Taylor v. Canada (Attorney General), 2001 FCT 1247

                                                                                                                                          Date:    20011114

                                                                                                                                 Docket No.:    T-97-99

                                                                                                            Neutral Citation: 2001 FCT 1247

Ottawa, Ontario, this 14^th day of November, 2001

PRESENT:      THE HONOURABLE MR. JUSTICE BLANCHARD

BETWEEN:

                                                                MICHAEL TAYLOR

                                                                                                                                                       Applicant

                                                                              - and -

                                                ATTORNEY GENERAL OF CANADA

                                                                                                                                                   Respondent

                                                                              - and -

                                                   CANADIAN JUDICIAL COUNCIL

                                                                                                                                                     Intervenor

                                               REASONS FOR ORDER AND ORDER

1.                    Michael Taylor is of the Muslim faith and claims to be a spiritual leader within the African Canadian Community. Mr. Taylor covers his head with a headdress called a "kufi" as part of his religious belief and practice. Mr. Justice Whealy of the Ontario Superior Court was presiding over the trial of Dudley Laws a well-known leader in the African Canadian Community. On November 23, 1993, Mr. Justice Whealy issued an order to the effect that males wearing head cover could not be admitted to the courtroom, Michael Taylor was therefore unable to attend the trial of Mr. Laws. Mr. Justice Whealy maintained this position even after he was presented with a sworn affidavit from Mr. Taylor deposing that his "kufi" was worn as part of his religious practice.

2.                    Mr. Taylor eventually filed a complaint against the conduct of Mr. Justice Whealy with the Canadian Judicial Council (the "Council"). The complaint was received and reviewed by the Chairperson of the Judicial Conduct Committee (the "Chairperson") who concluded on December 9, 1998, that the conduct complained of warranted an expression of disapproval but no formal inquiry or further action by the Council.

3.                    The applicant, Michael Taylor, seeks judicial review of the December 9, 1998 decision of the Chairperson of the Council.

Background facts

4.                    Mr. Justice Whealy, while presiding over the criminal trial of African Canadian activist Dudley Laws on November 15,1993, observed that some people in his courtroom were wearing hats and ordered that either the hats be removed or that those people leave. He made the following statements and assertions:

Attire normally acceptable in school should be the standard. However, male heads must be bare and if females wear head cover, it must not interfere with other members of the public or be flamboyant.

Male heads must be bare - uncovering one's head as a particular mark of respect is a tradition honoured by well over 90% of the population of Canada.

...

Some head coverings, by their shape, colour and design, are obvious and easily recognizable as signalling to the eye an adherent of a well-established and recognizable race, culture, national or religious community; one of those communities who is clearly within the purview of the Charter. I am unable to think of any such community who has adapted a headdress which lacks the dignity and uniformity that I have been speaking of. Even among those communities, headdress in court will only be permitted if it is an article of faith demanded by that well-established and recognizable religious community.

5.                       On November 22,1993, the applicant while attending the trial as a spectator was approached by an officer of the Court and told that Mr. Justice Whealy did not permit persons to wear hats in his court. The applicant advised the officer that he was a Muslim and that wearing the "kufi" was part of his religious practice. The officer told the applicant that there were no exceptions and that he had to either remove his headdress or leave the court. The applicant left the courtroom.

6.                    On the same day, Mr. Justice Whealy dealt with a motion by Mr. Laws' counsel seeking an order that any person wearing a headdress for religious reasons could wear such a headdress during the trial. In his ruling Mr. Justice Whealy outlined suitable dress code criteria which included that "male heads must be bare and that, if females wear head cover, it must not interfere with other members of the public or be flamboyant." He then went on to state those circumstances under which individuals could wear religious headdress in his courtroom.

7.                    On December 10, 1993, the applicant swore an affidavit explaining the religious purpose of his head covering in support of a second motion before Mr. Justice Whealy to permit him to attend Mr. Laws' trial. Mr. Justice Whealy in dismissing this application gave substantially the same reasons offered in his earlier ruling. Mr. Laws was eventually convicted at trial of most of the offences with which he was charged. An appeal would be taken to the Ontario Court of Appeal.

8.                    A complaint regarding Mr. Justice Whealy's conduct at the trial was filed by the applicant with the Ontario Human Rights Commission. The Ontario Human Rights Commission concluded that it could not investigate the complaint since its jurisdiction related to provincial matters and Ontario General Division judges (now Superior Court judges) were appointed by the federal government. The Ontario Human Rights Commission therefore found that it did not have jurisdiction to investigate.

9.                    The applicant then complained of Mr. Justice Whealy's conduct to both the Council and to the Canadian Human Rights Commission. The Canadian Human Rights Commission concluded that paragraph 41(1)(c) of the Canadian Human Rights Act, R.S.C. 1985, c. H-6, prevents the Commission from dealing with the applicant's complaint. This conclusion was upheld by both the Federal Court Trial and Appeal divisions. Initially the Council advised the applicant that it would not take any action on his complaint, and on its behalf, the Executive Director stated in a letter dated December 28, 1994:

(...) the Canadian Judicial Council is not a court that can review decisions of judges made during the course of legal proceedings. These rulings may only be challenged by way of appeal to the Court of Appeal which you state is already underway.

