Date: 20110629
Docket: A‑9‑08
Citation:
2011 FCA 217
CORAM: BLAIS C.J.
LÉTOURNEAU J.A.
MAINVILLE J.A.
BETWEEN:
THE HONOURABLE ALFONSO GAGLIANO
Appellant
and
THE
HONOURABLE JOHN H. GOMERY
in
his quality as Ex‑Commissioner of the Commission of Inquiry
into
the Sponsorship Program and Advertising Activities
and
THE
ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR JUDGMENT
LÉTOURNEAU J.A.
Issues
[1]
This is an appeal of a decision by Deputy
Justice Teitelbaum (judge) dated September 5, 2008 (Gagliano v. Gomery,
Attorney General of Canada and House of Commons, 2008 FC 981).
[2]
After deliberating, the judge dismissed with
costs the application for judicial review filed by the appellant, the
Honourable Alfonso Gagliano, and confirmed the conclusions regarding the
appellant, which are set out in the Phase I Report produced by Commissioner
John H. Gomery (Commissioner) as chair of the Commission of Inquiry into the
Sponsorship Program and Advertising Activities of the Government of Canada
(Commission).
[3]
On appeal, the appellant is now representing
himself. However, he is relying on the memorandum of fact and law filed in the
Appeal Book by counsel representing him when the appeal proceedings began. I
will therefore focus on the grounds for appeal presented in that memorandum.
They read as follows:
[translation]
A. Did the trial judge err in not
applying the same legal rule to the appellant as was applied to the applicant
in Pelletier?
B. Did the trial judge err in not
taking into account all of the grounds raised by the appellant for his
reasonable apprehension of bias on the part of the Commissioner?
C. Did the trial judge err in law in
increasing the appellant’s burden of proof?
D. Did the trial judge err in law in
deciding that the Commissioner’s inappropriate conduct did not give rise to a
reasonable apprehension of bias?
E. Did the trial judge err in law in
deciding that the Commissioner was correct to hold the appellant responsible
under rules that did not yet exist when he was a minister?
[4]
Ground E aside, all of the grounds are related
to the appellant’s contention that the Commissioner, by his conduct, including
media interviews given during the inquiry, gave rise in the mind of the
appellant and of a reasonable, well‑informed person to a reasonable
apprehension of bias against the appellant.
[5]
The Attorney General of Canada, one of the two
respondents on appeal, is joining the Commissioner in requesting that the
appeal be dismissed. However, the Attorney General takes issue with the
standard used by the judge to test for a reasonable apprehension of bias. Nonetheless,
he submits that if the judge had applied the standard established by this Court
in Beno v. Canada, [1997] 2 F.C. 527, at paragraph 27, he would
have made the same finding because that standard, as it relates to apprehension
of bias allegations, affords commissioners greater flexibility and protection
in respect of their actions and statements. The Attorney General of Canada is
therefore asking this Court to formulate the test applicable to the issue of a
reasonable apprehension of bias.
[6]
In his memorandum and at the hearing, counsel
for the Commissioner analyzed the judge’s decision and the appellant’s grounds
for appeal by referring to Beno, above, and the decision of this Court
in Morneault v. Canada (Attorney General), [2001] 1 F.C. 30.
[7]
Without attacking head‑on the standard
used by the judge, counsel emphasized the purpose of a commission of inquiry,
the role and function of a commissioner and the need, in order to check whether
a reasonable apprehension of bias exists, to properly distinguish between inquisitorial
and adversarial processes.
[8]
Considering the importance of this issue, which
is at the very heart of the dispute in this appeal, I will examine the standard
that must apply to a commission of inquiry. But first, a brief summary of the
facts and proceedings underlying this dispute is in order.
Facts and
proceedings underlying the dispute
[9]
A commission of inquiry was established in 2004
to investigate the Government of Canada’s Sponsorship Program and advertising
activities. Paragraphs 5 and 11 to 16 of the judge’s reasons for decision
suffice to describe the context in which the Commission was created to examine
what would come to be known as the sponsorship scandal. I have reproduced them
below.
[5] The Commission was established as a result of questions
raised in Chapters 3 and 4 of the Auditor General of Canada’s
November 2003 Report (the Auditor General’s Report), which identified
problems with the management of the federal government’s Sponsorship Program,
the selection of communications agencies for the government’s advertising
activities, contract management, and the measuring and reporting of value‑for‑money.
