Date: 20111028
Docket: T-699-10
Citation: 2011 FC 1230
Ottawa, Ontario, October 28,
2011
PRESENT: The Honourable Madam Justice Bédard
BETWEEN:
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JEFFREY EUGENE RIACH, CD
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Applicant
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and
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THE ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
applicant is self-represented in this proceeding. He joined the Canadian Forces
(CF) in 1990 as a Reservist. In June 2005, he was transferred to the Regular
Forces and in January 2007, he was posted to the 8 Air Movement Squadron (8
AMS) in Trenton,
Ontario.
[2]
The
applicant has struggled with depression and alcoholism. Between April 2007 and
January 2009, he received successive administrative measures due to his behavioural
and performance issues related to his misuse of alcohol. He was also placed on
Counselling and Probation for misusing alcohol and for being absent without
leave. On February 4, 2009, the Squadron Administrative Officer (SAO) of the
applicant’s unit, Capt. Flatman, issued a Notice of Intent to Recommend Release
(NOI) regarding the applicant. On May 19, 2009, the applicant filed a grievance
against the NOI on the ground that an apprehension of bias existed on the part
of Capt. Flatman based on her friendship with the applicant’s ex-common-law
partner. The grievance process followed its course and, on March 22, 2010, the Chief
of Defence Staff (CDS), as the final authority in the grievance process, denied
the grievance. This application for judicial review relates to this decision.
[3]
For
the reasons that follow, this application for judicial review cannot succeed.
I. Background
[4]
The release of CF members is governed by Chapter 15 of the Queen’s
Regulations and Orders of the Canadian Forces (1999 Revision) [QR&O]
and a member can only be released in accordance with the reasons contained in
article 15.01. Item 5(d) of the table under article 15.01 refers to the release
of a member who is no longer “advantageously employable” under existing service
policy.
[5]
Issuing
the NOI to the applicant was the first step in an administrative process that
concluded with the Director Military Careers Administration (DMCA) making the
final decision to release the applicant from the CF.
[6]
Other decisions followed the NOI. The applicant did not
file any grievances against those decisions. They are, however, relevant to
understanding the context of the applicant’s allegations.
[7]
The
NOI reads, in part, as follows:
a.
This
notice is to advise you that it is intended to recommend your release from the
Canadian Forces under the provisions of QR&O 15.01 item “5D- Not
Advantageously Employable” for the following reasons:
You violated your Counselling &
Probation for Misuse of Alcohol as well your Counselling & Probation for
AWOL as outlined in DAOD 5019-4. This was confirmed by your being more than 2
days absent from your First Aid training with no notice that you would not be
attending, and having your supervisor come to your house and find you admitting
that you had been drinking and the smell of alcohol on you.
2. You are hereby required to
make known, in writing, to your Commanding Officer thru S Admin O within 14
days (18 Feb 09) any objections you have to your being release or whether you do
not object to being released. . . .
[Emphasis in original]
[8]
On
March 13, 2009, the applicant’s Commanding Officer, A.M. Agnew, recommended to
the DMCA that the applicant be released from the CF and supplied reasons for
this recommendation. He indicated that the applicant breached the terms and
conditions of his Counselling and Probation for conduct arising from misuse of alcohol
and for being absent without leave. He also referred to the applicant’s history
of transgressions since January 2007 when he was posted to the 8 AMS. He
concluded his recommendation as follows:
3. Cpl Riach has been medically
referred on three occasions (ref A) since his arrival at 8 AMS. It is evident
that he is unable to live up to the terms of his C&P or the Directions on
Release from Custody. These last two incidents in January and March are clear
violations of his [sic] both the C&P for Misuse of Alcohol and the
C&P for AWOL. Despite his poor attitude, Cpl Riach has generally cooperated
at each step in this process, admitting to his misuse when confronted and
submitting to counselling and treatment. Therefore we feel a 5D release is more
appropriate than a 5F release, because his misuse of alcohol does seem to be
beyond his control.
4. I have lost all faith and
trust in Cpl Riach. After reviewing the arguments and representation provided
to me in response to the NOI to Recommend Release, I am not swayed by his many
statements of his keen desire to remain in the Canadian Forces. In my view, he
has had many opportunities to rectify his shortcomings, particularly with
alcohol, and even though he did ask the hospital for anti-alcohol drugs (ref
N), he has clearly demonstrated his failure in the most recent incident (Ref
R). It is my strongest recommendation that Cpl Riach be released immediately
from the CF under item 5D.
