How Do Canadian Administrative Law Protections Measure Up to International Human Rights Standards? The Case of Independence

70 Pages Posted: 9 Dec 2005

See all articles by Gerald Heckman

Gerald Heckman

University of Manitoba

Lorne Sossin

York University - Osgoode Hall Law School

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 protection for tribunal independence 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 the norm of tribunal independence 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.

Suggested Citation

Heckman, Gerald and Sossin, Lorne, How Do Canadian Administrative Law Protections Measure Up to International Human Rights Standards? The Case of Independence. McGill Law Journal, Vol. 50, p. 1, 2005, U Toronto, Legal Studies Research Paper No. 12-05, Available at SSRN: https://ssrn.com/abstract=869254

Gerald Heckman

University of Manitoba ( email )

Robson Hall, 224 Dysart Rd
Winnipeg R3T 5V4, Manitoba
Canada

Lorne Sossin (Contact Author)

York University - Osgoode Hall Law School ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3
Canada

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