[1997] 1 F.C. 911
T-1311-96
Brigadier-General Ernest B. Beno (Applicant)
v.
Honourable Gilles Létourneau, Commissioner and Chairperson, Peter Desbarats, Commissioner, Honourable Robert Rutherford, Commissioner, Attorney General of Canada, Major Barry Armstrong, LCol. Paul Morneault, Major Vincent J. Buonamici (Respondents)
Indexed as: Beno v. Canada (Commissioner and Chairperson, Commission of Inquiry into the Deployment of Canadian Forces to Somalia) (T.D.)*
Trial Division, Campbell J.—Ottawa, December 17, 18, 1996; Vancouver, February 21, 1997.
Inquiries — Bias — Commissioners’ duty to act fairly towards applicant — No jurisdiction in Commission to rule on disqualification of Chairperson — Chairperson’s negative remarks on applicant; credibility indication of bias.
Administrative law — Judicial review — Prohibition — Bias — Somalia Inquiry — Commissioners’ duty to act fairly towards applicant — Chairperson’s negative remarks, at and outside hearings, on applicant’s credibility indication of bias.
At the evidentiary hearings of the Commission of Inquiry into the Deployment of Canadian Forces to Somalia, the applicant Brigadier-General Ernest B. Beno was examined. He had been served with a notice providing that “Commissioners’ counsel may investigate charges of misconduct or allegations that may lead to an adverse finding that could reasonably be expected to bring discredit upon you”. In the course of the applicant’s examination before the Commissioners, the Chairperson, Létourneau J.A. (the Commissioner), intervened with his own questions and made the following remark: “I might as well tell you that you won’t gain much by fiddling around. It was a clear question and you won’t gain much …”.
This remark was followed by comments made to two other persons at the Currie Barracks Officers Mess in Calgary indicating that the Commissioner had formed a very negative opinion of BGen Beno’s credibility. Counsel for the applicant first raised the issue of bias in an in camera meeting with the Commissioner, who dismissed these concerns. He then brought a formal motion before the Commission, requesting an order that the Commissioner be disqualified from continuing as a Commissioner of the Inquiry, or, in the alternative, that he be disqualified from deciding upon the evidence pertaining to the conduct of the applicant. The three Commissioners found that no disabling bias existed and dismissed the motion. As a result, the applicant brought an application for an order setting aside the reasons of the Commissioners on the ground that there had been a breach of the duty of fairness owed to the applicant by the Commissioner’s tendering his own unsworn and untested evidence through the decision itself, upon which the conclusions reached by all three Commissioners were largely based. He also brought this application for an order prohibiting the Commissioner from continuing to act as a Commissioner on the Inquiry, or, that he be disqualified from deciding upon the evidence pertaining to the conduct of the applicant.
Held, the application for prohibition should be allowed to the extent that the Commissioner, for the purpose of the Inquiry and its final report, might not participate in any way in the making of adverse findings in relation to the applicant.
Actual bias need not be proven, but the focus should be on the appearance of bias. The test is whether a reasonably informed bystander could reasonably perceive bias on the part of an adjudicator. The test to be applied depends on the function of the decision maker. The primary objective of an adjudicative decision maker when faced with a bias concern is to protect the integrity of the process. The position adopted by a decision maker on a bias challenge is not a “decision” which is subject to challenge on judicial review. But the litigant has a right to take the bias concern to a superior authority to have an independent objective evaluation of the merits of the complaint. If the decision maker decides not to put himself before the superior authority in the same position as the person holding the bias concern, that is by providing sworn evidence, then the facts attested to by the person holding the bias concern should be considered uncontested.
The obiter comment made by Cullen J. in Beno v. Canada (Commission of Inquiry into the Deployment of Canadian Forces in Somalia), [1996] F.C.J. No. 1129 (T.D.) (QL): “We incline to think that the Commission lacked the jurisdiction to rule on the disqualification of its Chairman” was approved. How can a tribunal hear and decide an application of bias against one of its members, with that member participating, and having already communicated a decision on the issue? Applying an apparent bias in deciding apparent bias means that no jurisdiction exists to decide.