[9]
The
applicant was given the opportunity to make submissions to the DMCA before a
final decision was reached and he did so on June 1, 2009. On July 13, 2009, the
DMCA made the final decision to release the applicant under item 5(d) article
15.01 of the QR&O. As noted earlier, the applicant did not file a grievance
in relation to the DMCA’s decision to release him from the CF.
[10]
While
the process that led to the applicant’s release was following its course, the
grievance process with respect to the initial NOI also continued.
[11]
The
applicant filed his grievance on May 19, 2009. The grievance reads, in part, as
follows:
a. I am requesting redress of
grievance in regard of a Notice of Intent to Release issued to me whereas my CO
is recommending my compulsory release from the CF.
b. I feel that a circumstance
regarding a signatory to this Notice (Ref A), as well as much of the
correspondence relating to this matter, may constitute a conflict of interest,
therefore, prejudicing its validity.
c. I contend that, Capt Rhonda
Flatman, 8 AMS ADMINO, may be acting in bias due to her personal relationship
with my aggrieved ex-common-law wife, Lt. Lisa Prosser.
d. I submit that there was a
breakdown of my common-law relationship with Lt. Prosser as a result of my
becoming involved with my current wife and that she (Lt. Prosser) was much
aggrieved as a result.
e. Refs B, C and D show that the
AdminO 8 AMS maintains a friendship with Lt. Prosser which may be causing her
to act in bias against me.
f.
Given the
serious nature of the administrative action against me, it would seem
appropriate that any party acting against me be free of unrelated influence.
g. As remedy I ask that the NOI
be withdrawn. Furthermore, as there seems to be question as to impartiality in
this matter as well as this is in regards to a pending release from the CF, I
request that this grievance be adjudicated by the CF Grievance board IAW
QR&O 7.12 (Referral to CF Grievance Board).
[12]
The
applicant attached a two-page document to his grievance establishing that the
SAO was listed as a friend on Lt. Prosser’s Facebook page.
[13]
The
right to grieve under certain conditions is set forth in section 29 of the National
Defence Act, RSC 1985, c N-5 [the Act]. The grievance process is set forth in
chapter 7 of the QR&O and provides for the following steps. First, a member
must submit a grievance to his Commanding Officer who must decide, depending on
the nature of the grievance, if he or she can act as the Initial Authority. If
he or she acts as the Initial Authority, the Commanding Officer considers and
determines the grievance. Upon receiving the Initial Authority’s decision, the
grievor can elect to have his grievance forwarded to the CDS who acts as the Final
Authority in the CF grievance process. However, there is sometimes a
preliminary step to the CDS’s decision.
[14]
When
a grievance relates to certain types of measures, among which are
administrative actions resulting in release from the CF, the grievance is first
referred to the Canadian Forces Grievance Board (the Board), an independent body.
The Board’s role is to review the grievance and make findings and recommendations
to the CDS (section 29.12 of the Act).
[15]
Section
29.13 of the Act provides that the CDS “is not bound by any finding or
recommendation of the Grievance Board.” It states, however, that if the CDS does
not act on a finding or recommendation of the Board, he must provide reasons
for not having done so in his final disposition of the grievance.
[16]
The
applicant’s Commanding Officer acted as the Initial Authority in the grievance
process. He denied the applicant’s grievance on June 3, 2009. He indicated that
the applicant had not provided evidence of bias and that the events that led to
the NOI predated Capt Flatman’s arrival to the unit.
[17]
On
June 10, 2009, the applicant submitted a Request for Redress of grievance and
asked that his grievance be submitted to the CDS. The grievance was submitted
to the Board for findings and recommendation which was issued on November 13,
2009.
[18]
The
Board framed the issue as follows: “The issue to be determined is whether the
NOI to recommend the grievor’s release should be withdrawn or set aside due to
the alleged bias of Capt. Flatman, the officer who signed the NOI.” As a
preliminary issue, the Board indicated that there was no requirement in the
applicant’s case to even initiate the release process by a NOI, given that he
did not meet the criteria provided in article 15.36 of the QR&O. The Board
stated that, even though the CF was not required to provide the applicant with an
NOI, the fact that he received one was to his benefit as it gave him an
additional opportunity to submit representations as to why he should not be
released. The Board then stated that the proximate cause for the applicant’s
release was “that he was found to have breached the terms of his C&P [Counselling
and Probation] by being AWOL [absent without leave] and by consuming alcohol.”