The Auditor General’s Report also noted that there was a lack of transparency
in decision‑making, a lack of written program guidelines, and a failure
to inform Parliament of the Sponsorship Program, including its objectives,
expenditures, and the results it achieved.
. . .
[11] Before turning to the issues raised in this application, it
is necessary to provide some details regarding the origins of the Sponsorship
Program.
[12] In 1993, the Liberal Party of Canada, led by the Right
Honourable Jean Chrétien, won a majority of seats in the House of Commons. The
official Opposition party at the time was the Bloc Québécois. The following
year, the Parti Québécois, led by the Honourable Jacques Parizeau, came to
power in Québec and soon announced that a provincial referendum would be held
in October 1995 to decide whether or not Québec should separate from Canada. The “No” side won by a very slim
majority. As a result, Québec would not attempt to secede from Canada but would remain part of the
Canadian federation. Mr. Parizeau resigned as Premier and was replaced by the
Honourable Lucien Bouchard, who pledged to hold another referendum when “winning
conditions” were present.
[13] Following the close result of the Referendum and with this
pledge from Mr. Bouchard, a Cabinet committee, chaired by the Honourable Marcel
Massé (Minister of Intergovernmental Affairs at the time), was struck to make
recommendations on national unity. Based on the recommendations in the Cabinet
committee’s report, the Government of Canada, after holding a meeting of
Cabinet on February 1 and 2, 1996, decided it would undertake special measures
to counteract the sovereignty movement in Québec. These special measures became
known as the “national unity strategy” or “national unity file”. As stated by
Mr. Chrétien in his opening statement before the Commission, national unity was
his number one priority as Prime Minister. Accordingly, he placed his Chief of
Staff, Jean Pelletier, in charge of the national unity file.
[14] The national unity strategy sought to increase federal
visibility and presence throughout Canada, but particularly in Québec. This was to be accomplished in many
ways, one of which was to prominently, systematically and repeatedly advertise
federal programs and initiatives through a Sponsorship Program. Sponsorships
were arrangements in which the Government of Canada provided organizations with
financial resources to support cultural, community, and sporting events. In
exchange, the organizations would provide visibility through promotional
material and by displaying symbols such as the Canadian flag or the Canada wordmark. According to the Auditor
General’s Report, from 1997 until March 31, 2003, the Government of Canada
spent approximately $250 million to sponsor 1,987 events.
[15] Responsibility for administering the Sponsorship Program
was given to Advertising and Public Opinion Research Sector (APORS), a sector
of the Department of Public Works and Government Services Canada (PWGSC), which
later became the Communication Coordination Service Branch (CCSB) with the
merger of APORS and other PWGSC sectors in October 1997. Joseph Charles
Guité was Director of APORS from 1993 to 1997 and Executive Director of CCSB
from 1997 until his retirement in 1999. Pierre Tremblay, then executive
assistant to the Applicant, took over from Mr. Guité as CCSB Director. The
Applicant was the Minister of PWGSC from 1997 to 2002.
[16] APORS (and later CCSB) did not have the personnel, training
or expertise necessary to manage and administer the sponsorships. As a result,
contracts were awarded to advertising and communication agencies to complete
these tasks and, in exchange for these services, the agencies received
remuneration in the form of commissions and production costs. Over $100 million
of the total expenditures of the Sponsorship Program was paid to communications
agencies in the form of production fees and commissions.
[10]
The Commission’s work yielded a report assigning
responsibility for the program’s mismanagement to a certain number of persons,
including the Right Honourable Jean Chrétien; his Chief of Staff, the late Jean
Pelletier; and the appellant, who was then the Minister of Public Works and
Government Services Canada.
[11]
While the Commissioner’s inquiry was underway,
Mr. Chrétien and Mr. Pelletier claimed to have an apprehension of
bias on the part of the Commissioner after he made some surprising statements
to the media. Proceedings were instituted in the Federal Court but, as agreed
with the Attorney General of Canada, stayed to allow the Commission to continue
its work. Once the Commission released its report, these stayed proceedings
were abandoned. However, Mr. Chrétien and Mr. Pelletier instituted
new proceedings to challenge the conclusions in the report. The appellant did
the same.