Further, it is apparent that Mr. Justice Whealy took the steps he considered necessary to maintain order in his courtroom. His authority to make these rulings was the subject of a substantive motion which involved legal rights that cannot be decided or reviewed by this Council. It is obvious that Mr. Justice Whealy cannot be criticized for these rulings if he had lawful authority to make them and those questions should be considered by the Court of Appeal.

As a result, Chief Justice McEachern has instructed me to inform you that, for these reasons, this Council will not take any action upon your complaint.

10.              On January 6, 1995, the applicant's counsel, Mr. Rosenthal, asked the Council to reconsider its decision to take no action. The Council refused to do so saying that, "The in-court conduct of a judge is not immune from scrutiny by the Council in appropriate circumstances, but rulings made by judges in the independent discharge of their judicial function are best left with the appeal courts." The Council added that, "If the Court of Appeal should comment adversely about the conduct of a judge, this Council could well consider whether that conduct was such as would engage the jurisdiction of the Council which, as you know, is to determine whether a recommendation should be made that a judge should be removed from office."

11.              On September 9, 1998, the Ontario Court of Appeal [R. V. Laws, 41 O.R. (3d) 499] rendered its decision on the criminal appeal of Dudley Laws. One ground of appeal raised by Mr. Laws before the Court of Appeal was that Mr. Justice Whealy's ruling which resulted in excluding male members of the public from the courtroom may have deprived the appellant of a public trial. The Court articulated the following observations at pages 508-509 of its reasons:

There was no basis on which the trial judge could distinguish between a requirement of a particular faith and a chosen religious practice. Freedom of religion under the Charter surely extends beyond obligatory doctrine.

The trial judge further erred in suggesting that only certain communities are clearly within the purview of the Charter. No individuals or religious communities enjoy any less Charter protection than the major and recognizable religions.

...

In our view the rulings by the trial judge as to headdress did not deprive the appellant of a public trial. However the trial judge by his rulings may well have inadvertently created the impression of an insensitivity as to the rights of minority groups.

...

We are therefore of the opinion that the trial judge erred in excluding certain members of the public from the courtroom, and that this may well have resulted in creating an atmosphere that undermined the appearance of a fair trial. However, having regard to our disposition of this appeal on grounds relating to the wiretap authorization, which are dealt with hereafter, we do not consider it necessary to form a concluded view whether the ground of appeal now under consideration is in itself sufficient to constitute reversible error.

12.              Given that the Court of Appeal adversely commented on Mr. Justice Whealy's conduct and in view of the earlier statement by the Council that such comment could engage its jurisdiction, the applicant wrote and requested that the Council reconsider his complaint. The Council did proceed to reconsider the complaint and sought comments from Mr. Justice Whealy.

13.              On November 5, 1998, Mr. Justice Whealy responded to the allegations in a letter addressed to the Council wherein he stated:

In October, 1998, the Court of Appeal for Ontario dealt with an appeal by the accused, Mr. Laws. One of the grounds of appeal was the fact that Mr. Taylor had been excluded from the courtroom during his trial. The Court of Appeal ordered a new trial on other grounds. Accepting as I must the decision of the Court of Appeal, I was in error in excluding Mr. Taylor.

I sincerely regret if the impression was created that I am insensitive to the rights of minority groups. That is not the case and was never my intent.

14.              On December 9, 1998, the Chairperson wrote to Mr. Justice Whealy and expressed disapproval of the judge's conduct but did not consider the conduct sufficiently serious to warrant recommending that he be removed from office or any further action by the Council. The Chairperson stated:

I accept the view of the Court of Appeal that your rulings may very well have inadvertently created the impression of an insensitivity as to the rights of minority groups even though such was not your intent. I must therefore conclude that the language you used in such rulings was inappropriate. I accordingly express disapproval.

15.              On the same day, the Executive Director wrote to the applicant's counsel, the complainant Mr. Rosenthal, informing him of the decision of the Chairperson to express disapproval of Mr. Justice Whealy's conduct. The letter stated:

Chief Justice McEachern has accordingly expressed disapproval of the comments made by Mr. Justice Whealy. Chief Justice McEachern advises that although the conduct complained of warrants the above expression of disapproval, the conduct is not sufficiently serious to warrant any further action by the Council.

16.              In January 1999, by way of a notice of application for judicial review, pursuant to s. 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, the applicant asks this Court to review the decision of the Chairperson of the Council as communicated in the letter by the Executive Director dated December 9, 1998.

Issues

17.              The applicant raised the following six issues in this application for judicial review:

            (1)        What is the appropriate standard of review of a decision of the Chairperson of the Council?

            (2)        Did the refusal by the Council to hold an inquiry into the conduct of Mr. Justice Whealy, deny the applicant his right to equal protection and equal benefit of the law contrary to section 15(1) of the Charter?

            (3)        Did the Chairperson act contrary to the Judges Act and the Council's applicable By-laws by expressing disapproval of the conduct of Mr. Justice Whealy and refusing to fully investigate and refer the matter to a panel for inquiry?

            (4)        Was a duty of fairness owed to the applicant by the Chairperson and if so was there a breach of this duty by the Chairperson?

