Date: 20070329
Dockets: A-281-06
A-282-06
A-337-06
Citation: 2007 FCA
131
CORAM: DESJARDINS J.A.
DÉCARY J.A.
NOËL
J.A.
A-281-06
BETWEEN:
THE
RIGHT HONOURABLE JEAN CHRÉTIEN
Appellant
and
THE HONOURABLE JOHN H. GOMERY, IN HIS
CAPACITY AS EX-COMMISSIONER OF THE COMMISSION OF INQUIRY INTO THE SPONSORSHIP
PROGRAM AND ADVERTISING ACTIVITIES
and
THE ATTORNEY GENERAL OF CANADA
Respondents
_____________________________________
A-282-06
BETWEEN:
JEAN PELLETIER
Appellant
and
THE ATTORNEY GENERAL OF CANADA
and
THE HONOURABLE JOHN H. GOMERY, IN HIS
CAPACITY AS EX-COMMISSIONER OF THE COMMISSION OF INQUIRY INTO THE SPONSORSHIP
PROGRAM AND ADVERTISING ACTIVITIES
Respondents
_______________________________
A-337-06
BETWEEN:
THE HONOURABLE JOHN H. GOMERY, IN HIS
CAPACITY AS EX-COMMISSIONER OF THE COMMISSION OF INQUIRY INTO THE SPONSORSHIP
PROGRAM AND ADVERTISING ACTIVITIES
Appellant
and
ALFONSO GAGLIANO and
THE ATTORNEY GENERAL OF CANADA
Respondents
Hearing held at Montréal,
Quebec, on March 29, 2007.
Judgment
delivered at Montréal, Quebec, on March 29, 2007
REASONS FOR JUDGMENT OF THE COURT BY: DÉCARY
J.A.
Date: 20070329
Dockets: A-281-06
A-282-06
A-337-06
Citation: 2007 FCA 131
CORAM:
DESJARDINS J.A.
DÉCARY
J.A.
NOËL J.A.
A-281-06
BETWEEN:
THE RIGHT HONOURABLE
JEAN CHRÉTIEN
Appellant
and
THE HONOURABLE JOHN H. GOMERY, IN HIS
CAPACITY AS EX-COMMISSIONER OF THE COMMISSION OF INQUIRY INTO THE SPONSORSHIP
PROGRAM AND ADVERTISING ACTIVITIES
and
THE ATTORNEY GENERAL OF CANADA
Respondents
_____________________________________
A-282-06
BETWEEN:
JEAN PELLETIER
Appellant
and
THE ATTORNEY GENERAL OF CANADA and
THE HONOURABLE JOHN H. GOMERY, IN HIS
CAPACITY AS EX-COMMISSIONER OF THE COMMISSION OF INQUIRY INTO THE SPONSORSHIP
PROGRAM AND ADVERTISING ACTIVITIES
Respondents
_______________________________
A-337-06
BETWEEN:
THE HONOURABLE JOHN H. GOMERY, IN HIS
CAPACITY AS EX-COMMISSIONER OF THE COMMISSION OF INQUIRY INTO THE SPONSORSHIP
PROGRAM AND ADVERTISING ACTIVITIES
Appellant
and
ALFONSO GAGLIANO and
THE ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR JUDGMENT
DÉCARY J.A.:
[1]
These
appeals and cross-appeals, that have been consolidated to be heard and ruled on
jointly, relate to an interlocutory order delivered by Teitelbaum J. of the
Federal Court (2006 CF 720).
[2]
Therein,
Teitelbaum J. ordered, pursuant to section 317 of the Federal
Courts Rules
(the Rules), that the following documents be transmitted to Messrs. Chrétien,
Gagliano and Pelletier:
1.
Copies of
e-mails received by the Commission from September 7, 2004 to August 25, 2005
inclusive referring to Mr. Chrétien, Mr. Jean Pelletier, Mr. Gagliano, or the
Prime Minister’s Office, if still possessed by the Commission, are to be
transmitted to the parties within thirty (30) days of the issuance of these Reasons.
