Bourbonnais v. Canada (Attorney General), 2004 FC 1754

Date: 20041217

Docket: T-1080-04

Citation: 2004 FC 1754

Ottawa, Ontario, the 17^th day of December 2004

Present: THE HONOURABLE MR. JUSTICE SIMON NOËL

BETWEEN:

                                                          YVES BOURBONNAIS

                                                                                                                                            Applicant

                                                                           and

                                         THE ATTORNEY GENERAL OF CANADA

                                                                                                                                        Respondent

                                            REASONS FOR ORDER AND ORDER

INTRODUCTION

[1]        Mr. Bourbonnais (the applicant) is asking the Court to issue declaratory conclusions pursuant to sections 18 and 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7, as amended (the FCA).

[2]        In brief, the applicant, a former member (Immigration Appeal Division) of the Immigration and Refugee Board (the IRB) is charged with various criminal offences which allegedly occurred while he was an active member of the said Board and, in his submission, relating to his responsibilities as a member.

[3]        In order to defend himself, he asked the IRB to pay the legal costs and fees. It refused, relying on the Policy on the Indemnification of and Legal Assistance for Crown Servants, issued by the Treasury Board Secretariat in June 2001 (the Legal Assistance Policy).

[4]        The following declaratory relief is sought:

            -           to declare that an IRB member sitting in the Immigration Appeal Division has the same powers, rights and privileges as a superior court judge on any question relating to his jurisdiction, and consequently is entitled to have the IRB pay the legal costs and fees of his defence when he is charged with committing criminal acts or omissions while performing his duties as an IRB member, even if such charges are laid when he has retired;

            -           to declare that an IRB member sitting in the Immigration Appeal Division is not a public servant and the Legal Assistance Policy is not applicable.

[5]        The applicant served notice of a constitutional question pursuant to section 57 of the FCA on the Attorney General of Canada and the Attorneys General of the provinces, informing them that [translation] "the applicant intends to claim the application of constitutional protections guaranteeing judicial independence for superior courts to a member of the IRB Appeal Division". Except for the Attorney General of Canada (the respondent), the Attorneys General of the provinces did not appear. As worded, the notice did not challenge the validity of a statute or regulation or of a policy.

[6]        For the reasons stated below, the application for declaratory relief is not granted as:

-           the judicial independence associated with a court of law is not of the kind conferred on administrative tribunals, as judicial independence is determined by the enabling statute creating them;

            -           the judicial independence associated with the IRB and its members, including members of the Immigration Appeal Division, does not include an absolute right to have costs and fees paid by the IRB when a retired member is prosecuted for actions which took place while he was performing his duties as member;

            -           an IRB member is not an employee of the federal government;

            -           according to the facts and arguments submitted, the Legal Assistance Policy applies to sitting and retired members, so the IRB's decision not to pay the legal costs and fees is upheld in the particular circumstances of this proceeding.

FACTUAL BACKGROUND

[7]        On October 4, 1996, the applicant was appointed as a full-time member of the Refugee Division of the IRB by the Governor General in Council, during good behaviour for a term of four years, pursuant to sections 59 and 61 of the Immigration Act, R.S.C. 1985, c. I-2, now repealed, S.C. 2001, c. 27, s. 274 (the former Act). On November 5, 1996, he signed a certification in which he undertook to comply with the Conflict of Interest and Post-Employment Code for Public Office Holders (the Office Holders' Code).

[8]        On July 27, 2000, his full-time appointment during good behaviour was renewed for three years, ending October 27, 2003 (under subsection 61(1) of the former Act, the maximum length of an appointment, totalling two terms, is seven years), but as a member of the Immigration Appeal Division of the IRB pursuant to sections 60 and 61 of the former Act. On December 20, 2000, he signed the IRB oath of office.

[9]        Following a search of the IRB office in Montréal on October 25, 2001, the chairperson on November 1, 2001, informed the applicant that he was on paid leave while the investigation was being conducted.

[10]      The applicant's second term of office expired on October 27, 2003, before the summonses containing the charges were issued against him.

[11]      It was not until March 18, 2004, that the summonses were signed at the request of Her Majesty on behalf of the Royal Canadian Mounted Police (the RCMP) and 97 counts were issued against the applicant under the Criminal Code, R.S.C. 1985, c. C-46, as amended. The counts concerned acts occurring between May 26, 2000, and October 25, 2001, the period during which the applicant was a member either of the Refugee Division or the Immigration Appeal Division of the IRB. However, the greater part of the acts occurred while he was in the Immigration Appeal Division.

[12]      Without making assumptions about the ultimate outcome of these charges, bearing in mind the principle of the presumption of innocence and taking into account the importance of the connection of the facts on which the charges were based with the duties of the employment, it is necessary for the purposes of this case to give a brief description of the charges:

            -           55 charges concerning allegations of fraud against the federal government and breach of trust;

            -           18 counts of obstructing justice;

            -           18 counts of conspiracy to obstruct justice;

            -           1 count concerning a false statement in relation to a passport;

            -           1 count concerning an allegation of fraud of less than $5,000 involving an insurance company;

            -           4 counts concerning allegations of negligent storage of firearms.