[19]
The
Board then dealt with the allegation of apprehension of bias on the part of
Capt. Flatman. It framed the applicant’s allegations as follows:
The grievor alleged that Capt Flatman was
biased against him given her personal relationship with his ex-common-law
spouse, also a Canadian Forces member. He offered as evidence the fact that
Capt Flatman, who signed the NOI, appeared on the “Facebook” friends list of
the grievor’s ex-common-law-spouse. There are no other details of the nature of
the relationship between the two aforementioned officers or whether they
discussed the grievor and his issues before the NOI was signed.
[20]
The
Board defined bias according to the principles of administrative law as being whether
a reasonable person would believe that a decision-maker would be incapable of
making an impartial decision. The Board stated the test as follows: “would an
informal observer, aware of the facts and the circumstances, conclude the
decision-maker was biased?”
[21]
The
Board was not persuaded, on a balance of probabilities, that a bias, real or
apprehended, had been established. It found that the mere fact that Capt.
Flatman and the applicant’s ex‑common‑law spouse knew each other
bore no weight in demonstrating that she was bias when she signed the NOI. The
Board added that Capt. Flatman’s role was limited to simply signing the NOI. The
actual recommendation for release was made by the applicant’s Commanding Officer
to the National Defence Headquarters, where the actual decision to release was
made.
[22]
The
Board communicated its findings and recommendations to the CDS and to the
applicant. On December 13, 2009, the applicant submitted comments in response
to the Board’s findings and recommendations. On March 22, 2010, the CDS dismissed
the applicant’s grievance.
II. Decision under review
[23]
The
CDS stated in his decision that he reviewed the grievance, the applicant’s
comments, the comments from the applicant’s superiors and the Board’s findings
and recommendations.
[24]
The
CDS found that the summary of the facts and positions of the parties presented
in the Board’s findings and recommendations were complete and accurate. He
further stated that the Board had analysed each of the applicant’s contentions
and that he concurred with its findings and recommendations. Notwithstanding
his agreement with the Board’s findings and recommendations, the CDS decided to
expand on his reasons for why he agreed with the Board that there was no
evidence to support the applicant’s allegation of an apprehension of bias on Capt.
Flatman’s part.
[25]
The
gist of the CDS’s reasoning is reflected in the following excerpt from his
decision:
… As evidence to
support your allegations of bias, you provided a print out from the social
networking service “Facebook” showing that Capt Flatman and Lt Prosser are
connected to each other on this social network website.
You stated: “Given the
serious nature of the administrative action against me, it would seem
appropriate that any party acting against me be free of unrelated influence.”
Although you have
provided an indication that both Capt Flatman and Lt Prosser know each other,
you have not supported your allegations that this relationship caused Capt
Flatman to be bias, nor have you identified what decisions Capt Flatman made
that are considered to be bias.
In order for bias to
occur in a situation, a decision maker must be incapable of making an impartial
decision. The predication that Capt Flatman was or was not impartial has little
relevance due to the fact that Capt Flatman did not render a decision with
respect to your NOI to recommend release. Capt Flatman signed and presented you
with the NOI to recommend release in her capacity as the Squadron
Administration Officer (S Admin O) of 8 Air Maintenance Squadron, 8 Wing
Trenton. The only decision maker concerning your release from the CF was
Director Military Careers Administration (DMCA). DMCA’s decision was based on
facts, evidence and policy and not on the influence of Capt. Flatman.
. . .
Capt Flatman was
obligated by regulations to take action with respect to your situation due to
your misuse of alcohol relapse on 19 January 2009. The only error that Capt
Flatman committed was in presenting you with the NOI to recommend release.
QR&O 15.36 (Notice of Intent to Recommend Release – Non-Commissioned
Members) stipulates that a NOI to recommend release is only required for a
non-commissioned member who is above the rank of Sergeant (Sgt) or, if below
the rank of Sgt, the individual must have served a minimum of ten years in the
Regular Force. Neither of these criteria applied to you. The fact that you did
receive the NOI to recommend release was in fact to your benefit because it
permitted you to respond directly to your Commanding Officer (CO) with reasons
why you believed the chain of command should not recommend your release from
the CF. A review of the representation you provided to your CO focussed on
personal issues between you and your spouse that led to your depression and
subsequent incident of being absent without authority and alcohol misuse. There
is no mention in your representation of your apprehension of bias by Capt
Flatman.
I find that you have
not supported your grievance with respect to bias on the part of Capt Flatman
concerning your release from the CF. . . .
