MEMBER CODE OF CONDUCT OF THE BRITISH COLUMBIA REVIEW BOARD
1.0 PURPOSE OF THIS CODE OF CONDUCT
- To establish and articulate the values and conduct expectations of Board membership; including diligence, prudence, respect, confidentiality and ethics
- To identify the criteria against which members' performance will be assessed and which will affect their appointment or re-appointment
- To emphasise the concept that Board membership constitutes a public trust
- To foster, reinforce and maintain high standards of professional conduct and performance
- To promote public confidence in, and the independence and credibility of, the Board
- To identify and provide guidelines respecting specific activities which may give rise to problematic perceptions of conflict.
1.1 SCOPEThe Code addresses the key areas of expectations and responsibilities including membership expectations/obligations; conduct during hearings/decision making; public and Media Comment; conflict of interest.
The Code is based on and recognizes the fundamental principle and requirement of independence in adjudicative decision making.
The Code will be revised and expanded as necessary.
2.0 ROLES AND AUTHORITIES OF BOARD MEMBERSHIPBritish Columbia Review Board members exercise the authorities of membership and speak on behalf of the Tribunal only while seated as members of a panel in the course of conducting a hearing. They do not function or speak on behalf of the Board on policy matters in the sense of a Board of Directors.
Board members are expected to act honestly and in good faith and to comply with these conduct expectations and with the administrative practices and procedures of the Board.
3.0 RESPONSIBILITIES TO THE BOARDCONFIDENTIALITY
Board members do not divulge confidential information obtained as a result of their appointment unless legally required.
Board membership includes the reasonable expectation that the member will attend and participate in periodic meetings, policy discussions, orientation and training opportunities/programs.
ORIENTATION AND TRAINING
Board members are expected to read and acquaint themselves with the orientation and training materials provided, prior to participation in hearings; to undertake ongoing efforts to understand the area under the Tribunal's jurisdiction and mandate and its governing legislation/law.
Board members are expected to bring to the Chair's attention the conduct of a colleague which they reasonably believe is in breach of this Code or which may threaten the integrity of the Tribunal.
Board members are expected to exercise judgment regarding appropriate conduct on matters or in situations not specifically mentioned in this Code.
Panel members must know and understand the legislation and case law which governs a decision.
4.0 CONDUCT OF MEMBERS IN THE HEARING CONTEXTThe British Columbia Review Board adjudicates on and determines Charter-protected matters of personal liberty and public safety which are accorded the highest values and legal protection in Canadian society.
The hearing process must be fair and reasonable, must accord with rules of procedural fairness or natural justice, and must be so viewed by all parties. Members of the Board must understand the elements of natural justice and the obligation of fairness.
Bias, or the reasonable perception of bias, must be avoided. Board members should not display bias, or the appearance of bias, or offer preferential treatment to any party in a hearing. The appearance of bias voids the hearing and the resulting decision.
4.1 PRE-HEARING REQUIREMENTS / EXPECTATIONSPanel members must be fully prepared for hearings; to have reviewed and become familiar with all of the historic and documentary evidence (disposition information) provided. This is an unconditional requirement. If a member has been unable to properly prepare for a hearing for any reason, he/she should notify the Chair and offer to withdraw from the panel prior to the hearing.
Panel members must be present and ready to proceed prior to the scheduled time of the hearing, and to be available throughout the proceeding and decision making process otherwise they should not commit to being empanelled. This communicates respect for the process and for the participants.
Panel members must maintain an appropriate professional distance from parties or their counsel by:
- avoiding casual, social or private conversations or pleasantries or spending time with parties or counsel, either before, during or after the hearing or adjournments;
- avoiding the use of first names or any other behaviour which may give an impression that a personal or social relationship or a bias exists.
4.2 CONDUCT DURING THE HEARINGTribunal/panel members must, in the context of the hearing:
- Be impartial.
- Demonstrate receptiveness and an open mind and avoid doing or saying anything that could cause any person to think otherwise. Board members may question a witness in order to clarify the evidence, but should not show impatience or a negative attitude toward a witness; do not ask leading questions which simply confirm a perspective; do not frame questions in such a way that it appears sides are being taken or that minds are already made up. Do not make speeches, propound theories, debate, offer a second opinion, or give advice;
- Members should limit their questions and examination. If the question has already been asked, answered or is repetitive, serves no useful purpose or is not relevant to the inquiry, do not ask it.
- Ensure that parties who are unrepresented by counsel are not unduly disadvantaged at a hearing; at the same time do not unfairly favour an unrepresented party.