[12]
In both decisions dated June 26, 2008 (Chrétien
v. Gomery and Attorney General of Canada, 2008 FC 802; Pelletier v.
Attorney General of Canada and Gomery, 2008 FC 803), the judge set aside
the conclusions in the Commission’s report, but, in the decision dated
September 5, 2008, which is the subject of this appeal, upheld those regarding
the appellant (2008 FC 981).
[13]
The Attorney General of Canada appealed the
decisions in Chrétien and Pelletier. This Court dismissed the
appeal concerning Mr. Chrétien (Attorney General of Canada v. Right Honourable Jean
Chrétien, 2010 FCA 283). The appeal proceedings
concerning Mr. Pelletier were not concluded, owing to his death.
[14]
Regarding the appellant, a first hearing of his
appeal took place, but a new hearing had to be held as a result of an
unfortunate confluence of events beyond his control. These reasons are based on
that second hearing.
Conclusions in the report regarding the applicant’s responsibility
[15]
It is necessary to summarize the conclusions in
the Commissioner’s report to show how they are related to the grounds for
appeal. First, the Commissioner concluded that the appellant had circumvented
the chain of authority and ministerial responsibility by going around the
Deputy Minister of his department to deal directly with a public servant under
the Deputy Minister’s authority.
[16]
Second, also according to the Commission, the
appellant gave no consideration to the need to adopt guidelines when it came to
awarding sponsorships. He let the public servant and his successor operate
without oversight by systematically bypassing the Deputy Minister, who should
have been in charge of implementing the Sponsorship Program.
[17]
Third, the Commissioner stated that in his
opinion, the appellant had became directly involved in decisions to provide
funding for events and projects that were directed more towards partisan purposes
rather than considerations of national unity in keeping with the program’s
supposed purpose.
[18]
Last, the Commissioner held the appellant
responsible for the actions and decisions of his political staff members who
succeeded one another as Chief of Staff.
[19]
The way is now paved to analyze the judge’s
decision and the parties’ submissions. I will begin by examining the standard
applicable to a reasonable apprehension of bias on the part of the Commissioner.
Analysis of the judge’s decision and the parties’ submissions
(a) Standard applicable to a reasonable apprehension of
bias on the part of the Commissioner
[20]
There is a world of difference in terms of
significant impacts between a commission of inquiry and an adjudicative
tribunal. A public inquiry is neither a civil trial nor a criminal trial. This
Court stated the following in Beno v. Canada, above, at paragraphs 23
and 24 of that decision:
[23] It is
clear from his reasons for judgment that the Judge of first instance
assimilated commissioners to judges. Both, in his view, exercise “trial like
functions.” That is clearly wrong. A public inquiry is not equivalent to a
civil or criminal trial (see Canada (Attorney General) v. Canada
(Commissioner of the Inquiry on the Blood System), [1997] 2 F.C. 36 (C.A.),
at paragraphs 36, 73 [hereinafter Krever]; Greyeyes v. British
Columbia (1993), 78 B.C.L.R. (2d) 80 (S.C.), at page 88; Di Iorio
et al. v. Warden of the Montreal Jail, [1978] 1 S.C.R. 152, at page 201;
Bortolotti v. Ontario (Ministry of Housing) (1977), 15 O.R. (2d) 617
(C.A.), at pages 623‑624; Shulman, Re, [1967] 2 O.R. 375
(C.A.), at page 378)). In a trial, the judge sits as an adjudicator, and
it is the responsibility of the parties alone to present the evidence. In an
inquiry, the commissioners are endowed with wide‑ranging investigative
powers to fulfil their investigative mandate (Phillips v. Nova Scotia
(Commission of Inquiry into the Westray Mine Tragedy), [1995] 2 S.C.R. 97,
at page 138). The rules of evidence and procedure are therefore considerably
less strict for an inquiry than for a court. Judges determine rights as between
parties; the Commission can only “inquire” and “report” (see Irvine v. Canada (Restrictive Trade Practices
Commission), [1987] 1 S.C.R. 181, at page 231;
Greyeyes, supra, at page 88). Judges may impose monetary or
penal sanctions; the only potential consequence of an adverse finding by the
Somalia Inquiry is that reputations could be tarnished (see Westray, supra,
at page 163, per Cory J.; Krever, supra at paragraph 29;
Greyeyes, supra, at page 87).