[13]      The applicant said he had been [translation] "retired" since October 22, 2003, and his monthly income was $1,648.53 from the federal government pension plan and $650.75 from the Régie des rentes du Québec.

[14]      His assets were limited to a registered retirement savings plan (RRSP) showing a capital of some $22,000 and a savings account with a balance of over $44,000.

[15]      On April 26, 2004, through his counsel, the applicant asked the IRB to pay the legal costs and fees of his counsel for defending him on the charges laid against him, the reason being that [translation] "the responsibilities were performed as an administrative judge" and that [translation] "the Attorney General, at the request of the RCMP, chose to lay charges against Mr. Bourbonnais in connection with the performance of his duties as an administrative judge . . . This is why, according to the legal tradition in effect, all the fees and disbursements incurred for the defence of Mr. Bourbonnais should be paid by the Government of Canada".

[16]      After informing the IRB chairperson of the situation and the alternatives to be considered, and receiving his decision not to pay the applicant's legal costs and fees, the Acting Senior General Counsel and Director General, Reform and Strategic Directions, of the IRB, Paul Aterman (counsel for the IRB), signed a letter to that effect on April 30, 2004.

[17]      In that letter, counsel for the IRB indicated that the application was denied and that the IRB had [translation] "the final discretion" in making such a decision, for a public servant employed by the Board as well as for a member appointed by the Governor in Council. Relying on the Legal Assistance Policy, he stated that [translation] "the very nature of the acts resulting in the charges in question clearly could not establish that Mr. Bourbonnais acted honestly and without malice and reasonably met the expectations of the IRB". While acknowledging the presumption of innocence principle, counsel for the IRB noted that [translation] "the investigation conducted by the RCMP led to the filing by the Attorney General of Canada of several charges based on reliable evidence. That investigation and the subsequent filing of the charges are the reason for the refusal of the indemnification provided for by the Policy, namely a finding by the approving authority that the public servant has not acted honestly and without malice within the scope of his duties and has not met the Department's reasonable expectations". Counsel for the IRB went on to refer to the IRB Members' Code of Conduct and the Office Holders' Code, and indicated that the acts charged were contrary to those policies. Finally, he commented on the fact that no report on the incidents had been submitted and that the deadline for doing so had expired. (The Policy mentions that the application must be made "at the earliest reasonable opportunity" and must include a complete report.)

[18]      Following receipt of this letter dated June 1, 2004, the applicant filed the proceeding involving the application for a declaratory judgment.

APPLICANT'S ARGUMENTS

[19]      The applicant argued that the IRB Immigration Appeal Division is an administrative tribunal which has nearly all the characteristics of a court of law, and consequently the principle of judicial independence associated with the latter should also apply to the Appeal Division and to its members.

[20]      Using the conditions put forward in Valente v. The Queen, [1985] 2 S.C.R. 673, namely appointment during good behaviour, financial security and institutional independence to guarantee the judicial independence of a court of law, the applicant considered that these conditions were applicable to the IRB Immigration Appeal Division and that a very high level of independence existed.

[21]      The applicant submitted that an administrative tribunal should be treated like a court of law with respect to the principles of judicial independence put forward in Valente, supra, and that this situation had been recognized by the Supreme Court, per Lamer C.J., in Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3, at paragraphs 78-80 and 83-84:

[78]    . . . several Federal Court of Appeal decisions have found the Valente principles to be applicable in the case of administrative tribunals . . .

[79]    This Court has considered Valente, supra, in at least one case involving an administrative tribunal, IWA v. Consolidated Bathurst Packaging Ltd., [1990] 1 S.C.R. 282 . . . at p. 332 . . .

[80]    . . . Moreover, the principles for judicial independence outlined in Valente are applicable in the case of an administrative tribunal, where the tribunal is functioning as an adjudicative body settling disputes and determining the rights of parties . . .

. . . .

[83]    Therefore, while administrative tribunals are subject to the Valente principles, the test for institutional independence must be applied in light of the functions being performed by the particular tribunal at issue . . .

[84]    In some cases, a high level of independence will be required. For example, where the decisions of a tribunal affect the security of the person of a party (such as the Immigration Adjudicators in Mohammad, supra [Mohammad v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 363 (F.C.A.)]), a more strict application of the Valente principles may be warranted.

[22]      According to the applicant, the IRB Immigration Appeal Division has jurisdiction directly affecting the rights of parties who may appear before it, making decisions on applications to sponsor a foreign national as a member of the family class and removal applications (see subsections 63(1), (2), (3) and (5) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the new Act); section 69.4(2) of the former Act). Members are appointed during good behaviour for a period not exceeding seven years (see paragraph 153(1)(a) of the new Act; subsection 61(1) of the former Act) and under section 156 of the new Act enjoy statutory immunity. It may be noted that under the former Act there was no statutory immunity. Also, the Appeal Division is a court of record and has the powers, rights and privileges of a superior court of record (under subsections 174(1) and (2) of the new Act; section 69.4 of the former Act).