2.
Copies of
all materials related to François Perreault’s mandate at the Commission,
related to any and all instructions he received regarding the activities and
audiences of the Commission from the Commissioner or Commission staff, and
materials related to interviews accorded to the media by the Commissioner on
December 16 and 17, 2004, are to be transmitted to the parties within thirty
(30) days of the issuance of these Reasons.
[3]
During
argument before us, the parties have focused mainly on the first series of
documents, that is, the e-mails. In any event, no serious argument could have
been advanced against the part of the order relating to the transmission of the
second series of documents.
[4]
As to the
e-mails, counsel for Messrs. Chrétien, Gagliano and Pelletier submitted that
the judge should have ordered, in addition, the transmission of the e-mails
received by the Commission after August 25, 2005. The Attorney General of
Canada and Commissioner Gomery submitted for their part that the judge erred in
ordering the transmission of the e-mails received between September 7, 2004 and
August 25, 2005, since they were of the opinion that those documents have no
relevancy.
[5]
At the
hearing, the arguments of the parties have focused on the following statement
made by Commissioner Gomery in the introductory part of his Phase I report:
A vast
quantity of documentary evidence was put into evidence and forms part of the
record of the Commission. A list of the exhibits, many of which are books of
documents, is attached as Appendix F. As Commissioner, I have systematically
avoided taking cognizance of any document or evidence which has not been
produced into the record at the public hearings, although I am conscious that
Commission counsel have had access to many documents that I have not seen and
have had meetings and discussions with witnesses and other persons on matters
that are not part of the evidence that I have heard. Commission counsel have
respected my expressed wishes that any information acquired in this fashion
would not be communicated to me. This Report has been written solely on the
basis of the evidence in the public record.
Chapter I:
Introduction, Phase I Report, at page 5.
[6]
We are not
sure that Teitelbaum J. was correct when he opined that that declaration by the
Commissioner “creates a strong presumption that he only
considered material which can be found in the public record” (para. 69 of his reasons).
[7]
However,
that has little importance. In any event, in relation to the motion, there were
enough elements in the record to justify the belief that the Commissioner had a
general idea of the tenor and the flavour of the e-mails. Hence, Teitelbaum J.
appropriately left to the judge who was to hear the case on the merits the task
of assessing their probative value, or lack thereof, as the case maybe.
[8]
As to the
e-mails received by the Commission after August 25, 2005, that is, after the
Commissioner had asked Canadians, by public notice, to express their point of
view as to what was to follow, it is clear, on the basis of the news release
published on the Internet, that that notice related to Phase II of his mandate,
that is to the recommendations pertaining to the action to be taken in the
future. Teitelbaum J. did not err in finding, at paragraph 61, that “the
Commissioner did not offer the public with an opportunity to provide input that
could have been used to assist him with the Phase I fact-finding portion of the
Commission’s inquiry”. It was thus open to him to find, at paragraph 72, that
those e-mails were not relevant for the purposes of section 317 of the
Rules “since if they were admitted, they would not
affect the decision that the reviewing court might make”.
[9]
As to the
cross-appeal of Mr. Gagliano from the order of Nadon J.A. extending the
Commissioner’s time to appeal, it is not based on any serious argument.
[10]
Therefore,
we would dismiss the appeals of Messrs. Chrétien and Pelletier and of
Commissioner Gomery in dockets A-281-06, A-282-06 and A-337-06 and would
dismiss the cross‑appeals in each of said dockets.
[11]
In the
circumstances, each party is to bear its own costs.
[12]
The
original version of these reasons will be filed in docket A-281-06, and a copy
thereof in dockets A-282-06 and A-337-06.
« Robert
Décary »
Certified
true translation
François
Brunet, LL.B., B.C.L.
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