[24] It does not follow, however, that the impartiality of
commissioners should always be judged by applying the “closed mind” test rather
than the “apprehension of bias” test. Rather, whatever the applicable test, in assessing
the behaviour of commissioners, the special nature of their functions should be
taken into account: Newfoundland Telephone, supra, at
pages 636, 638; Irvine, supra, at pages 230‑231; Nicholson
v. Haldimand‑Norfolk Regional Board of Commissioners of Police,
[1979] 1 S.C.R. 311, at page 327.
[Emphasis added]
These words
received Justice Cory’s approval in Canada (P.G.) v. Canada (Krever Comm.), [1997] 3 S.C.R. 440, at
paragraph 34.
[21]
By definition, commissions of inquiry investigate
rather than adjudicate. It must not be forgotten that the commissioners chairing
such commissions do not have evidence establishing the facts, causes and
circumstances of the events being investigated. It is the very role of
commissioners to seek out that evidence and then analyze it.
[22]
Good investigators, just like fine bloodhounds, are
driven by suspicions which they seek to confirm so that the file can be closed,
or to dispel so that the search can pursue other tracks. In so doing,
investigators can and often will create an appearance of bias. Commissioners, therefore,
through their questions and interventions and those of their counsel who
closely examine witnesses, may one day give the impression of being prejudiced
against a person who or group that is receiving particular attention from the
commission at that time. However, the next day, when the commission has focused
its attention on someone else, it is that person who will then be inclined to
believe that the commissioner is prejudiced against him or her. Nevertheless,
that is the nature of investigations.
[23]
Suspicions, information, speculations, beliefs,
doubts, reasonable grounds to believe, extrapolations and confirmations, to
name but a few of the stages investigators go through, are part of their
everyday experience. That is why the nature and complexity of inquiries and the
properties of their attendant powers mean that a Commissioner’s inquisitorial
process cannot be held to the same standard of bias as is applied to the
adversarial process in which, contrary to commissioners whose primary and
essential function is to seek out, find and gather evidence, courts only weigh
the evidence the parties already have in hand and have submitted to the court
to be assessed.
[24]
Basically, as this Court stated in Beno,
at paragraph 27, after having concluded that the Commission of Inquiry on
Somalia under review had to be situated between the legislative and
adjudicative extremes of the Newfoundland Telephone spectrum,
[27] . . . [a] commissioner should be disqualified for bias only if the
challenger establishes a reasonable apprehension that the commissioner would
reach a conclusion on a basis other than the evidence. In this case, a flexible
application of the reasonable apprehension of bias test requires that the reviewing
court take into consideration the fact that the commissioners were acting as
investigators in the context of a long, arduous and
complex inquiry. . . .
[Emphasis added]
[25]
In my view, this approach is particularly
appropriate when the dispute concerns, as in this case, the conclusions of the
commissioner’s report, which sets out the evidence gathered and the assessment of
that evidence. We cannot and may not disregard the evidence obtained to return
to the period before the report came out, while the inquiry was underway, to
look for signs of a reasonable apprehension of bias, because the test for a
reasonable apprehension of bias at this stage is to check whether the basis for
the challenged conclusions is other than evidentiary. In other words, the question
is whether they are predicated on the evidence or a prejudice. Going back to
the period before the report, while the inquiry was being conducted, to look
for signs of an apprehension of bias is, to my mind, a futile exercise if the
conclusions in the report “are supported by some evidence in the record of the
inquiry”: see Morneault v. Canada, [2001] 1 F.C. 30, at
paragraph 46 (FCA).
[26]
The case in Morneault is similar to the
one before us. Lieutenant‑Colonel Morneault was challenging the
conclusions of the Commission of Inquiry into the Deployment of Canadian Forces
to Somalia, which found him responsible for the shortcomings noted in the
organization, direction and supervision of troop training in preparation for their
deployment to Somalia.