- Through their demeanor, timeliness and language behave seriously and courteously at all times; demonstrate respect for the parties, counsel, witnesses, for the dignity of the hearing process itself, and for the issues at stake. It is inappropriate to demonstrate hostility, disdain or sarcasm toward parties, counsel, or witnesses, beyond commenting on, or admonishing improper conduct;
- Listen patiently and carefully to the views, evidence and submissions of the parties and their representative(s), while maintaining control of the hearing;
- Conduct the hearing in a manner that demonstrates sensitivity to the culture and heritage of the parties, counsel and witnesses;
- Maintain a sense of decorum;
- Conduct the hearing as formally or as informally as is appropriate under prevailing circumstances;
- Conduct the hearing expeditiously, preventing unnecessary delay while ensuring that all parties have a fair opportunity to present their case;
- Listen and seek clarification from parties/counsel if the evidence is not understood. Focus on the subject matter of the hearing. It is inappropriate to discuss matters or pass notes during the hearing; if an interruption is required this should be communicated to the Panel Chair;
- Avoid expressions of fatigue or attending to extraneous or personal matters e.g. diaries, palm pilots, etc., which can be interpreted as a lack of interest or boredom with the proceedings. If you are tired and a break is needed, request the Panel Chair to call a recess;
- Avoid unnecessary interruptions in the submissions of a party or counsel, except as may be necessary to clarify a submission or to ensure the relevance of a particular argument. Avoid interference in the examination of witnesses. Parties should be given a full and fair opportunity to examine and cross examine witnesses and present relevant evidence.
4.3 EVIDENCEAny oral evidence, document or other form of information relevant to the subject matter of the proceeding may be admitted whether or not such evidence would be admissible in a court. The Board will ultimately decide what "weight" to attach to it.
The Board may accept "hearsay evidence". The issue is how much weight should be placed on the hearsay evidence. Here a decision will be required on whether the Board is reasonably satisfied as to the "reliability" of the hearsay evidence. Consult Panel Chair for direction.
The Board may, if they are disclosed to other parties, admit written documents or reports from any source whether or not produced by the person preparing the document or report. It is, however, preferable to receive evidence and documentation through witnesses who have first-hand knowledge.
Although evidence may be admitted without oath or affirmation, the Board has the authority to require evidence to be given under oath or affirmation. Consult Panel Chair as to when this may be appropriate.
Full disclosure of information and documentation is fundamental to fairness. Panel members may not accept any evidence or receive any information from parties except during the formal part of a hearing. Board members should not communicate directly or indirectly with any party, witness, agent or lawyer in respect of a proceeding, except in the presence of all parties and their representatives. If a Panel member is provided, is aware of, or considers relevant information which is not provided to the parties, this may constitute ex parte communication and amount to a denial of natural justice. Panel members aware of information which may be relevant must disclose this to their colleagues and to the parties. If disclosure of a persons' name would pose a risk to safety, this may be withheld. Consult Panel Chair for direction.
Decisions must be based only on the merits and the evidence received. If the Board makes a finding of fact with no relevant evidence to support it, the entire decision may be overturned by a court on review or appeal.
Seek independent advice, through the Panel Chair if necessary, provided that the advice is made known to the parties and that they are given the opportunity to make submissions as to the law.
Receive legal advice only from Panel Chair or Board resources.
4.4 DECISION MAKING AND WRITINGIn the course of deliberating and decision making members must:
- Understand that the Board's decision making authority/jurisdiction is circumscribed or modified by legislation and judicial interpretation;
- Notwithstanding personal views or values, not come to any judgment, conclusion or decision on an issue until all the evidence has been submitted, all documents have been entered and all arguments have been concluded;
- Be present for all of the decision-making process;
- Apply the law to the evidence in good faith in accordance with its underlying intent and to the best of their ability, notwithstanding the potential unpopularity of the result. The prospect of disapproval from any party, institution or community must not deter a member from making a decision which he/she believes is correct based on the law and the evidence; not fetter their discretion by considerations other than the proper purposes of the legislation.
- Render decisions promptly and plainly. Panel members must be prepared to give explicit reasons for their dispositions. Reasons enhance the confidence of parties, assist with future cases and render the decision less prone to challenge. Reasons must be adequate to the extent of enabling a party to assess whether grounds for appeal exist.
- Although the decision of a majority of a panel forms the Board's decision, where a member(s) of a panel, having duly listened to and considered the views/reasons of the majority, is unable to agree, he/she should dissent. Unanimity is not a value in itself. A dissent serves an important purpose. Adjudication is not negotiation. Members may consult but are bound to reach their own decisions.
- In the interests of consistency, consider previous Board decisions on similar issues. While these are not necessarily binding, panels should give reasons for departing from previous decisions.
- Make and retain their own careful notes of a hearing to assist their recollection of the evidence; these should be used as the basis for the decision. Notes should be stored appropriately on a permanent basis.
- Respond as quickly as possible with comments on a draft decision.