            (5)        Did the actions of the Chairperson in refusing to investigate the initial complaint raise a reasonable apprehension of bias that would preclude him from dealing with the complaint?

            (6)        Can mandamus issue against the Council or the Chairperson compelling the Council to conduct a full investigation into the complaint against Mr. Justice Whealy?

Standard of Review

            (1)        What is the appropriate standard of review of a decision of the Chairperson of the Council?

18.              The decision under review is a decision of the "Chairperson" of the Judicial Committee of the Canadian Judicial Council acting under authority of the Judges Act, R.S.C. 1985, c. J-1, and its by-laws. It is useful to review those sections of the Judges Act and the Council's by-laws which authorize the Chairperson to deal with complaints in the first instance.

19.              Subsection 61(3) of the Judges Act provides for the making of by-laws by the Council respecting the establishment of committees and the delegation of duties to any such committees. Provision is made in the same subsection for Council to make by-laws respecting the conduct of inquiries and investigations described in section 63 of the Act. Subsection 63(2) of the Act provides that, "Council may investigate any complaint or allegation made in respect of a judge of a superior court or of the Tax Court of Canada". The most current by-laws of the Council were approved by the Council and became effective on April 1, 1998. By-law 26 provides for standing committees, among others, the Standing Committee on Judicial Conduct. Part 2 of the said by-laws deals with complaints and by-law 41(1) thereof provides for the Chairperson of the Judicial Conduct Committee to carry out the duties set out in Part 2 of the by-laws with respect to complaints against judges. Certain provisions of Part 2 of these by-laws will be specifically dealt with later in these reasons with regards to the Chairperson's decision.

20.              The question of standard of review with respect to the Chairperson's decision will turn on the "pragmatic and functional analysis" developed by the Supreme Court of Canada in Bibeault and Southam (Infra) and more recently articulated by Mr. Justice Bastarache in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982. At paragraph 27 of his reasons, Mr. Justice Bastarache reviews the recent history of Supreme Court decisions which led to this more "nuanced approach" to determining the applicable standard of review intended by the legislator at pages 1004 and 1005:

Since U.E.S., Local 298 v. Bibeault, [1998] 2 S.C.R. 1048, this court has determined that the task of statutory interpretation requires a weighing of several different factors, none of which are alone dispositive, and each of which provides an indication falling on a spectrum of the proper level of deference to be shown the decision in question. This has been dubbed the "pragmatic and functional" approach. This more nuanced approach in determining legislative intent is also reflected in the range of possible standards of review. Traditionally, the "correctness" standard and the "patent unreasonableness" standard were the only two approaches available to a reviewing court. But in Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, a "reasonableness simpliciter" standard was applied as the most accurate reflection of the competence intended to be conferred on the tribunal by the legislator. Indeed, the Court there described the range of standards available as a "spectrum" with a "more exacting end" and a "more deferential end"(para. 30).

The "pragmatic and functional" analysis therefore calls for the consideration of a range of factors with the object of determining the proper level of deference to be shown the decision in question. The approach has also been expressed as follows: whether the question before the tribunal is one that must be answered correctly and if not, the degree of deference to be accorded to the decision.

21.              I note that both the applicant and respondent made submissions on the appropriate standard of review applicable. The applicant submits that in such circumstances the correctness standard is applicable. He argues that the lack of a privative clause and the relative expertise of the Chairperson, which he submits is not significantly different than that of any superior court judge, justify less deference by a reviewing court and the application of the correctness standard. Alternatively, the applicant argues that, in any event, a reviewing court should not afford more deference than that commensurate with the reasonableness simpliciter standard.

22.              The respondent submits that the proper standard of review with respect to the decision in question is that of "patent unreasonableness". The respondent argues that on application of the pragmatic and functional analysis as provided in Pushpanathan, supra, the form of decision making required of the Chairperson and Council is in the nature of a mixed question of fact and law based on a very particular set of facts and is therefore owed the highest level of deference.

23.              In applying the pragmatic and functional analysis, the purpose of which is primarily to determine the legislative intent of the statute and the nature of the question before the tribunal, the Court in Pushpanathan, supra, sets out four primary factors which must be weighed together to determine the appropriate standard of review, these are:

                         (1)         The existence or absence of a privative clause;

                         (2)        The level of expertise of the Board;

                         (3)        The purpose of the Act as a whole and the provision in particular; and

                         (4)        The nature of the problem.

I propose to deal briefly with each of these factors as they apply to the decision under review.

(1)        The existence or absence of a privative clause

24.              Although the Judges Act does not contain a full privative clause and does not directly address the intended standard of review, the absence of any appeal procedure in the Act lends support to the argument that the legislator intended that the decision in question be left exclusively and finally to the Council, that is to say, the decision to "recommend" or not that a judge be removed from office. Sections 63 and 65 of the Act provide the framework for the Council's mandate to conduct investigations and inquiries and make recommendations to the Minister. Section 71 of the Act preserves the authority of Parliament to decide whether a judge should be removed from office. This limitation on the powers conferred upon the Council by the Judges Act is of necessity consistent with the constitutional recognition and entrenchment of judicial independence as set out in section 99 of the Constitution Act, 1867 which provides that superior court judges shall only be removable by the Governor General on Address of the Senate and House of Commons. The constitutional and statutory regimes are structured in a manner that recognize the fundamental importance of the independence of the judiciary as an essential part of the fabric of our free and democratic society. In Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557, at page 591, Iacobucci J., wrote that:

...even where there is no privative clause and where there is a statutory right of appeal, the concept of the specialization of duties requires that deference be shown to decisions of specialized tribunals on matters which fall squarely within the tribunal's expertise. This point was reaffirmed in United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316, where Sopinka J., writing for the majority, stated the following at p. 335: ‘...the expertise of the tribunal is of the utmost importance in determining the intention of the legislator with respect to the degree of deference to be shown to a tribunal's decision in the absence of a full privative clause. Even where the tribunal's enabling statute provides explicitly for appellate review, as was the case in Bell Canada, supra, it has been stressed that deference should be shown by the appellate tribunal to the opinions of the specialized lower tribunal on matters squarely within its jurisdiction.' " (Citation omitted)

The jurisprudence points to expertise as the most important factor to consider when settling on a standard of judicial review.

(2)        The level of expertise of the Board

25.              In evaluating the relative expertise of a tribunal the Court must consider its own expertise and compare it with that expertise required of the tribunal to decide the specific issue before it. In Pushpanathan, supra, at paragraph 35, Mr. Justice Bastarache stated:

In short, a decision which involves in some degree the application of a highly specialized expertise will militate in favour of a high degree of deference, and towards a standard of review at the patent unreasonableness end of the spectrum."

26.              A review of the required composition of the Council will assist in better understanding the expertise required for it to carry out its mandate. Section 59 of the Act essentially dictates that the Council shall consist of the Chief Justice of Canada; the Chief Justice, any Senior Associate Chief Justice and Associate Chief Justice of each of the superior courts or branch or division thereof; the Senior Judges of Supreme Courts of Canada's Territories; the Chief Justice of the Court Martial Appeal Court; and the Chief Judge and Associate Chief Judge of the Tax Court of Canada. Since the decision under review is that of the Chairperson, it is important to note that he is a member of Council sharing his expertise as a Chief Justice with other members. He is also Council's delegate under the by-laws for the purpose of investigating complaints in the first instance.

27.              It is generally recognized that a Chief Justice has more than one role, not only must a Chief Justice assume the role of a judge, first and foremost, but also the roles of court administrator, head of the judiciary of the court concerned and of Canada (in the case of the Chief Justice of Canada) and the role of public representative. In my view, it is also generally recognized that the Council is the forum that is charged with the responsibility to promote efficiency and uniformity and to improve the quality of judicial service in the courts of Canada. This broad mandate is set out in the Judges Act and includes the development in recent years of a set of guidelines on ethics for judges.

28.              The role of a Chief Judge with respect to judicial ethics was canvassed in Ruffo v. Conseil de la magistrature [1995] 4 S.C.R. 267. The case dealt with the issue of whether the Chief Judge of the "Court of Quebec" has authority to file a complaint with le "Conseil de la magistrature". Although the process dealt with in the Ruffo case, supra, regarding judicial conduct is different than that provided for the Council in the case at bar, the principles enunciated by Mr. Justice Gonthier, in my view, are nevertheless applicable. At page 304, Mr. Justice Gonthier stated:

We must recognize that the chief judge, as primus inter pares in the court, the efficient operation of which he or she oversees in all other respects, is in a preferred position to ensure compliance with judicial ethics. First, because of the chief judge's role as co-ordinator, events that may raise ethical issues are more readily brought to his or her attention. As well, because of the chief judge's status, he or she is often the best situated to deal with such delicate matters, thereby relieving the other judges of the court of the difficult task of laying a complaint against one of their colleagues where necessary.

Mr. Justice Gonthier further stated at page 315 of his reasons:

... It is normal, legitimate and desirable for the Chief Judge to have moral authority. Such authority is associated with the Chief Judge as an individual and with the office he holds, and is necessary for its exercise. It is not restrictive and is part of the context in which all judges perform their duties. It does not in itself affect the capacity of a judge to decide to the best of his or her knowledge and belief and on the basis of the relevant factors. In ethical matters judges take account of established rules, precedents, theory, their own experience and authoritative opinions - including that of the Chief Judge - not as restrictive standards but for their persuasive value, in order to make decisions they consider fair.

29.              The applicant submits that the relative expertise of the Chairperson is not significantly different than that of any other superior court judge. I cannot agree. The specialized expertise of the Chairperson and the members of the Council stems not only from their knowledge of the law and experience acquired as sitting superior court judges. This expertise is also attributable to their experience as Chief Justice of their respective courts and the specific statutory jurisdiction conferred by the Judges Act on the Council in matters of judicial conduct. In my view, the experience that each Chief Justice brings to the Council is unique and is the result of dealing with innumerable individual circumstances with judges and the administration of courts in their respective jurisdictions. These senior judges constitute the only body with the statutory power to conduct inquiries and investigations into the conduct of judges of the superior courts or of the Tax Court of Canada and make recommendations that could lead to removal of a judge. The evidence is that the Council, acting principally through the Chairperson, deals with numerous complaints each year. The 1999-2000 Report from the Council shows that 169 new complaints were filed in that year. (See Notes Table 1, p. 13) As a result, the Council has demonstrated experience in dealing with issues of judicial conduct. Clearly, such experience cannot be gained by a judge who is not a member of the Council and who is not exposed to such issues. I cannot imagine a more unique and specialized expertise than that required of the Chairperson and members of the Council which, in my view, militates in favour of a high degree of deference by a Court called upon to review the decisions of its delegate, the Chairperson.