III. Issues
[26]
In his Memorandum of Fact and Law, the applicant raises
issues that pertain to the NOI which were the subject of the grievance at issue.
He also raises issues and arguments that relate to decisions that were made
after Capt. Flatman issued the NOI, including the decision to release him from
the CF.
[27]
As mentioned earlier, those decisions were not grieved and
this Court cannot entertain arguments against these decisions.
[28]
The applicant acknowledges that he did not file a grievance
against the decision to release him from the CF. However, he contends that given
that the NOI, which initiated the process that led to his release, was flawed, the
entire process was vitiated, including the final decision to release him and
that therefore this proceeding should capture the entire process.
[29]
This argument cannot stand. First, although the NOI and the
decision to release the applicant stemmed from the same set of facts and were
both part of the same administrative process, they were two distinct decisions
made at different times, which generated different impacts on the applicant’s
status within the CF. The process that led to his release contained three
steps: the issuance of the NOI by Capt. Flatman in her capacity as the SAO of
the unit, the Commanding Officer’s decision to recommend the applicant’s
release to the DMCA and the DMCA’s decision to release the applicant. Each of
these decisions needed to be grieved if the applicant wished to challenge them.
Yet the applicant only filed a grievance against the NOI.
[30]
Second, the evidence does not support a proposition that
the process was contaminated by Capt. Flatman’s decision to issue the NOI. It
is true that Capt. Flatman initiated the process that led to the applicant’s
release, but the NOI was issued in her capacity as an SAO and the actual
decision to recommend the applicant’s release to the DMCA was made by the Commanding
Officer. Moreover, the evidence does not establish that the Commanding Officer’s
decision was in any way influenced by Capt. Flatman or by any possible bias
that she may have had against the applicant. It is apparent from the wording of
the Commanding Officer’s recommendation that the decision to recommend release
was based on his own assessment of the applicant’s behaviour and history.
[31]
The evidence also shows that the final decision to release
the applicant was made by the DMCA and that this decision was not, in any way,
influenced by Capt. Flatman’s issuance of the NOI or by her involvement in the
process. The DMCA made its decision in light of the applicant’s file and
circumstances. It is also worth noting that the applicant provided submissions
to the DMCA that were aimed at trying to convince the DCMA not to release him. At
that time, the applicant did not raise the issue of his apprehension of bias on
the part of Capt. Flatman. This element was totally absent from the
decision-making process of the DMCA.
[32]
Therefore, I am of the view that the evidence does not
support the allegation that an apprehension of bias (real of perceived) on the
part of Capt. Flatman could have influenced the decision made by the Commanding
Officer and by the DMCA. Accordingly, the grievance, and this judicial review,
should not capture the entire process that led to the applicant’s release.
[33]
The applicant further contends that, since the CDS’s
decision to deny his grievance referred to his actual release, “his narrative
of all of the stated reasons for the justification of my release in his ratio
decidendi open the basis of them to the scrutiny of this court on review
the decision.” (para 9 of the applicant’s Reply). With respect, this
proposition cannot stand either.
[34]
The CDS was not seized of a grievance challenging the
applicant’s release and he did not opine on the merits of the release. The
CDS’s reference to the applicant’s release is related to his assessment of the
impact of any possible bias on the part of Capt. Flatman surrounding the DMCA’s
ultimate decision to release the applicant from the CF. In this context, his
reference to the factual situation and the circumstances surrounding the
applicant’s release cannot open the door to an indirect challenge of the
applicant’s release from the CF.
[35]
In short, the NOI, which is at issue in these proceedings,
is distinct from the decision to release the applicant. The latter decision was
not grieved and is not at issue before this Court. This Court’s jurisdiction is
restricted to reviewing the decision rendered by the CDS denying the grievance
filed by the applicant against the NOI. This grievance raised only one
allegation; an apprehension of bias against the applicant on Capt. Flatman’s
part. This application for judicial review cannot capture the entire process
that led to the applicant’s release. Therefore, the Court will disregard the issues
and arguments raised in the applicant’s Memorandum of Fact and Law that do not
pertain to the decision that was the object of the grievance at issue.
[36]
In his Memorandum of Fact and Law, the applicant raised the
issue of whether the CDS erred in not finding that there was a reasonable
apprehension of bias on the part of Capt. Flatman. At the hearing, he added a new
argument regarding this issue: the applicant contended that the CDS applied the
wrong test for assessing whether there was an apprehension of bias. The
respondent did not oppose this issue being raised and provided oral submissions
in response. Given that this issue is somewhat related to the one initially
raised by the applicant and given the absence of prejudice or opposition from
the respondent, I will deal with both issues. Therefore, this judicial review
raised the following two issues:
A. Did the CDS apply the wrong test with
respect to an allegation of an apprehension of bias?
