Docket: A-462-12
Citation: 2013
FCA 267
CORAM: EVANS J.A.
TRUDEL J.A.
WEBB J.A.
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BETWEEN:
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CONRAD BLACK
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Appellant
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and
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THE ADVISORY COUNCIL FOR THE ORDER OF CANADA
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Respondent
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Heard at Toronto, Ontario, on November 18, 2013.
Judgment delivered from the Bench at Toronto, Ontario, on November
18, 2013.
REASONS FOR JUDGMENT OF THE COURT BY: EVANS
J.A.
Docket: A-462-12
Citation:
2013 FCA 267
CORAM: EVANS J.A.
TRUDEL J.A.
WEBB J.A.
|
BETWEEN:
|
|
CONRAD BLACK
|
|
Appellant
|
|
and
|
|
THE ADVISORY COUNCIL FOR THE ORDER OF CANADA
|
|
Respondent
|
REASONS FOR JUDGMENT OF THE COURT
(Delivered
from the Bench at Toronto, Ontario on November 18, 2013)
EVANS J.A.
[1]
In a letter dated July 20, 2011, the Secretary
to the Governor General informed Conrad Black that the Advisory Council for the
Order of Canada proposed to review his appointment to the Order in light of his
criminal conviction in the United States for fraud and obstruction of justice.
[2]
Mr. Black requested an in-person oral hearing
before the Council to enable him to demonstrate that the prosecutors in the United States had not acted appropriately towards him and that a court in Canada would not have
found him guilty of the offences.
[3]
The Council refused his request, stating that he
could make written representations, supported by documentation, on why his
conviction did not warrant the termination of his appointment to the Order of Canada. Mr. Black asked the Council to reconsider its decision, but it maintained its
initial position.
[4]
Mr. Black rejected the offer to make written
representations and made an application for judicial review to set aside the
Council’s decision, on the ground that the duty of fairness required that he be
afforded an opportunity for an oral hearing. In a decision reported as Black
v. Advisory Council for the Order of Canada, 2012 FC 1234, the Federal
Court dismissed Mr. Black’s application.
[5]
In full and careful reasons, Justice de Montigny
(Judge) agreed with Mr. Black that the exceptional circumstances of this case
justified a challenge to an interlocutory decision of the Council. He also held
that, while the exercise of the prerogative power respecting the award and
termination of an honour (including an appointment to the Order of Canada) was not justiciable, the Policy and Procedure for Termination of Appointment to
the Order of Canada (Policy) created a legitimate expectation that the
procedures that it outlined would be followed. However, the Judge held, the
Policy did not give rise to a legitimate expectation that an oral hearing would
be held prior to a recommendation to the Governor General that an individual’s
appointment should be revoked.
[6]
Moreover, on the basis of the factors set out in
Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2
S.C.R. 817 (Baker) for calibrating the content of the duty of fairness
in a given case, Mr. Black’s procedural entitlements fell towards the low end
of the scale, because: the Council’s process does not resemble judicial
decision-making and is non-adversarial; the Council’s function is recommendatory
and the Governor General’s decision is discretionary; Mr. Black had no legal
right to an appointment, nor a legitimate expectation that it would not be
terminated, and any damage to his reputation flowed from his conviction; and
the Council was entitled to deference in the exercise of its discretion as to
whether Mr. Black should be given an opportunity to make representations orally
or in writing.
[7]
Without expressing an opinion on the Judge’s
determination of the issues of justiciability and legitimate expectation, we
are all of the view that, substantially for the reasons given by the Judge, the
Baker factors do not require the Council to give Mr. Black an oral
hearing in order to ensure that he is afforded procedural fairness in all the
circumstances of the case.
[8]
In particular, since it is not the Council’s
function to determine if Mr. Black’s conviction in the United States was proper, we are not persuaded that the Council’s recommendation will turn primarily
on an assessment of Mr. Black’s credibility. Further, to the extent that
credibility may be an issue, we are also of the view that no single Baker
factor necessarily trumps all the others.
[9]
For these reasons, the appeal will be dismissed
with costs.
"John M. Evans"
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