[27]
The Federal Court had ruled in Lieutenant‑Colonel
Morneault’s favour, and the Attorney General of Canada filed an appeal of that
decision, in which this Court had to rule on the level of evidence necessary
for the conclusions of a commission of inquiry to be valid. At
paragraph 46, Justice Stone, for a unanimous court, wrote the following:
The Inquiry’s evidentiary record
[46] I turn then to the appellant’s
argument that the findings in issue are supported by the record. The Motions
Judge examined the findings on a standard of patent unreasonableness, although
they are findings of a commission of inquiry. Where that standard applies, the
Supreme Court has held that “if there is any evidence capable of supporting the
decision even though the reviewing court may not have reached the same decision”
the decision is not patently unreasonable: United Brotherhood of Carpenters
and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2
S.C.R. 316, at pages 340‑341. Given that the findings are those
of a commission of inquiry, I prefer to review them on a standard of whether
they are supported by some evidence in the record of the inquiry. In Mahon, supra, at page 814,
Lord Diplock remarked on differences between an investigative inquiry and
ordinary civil litigation and went on, at page 820, to lay down the two
rules of natural justice in the passage quoted above. He then added, at
page 821:
The technical rules of evidence applicable to civil or criminal
litigation form no part of the rules of natural justice. What is required by
the first rule is that the decision to make the finding must be based on some
material that tends logically to show the existence of facts consistent with
the finding and that the reasoning supportive of the finding, if it be disclosed,
is not logically self‑contradictory.
[Emphasis added]
[28]
In my opinion, the following conclusions may be
drawn from the case law of this Court. When, in the course of an inquiry, an
allegation of bias is made against a commissioner, the commissioner must not be
disqualified for bias unless there is a reasonable apprehension that the
commissioner’s decisions are made on a basis other than the evidence. This test
must be applied flexibly. Although the commissioner’s recusal is not impossible
to obtain at that stage, it is difficult, given the nature of the commissioner’s
function and necessarily inquisitorial role.
[29]
When the conclusions of a commission of inquiry’s
report are in dispute, and a reasonable apprehension of bias on the part of the
Commissioner is alleged, the evidence supporting the report’s conclusions
cannot be ignored. And, for the conclusions to be upheld, it suffices for them
to be supported by some evidence in the record of the inquiry. Those are the
principles that I intend to follow in examining the appellant’s grounds for
appeal.
[30]
I should note that in Chrétien, above,
the Attorney General of Canada agreed with the argument that the judge had used
the correct test to assess the reasonable apprehension of bias on the part of
the Commissioner. However, the Attorney General submitted that the judge had improperly
applied it to the facts of the case. The test used in Chrétien is the
same test the judge applied in this case.
[31]
Although the judge referred to this Court’s
decision in Beno, above, he instead used the test set out by Justice de
Grandpré in Committee for Justice and Liberty v. National Energy Board,
[1978] 1 S.C.R. 369. At page 394, Justice de Granpré formulated the
applicable test as follows:
[T]he 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. In the words of the Court of
Appeal, that 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 Mr. Crowe, whether
consciously or unconsciously, would not decide fairly.”
[32]
Mr. Crowe was the chairman of the Board,
which had a quasi‑judicial function. In that case, the Board had to
decide between competing applications for certificates of public convenience
and necessity in connection with a project to install a natural gas pipeline.
It is very clear that the Board did not have an inquisitorial role. I agree
with the Attorney General of Canada that the judge misdirected himself in
applying this test to the Commissioner. He neglected to take into account the
inquisitorial function served by the Commission as required in accordance with
the decisions of this Court in Beno and Morneault.
[33]
The admission by the Attorney General of Canada
in Chrétien was of no significance. The panel hearing the appeal
accepted it and simply considered the application of the test used by the
judge, as the Attorney General of Canada asked it to do.
[34]
The admission concerned a question of law, and
is not binding on this Court. That is why we have agreed to reconsider the
issue in order, as the Attorney General of Canada has requested, to provide
clarification and guidance to future commissions of inquiry.
(b) Did the judge err in not applying the same legal rule to
the appellant as was applied to the applicant in Pelletier?
[35]
It is clear from reading paragraphs 65 to
74 of the judge’s decision in Pelletier, above, that, as previously
mentioned, the judge applied the same analysis test for an apprehension of bias
as was applied to the appellant. I understand what the appellant means, which
is that the judge should have made the same finding in his regard as was made regarding
Mr. Pelletier.
[36]
As a general rule, identical situations call for
identical conclusions. However, the situations must indeed be identical. In
this case, the problem is twofold.
