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,  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),  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.,  2 S.C.R. 227; U.E.S., Local 298 v Bibeault,  2 S.C.R. 1048, at p. 1089 (Bibeault), and Domtar Inc. v Quebec (Commission d'apel en matiere de lesions professionnelles),  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),  2 S.C.R. 321; Canada (Attorney General) v Mossop,  1 S.C.R. 554, and University of British Columbia v Berg,  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,  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,  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,  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:  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.  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.  This latter quotation is taken from The Queen v. Beauregard,  2 S.C.R. 56 at 73. _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,  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.  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.  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.  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:  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.  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.  Such safeguards would include the involvement of the Judicial Council in the selection of candidates for part time appointments.  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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