In addition, the Commission was not the authority in law which possessed the power to decide whether the Commissioner should be disqualified from proceeding in whatever fashion. It did not have prerogative writ power. The only authority with the power to “disqualify” the Commissioner is a justice of the Trial Division of the Federal Court by an order of prohibition made under section 18.1 of the Federal Court Act. As a result the Commissioners’ decision had no legal value and there was therefore no decision in law to quash or set aside. Consequently, the evidence that the Commissioner purported to give through the decision was inadmissible.
For the purposes of this case, bias was defined as follows: “Bias refers to a mental attitude or disposition of Commissioner Létourneau towards BGen Beno which tends, or is seen as tending, to cause Commissioner Létourneau to decide issues relating to BGen Beno’s s. 13 notice on another basis than the evidence”.
The Commissioner’s “fiddling” comment at the hearing was apparently the result of the Commissioner’s misunderstanding of the object of the questions being put to the applicant at that point and of the “literal” attitude adopted by the applicant. A careful reading of the questions makes it clear that the applicant was then, as he did throughout his examination, merely responding literally to the questions asked. The Commissioner’s comments to two other persons, in the Currie Officers Mess in Calgary, were to the effect that BGen Beno had not given straight answers and that perhaps Beno had been trying to deceive. At the in camera meeting, the Commissioner confirmed that that was his perception.
The Commissioner’s duty to act fairly towards the applicant stems from the Inquiries Act and the Commission of Inquiry into the Deployment of Canadian Forces in Somalia Rules. The decision herein selecting the test for bias as an element of the duty to act fairly owed by the Commissioners to BGen Beno depended on the characterization of the nature and certain functions of the Inquiry and, in particular, as those functions related to him. The general investigative nature and fact finding function of the Inquiry incorporates a precise “trial-like” function for persons granted standing and served with a section 13 notice. A person whose conduct is being investigated pursuant to a section 13 notice under the Inquiries Act faces a trial in the court of public opinion, the results of which can be as damaging in terms of loss of reputation as a finding of guilt in a criminal trial. Therefore, the Commissioners were performing a “quasi-judicial” function with respect to persons granted standing and served with a section 13 notice, and the content of the duty to act fairly towards them must be responsive to this function. That is, the content of the duty must incorporate essential features of the judicial decision-making process, including the test for bias. The test herein should be: whether a reasonably informed bystander could reasonably perceive a mental attitude or disposition of Commissioner Létourneau towards BGen Beno which tends, or is seen as tending, to cause Commissioner Létourneau to decide issues relating to BGen Beno’s section 13 notice on another basis than the evidence.
The reasonably informed bystander would need to know and understand the reasons herein, and would need to be instructed on the standards of decision-making conduct to be expected in a judicial proceeding, and what might be expected of Commissioner Létourneau in meeting this standard. The critical question is: Is the judge able and prepared to set his predilections aside and not put them to work in the exercise of his judicial functions? If a judge holds a negative view towards or a suspicion about members of a particular group, in this context officials of high rank in the Canadian military, unless this view is properly held in check, the judge will “put to work” a predilection which can be an impairing bias.
In the present case, the bystander would be correct in concluding that the highly disrespectful “fiddling” remark is evidence of an opinion held by the Commissioner about the applicant’s credibility which is unsubstantiated by inspecting the evidence he gave. The bystander would be right in deciding that the suspicion was a predilection “put to work”. The bystander could also reasonably conclude that the Commissioner really believed, when he spoke to two other persons, that the applicant “was being less than open and truthful in his testimony” and that “he seemed to be hiding things”. And from the in camera meeting, the bystander would conclude that the Commissioner was completely committed to the opinions he expressed to the two other persons and that he knew the source of his remark to be a general suspicion of the applicant and his evidence. And the bystander would see each event building on the one before so as to strengthen the concern and questions about the “fiddling” remark into a fear of commitment in the statements made to the two other persons, to being certain that the Commissioner’s mind was made up as evidenced by the exchange at the in camera meeting. This expression of negative opinion poses a grave problem because the Inquiry has not concluded. Not only is all the evidence to be considered together, but argument must be heard before any decisions are made. That is, the negative opinion already reached has put BGen Beno at an unfair disadvantage, from which he may not recover.