- Adhere to or attempt to model the following attributes of good decisions:
- Clear, early identification of the issue(s)
- Clear findings of fact based on the evidence and the reasons for the findings
- Responsive to submissions/arguments
- Identification and application of law.
- When drafting reasons or dissents:
- consider your audiences -- often a number of different groups of varying capacities;
- use plain language; avoid jargon
- use the active, rather than the passive voice;
- use short sentences and paragraphs;
- be as concise, clear, understandable, and logical as possible.
- Maintain documents and binders in a confidential and secure manner.
4.5 OBLIGATIONS OF PANEL CHAIRSDesignated Alternate or Panel Chairs are expected, as the presiding member, to ensure they and other members of a panel adhere to the foregoing conduct requirements and to take any necessary steps to ensure compliance, including:
- To resolve any conflict between members of a hearing panel on a procedural or substantive issue but do so privately, not during the hearing or in the presence of parties;
- To limit panel members' questions if they are irrelevant, repetitive, leading, prolix;
- To anticipate and be prepared to deal with preliminary or procedural issues in an independent and decisive manner;
- To identify and deal with conflicts which may disqualify a member from participating in a hearing;
- To ensure they and their colleagues comport themselves with dignity and in keeping with these conduct expectations; and to bring breaches to the attention of the colleague and the Chair;
- To maintain appropriate control of the proceeding; attempt to conduct and complete hearings within times allocated;
- To ensure that deliberations and decision making are professionally controlled/orderly, thorough and courteous/respectful, and outcomes are timely, based on the evidence adduced and sound in law;
- To ensure that Reasons for Disposition are produced in a timely fashion and are legally sound;
- To intervene decisively when the conduct of their colleagues in the hearing in any way threatens the credibility of the Tribunal.
5.0 CONFLICT OF INTERESTWhile on Board business or serving on a hearing panel, Board members function primarily as members of the Board, not of any other constituency or interest group.
Board members must be vigilant in identifying and diligent in avoiding real and/or apparent conflict of interest.
Board members shall not participate in Board matters or serve on a hearing involving any individual with whom they have any current or past financial, personal, private or professional involvement. In the case of the British Columbia Review Board, prior professional involvement is the most likely type of conflict to arise: members must take all reasonable steps to identify accused or other parties with whom they have or have had previous professional involvement (e.g. as counsel or assessor) and to recuse themselves from serving on any panel/hearing involving such individuals. You must disclose anything which could reasonably be expected to affect or appear to affect your ability to adjudicate in a neutral, objective manner. Remember this is a subjective, "eye of the beholder" test. Where a Board member suspects that conflict of interest may exist, he/she shall immediately take steps to declare and/or remove it. If a member is in doubt as to whether or not a conflict exists, he/she must seek the advice of the Panel Chair.
Members shall not accept gifts or benefits from person(s) who are directly or indirectly affected by a decision of the Board; nor indeed from anyone if the gifts are in relation to their membership on the Board. Offers of gifts shall be brought to the Chair's attention.
Board members shall not knowingly take advantage, make personal use of, or benefit from information obtained in the course of official duties which is not generally available to the public.
Board members shall avoid partisan political or advocacy activities which could jeopardize the neutrality and impartiality, both real or perceived, of the Board.
Board members shall use Board/government property or assets and time only for official Board activities.
Board members must never engage in conduct which exploits for personal benefit their position of authority.
Board members should avoid donations to, or memberships in charitable, recreational, community or special interest organizations where it is likely that such organizations will:
- be parties or participants in hearings which Board members may preside, and / or
- publicly espouse positions or issues that are or may be the subject matter of Board reviews.
- that interferes with the performance of their duties as a member;
- in which they have an advantage derived from their appointment as a member;
- that will, or is reasonably likely to, influence or affect the carrying out of their duties as a member.
Tribunal members are expected to respect this Code even after their appointment has expired.
6.0 PUBLIC AND MEDIA COMMENT
The Attorney General or Cabinet speak for government policy.
The BC Review Board Chair or his/her delegate is the public spokesperson for Board policies or procedures.
Tribunal members or staff do not speak publicly for the Board on any matter.
Board members or staff do not, unless expressly requested by the chair, make public comment, orally or in writing, on any aspect of a matter before the Board, either before or after a decision. Board members do not discuss in private, outside the Board, any matter before the Board.
Board members do not publicly criticize or comment on the decisions, policies, procedures or structures of the Board or on the conduct of colleagues at a hearing. Questions relating to any policy, procedure or standard are raised with colleagues and the Chair at the appropriate forum. Board members advise the Board Chair when they become aware of the professional or personal conduct of a colleague which may threaten the integrity of the Board or its processes.
Board members should alert the Chair to any issue or situation that may attract media attention or possibly arise in the Legislature.