[23]      Consequently, IRB Immigration Appeal Division members who hold their positions during good behaviour may only be removed for valid reasons after a judicial inquiry, in which they have an opportunity to be heard in person or by counsel and to participate fully in the proceeding (see sections 176 et seq. of the new Act; 63.1 and 63.2 of the former Act).

[24]      Members of the Immigration Appeal Division also enjoy financial security by receiving an income determined by the Governor in Council, and eventually a pension which will give them financial independence (see paragraph 153(1)(d) and (f) of the new Act; section 62 of the former Act).

[25]      The IRB and the Immigration Appeal Division are part of an organizational framework which provides administrative and institutional independence.

[26]      The applicant submitted that a reasonable and informed person could only conclude that the IRB's Immigration Appeal Division has all the characteristics of a court of law, and hence judicial independence.

[27]      The applicant also stated that the concept of appointment during good behaviour, which is crucial to judicial independence, included the right to defend oneself and to have a hearing if removal is sought.

[28]      In his submission, the right to a full and complete defence includes the quasi-constitutional right to have legal costs and fees paid by the government, as the principle of appointment during good behaviour is directly affected (see Hamann v. Québec (Ministre de la Justice), [2001] J.Q. No. 2046 (C.A.), and Fortin v. Procureur général du Québec, [2003] R.J.Q. 1323 (S.C.)).

[29]      The applicant submitted that though he is no longer a member of the IRB Immigration Appeal Division, the principles mentioned should still be applied as there is more at issue than the personal aspect, namely the institution of the Immigration Appeal Division as an administrative tribunal, its independence and the perception which a reasonable and informed observer would have of the situation.

[30]      Finally, in addition to the arguments made, the applicant raised the following questions based on the following assumption:

            -           if the applicant is obliged to plead guilty because of his financial situation, as he does not have the financial resources to retain the services of counsel to provide a defence:

                        -           will there not be a serious risk that a reasonable and informed person will consider that the Board and its members are corruptible and their judicial independence non-existent?

                        -           is there not a serious risk that a reasonable and informed person will consider that the Board and its currently serving members are not immune from prosecutions relating to the performance of their judicial duties that could be brought when they are retired, that they will have to pay the costs of defending their rights themselves, that such costs may be higher than the amount of the pension they are entitled to receive, and so in short their judicial independence will be seriously compromised?

RESPONDENT'S ARGUMENTS

[31]      In his arguments, the respondent first raised concerns relating to the applicant's proceeding. The respondent conceded that no submission was made by the applicant requesting that the IRB's decision be set aside; nevertheless, in the respondent's view the applicant's application was essentially an application for judicial review of the IRB decision denying the application for payment of legal costs and fees, rather than an application for declaratory relief. After reviewing the applicant's response, the respondent submitted that if the Court rules on the declaratory relief sought, it should do so while at the same time ruling on the validity of the IRB decision denying the application for payment of the applicant's legal costs and fees. (See paragraphs 14 and 18 of the respondent's memorandum, in reply to the applicant's notice of a constitutional question and supplementary memorandum.)

[32]      The respondent argued that an IRB Immigration Appeal Division member is not a magistrate and does not benefit from the principle of judicial independence applicable to a member of a court of law. Consequently, the IRB's refusal to pay the applicant's legal costs and fees to provide his defence against the charges brought in March 2004, for acts which occurred at the time he was a member, is justified.

[33]      Commenting on the case law used by the applicant to establish that the IRB Immigration Appeal Division is an administrative tribunal which benefits from the principle of judicial independence associated with a court of law, the respondent argued that Ocean Port Hotel Limited v. British Columbia (General Manager, Liquor Control and Licensing Branch), [2001] 2 S.C.R. 781, and Bell Canada v. Canadian Telephone Employees' Association, [2003] 1 S.C.R. 884, determine that the constitutional guarantee associated with the independence of courts of law does not extend to administrative tribunals.

[34]      In the respondent's submission, the Supreme Court has not, to date, broadened the constitutional principle of judicial independence to include administrative tribunals. In support of this argument, it drew the Court's attention to what McLachlin C.J. wrote in Ocean Port, supra, at paragraph 32:

The classical division between court and state does not, however, compel the same conclusion [that there is a constitutional guarantee] in relation to the independence of administrative tribunals. As discussed, such tribunals span the constitutional divide between the judiciary and the executive. While they may possess adjudicative functions, they ultimately operate as part of the executive branch of government, under the mandate of the legislature. They are not courts, and do not occupy the same constitutional role as courts. [Comments added in parentheses for clarification.]

[35]      The IRB and the Immigration Appeal Division have a high degree of independence in carrying out their decision-making functions. Referring to Bell Canada, supra, the respondent noted that the Supreme Court had analyzed the enabling statute and the nature of the jurisdiction of the Canadian Human Rights Tribunal in concluding that there was "a high degree of independence from the executive branch" (paragraph 24). Analyzing the former Act and the new Act in the same way, one can only come to a similar conclusion for the IRB and the Immigration Appeal Division, but this does not confer the judicial independence of courts of law.

