'Automatic perception of conflict': Tribunal chair faces off with B.C. attorney general over independence

The chair of the body that decides the fate of some of B.C.'s most troubled individuals will face off against Attorney General David Eby next week in a battle over independence.

Bernd Walter oversees the B.C. Review Board, which holds hearings to determine the freedoms of people like child killer Allan Schoenborn who are found not guilty of crimes by reason of mental disorder.

Walter has filed a B.C. Supreme Court petition arguing the principle of judicial independence is at risk because wages for tribunal members are set by the same office that sends Crown prosecutors to argue at hearings.

"Given the kind of jurisdiction that this tribunal exercises, these salaries should be set by someone else because [the attorney general] is a party at every hearing, so it creates in law an automatic perception of conflict," Walter told the CBC.

"If you were looking in from the outside, and you were an accused, you would question whether I'm able to make a fair decision, given that [the attorney general] is a party in front of me and also setting my salary."

10-year wage freeze

The case could have implications for B.C.'s other quasi-judicial tribunals — like the mental health review board, the labour relations board or the B.C. Human Rights Tribunal.

It was sparked by a long-simmering dispute over wages.

The B.C. Review Board was implemented in 1992 to deal with people whose mental state left them not guilty of a crime — but not necessarily fit to be released.

Walter has been head of the board since 1997. He also served as head of the B.C. Human Rights Tribunal from July 2010 to August 2016.

According to court documents, when the review board was first set up, the chair's remuneration was indexed to that of a provincial court judge. At current rates, that would equal $244,000.

But Walter says he's never been paid at that level. His review board wage has been set at $135,000 a year since 2007.

In 2016, a Treasury Board directive said Walter's position should draw a minimum of $168,000, but the petition says his salary remained the same.

In August 2017, Walter claims the attorney general decided to gradually increase his wage. But even then, it would have only reached the minimum level by December 2018.

'This has shaken my confidence'

Walter filed the petition — which calls for an "independent and constitutional remuneration process" — last summer. 

A settlement hearing was held in February, but in a letter that introduces the review board's latest annual report, Walter says the government walked away from an agreement.

"In my view, the ministry's conduct in these matters reveals a fundamental lack of respect for the board and the important work it carries out," the letter says.

"This has shaken my confidence in the willingness of the ministry to engage with the board, and the tribunal sector more generally, in a transparent and good faith manner."

More like a parole board

In its response, the attorney general's office says Eby's directions with regards to Walter's salary are guided by an appointee remuneration committee, which operates in keeping with the broader B.C. public sector.

The response also says the relationship between the Crown and tribunal appointees amounts to a private-law contract with a senior public officer.

The government says the positions are not the same as those of judges or ministers of the Crown, and that while the review board can affect a person's liberty, it can't decide guilt.

The document says the tribunal is more like a parole board than a court.

"It is essential to our system of administrative justice that administrative bodies, unlike courts, are accountable to the executive, rather than completely independent of it."

The letter included in the annual report also raises questions about a 10-year-long process to transform B.C.'s tribunals by combining their administrative resources.

Walter says the plan to put six tribunals into one space is "envisaged and being implemented by individuals who know nothing about tribunal operations or about administrative justice writ large."

"The initiative has been reduced to all the banality of a real estate transaction," his letter reads.

"I can predict with absolute certainty that capacity, timeliness, responsiveness, productivity, accuracy and performance will be sacrificed."