How Canadian Administrative Law Protections Measure Up to International Human Rights Standards

Abstract

International human rights law recognizes the right to have one's rights and obligations adjudicated by an independent tribunal-one free from internal collusion and external manipulation. Under Canadian law, by contrast, the right to tribunal independence is watered down. Interference by the executive in administrative decision making is tolerated because the constitutionally entrenched protection of judicial independence is understood not to extend to the sphere of administrative tribunals, ordinarily viewed as instruments of governmental policy. The deference of Canadian courts to tribunals without constitutional protection for independence means that many tribunal decisions remain insulated from review by independent courts. Furthermore, even where a certain degree of protection exists, the overwhelming emphasis in Canadian administrative law on guarantees of security of tenure and financial remuneration of tribunal members leaves tribunals vulnerable to external manipulation through political influence over tribunal appointments and policy directions.

In this article, the authors ask whether the Canadian norm of tribunal independence measures up to international human rights standards. The authors document and compare the content of this norm in conventional international law and Canadian law. They conclude that the protections for tribunal independence found in Canadian law likely fall short of the standards embodied in international human rights instruments and suggest ways in which Canadian law might draw inspiration from international sources.