B.
Did the CDS err in his assessment of whether there was a reasonable
apprehension of bias on Capt. Flatman’s part?
IV. Standard of review
[37]
The
determination of whether the appropriate test for bias was applied is a
question of law and both parties agreed that such a question should attract the
standard of correctness (Cheney v Canada (Attorney General), 2005 FC
1590 at para 14, 144 ACWS (3d) 193 [Cheney]. However, the question of
whether the CDS properly assessed whether there was a reasonable apprehension
of bias is a question of mixed fact and law that should be reviewed under
reasonableness standard of review (Cheney at paras 14-15).
V. Analysis
A. Did the CDS apply the wrong test with
respect to an allegation of an apprehension of bias?
[38]
The
test for bias was enunciated in Committee for Justice and Liberty v Canada (National
Energy Board), [1978] 1 S.C.R. 369 at 394 (available on CanLII):
. . . the apprehension
of bias must be a reasonable one, held by reasonable and right minded persons, applying
themselves to the question and obtaining thereon the required information…
[The] 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.”
[39]
While
actual bias need not be proven (Cheney at para 18), the test is an
objective one and as stated by the Court in Armstrong v Canada (Attorney
General),
2006 FC 505 at para 75, 291 FTR 49, “the threshold for establishing a claim is
high and substantial grounds are necessary to support a claim.”
[40]
The
applicant contends that the CDS did not apply the correct test and imposed a
heavier burden, requiring him to actually prove that Capt. Flatman was bias
against him.
[41]
The
respondent acknowledges that the CDS was not clear is his formulation of the
test but contends that if the CDS misstated the test, this did not have any
impact on the outcome since the CDS endorsed the Board’s findings which
formulated the appropriate test. The respondent further contends that, if the
Court concludes that the CDS erred in formulating the test, it should
nevertheless conclude that, in light of the evidence, the outcome would have
remained the same if the CDS had applied the appropriate test.
[42]
I
agree that the CDS’s decision can lead to confusion as to the test that he
applied, especially when he states “. . . you have not supported your
allegations that this relationship caused Capt. Flatman to be bias, nor
have you identified what decisions Capt Flatman made that are considered to be
bias.” and “. . . you have not supported your grievance with respect to bias on
the part of Capt Flatman concerning your release from the CF.” However, I
consider that these comments are of no consequence to the decision.
[43]
First,
it is clear from the CDS’s decision that he endorsed the Board’s finding and
reasoning. The CDS stated: “I concur with the CFGB’s findings and
recommendations. . .” It is not disputed that the Board formulated and applied
the appropriate test for determining whether there was a reasonable
apprehension of bias.
[44]
The
CDS could have limited himself to stating that he was in agreement with the
Board’s findings and recommendations without further expanding. Article 7.14 of
the QR&O states that after having received the Board’s findings and
recommendations, the CDS must consider and determine the grievance and must
advise the grievor of the “determination and the reasons for it.” However,
section 29.13 of the Act provides that the CDS is not bound by the Board’s
findings and recommendations but if he chooses to depart from them, he is
required to include the reasons for doing so. I understand from these
provisions that when the CDS is in agreement with the Board’s findings and
recommendations, he can endorse its reasoning without having to expand further.
[45]
In
this case, the CDS chose to expand and add to the Board’s findings and
recommendations and I think that his additional reasons must be put into
context. By endorsing the Board’s findings, the CDS endorsed the test and
reasoning applied by the Board. In his additional reasons, the CDS replied to
the allegation made by the applicant that Capt. Flatman was bias against
him and that such a bias was inferred from her being a “friend” of his ex-common-law
wife on the Facebook website. In the context of the allegations made by the
applicant in his grievance, I do not infer that the CDS misapplied the test for
an apprehension of bias. As well, I do not infer that he departed from the analysis
of the Board.
B. Did the CDS err in his assessment of
whether there was a reasonable apprehension of bias on Capt Flatman’s part?
[46]
The
applicant contends that it was unreasonable for the CDS to conclude that there
was no reasonable apprehension of bias on the part of Capt. Flatman. In his
grievance, the applicant based his allegation of an apprehension of bias on the
alleged relationship between Capt. Flatman and his ex-common-law partner that
he evidenced with a printout showing that the applicant’s ex‑common‑law
wife and Capt. Flatman were linked through Facebook.
