal Cabinet):
section 96.  As to tenure, section 99. (1) provides that the
"Judges of the Superior Courts shall hold office during good
behaviour, but shall be removable by the Governor General on
Address of the Senate and House of Commons."  This tenure expires
at age 75.: section 99.(2).  As to salaries, allowances and
pension, those are fixed and provided by the Parliament of
Canada: section 100.

240.      Contrast the situation under British Columbia's Human
Rights Code.  The members of the Human Rights Tribunal are
appointed by the provincial Lieutenant-Governor (in reality the
Provincial Cabinet) for a term of 5 years ( 3 or 4 years at the
inception of the legislation) and are eligible for one re-
appointment for a further term of 5 years; section 31.  The
Provincial cabinet determines the salary of the Tribunal members.

241.      When the Provincial government established the office
of the Freedom of Information and Protection of Privacy
Commissioner, it took special steps to ensure the independence of
that position.  The Commissioner was appointed on recommendation
of the Legislative Assembly, following a unanimous recommendation
by a special Committee of the Legislative Assembly, for one fixed
term of 6 years.  The Commissioner is not eligible for re-
appointment: section 37.  The Commissioner's salary is fixed by
section 40 of the Freedom of Information and Protection of
Privacy Act at an amount equal to that of the chief judge of the
Provincial Court.  The Commissioner can only be removed from
office on the vote of 2/3 of the members present in the
Legislative Assembly.

242.      Accordingly, it seems clear that the Human Rights
Tribunal does not enjoy appropriate independence from the
Executive.

243.      Compare the rights enjoyed by members of the federal
Human Rights Commission, who each "holds office during good
behaviour but may be removed by the Governor in Council on
address of the Senate and House of Commons": section 26(4),
Canadian Human Rights Act.

(M)  The Human Rights Code Does Not Require The Complainant To
     File Formal Pleadings To Define His Or Her Precise
     Allegations Nor Does It Require The Complainant To Submit To
     Oral Examination For Discovery By The Defendant, Or To
     Produce All Relevant Documents Prior To Trial So That The
     Defendant Can Prepare And Is Not Taken By Surprise;


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