[36]      In reply to the argument that an Immigration Appeal Division member's right to be heard and to defend himself or herself against a removal application includes the right to have legal costs and fees paid by the IRB, the respondent noted that this was not a removal, as the appointment had ended, but a defence to criminal charges. Hamann and Fortin, cited above by the applicant in support of this argument, are to be distinguished from the applicant's situation since the latter is not a [translation] "judge" and is not involved in a proceeding for the removal of a judge.

[37]      With respect to the perceptions raised by the applicant's questions, mentioned in paragraph 30 of these reasons:

            -           members might appear to be corruptible, and consequently there is no independence;

            -           currently serving members are not immune from prosecutions relating to the performance of their judicial duties in retirement, thus creating financial insecurity and consequently compromising judicial independence,

The respondent indicated that the case at bar involves only the application of the criminal law to an individual who was a member of the Immigration Appeal Division for his personal actions not related to his duties as a member, and that some of the charges involved soliciting or accepting bribes and this kind of charge is not related to his former duties.

[38]      With respect to currently serving members who will one day be retired, the respondent argued that they know they have at their disposal a right to civil and criminal immunity for actions resulting from the exercise or purported exercise of their functions (see section 156 of the new Act) and have additional protection providing for the payment of counsel fees or the services of government counsel (see the Legal Assistance Policy). This protection is available to persons appointed by the Governor in Council, even if retired. I would again note that the immunity available under the new Act did not exist in the former Act.

[39]      In the respondent's submission, a reasonable person informed of the applicable legislation, its background and the traditions relating to it, after considering the matter in a realistic and practical way would conclude that the independence of members of the IRB and the Immigration Appeal Division is not compromised if one of its former members must answer charges of fraudulent acts against the government, obstruction of justice, conspiracy, fraud on an insurance company and negligent storage of firearms, and the IRB refuses to pay the legal costs and fees.

[40]      Finally, the respondent submitted to the Court that the fact that Parliament provided that the Immigration Appeal Division should be a court of record with the powers, rights and privileges of a superior court of record (see subsections 174(1) and (2) of the new Act; section 69.4 of the former Act) does not make it a court of law. In support of this argument, the respondent referred the Court to two cases: Manitoba (Attorney General) v. Canada (National Energy Board), [1974] 2 F.C. 502 (T.D.), and Alex Couture Inc. v. Canada (Procureur général), [1991] R.J.Q. 2534 (C.A.).

ANALYSIS

Assessment grid and preliminary observation

[41]      As one of the purposes of the proceeding at bar is to determine whether a former member of the IRB Appeal Division, as a member of that administrative tribunal, benefits from all the characteristics associated with judicial independence, the Court must place itself in the position of a reasonable and informed person having thought the matter through, but "realistically and practically". This was the approach taken by the Supreme Court in Bell Canada, supra (in examining the independence and impartiality of the Canadian Human Rights Tribunal), referring to the dissent by Grandpré J. in [1978] 1 S.C.R. 369">Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369, at 394.

[42]      In their pleadings, the parties, for the most part, referred only to the new rather than the former Immigration Act. The acts leading to the charges occurred before October 25, 2001, and the new Act came into effect on June 28, 2002. However, the applicant's appointment as a member of the Immigration Appeal Division terminated on October 27, 2003, and the summonses were filed on March 18, 2004. In his reply memorandum the respondent referred to both Acts and in his argument used new portions of the new Act (especially the concept of immunity - see section 156 of the new Act - which did not exist in the former Act). After asking counsel to elaborate on this point, the Court agrees with counsel that the former Immigration Act should be applied, as the acts occurred before the new Act was promulgated and when the applicant was subject to the provisions of the former Act. However, it should be noted that the same provisions are to be found in both Acts and they are worded in more or less the same way, except for section 156 of the new Act on immunity, which is not in the former Act.

[43]      To respond fully to the arguments raised in this case during the analysis, the Court intends to answer the following questions:

            -           does a member of the IRB Immigration Appeal Division, acting in the course of his or her duties as a member of that administrative tribunal, enjoy the same powers, rights and privileges that a superior court judge, a member of a court of law, has by virtue of judicial independence?

            -           does a member of the IRB Immigration Appeal Division have the right to require the Board to pay the costs of his or her defence when charged with committing criminal offences while a member of the IRB even though the charges were laid when the member had retired?

            -           if necessary, is a member of the IRB Immigration Appeal Division a public servant?

            -           if necessary, does the Treasury Board Legal Assistance Policy apply to a member of the IRB Immigration Appeal Division?

Does a member of the IRB Immigration Appeal Division, acting in the course of his or her duties as a member of that administrative tribunal, enjoy the same powers, rights and privileges that a Superior Court judge, a member of a court of law, has by virtue of judicial independence?