[37]
First, while it is true that the judge ruled in
Mr. Pelletier’s favour, the Attorney General of Canada appealed the
decision. Mr. Pelletier’s death put an end to proceedings, and it would be
fundamentally unfair, both to Mr. Pelletier and to the appellant, to
speculate as to what the decision of this Court could have been if the correct
test for an apprehension of bias had been used.
[38]
Second, I am not satisfied that both situations
are identical. Mr. Pelletier and the appellant held different positions
and had different roles. The appellant was involved to a greater extent in directly
implementing the Sponsorship Program. In fact, he was the Minister in charge of
that implementation. In my opinion, the finding in one case cannot be
transposed into another. It must be determined whether, in the appellant’s
case, the conclusions reached in his respect result from the evidence in the record
of the inquiry or from a prejudice the Commissioner had against him.
(c) Are the Commissioner’s conclusions supported by the
evidence in the record of the inquiry or do they result from a prejudice
against the appellant?
[39]
If, in the media attention given to his role and
person, the Commissioner overstepped the bounds of propriety, this does not
mean that his report is without merit or that his conclusions are based on a
prejudice against the appellant. There is not necessarily a relationship of
cause and effect.
[40]
The appellant is criticizing the Commissioner
for having believed certain aspects of Mr. Guité’s testimony despite
having been of the opinion that Mr. Guité was not a credible witness. There
is no discordance in that. A witness may be generally not credible in a substantial
portion of his or her testimony, but still be credible in certain elements of
it.
[41]
It was up to the Commissioner to decide on the
witnesses’ credibility and assess the probative value of their testimonies. The
judge could not substitute his assessment of the evidence for the Commissioner’s.
Aware that he did not have that power, the judge reviewed, and rightly so, the
Commissioner’s findings of fact in relation to the supporting evidence on which
he relied. The details of the judge’s analysis are set out at
paragraphs 109 to 137 of the reasons for his decision.
[42]
In analyzing the Commissioner’s findings of
fact, the judge applied the test set out in Morneault. At the end of
this analysis, he stated being satisfied that the Commissioner’s conclusions
were supported by some evidence. Neither in his analysis nor in the analysis
results do I see an error warranting this Court’s intervention.
(d) Did the judge err in not taking into
account all of the grounds raised by the appellant for his reasonable
apprehension of bias on the part of the Commissioner?
and
(e) Did the judge err in law in deciding that
the Commissioner’s inappropriate conduct did not give rise to a reasonable
apprehension of bias?
[43]
Considering my conclusion in section (c),
above, and the standard for a reasonable apprehension of bias by a commissioner
applicable to the findings of fact in the commissioner’s report, this Court
would be wrong and unjustified to intervene on the basis of these two grounds
for appeal.
(f) Did
the judge err in law in increasing the appellant’s burden of proof?
[44]
Here I reproduce paragraph 66 of the judge’s
reasons for his decision:
[66] There exists a presumption that a decision‑maker will
act impartially, and “[m]ore than a mere suspicion, or the reservations of a ‘very
sensitive or scrupulous conscience’, is required to displace that presumption”
(Beno (F.C.A.), supra, para. 29, quoting Committee for
Justice and Liberty, supra, p. 395). The onus of
demonstrating bias lies with the person who is alleging its existence and the
threshold for finding a reasonable apprehension of bias is high.
[Emphasis added]
[45]
The appellant takes issue with the judge’s
statement that “threshold for finding a reasonable apprehension of bias is high”.
The appellant interprets that statement as increasing the burden of proof he
acknowledges rests upon him.
[46]
For the reasons I set out earlier to do with the
function’s inquisitorial nature and the tests in Beno and Morneault,
the judge was correct to state that the threshold is high, both at the stage of
the ongoing inquiry and at the stage of analyzing the findings of fact in the
report.
(g) Did the judge err in law in deciding that the
Commissioner was correct to hold the appellant responsible under rules that did
not yet exist when he was a minister?
[47]
The judge gave two reasons for dismissing the
appellant’s contention that his responsibility for the sponsorship program’s
management had been assessed on the basis of publications that had not come out
until 2003, that is, after the end of his time as Minister.
[48]
I agree with the Commissioner and the judge that
the principles of ministerial responsibility and accountability within the
government apparatus did not come into existence in 2003 along with the
publications describing them. They existed long before the appellant entered
Cabinet and did not cease to exist when he left it.