There was no doubt that the bystander would say that BGen Beno has not and would not in the future be treated fairly by the Commissioner because of the Commissioner’s unjustified and entrenched negative opinion about BGen Beno’s credibility. Thus, on the whole, a reasonably informed bystander could reasonably perceive a mental attitude or disposition of the Commissioner towards the applicant which tends, or is seen as tending, to cause the Commissioner to decide issues relating to BGen Beno’s section 13 notice on another basis than the evidence.
The Commissioner has demonstrated a disabling bias against BGen Beno. The Commissioner is therefore prohibited, for the purpose of the Inquiry and its final report, from participating in any way in the making of adverse findings, directly or indirectly in relation to charges or allegations which are the subject-matter of a notice issued to BGen Beno pursuant to section 13 of the Inquiries Act.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Commission of Inquiry into the Deployment of Canadian Forces in Somalia Rules.
Federal Court Act, R.S.C., 1985, c. F-7, s. 18.1 (as enacted by S.C. 1990, c. 8, s. 5).
Federal Court Rules, C.R.C., c. 663, R. 1603 (as enacted by SOR/92-43, s. 19; 94-41, s. 15).
Inquiries Act, R.S.C., 1985, c. I-11, ss. 12, 13.
CASES JUDICIALLY CONSIDERED
APPLIED:
Calgary General Hospital v. United Nurses of Alberta, Local One, England, Post and Mearns (1983), 50 A.R. 250; 5 D.L.R. (4th) 54; 29 Alta. L.R. (2d) 3; 6 Admin. L.R. 80; 84 CLLC 14,032 (C.A.); Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon, [1969] 1 Q.B. 577 (C.A.); Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623; (1992), 95 Nfld. & P.E.I.R. 271; 4 Admin. L.R. (2d) 121; 134 N.R. 241; Duncan, Re, [1958] S.C.R. 41; (1957), 11 D.L.R. (2d) 616; Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; (1976), 68 D.L.R. (3d) 716; 9 N.R. 115; Spence v. Spence and Prince Albert Board of Public Commissioners (1987), 53 Sask. R. 35; 25 Admin. L.R. 90 (C.A.); Beno v. Canada (Commission of Inquiry into the Deployment of Canadian Forces in Somalia), [1996] F.C.J. No. 1493 (C.A.)(QL) (as to the Commission’s lack of jurisdiction); Irvine v. Canada (Restrictive Trade Practices Commission), [1987] 1 S.C.R. 181; (1987), 41 D.L.R. (4th) 429; 24 Admin. L.R. 91; 74 N.R. 33; Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), [1995] 2 S.C.R. 97; (1995), 31 Admin. L.R. (2d) 261; 39 C.R. (4th) 141; 180 N.R. 1.
CONSIDERED:
Ringrose v. College of Physicians and Surgeons (Alberta), [1977] 1 S.C.R. 814; (1977), 1 A.R. 1; 67 D.L.R. (3d) 559; [1976] 4 W.W.R. 712; 9 N.R. 383; confg Ringrose and College of Physicians & Surgeons of Alberta, Re (1975), 52 D.L.R. (3d) 584; [1975] 4 W.W.R. 43 (Alta. C.A.); Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653; (1990), 69 D.L.R. (4th) 489; [1990] 3 W.W.R. 289; 83 Sask. R. 81; 43 Admin. L.R. 157; 30 C.C.E.L. 237; 90 CLLC 14,010; 106 N.R. 17.