[44]      In general, it can be said that the Canadian Constitution is the basis for the existence of courts of law (including those created by legislation pursuant to the Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, set out in R.S.C. 1985, App. II, No. 5), while Parliament is responsible for creating administrative tribunals. It is a matter of public knowledge that of the three powers derived from the Constitution - executive, legislative and judicial - a court of law is clearly part of the latter while an administrative tribunal may vary between the executive and the judicial, depending on the legislation creating it and the characteristics it is given (see Ocean Port, supra, at paragraphs 22, 23 and 24).

[45]      The principle of judicial independence exists to ensure that there is a clear and exact line of demarcation between the executive and the judicial branches. The purpose is to guarantee that, both in personal and institutional terms, there is real independence and a clear appearance of independence, indicating to a reasonable and informed person that the executive can have no direct or indirect influence either over the judge or the tribunal as an institution.

[46]      In Valente, supra, at paragraph 18, Le Dain J. cited with approval Sir Guy Green, Chief Justice of the State of Tasmania in Australia, when he defined judicial independence in his article titled "The Rationale and Some Aspects of Judicial Independence" (1985), 59 A.L.J. 135, at page 135:

I thus define judicial independence as the capacity of the courts to perform their constitutional function free from actual or apparent interference by, and to the extend that it is constitutionally possible, free from actual or apparent dependence upon, any persons or institutions, including, in particular, the executive arm of government, over which they do not exercise direct control.

[47]      In framing this principle of judicial independence, the courts have recognized three critical characteristics: security of tenure, financial security and institutional independence (see Valente, supra, generally). In Reference Re Remuneration of Judges of the Provincial Court of Prince Edward Island; Reference Re Independence and Impartiality of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3, Lamer C.J. restated these three characteristics but added reinforcing institutional and administrative aspects.

[48]      For the purposes of the case at bar, the question is whether the principle of judicial independence and its characteristics associated with a court of law are applicable to administrative tribunals. The applicability of this principle to administrative tribunals is not determined by constitutional law, but by examining and analyzing the enabling statute of the administrative tribunal in question:

It is well established that, absent constitutional constraints, the degree of independence required of a particular government decision maker or tribunal is determined by its enabling statute. It is the legislature or Parliament that determines the degree of independence required of tribunal members. The statute must be construed as a whole to determine the degree of independence the legislature intended. [See Ocean Port, supra, at 793.]

This is what we propose to do.

[49]      The two Immigration Acts, the old and new ones, with their regulations, largely cover the Government of Canada's immigration policy. In reality, they are an immigration code. They contain policy statements on immigration to Canada and refugee protection (for example, sections 3, 7-10 and 33 of the new Act; 3-7, 108 and 108.1 of the former Act), the conferring of ministerial responsibility on officers in carrying out these policies (see sections 6, 15, 48 and 100 of the new Act; 12, 15, 45, 102 et seq., 109-113 and 121 of the former Act), the investigative power of certain decision-makers on certain matters (under sections 44 et seq. and 54 et seq. of the new Act; 20-23, 27, 49-50, 103 and 103.1 of the former Act), the implementation of decisions (see sections 48 et seq. and Part III of the new Act; 49-56, 110-113 and Part IV of the former Act), the appeal procedure from certain IRB Divisions and the creation of the latter (see Part IV of the new Act; Part IV and sections 103-107 of the former Act), applications to the Federal Court for judicial review of decisions made by officers and the IRB (under sections 72 et seq. of the new Act; 82.1 et seq. of the former Act) and the procedure for certifying ministerial decisions reviewable by the Federal Court (found in sections 76 et seq. of the new Act; 81 and 82 of the former Act). In short, this immigration code involves the executive and its administrative apparatus as well as the judicial and quasi-judicial branches through the Federal Court and the IRB and its Divisions.

[50]      This is the general background that must be taken into account in analyzing the legislative provisions creating the IRB and its Divisions, including in particular the Immigration Appeal Division.

[51]      To assist in understanding this analysis, we will list certain features of the Immigration Acts, old and new, dealing with the IRB, its Divisions and, especially, the Immigration Appeal Division:

            -           IRB members are appointed during good behaviour for a term not exceeding seven years and cannot be removed or disciplined without there being an independent inquiry presided over by a superior court judge (pursuant to paragraph 153(1)(a) and sections 176 et seq. of the new Act; 58-61 and 63.1-63.3 of the former Act);

            -           their remuneration is fixed by the Governor in Council and for pension purposes they are deemed to be employed in the Public Service (paragraphs 153(1)(d) and (f) of the new Act; sections 61 and 62 of the former Act);

            -           for full-time members, they are to devote the whole of their time to the performance of their duties and not to hold offices which may create conflicts (under paragraphs 153(1)(g) and (h) of the new Act; 58-61 of the former Act);

            -           members enjoy civil and criminal immunity and are not compellable as witnesses (a new provision, in section 156 of the new Act only; under the former Act, members did not enjoy any statutory immunity);