(3)        The purpose of the Act as a whole and the provision in particular

30.              The third factor set out by the Court in Pushpanathan, supra, requires consideration of the purpose of the statute. As Iacobucci J. noted in Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S. C. R. 748, at p. 773, purpose and expertise often overlap. The purpose of the statute is often indicated by the specialized nature of the legislative structure and dispute-settlement mechanism and the need for expertise is often manifested as much by the requirements of the statute as by the specific qualifications of its members. Mr. Justice Bastarache, in Pushpanathan, supra, concluded that deference is warranted when a statute calls for a tribunal to exercise a specialized and expert function, to balance a complex series of competing demands and interests, to exercise a protective role regarding the public and plays a role in policy development. The learned judge further commented that where an administrative structure more closely resembles a model that calls for consideration of "polycentric issues", issues that involve a large number of interlocking and interacting interests and considerations, Courts should exercise restraint.

31.              The Chairperson, in making his decision, must consider a number of "polycentric issues" that require the application of a unique expertise. Expertise, arguably, only found in members of the Council. The issues the Chairperson had to confront were not straightforward applications of legal principles but involved a complex set of facts in which he had to exercise discretion in the application of legal and ethical principles. In making his decision, the Chairperson had to weigh a variety of competing factors flowing from the overarching principles of natural justice, fairness, protection of the public interest and judicial independence including accessibility of the public to the courts, the need to maintain order in the courtroom, the proper administration of justice, the need to affirm and recognize religious plurality and the need to demonstrate sensitivity to the rights of minority groups. In my view, the statutory framework and the administrative structure the Chairperson has to work within in exercising his discretion fall within the above parameters articulated by Mr. Justice Bastarache in Pushpanathan, supra. I conclude, based on this analysis, that decisions of the Chairperson call for the exercise of judicial restraint on review.

(4)        The nature of the problem

32.              The final factor to consider in determining the applicable standard of review, as set out in Pushpanathan, supra, is whether the question is a pure question of law or a mixed question of fact and law. I am of the opinion that the nature of the problem that the Chairperson had to deal with is a mixed question of fact and law. He was obliged to engage in fact-finding which under the by-laws required him to review the complaint, make inquiries and provide a right of response to the allegations. To the resulting findings of fact, the Chairperson had to apply the ethical and legal principles discussed above in exercising his discretion. On the issue of how much deference should be granted a tribunal on mixed questions of law and fact, the following principle articulated by Madam Justice L'Heureux-Dubé in Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554 at pp. 599-600, was held by Mr. Justice Bastarache in Pushpanathan, supra, (at pages 1010-1011) to correctly state the law:

In general, deference is given on questions of fact because of the "signal advantage" enjoyed by the primary finder of fact. Less deference is warranted on questions of law, in part because the finder of fact may not have developed any particular familiarity with issues of law. While there is merit in the distinction between fact and law, the distinction is not always so clear. Specialized boards are often called upon to make difficult findings of both fact and law. In some circumstances, the two are inextricably linked. Further, the "correct" interpretation of a term may be dictated by the mandate of the board and by the coherent body of jurisprudence it has developed. In some cases, even where courts might not agree with a given interpretation, the integrity of certain administrative processes may demand that deference be shown to that interpretation of law.

Mr. Justice Bastarache concluded at page 1012, supra, that:

...In the usual case, however, the broader the propositions asserted, and the further the implications of such decisions stray from the core expertise of the tribunal, the less likelihood that deference will be shown.

33.              The premise articulated by Madame Justice L'Heureux-Dubé for less deference on issues of law, in my view, does not apply to the instant case. The rationale advanced for less deference is that the finder of fact may not have developed any particular familiarity with issues of law. Surely this contention cannot be sustained with regards to the members of the Council and in particular its delegate, the Chairperson whose decision is under review. I think it can be unequivocally stated that the Chairperson and members of the Council have a developed familiarity with issues of law. However, the nature of the problem that must be addressed by the Chairperson requires more than the mere understanding and interpretation of legal principles. He must apply his knowledge of the law and his unique expertise as a Chief Justice to a question of mixed law and fact that involves consideration of a number of polycentric issues as discussed above. The Chairperson's decision involves the assessment of the conduct of a judge in the exercise of judicial function. The implication of such a decision turns very significantly on the core expertise of the decision maker.

34.              Guided by the principles and analysis set out in Pushpanathan, supra, I am of the view that, in order to give full effect to the administrative process provided for in the Judges Act, a reviewing court should exercise considerable deference in reviewing the decision of the Chairperson.