REFERRED TO:
Dimes v. Grand Junction Canal (Proprietor of) (1852), 10 E.R. 301 (H.L.); Regina v. East Kerrier Justices. Ex parte Mundy, [1952] 2 Q.B. 719; Beno v. Canada (Commission of Inquiry into the Deployment of Canadian Forces in Somalia), [1996] F.C.J. No. 1129 (T.D.) (QL); Okyere-Akosah v. Minister of Employment and Immigration (1992), 157 N.R. 387 (F.C.A.); Maldonado v. Minister of Employment and Immigration, [1980] 2 F.C. 302 (1980), 31 N.R. 34 (C.A.); Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298 (1993), 107 D.L.R. (4th) 424; 21 Imm. L.R. (2d) 221; 159 N.R. 210 (C.A.); Hilo v. Canada (Minister of Employment & Immigration) (1991), 15 Imm. L.R. (2d) 199; 130 N.R. 236 (F.C.A.); Lahay v. Brown, [1958] S.C.R. 240; (1958), 12 D.L.R. (2d) 785.
AUTHORS CITED
Black’s Law Dictionary, 6th ed. St. Paul, Minn.: West Publishing Co., 1990. “bias”.
Canadian Judicial Council. Report of the Canadian Judicial Council to the Minister of Justice of Canada under ss. 63(1) of the Judges Act concerning the Conduct of Mr. Justice Jean Bienvenue of the Superior Court of Québec in R. v. T. Théberge, October 1, 1996.
Canadian Law Dictionary. Toronto: Law and Business Publications (Canada), 1980. “bias”.
Greenspan, Edward L. “The Royal Commission: History, Powers and Functions, and the Role of Counsel” in F. R. Moskoff. Administrative Tribunals: A Practice Handbook for Legal Counsel. Aurora, Ont.: Canada Law Book Inc., 1989.
Sopinka, J. “The Role of Commission Counsel” in A. Paul Pross et al., eds. Commissions of Inquiry. Toronto: Carswell, 1990.
Wilson, J. O. A Book for Judges. Ottawa: Minister of Supply and Services Canada, 1980.
APPLICATION for judicial review to have the Chairperson of the Somalia Inquiry disqualified for bias. Application allowed.
COUNSEL:
J. Bruce Carr-Harris, Lawrence A. Elliot for applicant.
Raynold Langlois, Q.C., Eve-Stéphanie Sauvé for respondents Gilles Létourneau, Commissioner and Chairperson, Peter Desbarats, Commissioner, Robert Rutherford, Commissioner.
Yvonne E. Milosevic for respondent Attorney General of Canada.
Graham E. S. Jones for respondent LCol Paul Morneault.
Ronald D. Lunau for respondent Major Vincent J. Buonamici.
SOLICITORS:
Scott & Aylen, Ottawa, for applicant.
Langlois Robert, Montréal, for respondents Gilles Létourneau, Commissioner and Chairperson, Peter Desbarats, Commissioner, Robert Rutherford, Commissioner.
Deputy Attorney General of Canada for respondent Attorney General of Canada.
Shields & Hunt, Ottawa, for respondent LCol. Paul Morneault.
Gowling, Strathy & Henderson, Ottawa, for respondents Major Barry Armstrong, Major Vincent J. Buonamici.
The following are the reasons for order rendered in English by
Campbell J.:
I
OVERVIEW
On January 30, 1996, Brigadier-General Ernest B. Beno[1] was being examined before the Commissioners of the Somalia Inquiry.[2] In the course of explaining his involvement in the selection of the military personnel who would form Canada’s contingent on the mission, the Inquiry Chairperson, the Honourable Mr. Justice Gilles Létourneau, Federal Court of Canada (Appeal Division)[3] intervened with his own questions and, in the course of doing so, made the following remark:
I might as well tell you that you won’t gain much by fiddling around. It was a clear question and you won’t gain much ….
This remark caused a chain of events which has culminated in this prohibition application to have Commissioner Létourneau disqualified for bias. As a primary element of BGen Beno’s concern is the fact that on or about September 25, 1995, prior to the commencement of the evidentiary hearings of the Commission, he was served with a notice pursuant to section 13 of the Inquiries Act. The notice, inter alia, provided:
At the evidentiary hearings, in relation to shortcomings or failures in the fulfilment of your military duties, your actions or the role played by you, Commissioners’ counsel may investigate charges of misconduct or allegations that may lead to an adverse finding that could reasonably be expected to bring discredit upon you ….