            -           a member may be assigned to one of the Divisions (Refugee Protection Division, Refugee Appeal Division and Immigration Appeal Division) (also a new provision, in paragraph 159(1)(b) of the new Act; under the former Act, members were assigned under sections 58-61);

            -           the IRB consists of four Divisions (mentioned above), including a division that is not yet in existence, the Refugee Appeal Division (see subsection 172(1) of the new Act); they are each responsible for an exclusive jurisdiction. For example, the Immigration Appeal Division hears appeals on sponsoring a foreign national as a member of the family class and permanent resident appeals from removal orders (see sections 62 and 63 of the new Act; 70 and 71 of the former Act);

            -           each Division has exclusive jurisdiction to decide points of law and fact, including matters of jurisdiction (pursuant to subsection 161(1) of the new Act; subsections 65(1) and (2) of the former Act);

            -           with the exception of the Immigration Appeal Division, the other Divisions have an inquiry power and members are invested with the powers of a commissioner appointed under the Inquiries Act, R.S.C. 1985, c. I-11 (see section 165 of the new Act; 67(2) e.g. of the former Act); the Immigration Appeal Division is a court of record, which has the powers, rights and privileges of a superior court of record (under subsections 174(1) and (2) of the new Act; 69.4 of the former Act);

            -           in principle, hearings are public and the parties may be heard (under sections 166 and 175 of the new Act; 69(2)-(3.2) and 80 of the former Act) and may be represented by counsel (subsection 167(1) of the new Act; 69(1) of the former Act);

            -           the Divisions' decisions are subject to judicial review where an application for leave has been granted by a Federal Court judge: the decisions of Federal Court judges are final, unless the judge certifies that a case raises a serious question of general importance (see section 72 and paragraph 74(1)(d) of the new Act; 82.1, 82.2., 83 and 102.17 of the former Act).

[52]      This review of the Board's features indicates that Parliament was aware of the importance of security of tenure, financial security and institutional independence of the IRB and the Immigration Appeal Division.

[53]      In order to see clearly the nature of judicial independence applicable to this kind of administrative tribunal, it is important to note some of the differences between a superior court judge and an IRB member:

            -           in order to become a superior court judge, a person must be an attorney and have been a member of a Bar for at least ten years, whereas in order to become an IRB member it is not even necessary to be an attorney; however, the legislation provides that at least 10% of members must be members of at least five years' standing at the Bar of a province or members of the Chambre des notaires du Québec (under subsection 153(4) of the new Act; 58(1) and 61 of the former Act);

            -           a superior court judge is appointed for a period of at least 15 years and the retirement age is 75, whereas an IRB member is appointed for a term not exceeding seven years;

            -           a superior court judge may be removed following an inquiry by the Canadian Judicial Council, and on the latter's recommendation, by the House of Commons and Senate, whereas a member of the IRB may be removed following an inquiry by a superior court judge and a recommendation by the latter to the Governor in Council;

            -           the salary and pension of a superior court judge are determined by an independent committee and, on their recommendation, by government legislation through the Minister of Justice (see the Judges Act, R.S.C. 1985, c. J-1, as amended), while those of members of the IRB are fixed by the Governor in Council (for income) and the Public Service Superannuation Act, R.S.C. 1985, c. P-36, as amended (for pensions).

These differences indicate that there are important distinctions between the positions. It is apparent that there is a significant desire to establish independence precisely: at a high degree for the superior court judge and a lower degree for a member of the IRB. There is a clear separation from the executive for a superior court judge, while for a member of the IRB there is some attachment with the Governor in Council. In order to arrive at a conclusion regarding the question of independence associated with the Immigration Appeal Division and the IRB, let us look at each of the characteristics of judicial independence for a court of law, applying it to this kind of administrative tribunal.

[54]      Security of tenure is expressly recognized and a term not exceeding seven years is specified. The removal of a member or imposition of disciplinary action can only take place if an investigation directed by a superior court judge has been held. The Governor in Council cannot act at will. Having said that, the security of tenure of an IRB member is not the same kind of security of tenure extended to a superior court judge, as described above.

[55]      Financial security is provided by the provisions regarding remuneration and pension entitlement. The Governor in Council fixes the salary of members and they are deemed to be employees for purposes of an employment-related pension. This financial security is not comparable to that of a superior court judge.

[56]      On the question of institutional independence, Parliament has provided for the separate creation of the IRB and the appointment of the chairperson and members during good behaviour. However, the IRB is responsible in financial and budgetary terms to the Minister of Citizenship and Immigration (see Financial Administration Act, R.S.C. 1985, c. F-11, at sections 2 and 3, and Schedule I.1). There is thus some dependence on the executive in this regard.

[57]      In arriving at the foregoing conclusions, it is clear that Parliament intended to give the IRB and its Divisions a certain measure of independence, but that this judicial independence does not have the same scope as that given to courts of law and superior court judges. Parliament decided to impose limits on the independence of the IRB and its members. In this regard, McLachlin C.J. wrote in Ocean Port, supra, at paragraph 32, regarding administrative tribunals:

As discussed, such tribunals span the constitutional divide between the judiciary and the executive. While they may possess adjudicative functions, they ultimately operate as part of the executive branch of government, under the mandate of the legislature. They are not courts, and do not occupy the same constitutional role as courts.