35.              In Re Therrien, [2001] S.C.J. No. 36; (2001) 30 Admin. L.R. (3d) 171, the Supreme Court dealt with an appeal of the decision of five judges of the Court of Appeal of Quebec who recommended to the Minister of Justice, after having conducted an inquiry, that the Government revoke the appellant's commission of appointment to the bench. Mr. Justice Gonthier on behalf of the Court, at para.148, stated:

... First, as I said in the introduction to this part of the reasons, the legislature has chosen to assign the important responsibility of determining whether the conduct of a provincial court judge warrants a recommendation for removal from office exclusively to the Court of Appeal, under s. 95 C.J.A. This is a very special role, perhaps a unique one, in terms of both the disciplinary process and the principles of judicial independence that our Constitution protects. Accordingly, this court should only review the assessment made by the Court of Appeal if it is clearly in error or seriously unfair.

36.              In Re Therrien, supra, the Supreme Court was not dealing with the decision of an administrative tribunal, but rather the decision of the Court of Appeal of Quebec, the body charged with the responsibility of determining whether the conduct of a judge warrants a recommendation for removal from office. This is essentially the same role as that of the Council in the case at bar. I am of the view that the principles articulated by Mr. Justice Gonthier are applicable to a decision of the Chairperson.

37.              In the above cited passage Mr. Justice Gonthier recognized as special and unique, the role of those charged with the important responsibility of determining whether the conduct of a judge warrants a recommendation for removal from office. In the circumstance of that case, the Supreme Court determined that it should only intervene if the assessment made was clearly in error or seriously unfair. In my opinion, the high level of deference adopted in Re Therrien, supra, is consistent with the principles set out in Pushpanathan, supra.

38.              Based on the above "pragmatic and functional" analysis and the principles articulated in Re Therrien, supra, I determine that the applicable standard of review of the decision of the Chairperson to be "patently unreasonableness".

39.              Later in these reasons, I will conclude that the Chairperson's decision in this case was reasonable. Therefore, notwithstanding the above determination of the applicable standard of review, the Chairperson's decision, as my conclusion will show, meets the lesser standard of reasonableness simpliciter.

            (2)        Did the refusal by the Council to hold an inquiry into the conduct of Mr. Justice Whealy, deny the applicant his right to equal protection and equal benefit of the law, contrary to section 15(1) of the Charter?

40.              The applicant argues that Mr. Justice Whealy's conduct was contrary to the ethical principles for judges as well as sections 2, 15 and 27 of the Charter. It is useful to be mindful, at the outset, that the decision under review is the decision of the Chairperson and not Mr. Justice Whealy's exercise of discretion or conduct. The Court of Appeal of Ontario has already dealt with Charter issues raised in relation to Mr. Justice Whealy's comments and it concluded that his conduct constituted an error of law. This fact is recognized even in the applicant's memorandum of fact and law.

41.              The applicant argues, in his written representations that: "[t]he Canadian Judicial Council effectively condoned Mr. Justice Whealy's violation of the applicant's Charter rights. In so doing, the Canadian Judicial Council itself violated Mr. Taylor's Charter rights." The applicant further argues that the Council erred in failing to take appropriate action to respond to Mr. Justice Whealy's violation of the applicant's Charter rights. The applicant relies on Robichaud et al. v. The Queen, [1997] 2 S.C.R. 84, for the proposition that the Council, by so condoning the actions of the judge, vicariously violated the applicant's Charter rights. Robichaud, supra, stands for the proposition that an employer may be vicariously liable for the actions of an employee under the Canadian Human Rights Act for reasons that do not touch upon the relationship between the Council and a federally appointed judge. I agree with the respondent's submission that the Council is not Mr. Justice Whealy's employer nor did it exercise any control over the judge that would engage vicarious liability for his actions.

42.              It is a fundamental constitutional principle that judges are and must be independent of influence, be it from government, any other person, private interests and even other judges. [See R. v. Valente, [1985] 2 S.C.R. 673; Beauregard v. R., [1986] 2 S.C.R. 56] Therefore, acts and comments of a judge cannot engage the liability of the Council. In my view, the applicant's argument of vicarious liability of the Council must fail. The applicant's argument must also fail since it is based on the false premise that the Chairperson, acting for the Council, condoned Mr. Justice Whealy's action. The evidence does not support this contention. The Chairperson was exercising his authority independent of influence from Mr. Justice Whealy or anyone else and carried out his duties as contemplated by the Judges Act and its by-laws. I therefore conclude that the Council cannot be held vicariously liable for the conduct of Mr. Justice Whealy.

43.              The applicant also argues that the Council itself breached his Charter rights by refusing to hold an inquiry into his complaint. The jurisprudence is clear, the Council and the Chairperson are required to exercise their discretion in accordance with the Charter. [See Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038.] The applicant essentially argues that this duty to conform with the Charter obligates the Chairperson to first conduct an inquiry; second, make a finding that Mr. Justice Whealy did breach the Charter and finally, order that a formal investigation under s. 63 of the Judges Act be held. Such an argument is untenable. There is no basis to be found in law or in the applicable legislation to support such a contention.

44.              There is simply no evidence before me to suggest that the applicant has suffered any deprivation of his section 2, 15, or 27 rights under the Charter as a result of the Chairperson's actions. The applicant must also fail on this second issue.

            (3)        Did the Chairperson act contrary to the Judges Act and the Council's applicable By-Laws by expressing disapproval of the conduct of Mr. Justice Whealy and refusing to fully investigate and refer the matter to a panel for inquiry?