[49]
Moreover, the judge referred to the testimonies the
Commissioner received from senior public servants, which reported that, within
each department, there is a chain of communication between the Minister and the
public servants of that department: see paragraphs 122 to 126 of the
reasons for his decision. This chain of communication within a structured
hierarchy like the government heralds, underpins and reinforces ministerial
responsibility and accountability. I cannot find that there is any merit to
this ground for appeal.
Conclusion
[50]
For these reasons, I would dismiss the appeal
with costs, but I would limit the hearing costs to one set.
“Gilles Létourneau”
“I agree.
Pierre
Blais C.J.”
Certified true
translation
Sarah Burns
MAINVILLE J.A. (Concurring)
[51]
In his reasons, Justice Létourneau sets out clearly
the issues raised by the appellant and the facts underlying this appeal, and I
agree with his conclusions. However, I do not think it necessary, in this
appeal, to rule on the standard applicable to a reasonable apprehension of
bias, since by applying either the standard established in Beno v. Canada,
[1997] 2 F.C. 527 and Morneault v. Canada (Attorney General), [2001] 1
F.C. 30, as did Justice Létourneau, or the standard established in Committee
for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369 (Committee
for Justice) and Newfoundland Telephone Co. v. Newfoundland (Board of
Commissioners of Public Utilities), [1992] 1 S.C.R. 623 (Newfoundland
Telephone), as did the trial judge, the conclusions of this appeal would be
the same.
[52]
Therefore, by applying to this appeal the
principles established in Committee for Justice and in Newfoundland
Telephone, and taking into account the factual background of the case
recited at length by the trial judge in his reasons, it is not possible that a
well‑informed person considering the issue in a thorough, realistic and practical
manner would believe, in all likelihood, that the Commission showed bias
against the appellant.
[53]
I further note that the Attorney General of
Canada conceded in the appeal concerning Mr. Chrétien that the trial judge
had correctly defined the applicable standard, and that this Court agreed with that
conceded point in Canada (Attorney General) v. Chrétien, 2010 FCA 283 (Chrétien).
That standard is the same as the trial judge identified in this case.
[54]
What distinguishes this case from Chrétien
is that considerable evidence supported the trial judge’s findings of a
reasonable apprehension of bias on the part of the Commissioner against
Mr. Chrétien, including disparaging public statements by the Commissioner
and his spokesperson which were aimed directly at Mr. Chrétien.
[55]
In this appeal, however, it is common ground that
none of the public statements by the Commissioner or his spokesperson were
aimed directly at Mr. Gagliano. As the trial judge noted, this is an
important and determinative distinction that mitigates the reasonable
apprehension of bias on the part of the Commissioner against Mr. Gagliano.
[56]
As for the numerous surprising public statements
made by the Commissioner and his spokesperson, which resulted in attracting
media attention to his role and person, it should be recalled, as this Court
did at paragraph 11 of its decision in Chrétien, that the media are
not a forum for commissions of inquiry to comment on testimonies. A commission
of inquiry must at all times act with dignity, be impartial and independent and
demonstrate vigilance to avoid violating the rights of the individuals being
investigated: Canada (Attorney General) v. Canada (Commission of Inquiry on
the Blood System), [1997] 3 S.C.R. 440, at paragraphs 31 and 55.
[57]
Mr. Gagliano submits that the many public
statements by the Commissioner and his spokesperson cast doubt on the
impartiality of the process and leave the Commissioner’s conclusions about him
open to challenge. Like Justice Létourneau, I agree that although the
Commissioner may have overstepped the bounds of propriety in drawing media
attention to his role and person, this does not necessarily mean that he showed
bias against Mr. Gagliano. As I stated above, unlike in Mr. Chrétien’s
case, it is common ground that none of the public statements for which the
Commissioner and his spokesperson are criticized were aimed directly at
Mr. Gagliano.
[58]
Mr. Gagliano’s other grounds for appeal are
analyzed at paragraphs 35 to 42 and 44 to 49 of Justice Létourneau’s
reasons, and I concur with Justice Létourneau’s conclusions regarding those
other grounds.
[59]
For these reasons, I would dispose of the appeal
as Justice Létourneau proposes.
“Robert M. Mainville”
Certified true
translation
Sarah Burns
Email this Content