Administrative Justice: Fixed Terms incompatible with Independence – SCC Agrees

In my September 23, 2013, post, I referenced the Manitoba Attorney General’s argument filed in the Senate Reference that fixed terms for Senators were incompatible with the concept of independence – the independence that was so essential to the Senators’ role of providing a sober second thought.

My point was that if true for senators, it must perforce be no less true for tribunal adjudicators.

The Supreme Court of Canada has agreed – agreed, that is, that fixed terms are incompatible with independence.  In paragraph 80 of Reference re Senate Reform, 2014 SCC 32 (CanLII), the Court said this:

[80]   … we agree with the submission of the amici curiae that there is an important “qualitative difference” between tenure for the rough duration of a Senator’s active professional life and tenure for a fixed term …  Fixed terms provide a weaker security of tenure. They imply a finite time in office and necessarily offer a lesser degree of protection from the potential consequences of freely speaking one’s mind on the legislative proposals of the House of Commons.

The point again: If true for senators exercising a sober second thought on government legislation, it must surely be at least equally true for tribunal members exercising judicial functions in which government interests are engaged.


PS.  Of course, in Unjust by Design, I do recommend the retention of renewable fixed terms for tribunal adjudicators but only on condition that the renewal decisions be safely left in the hands of a truly independent body, committed to a fair process, and based on objective performance evaluations.


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