On February 3, 1996, BGen Beno received a supportive telephone call from Colonel-Commandant Frederic Mariage,[4] under whom BGen Beno had previously served, who said he was very concerned about the treatment that BGen Beno had received by Commissioner Létourneau and intended to take it up with the Commissioner directly. On February 7, 1996, Mr. Mariage called BGen Beno to say that he had managed to get an opportunity to speak informally to Commissioner Létourneau the day before in Calgary and, in response to the concerns he expressed, heard Commissioner Létourneau give an opinion about BGen Beno’s testimony.[5] Mr. Mariage reported his opinion that Commissioner Létourneau had formed a very negative opinion of BGen Beno’s credibility.
As a result of the content of the message received from Mr. Mariage, a private meeting was requested with the Commissioners by BGen Beno’s counsel to voice concern about what Mr. Mariage had reported. The meeting took place on February 12, 1996, being attended by all three Commissioners, Mr. David Scott and Mr. Bruce Carr-Harris for BGen Beno and Mr. Stanley Cohen, Commission Secretary. At that time, BGen Beno’s counsel laid out for Commissioner Létourneau their concerns about the exchange that occurred during the hearing on January 30, but further strongly voiced their objection to the remark that Commissioner Létourneau made to Mr. Mariage on February 6, the cumulative effect of which made it appear that Commissioner Létourneau had already concluded wrongly on the credibility of BGen Beno. What was said to Commissioner Létourneau and his response will be documented in detail below, but I think a fair assessment of the outcome of the encounter was that Commissioner Létourneau dismissed the bias concerns raised by counsel.
This dismissal set into motion a legal challenge to Commissioner Létourneau’s authority to sit in judgment on BGen Beno. The crux of BGen Beno’s concern is that the opinion that Commissioner Létourneau openly expressed to BGen Beno’s fellow officers within ten days of the “fiddling remark” reflects a bias, and his evidence in its entirety, and consequently his conduct, will not now be assessed with impartiality by Commissioner Létourneau.
To carry out the challenge, counsel for BGen Beno first brought a formal motion before the Commission, requesting an order that Commissioner Létourneau be disqualified from continuing as a Commissioner of the Inquiry, or, in the alternative, that he be disqualified from deciding upon the evidence pertaining to the conduct of BGen Beno. The motion was heard on April 19, 1996, resulting in a decision rendered May 7, 1996. The decision, signed by all three Commissioners, was that no disabling bias exists and, therefore, the motion was dismissed. The decision extensively cited Commissioner Létourneau’s own version of events which contradicts critical portions of the evidence lead by BGen Beno.
As a result of the dismissal of the motion brought before the Commission, BGen Beno has brought this two-leg challenge by way of judicial review under section 18.1 of the Federal Court Act [R.S.C., 1985, c. F-7 (as enacted by S.C. 1990, c. 8, s. 5)]. The first leg of the challenge is an application for an order setting aside the reasons of the Commissioners rendered on May 7, substantially on the ground that a breach of the duty of fairness owed to BGen Beno occurred by Commissioner Létourneau tendering his own unsworn and untested evidence through the decision itself, upon which the conclusions reached by all three Commissioners are largely based. The second is an application for an order prohibiting Commissioner Létourneau from continuing to act as a Commissioner on the Inquiry, or, in the alternative, that he be disqualified from deciding upon the evidence pertaining to the conduct of BGen Beno.
The relevance of the Commissioners’ May 7 reasons will be first decided below because, if the reasons are relevant to the prohibition application, they provide Commissioner Létourneau’s evidence which must be considered on the prohibition application together with the evidence tendered by BGen Beno.
On the application for prohibition, what is the central question to be answered?
It is: has Commissioner Létourneau demonstrated a disabling bias against BGen Beno?
