Appeal of Gomery Quashing Denied

Last week I covered the litigation from the Adscam controversy relating to journalistic privilege in Globe and Mail v. Canada. This week, the Federal Court released Canada (Attorney General) v. Chrétien relating to the Gomery Inquiry (pdf), the Royal Commission charged under the Inquiries Act with investigating the scandal.

From the outset, the inquiry was burdened with charges of bias and conflicts of interest. Former Prime Minister Jean Chrétien then sought judicial review of the inquiry of the Commission’s findings, which quashed the findings. The current appeal was an attempt to overturn this decision to quash the Gomery Inquiry.Background
On June 26, 2008 the Federal Court held in Pelletier v. Canada (Attorney General) and Chrétien v. Canada (Commission of Inquiry into the Sponsorship Program and Advertising Activities) that the Commission lacked the procedural fairness required in administrative law under Baker v. Canada.

Teitelbaum J. applied the test for reasonable apprehension of bias in Committee for Justice and Liberty v. National Energy Board,

[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. […] [T]hat 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 [the Chairman of the Board], whether consciously or unconsciously, would not decide fairly.

After reviewing the comments by Commissioner Gomery to the media, Teitelbaum J. concluded that he prejudged issues and was not impartial toward Chrétien,

[104] The media is not an appropriate forum in which a decision-maker is to become engaged while presiding over a commission of inquiry, a trial, or any other type of hearing or proceeding. Indeed, the only appropriate forum in which a decision-maker is to become engaged is within the hearing room of the very proceeding over which he or she is presiding. Comments revealing impressions and conclusions related to the proceedings should not be made extraneous to the proceedings either prior, concurrently or even after the proceedings have concluded.

[105] I stress that even in public inquiries where the purpose of the proceedings is to educate and inform the public, it is not the role of decision-makers to become active participants in the media. First and foremost, a decision-maker’s primary duty is to remain impartial, with an open mind that is amenable to persuasion. It is only when all the evidence is heard and after deliberating on that evidence that a decision-maker is to form conclusions and, finally, to issue a judgment or report on the basis of these conclusions. It follows that a decision-maker speaks by way of his or her decision. This is the only appropriate forum in which a decision-maker should state his or her conclusions. As my colleague, mentor and friend, the late Justice Frank Collier once said to me when I was first appointed as a judge, “Let the decision speak for itself.”
[emphasis added]

Holding
The appeal to the Federal Court of Appeal was based on two points:

1. the reasonable apprehension of bias test was applied too rigidly
2. a palpable and overriding error by:
   • interpreting general statements as proof of bias, and
   • wrongly attributing comments made by the Commissioner’s spokesperson to him

Noël J.A. rejected both of these arguments, noting that it was the cumulative effect of Commissioner Gomery’s statements that led to a conclusion of reasonable apprehension of bias. He also stated that in reviewing the cumulative evidence it was not unreasonable to come to the same conclusion, and affirmed the statements about the role of a Commissioner with the media.

Noël J.A. also affirmed that it was open to Teitelbaum J. to hold that the general statements made could be interpreted as against Chrétien. Teitelbaum J. used rather strong language in describing this event,

[87] Also, in an article in the Ottawa Citizen, dated December 16, 2004, the Commissioner is quoted as having stated, in reference to upcoming evidence that was to be heard by the Commission, that the “juicy stuff” was yet to come. The term “juicy” is defined by the Canadian Oxford Dictionary as meaning “racy or scandalous.”

[88] This comment trivialized the proceedings, which had enormous stakes for the witnesses involved in the proceedings, especially those who had yet to testify. It telegraphed to the public a prediction that evidence of wrongdoing was forthcoming and, because in terms of public interest the most important witnesses were yet to come (including the Applicant and other senior officials and cabinet ministers), the comment was clearly directed at what might be expected from or about them. Whatever interpretation is given to this comment, the comment bears a pejorative connotation to which no witness ought to have been subjected.
[emphasis added]

Although the government now has 60 days to further appeal this ruling, it’s considered unlikely that they will do so. This decision might be the last word on the Gomery Inquiry, which has dominated the backdrop of Canadian federal politics in the 21st century.