45.              The applicant submits that the Chairperson acted contrary to the Council's by-laws by expressing disapproval of the conduct of Mr. Justice Whealy. Sections 47 and 50 of the Council's by-laws provide as follows:

47. The Chairperson of the Committee shall review the complaint and may inquire into the matter by requesting comments from the judge concerned and from his or her chief justice.

47. Le président du comité examine la plainte et peut enquêter à cette fin en demandant des commentaires au juge en cause et à son juge en chef.

50. (1) Subject to section 51, the Chairperson of the Committee, having reviewed the complaint and any report of inquiries, may close the file and shall advise the complainant with an appropriate reply in writing if

50. (1) Sous réserve de l'article 51, après avoir examiné la plainte et tout rapport d'enquête, le président du comité peut, dans les cas suivants, fermer le dossier, auquel cas il en informe le plaignant par une réponse écrite appropriée :

(a) the matter is trivial, vexatious or without substance; or

a) l'affaire est frivole, vexatoire ou dénuée de fondement;

(b) the conduct of the judge is inappropriate or improper but the matter is not serious enough to warrant removal.

b) la conduite reprochée au juge est déplacée ou répréhensible, mais l'affaire n'est pas suffisamment grave pour justifier la révocation.

(2) If a judge recognizes that his or her conduct is inappropriate or improper, the Chairperson of the Committee who closes the file under paragraph (1)(b) may, when the circumstances so require, express disapproval of the judge's conduct.

(2) Dans le cas où un juge reconnaît que sa conduite est déplacée ou répréhensible, le président du comité qui ferme le dossier en application de l'alinéa (1)b) peut, lorsque les circonstances le justifient, exprimer sa désapprobation quant à la conduite du juge.

46.              An analysis of the Chairperson's decision-making process illustrates how he fully complied with the applicable legislation and by-laws. The Council's by-laws specifically provide that the Chairperson may express disapproval of a judge's conduct in the course of closing a complaint file when he or she concludes that the impugned conduct is insufficient to warrant the judge's removal and the judge in question recognizes that his or her conduct is inappropriate or improper. The record clearly demonstrates the Chairperson followed the letter and spirit of the By-laws in every respect. The applicant provided no support in fact or law for his allegation to the contrary. In my view, the Chairperson's decision was reasonably open to him and the exercise of his discretion was within his jurisdiction. Therefore, the applicant's argument on this issue must fail.

(4).       Was a duty of fairness owed to the applicant by the Chairperson and if so was there a breach of this duty by the Chairperson?

47.              The applicant argues that the process adopted by the Chairperson in handling the complaint against Mr. Justice Whealy breached the principles of natural justice and procedural fairness in that the Chairperson elicited information from only one party, the judge whose conduct was impugned and, in so doing, denied him an opportunity to be heard.

48.              The Supreme Court in Knight v. Indian Head School Division No.19, [1990] 1 S.C.R. 653 at 669-70, held that "natural justice" and "procedural fairness" are synonymous terms which essentially define the content of the procedural duties imposed by the common law on the exercise of administrative power. However, in Knight, supra, the Court set, as a prerequisite to determining whether the content of such a duty is met, that a reviewing court must first determine whether such a duty exists. The Court held that three factors must be examined in determining whether a duty of fairness exists:

(1)        the nature of the decision to be made by the administrative body;

(2)        the relationship existing between that body and the individual; and

(3)        the effect of that decision on the individual's rights.

49.              The Chairperson's decisions under the by-laws of the Council are investigative powers. Sections 63 and 65 of the Judges Act do not confer an adjudicative function on the Council or its committees. This Court considered the question in Gratton v. Canada (Judicial Council), [1994] 2 F.C. 769 at 801, and held that: "It is true that a council can cause a committee to carry out an inquiry as to whether a judge should be removed, but ultimately all the Council can do is to ‘recommend' to the Minister of Justice that the judge be removed from office. The power to recommend is not the power to make a binding decision." The Knight decision supra, established that when a tribunal is called upon to investigate and recommend rather than exercise an adjudicative function, this is indicative that any duty of procedural fairness may be minimal.

50.              With respect to the second factor in Knight, supra, the relationship between the complainant and the Council, it is worth noting that the complaint process contemplated in the Judges Act and the By-laws is not aimed at adjudicating a complainant's dispute with the judge but rather a process which is to investigate complaints for the purpose of determining whether a judge's conduct warrants a recommendation for removal. Minimal participation by the complainant is contemplated. A complainant has a right to file a complaint and to be kept informed there is no other relationship between the complainant and the Council.

51.              Finally, with respect to the third factor in Knight, supra, any recommendation of the Chairperson and the Council may well have a direct impact on the judge being investigated but, in my view, no such decision can possibly affect the rights of the complainant.

52.              The process is initiated by a complaint. The complainant has a right to make the complaint and to be kept informed. Beyond that, procedural fairness requires no further opportunity for the complainant to be heard. The complainant is not at risk, the right to be heard is the right of the person who is at risk, in this instance Mr. Justice Whealy.

53.              For the above reasons, I am of the opinion that since none of the three criteria set out in Knight, supra, are met by the applicant in the case before me, no duty of fairness is owed.