II
THE LAW AND PROCEDURE
RELATING TO BIAS
A. What is the definition of bias in a judicial context?
The Latin maxim nemo judex in causa sua debet esse literally translated means that “no one shall be the judge in their cause”,[6] and from this principle the rules against bias have evolved. The Canadian Law Dictionary[7] gives this general definition of “bias”:
… anything which tends or is seen as tending to cause someone acting in a judicial capacity to decide a case on another basis than the evidence.[8]
Black’s Law Dictionary[9] provides more precise understanding of the term:
Inclination; bent; prepossession; a preconceived opinion; a predisposition to decide a cause or an issue in a certain way, which does not leave the mind perfectly open to conviction. To incline to one side. Condition of mind, which sways judgment and renders judge unable to exercise his functions impartially in particular case. As used in law regarding disqualification of judge, refers to mental attitude or disposition of the judge toward a party to the litigation, and not to any views he may entertain regarding the subject matter involved.
Despite its importance in administrative law, few decided cases have focussed on the definition of the term. However, Stevenson J.A. in Calgary General Hospital v. United Nurses of Alberta, Local One, England, Post and Mearns (1983), 50 A.R. 250 (C.A.), at page 254 has provided this insight:
The term “bias” covers a spectrum of disqualification ranging from partiality, on one hand, to the extreme of corruption, on the other. The standard applied to adjudicators is that there will be disqualification not only for bias but if there is a reasonable apprehension of bias.
B. What are the available tests to determine if bias exists?
A foundation statement of the general judicial approach to bias is found in this passage from the judgment of Lord Denning M.R. in Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon, [1969] 1 Q.B. 577 (C.A.), at page 599:
… in considering whether there was a real likelihood of bias, the court does not look at the mind of the justice himself or at the mind of the chairman of the tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless, if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand …. Nevertheless there must appear to be a real likelihood of bias …. There must be circumstances from which a reasonable man would think it likely or probable that the justice, or chairman, as the case may be, would, or did, favour one side unfairly at the expense of the other. The court will not inquire whether he did, in fact, favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking: “The judge was biased.”
The Supreme Court of Canada has stressed the points made by Lord Denning that actual bias need not be proven but the focus should be on the appearance of bias. In Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623, Cory J. stated that the appearance of bias is enough to disqualify a tribunal member. At page 636 he said:
The duty to act fairly includes the duty to provide procedural fairness to the parties. That simply cannot exist if an adjudicator is biased. It is, of course, impossible to determine the precise state of mind of an adjudicator who has made an administrative board decision. As a result, the courts have taken the position that an unbiased appearance is, in itself, an essential component of procedural fairness. To ensure fairness the conduct of members of administrative tribunals has been measured against a standard of reasonable apprehension of bias. The test is whether a reasonably informed bystander could reasonably perceive bias on the part of an adjudicator. [Emphasis added.]
He added, at page 645:
… it is impossible to have a fair hearing or to have procedural fairness if a reasonable apprehension of bias has been established.
In Newfoundland Telephone, at page 638, Cory J. ruled that the test to be applied depends on the function of the decision maker:
It can be seen that there is a great diversity of administrative boards. Those that are primarily adjudicative in their functions will be expected to comply with the standard applicable to courts. That is to say that the conduct of the members of the board should be such that there could be no reasonable apprehension of bias with regard to their decision. At the other end of the scale are boards with popularly elected members such as those dealing with planning and development whose members are municipal councillors. With those boards, the standard will be much more lenient. In order to disqualify the members a challenging party must establish that there has been a prejudgment of the matter to such an extent that any representations to the contrary would be futile. Administrative boards that deal with matters of policy will be closely comparable to the boards composed of municipal councillors. For those boards, a strict application of a reasonable apprehension of bias as a test might undermine the very role which has been entrusted to them by the Legislature.
C. What is the primary objective of an adjudicative decision maker when faced with a bias concern?
The Supreme Court of Canada in Duncan, Re, [1958] S.C.R. 41 provides important instruction on this issue. Duncan, Re is a decision which found barrister Lewis Duncan in contempt for a submission he made in the course of a previous hearing before the Court of the Appeal of a case called Lahay v. Brown [[1958] S.C.R. 240]. In that case Mr. Duncan said [at page 42]:
In my opinion, the administration of justice would not be served by Mr. Justice Locke sitting on this appeal. It is in the interest of my client and in my personal interest that Mr. Justice Locke should withdraw.