[58]      The applicant maintained that by being given the title of a court of record and the powers, rights and privileges of a superior court of record, the Immigration Appeal Division in practice became a superior court. It is true that the principles associated with natural justice are reflected in the legislation (see e.g. sections 166, 167, 174 and 175 of the new Act; 69(1)-(4), 69.4(1) and (3) and 75 of the former Act).

[59]      However, the inclusion of the "court of record" concept (in French "cour d'archives") in subsection 174(1) of the new Act (subsection 69.4(1) of the former Act) does not as such make the Immigration Appeal Board a superior court. The purpose of Parliament was inter alia to give it certain powers. For example, Parliament recognized that the Immigration Appeal Board had a duty to record proceedings and decisions for reference purposes, and to do this had a seal to certify originals of such proceedings. The wording should not be given any broader interpretation than that (see Alex Couture Inc., supra).

[60]      With respect to the argument concerning the powers, rights and privileges of a superior court of record, it should be noted that in the old and new Acts, Parliament did not write that the Immigration Appeal Division was a superior court, but that it had the powers of a superior court (at subsection 174(2) of the new Act; 69.4(3) of the former Act). Parliament acted in this way because it wanted to give the Appeal Division certain powers: in particular, for the calling and questioning of witnesses, administration of oaths, filing and reviewing of exhibits and implementation of decisions. It seems to the Court that if Parliament had wanted to do more than that, it would have used different language. Once again, it is important not to go beyond this in interpreting Parliament's intentions (see Manitoba (Attorney General), supra, at page 524).

[61]      For all of these reasons, it cannot be determined that a member of the Immigration Appeal Division of the IRB has the same powers, rights and privileges that a superior court judge, a member of the a court of law, has by virtue of judicial independence.

-            Does a member of the IRB Immigration Appeal Division have the right to require the Board to pay the costs of his or her defence when charged with committing criminal offences while a member of the IRB even though the charges were laid when the member had retired?

-            If necessary, is a member of the IRB Immigration Appeal Division a public servant?

-            If necessary, does the Treasury Board Legal Assistance Policy apply to a member of the IRB Immigration Appeal Division?

[62]      As I have already indicated that the IRB refused to pay the applicant's legal costs and fees for defending himself against the charges, and that the IRB chairperson, through the Acting Senior General Counsel, used the Legal Assistance Policy in making his decision, it is important to look closely at the Policy.

[63]      Briefly, the Policy applies to public servants and individuals appointed by the Governor in Council, even if their mandate has ended. It gives "the employer" (in the case at bar, the IRB and not the executive) full and complete discretion on whether to grant legal assistance. This discretion gives the IRB or its representative the task of establishing whether the individual or public servant has acted honestly and without malice. This determination is essential to the procedure set out in the Policy. The employer is thus being asked to pre-judge the future situation.

[64]      For the reasons given at the beginning of these reasons (see paragraph 17), the Acting Senior General Counsel indicated on April 30, 2004, that the application was denied.

[65]      The Court notes that it has not been asked to rule on an application for judicial review of that decision or a proceeding questioning the legality of the Legal Assistance Policy. The applicant confined himself to arguing that he was not a public servant but a member of the IRB Appeal Division, and as such he enjoyed judicial independence which neutralized the application of that Policy. As the Court has already concluded that an Immigration Appeal Division member does not have the same rights and privileges as a superior court judge, the Policy is applicable in the circumstances.

[66]      A member of the IRB Immigration Appeal Division is subject to this Policy, as the latter expressly provides that as an individual appointed (or who was formerly appointed by the Governor in Council), the Policy applies (see the definition of "public servant" in Part VI of the Legal Assistance Policy). Further, it is worth noting that the Policy is not applicable to him as a public servant, but as an individual appointed by the Governor in Council.

[67]      Moreover, an IRB member is not an employee of the federal government. In the Public Service Staff Relations Act, R.S.C. 1985, c. P-35, section 2, the concept of an "employee" is defined and the section expressly excludes persons appointed by the Governor in Council under an Act of Parliament to a statutory position described in that Act.

[68]      Accordingly, the answers to two questions are in the negative, and the third in the affirmative.

[69]      Before concluding, it is worth noting that it was argued that Hamann and Fortin, supra, supported the argument that the legal costs and fees should have been borne by the IRB. However, the facts in those two cases involved judges in the context of a removal. In the case at bar, the member did not have the status of a judge and was not involved in a removal proceeding. Further, as noted earlier, members are subject to a Legal Assistance Policy. Accordingly, those two cases cannot be of any assistance here.

FURTHER COMMENTS

[70]      Having disposed of the application, the Court considers it is worth adding the following comments. Without in any way presuming the applicant's guilt on the charges, and bearing in mind the presumption of innocence, it is worth noting that the charges laid against the applicant involved various matters: fraud against the government and breach of trust, obstructing justice and conspiracy, a false declaration relating to a passport, fraud of at least $5,000 against an insurance company and negligent storage of firearms.

