Tribunal Appointments – Life-Tenured? No

The Question

Once one acknowledges that the current regime of short-term, renewable appointments of judicial tribunal members cannot possibly be squared with either the constitutional or common law requirements of judicial independence, one is then faced with this question:  Is there, then, any rule-of-law compliant alternative to appointing tribunal members to life-tenured terms?

And, of course, the U.S. counterparts to our judicial tribunal members – the Federal administrative law judges – are appointed to life-tenured terms (and have been since 1946), and the members of Quebec’s Administrative Tribunal (TAQ) are now life-tenured appointments, as now also are the members of the U.K.’s adjudicative tribunals.

The Answer

But life-tenured appointments are not the only viable option.  And, in my opinion, not by any means the preferred one.  The concept of life-tenured appointments for judicial tribunal members is, in fact, alien to the nature of adjudicative tribunals.  For, if the inherent idea of an adjudicative tribunal is to be optimized, tribunal members must remain accountable year by year to the tribunal’s chair; accountable to the chair for the performance of their corporate tribunal duties, for complying with the tribunal’s adjudicative strategies, and for meeting the tribunal’s reasonable performance standards.

The rule of law alternative to life-tenured appointments is the alternative approved by the Quebec Court of Appeal in its 2001 decision in Barreau (The Attorney General of Québec v. Barreau du Montréal, [2001] J.Q. No. 3882 (C.A.), leave to appeal refused (2002), 2002 CarswellQue 2078 (S.C.C.), reconsideration refused (2002), 2002 CarswellQue 2683).

In Barreau, Justice René Dussault speaking for a unanimous Court held that renewable, fixed terms for adjudicative tribunal members (for the members of TAQ) could be brought into compliance with the principles of judicial independence if members appointed to such terms were also the beneficiaries of a fair, objective and independent renewal process.

Thus it is the reappointment or renewal regimes that need to be fixed, not the nature of the appointments.

 

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