54.              Even if I were to decide that a duty of fairness was owed to the applicant, I am of the view that the content of the duty was met fully. I make this determination on application of the five factors set out by the Supreme Court in the Baker v. Canada (Minister of Citizenship and Immigration ) (1999), 174 D.L.R. (4th) 193 (S.C.C.), to be considered in determining the content of the duty of fairness in administrative law. I agree with the submissions of both the intervener and the respondent with respect to the application of these factors in the present case and make the following findings:

            (1)         the nature of the decision was not adjudicative but rather investigative in nature;

            (2)        the statutory scheme and the By-laws provide a complainant with minimal rights of participation. Neither the Act nor the By-laws provide complainants with a statutory right to a particular process nor to any formal hearing of the complaint;

            (3)        the decision of the Chairperson to close the file with an expression of disapproval had no direct effect on the rights of the applicants, nor is the applicant subject to any penalty or loss as a result of the decision;

            (4)        there is an absence of any provision in the Act or in the By-laws for participation by a complainant and therefore a complainant can have no legitimate expectation of a right to a hearing;

            (5)        Subsection 61(3) of the Act gives the Council the right to set its own procedures.

55.              The Council's procedure allowed the complainant to put before it any allegation of misconduct and evidence in support of the allegation. The evidence in this case is that the complainant wrote to the Council on at least three occasions to make submissions with respect to the complaint. The Council's procedure did not prohibit this, on the contrary, the evidence points to these submissions having been received and considered on behalf of the Council by the Chairperson.

56.              I therefore conclude that if a duty of procedural fairness was owed to the applicant, the content of the duty in the context of the complaint was fully met.

            (5)        Did the actions of the Chairperson in refusing to investigate the initial complaint raise a reasonable apprehension of bias that would preclude him from dealing with the complaint?

57.              The applicant argues that a reasonable apprehension of bias was raised by virtue of the fact that the Chairperson in effect reconsidered his own decision not to take any action upon the original complaint.

58.              The proper test to be applied in assessing whether a reasonable apprehension of bias arises was set by the Federal Court of Appeal and confirmed by the Supreme Court of Canada in [1978] 1 S.C.R. 369">Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, at page 394, where Mr. Justice De Grandpré, writing in dissent, stated:

(...)[t]hat test is "what would an informed person, viewing the matter realistically and practically--and having thought the matter through--conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly."

59.              In Baker, supra, at paragraph 47, Madam Justice L'Heureux-Dubé reaffirmed the well established principle and stated that:

...the standards for reasonable apprehension of bias may vary, like other aspects of procedural fairness, depending on the context and the type of function performed by the administrative decision-maker involved.

60.              I am of the view that the Chairperson did not conduct an improper reconsideration or "appeal" of his decision and thus, his action does not raise a reasonable apprehension of bias. The evidence is that, after the original closing of the file, the Chairperson indicated in a letter dated January 23,1995 to the complainant that the Council would be prepared to reconsider its position should the Court of Appeal of Ontario comment adversely on Mr. Justice Whealy's conduct. Ultimately, on December 9th, 1998, Council closed the file with an expression of disapproval. In my opinion, the Chairperson's decision to express disapproval of Mr. Justice Whealy's conduct, essentially rescinding his initial position, demonstrates his open-mindedness rather than bias.

61.              The Supreme Court of Canada in Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 S.C.R. 1170 at 1190, described the reasonable apprehension of bias test applicable to bodies performing a non-adjudicative role, as is the case in this instance, as one which requires, "...a tribunal to maintain an open mind and to be free of bias, actual or perceived," all of which are part of the audi alteram partem principle which requires decision-makers to consider both sides and to provide a fair opportunity for opposing views to be considered.

62.              In applying the above tests to the present case, I find that an informed person, viewing the matter realistically and practically and having thought the matter through, would conclude that it is more likely than not that the Chairperson would decide fairly. The Chairperson, in my view, throughout the process maintained an open mind and was free of bias and would be so perceived by an informed person observing the matter reasonably.

(6)        Can mandamus issue against the Council or the Chairperson compelling the Council to conduct a full investigation into the complaint against Mr. Justice Whealy?

63.              The respondent submits that, in order to obtain the remedy of mandamus, the applicant must establish that there existed a public duty on the Council or Chairperson to act and that this duty was owed to him. I agree with the submissions of the respondent on this point. The Judges Act, its Regulations and Council's By-laws do not provide for a mandatory formal investigation at the request of the complainant. A complainant, under the process provided for under Council's By-laws, has the right to have his or her complaint in writing considered and to be notified of a decision once made. I find that there exists no public duty on the Council or the Chairperson to conduct a full investigation at the request of the complainant. I therefore find that mandamus cannot issue in the present case.

64.              For all of the above reasons, I conclude that the Chairperson's decision was reasonable and was made within the exercise of his jurisdiction. I find that the applicant has failed to establish any ground that would warrant the intervention of this Court.

65.              For all these reasons, the application for judicial review will be dismissed.

ORDER

THIS COURT ORDERS that:

1.         The application for judicial review, pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, as amended, of the decision of the Chairperson of the Judicial Conduct Committee of the Canadian Judicial Council, communicated in a letter by the Executive Director of the Council, dated December 9, 1998, is dismissed.

                                                                                                                                                               Judge