[71]      It would seem difficult to associate these charges with the exercise or purported exercise of the functions of a member of the Immigration Appeal Division. It seems clear that the charges of obstructing justice, a false declaration relating to a passport and fraud of at least $5,000 on an insurance company and negligent storage of firearms are not part of the exercise or purported exercise of the functions of a member of the IRB Immigration Appeal Division. In the extreme, it is conceivable that the charges of fraud against the government and breach of trust could be related to the exercise or purported exercise of the functions of a member of the Immigration Appeal Division. In this regard, no report was submitted to the IRB describing the connection between the functions and the charges.

[72]      There is also the question of whether a superior court judge, enjoying all the powers, rights and privileges of judicial independence, would have his application granted in a similar situation. Certainly, there would be much to consider in arriving at such a conclusion. No evidence in that regard was submitted.

CONCLUSIONS

[73]      In conclusion, the Court considers it is important to answer the questions raised by the applicant (see paragraph 29 of these reasons). Bear in mind that the applicant suggested he might be forced to plead guilty, as he did not have the financial means to retain the services of counsel. Consequently, a reasonable and informed person would have the perception that the IRB and its members are corruptible and their judicial independence non-existent, and that currently serving IRB members were not immune from prosecutions relating to their duties (when they were retired), and they would then have to pay the cost of such prosecutions with income from their pensions. The applicant argued that this situation would compromise judicial independence.

[74]      To begin with, it should be noted that a reasonable and informed person would have complete knowledge of the situation. He or she would know the state of the law, the distinction between a court of law and an administrative tribunal, the concept of judicial independence and its features, the level of independence of the IRB and the Immigration Appeal Division, the content of the charges and their relation to the duties of a Division member, the Legal Assistance Policy and the decision made by the IRB on the application for payment of legal costs and fees. In short, a reasonable and informed person would have all the information necessary to understand the situation in general and in particular.

[75]      In this case, he or she would have to wonder why, considering the particular circumstances of the case, the IRB should pay the legal costs and fees. Such a person would know that judicial independence is not necessarily applicable to administrative tribunals and that the independence of the latter depends on the enabling statute. He or she would know the powers of the IRB and its Divisions and their respective jurisdictions. He or she could make the connection between the duties and the charges, as well as the IRB's decision.

[76]      It is hard to see how such a person would regard the IRB and its members as corruptible and their independence as non-existent if the applicant pleaded guilty because he was unable to secure the services of counsel. Instead, such a person might wonder why there should be a guilty plea in a situation where he was not guilty. He or she would wonder whether there might be other means of defending oneself, either personally or otherwise.

[77]      As to the perception that IRB members might have to pay legal costs and fees of prosecutions during their retirement, and consequently their judicial independence would be seriously compromised, a reasonable and informed person would know that there is a Legal Assistance Policy which provides that even in retirement such services are available, provided the prosecution is related to duties and that good faith and honesty are present. In addition, he or she would know the new section 156 of the new Act, providing civil and criminal immunity and immunity from being called to testify, provided the facts giving rise to the prosecution were related to the exercise or purported exercise of the functions of the Immigration Appeal Division members. Such a perception would be difficult to maintain based on the information given above.

COSTS

[78]      Both parties applied for costs. The applicant even asked for payment of the fees arising from the case at bar. In view of the conclusions in this judgment, costs are awarded to the respondent.

ORDER

FOR THESE REASONS, THE COURT ORDERS THE FOLLOWING:

            -           The application for a declaratory relief is dismissed with costs to the respondent.

Certified true translation

Kelley A. Harvey, BCL, LLB

                                                             FEDERAL COURT

                                                      SOLICITORS OF RECORD

DOCKET:                                                                   T-1080-04

STYLE OF CAUSE:                                                   Yves Bourbonnais v. AGC

PLACE OF HEARING:                                             Montréal

DATE OF HEARING:                                               November 3, 2004

REASONS FOR ORDER

AND ORDER BY:                                                    THE HONOURABLE MR. JUSTICE SIMON NOËL

DATED:                                                                      December 17, 2004

APPEARANCES:

Jean Pomminville and Martin Nadon                              FOR THE APPLICANT

François Joyal and Evan Liosis                                       FOR THE RESPONDENT

SOLICITORS OF RECORD:

Jean Pomminville                                                           FOR THE APPLICANT

Dunton Rainville

Tour de la Bourse, 43^e étage

800, Square Victoria, C.P. 303

Montréal, Québec    H4Z 1H1

(514) 866-6740 poste 348

(514) 866-8854 (fax.)

François Joyal                                                               FOR THE RESPONDENT

Department of Justice

Complexe Guy-Favreau

200, boul. René-Lévesque ouest

Tour est, 5^e étage

Montréal, Qc H2Z 1X4

(514) 283-5880

(514) 283-3856 (fax.)