Docket: A-429-15
Citation: 2017 FCA 234
Present: DE
MONTIGNY J.A.
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BETWEEN:
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SHELDON BLANK
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Appellant
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and
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THE MINISTER OF
JUSTICE
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Respondent
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REASONS
FOR ORDER
DE MONTIGNY J.A.
[1]
This file and file A-521-15 were initially set
to be heard by a differently constituted panel of this Court. As a result of
unexpected health issues, a member of the panel had to be replaced and the
Chief Justice appointed me to the panel. Upon learning of this replacement, Mr.
Blank requested that I reconsider my appointment because of my alleged
involvement, prior to my appointment to the Bench, in the Access to Information
Requests that are the subject of these two appeals. He was then directed by the
presiding judge of the panel to file a proper motion for recusal, supported by
affidavit, which he did on November 22, 2017.
[2]
In support of his motion, Mr. Blank essentially
alleges the same grounds that he presented in a similar motion heard on
February 29, 2016 (2016 FCA 190) to substantiate his perception of a reasonable
apprehension of bias on my part. In a nutshell, Mr. Blank submits that I have
ruled adversely to his interests in previous hearings, that I accepted
representations from opposing counsel despite the fact that they were not
supported by affidavit while his were, that some of the language used in my
previous reasons is proof that I am prejudiced against Mr. Blank, and that
officials dealing with access to information requests sometimes sought and
received advice from counsel in the Public Law Sector of the Department of
Justice (of which I was Chief Legal Counsel between 2001 and 2003).
[3]
As is well known, there is a strong presumption
that judges will carry their judicial duties with integrity and that they will
comply with their solemn judicial oath to administer justice impartially. As a
result, the onus of demonstrating bias, real or apprehended, lies with the
person alleging it: Wewaykum Indian Band v Canada, 2003 SCC 45, [2003] 2
S.C.R. 259, at para 59 [Wewaykum]; Collins v Canada, 2011 FCA
123, at para 3. There will be good legal cause to recuse myself if I am
actually biased against Mr. Blank or his case or otherwise incapable to rule on
the present appeal fairly and impartially. Short of actual bias, appearance and
perception is also of the utmost importance. The test is whether a reasonable,
fully-informed person, thinking the matter through, would conclude that it is
more likely than not that I, whether consciously or unconsciously, would not
decide the present appeal fairly: Committee for Justice and Liberty et al. v
National Energy Board et al., [1978] 1 S.C.R. 369, at p. 394.
[4]
On the issue of actual bias, I can assure Mr.
Blank that I hold absolutely nothing against him, that I have always considered
his cases both in this Court and in the Federal Court with an open mind and a
sincere desire to do justice, and that I will continue to approach his files in
the same spirit. Each file is different and turns on its own facts and relevant
law. While I may have ruled against Mr. Blank in previous cases, it is by no
means a predictor of how I will be ruling in future case and certainly cannot
constitute a disqualifying bias. I have carefully read Mr. Blank’s records and
submissions in the cases at bar, with a genuine willingness to understand his
arguments, and I look forward to hearing his oral submissions.
[5]
As for apparent bias, I am firmly convinced that
a reasonable, fully-informed person, would not conclude that it is more likely
than not that I would not decide the present appeal fairly. Most of Mr. Blank’s
oral arguments went to the merits of the decisions that I have rendered in the
past. Obviously, Mr. Blank is entitled to disagree with those decisions; the
proper remedy, in such a case, is to appeal to a higher court. Being of the
view that a judge erred is not sufficient to give rise to a reasonable
apprehension of bias.
[6]
I appreciate that Mr. Blank takes exception to
some of the words that I have used in earlier reasons; when read in context, I
do not believe these words can be interpreted as demeaning and I certainly did
not intend to cast any aspersions on Mr. Blank. Read reasonably, they are
nothing more than a comment on the facts and law of these cases and in no way
affects or taints my consideration of this case, an entirely different case.
[7]
Finally, I ought to repeat what I have stated in
my Reasons for Order last year: I have never been involved with Mr. Blank’s
files, either directly or indirectly, during my time at the Department of
Justice. While counsel working in the Access to Information unit of the Public
Law Sector were organizationally under my ultimate responsibility, I did not have
any involvement whatsoever in the supervision or administration of either the
environmental prosecution of the applicant or the response to the access
requests which are the subject of these appeals. Indeed, my name appears
nowhere on the emails attached to Mr. Blank’s affidavit and marked as Exhibit
“14” or in the confidential record. The fact that I may have known some of the
people whose names appear in the documents referenced by Mr. Blank in his
motion record cannot imply that I was in one way or another involved with the
files they were dealing with or that I knew anything about these files. In this
way, my involvement is far less than that of Mr. Justice Binnie in Wewaykum,
who did not recuse himself and was found to have acted properly.
[8]
For all of the foregoing reasons, the test for
recusal has not been made out. Accordingly, the motion for recusal is
dismissed.
[9]
Although this motion was made in A-429-15, it is
the position of the Court that this decision will apply to A-429-15 as well as
A-521-15. A copy of these Reasons for Order shall be placed on file A-521-15.
"Yves de Montigny"
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