[47]
The applicant had several opportunities during the
grievance process to provide additional evidence and arguments. He was invited
to provide comments and submissions at every step of the process: to the Initial
Authority; to the Board; and to the CDS. The applicant did provide comments and
submissions at each step. The only time he added further elements in support of
his allegation of bias was in the comments that he made before the CDS prior to
his decision.
[48]
In an email dated December 14, 2009, Chief Warrant Officer,
J.S.B. Bergeron, wrote to the applicant and asked him the following three
questions:
QUESTION 1.
You have submitted a grievance, that came about because the staff in Trenton notified
you of their intent to recommend your release due to misuse of alcohol, AWOL
and C&P issues. Your grievance speaks of an alleged bias on the part of
Capt Flatman. You are grieving the fact that Capt Flatman may be biased in her
recommendation to have your [sic] released because she had a friendship
with your ex-common-law-spouse, Lt Prosser. Is this correct?
QUESTION 2.
You have submitted evidence/fact to support your allegation of bias. The
evidence you submitted shows that Capt Flatman and Lt Prosser have given each
other permission to be friends on Face Book. You also have also [sic]
referenced a document of 5 Mar 08 which notes Capt Flatman contacted your
ex-common-law spouse. Is this correct?
QUESTION 3. As a
remedy, you have asked that the notice of intent to recommend release be
withdrawn. To clarify, are you asking that you should be permitted to remain in
the CF because the notice of intent to recommend release, signed by Capt
Flatman is bias?
[49]
The applicant replied, in part, the following to the
questions:
Question 1. Yes. I
believe a conscious bias did exist. In the entire time I was posted to Trenton, Several
administrative and legal actions were imposed or attempted to be imposed upon
me, in nearly every instance, a large degree of impropriety either in law or
ethics was shown. Also of note, one fact remained constant throughout, that
being my request to be posted with my wife. Despite the considerable administrative
efforts expended by my leadership, little, if any, was focused on this aim but
rather, on endeavours that certainly curtailed the possibility of us being
reunited. It has been argued recently that a bias by Capt. Flatman could not
have influenced the decision to release me as she was merely the signatory
agent and that the decision was the CO’s. If that had been truly [sic]
the case, then my CO erred in acting as IA to this grievance (as I state in my
representation) as he cannot act as an authority in a grieved action involving
a decision he made.
Question 2. I believe
my evidence shows a definite trend towards bias, Capt. Flatman had ample
opportunity to disclose such and or recuse herself. Not only in her role as
AdminO, she also acted in a legal role (as CRO during my detention) where she
had a legal obligation to disclose ANY possibility of bias. She only reinforced
my perception of bias when my release from custody was delayed and I was
disallowed representation by council [sic] despite my plea for Habeas
Corpus and she insisted on acting as CRO despite being on leave at the time (I
cannot be convinced that there was any shortage of officers available that
could have fulfilled this role in her absence). She also alluded to personal
information about me that could not have been procured from any official data.
. . .
[50]
In
his Memorandum of Fact and Law and his Reply, the applicant alleges that Capt.
Flatman acted with hostility towards him and that this is another element that
points to an apprehension of bias. At the hearing, the applicant added that Capt.
Flatman could have adopted a different measure than proposing his release. He argued
that the fact that she opted for the harshest measure is another element that
points to a reasonable apprehension of bias. He further contended that Capt.
Flatman did not consider mitigating factors in her decision to recommend his
release.
[51]
The applicant’s arguments cannot succeed. The evidence
provided by the applicant in support of his allegation of an apprehension of
bias is speculative and far from sufficient to meet the threshold. The
allegations regarding Capt. Flatman’s hostility towards the applicant is not
supported. Neither does the evidence show that Capt. Flatman issued the NOI and
chose to recommend release as a result of any bias on her part. The applicant’s
allegations are speculative. The same can be said about the allegation
regarding the friendship between Capt. Flatman and the applicant’s ex-common-law
wife. First, the Facebook page is insufficient evidence to conclude that Capt.
Flatman and the applicant’s ex partner are friends or to characterize the nature
of the alleged “friendship.” The evidence presented by the applicant is
insufficient to conclude that a reasonable apprehension of bias exists. Therefore,
the CDS’s decision was reasonable and does not warrant the intervention of this
Court.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application for judicial review is dismissed with
costs to the Respondent in the requested amount of $2500.
“Marie-Josée Bédard”
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