In Duncan, Re, Chief Justice Kerwin, in leading up to making the finding of contempt recounted the facts this way, at pages 42-43:
On November 18, upon that statement having been made, Mr. Justice Locke said: “Why, for what reason?”, and Mr. Duncan declined to give any reason. The Chief Justice asked Mr. Duncan: “Is that all you have to say?”, to which the reply was “Yes”. There was then no suggestion that Mr. Justice Locke was or had been at any time concerned in the appeal of Lahay v. Brown, or that he knew either of the parties or any of the witnesses, or that there was any feeling of animosity by him against Mr. Duncan personally.
Upon reconvening after a recess on November 18, the Chief Justice announced:
The Court has considered the unprecedented situation which has arisen. None of us knows of any reason for the remarkable statement earlier this morning and no reason has been advanced. The Court, therefore, proposes to continue.
Mr. Justice Locke then said:
I have something to say, however. I do not know you, Mr. Duncan. I have never had anything to do with you in my life. I have no feeling of any kind towards you. I know nothing about the case we are about to hear, but, since you have chosen to take this stand, I decline to sit in this case. I withdraw.
The Court deemed it advisable that the parties to the appeal should not suffer in any way by reason of what had occurred and, accordingly, the hearing of the appeal was commenced and completed with another member of the Court replacing Mr. Justice Locke.
Thus, taught from Mr. Justice Locke’s example some forty years ago, the primary objective of an adjudicative decision maker when faced with a bias concern is clearly to protect the integrity of the process. More recently this principle was stressed by Chief Justice Laskin in Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369, at page 391:
This Court in fixing on the test of reasonable apprehension of bias, as in Ghirardosi v. Minister of Highways for British Columbia, and again in Blanchette v. C.I.S. Ltd…. was merely restating what Rand J. said in Szilard v. Szasz … in speaking of the “probability or reasoned suspicion of biased appraisal and judgment, unintended though it be”. This test is grounded in a firm concern that there be no lack of confidence in the impartiality of adjudicative agencies …. [Emphasis added.] [Footnotes omitted.]
The Saskatchewan Court of Appeal in Spence v. Spence and Prince Albert Board of Public Commissioners (1987), 53 Sask. R. 35, at page 42 confirmed that the required confidence is based on perceptions:
The public policy consideration which requires the appearance of justice focuses on perceptions. A perception of a reasonable apprehension of bias is all that is required ….
D. What is the proper process for dealing with an expressed bias concern?
After considering the detailed statements of fact and law provided, and hearing oral argument, and having had an opportunity to analyze the relative positions of the parties, I have come to the conclusion that a great deal of time and energy has been unproductively spent dealing with a factor of this case which is really incidental to the central question to be answered.
A large part of what I have read and heard concerns the correctness, in administrative law terms, of the Commissioners’ decision of May 7 dismissing the bias concerns placed before them in the hearing of April 19. For the reasons I am about to give, I think that this effort was unnecessary. The arguments which I have received have not clearly addressed this outcome, and while I have considered having the case recalled to allow this to occur, I have determined that the need to provide this judgment expeditiously will not allow it.
There are no precedents which clearly set out the procedure to follow in bringing a bias concern to a decision maker. However, I believe that by applying and extending the approach adopted in Duncan, Re, sound guidelines are provided.
Clearly, if any person involved in an adjudicative process feels that the decision maker holds a bias against him or her, that person should bring the concern to the decision maker’s attention. In the usual course of trial work, this does not occur in a formal way, but is done by merely stating the bias concern to the decision maker and asking the decision maker to stand aside. As can be easily imagined, common reasons for a bias concern being raised are that the decision maker is personally familiar with one of the litigants or key witnesses, has dealt with one of the litigants in previous litigation or has said or done something which causes one of the litigants to feel that he or she will not get a fair hearing.
Upon hearing the bias concern, it is for the decision maker to decide whether to stand aside as requested. Mr. Justice Locke had no difficulty in making his decision on the most tenuous argument possible to protect the integrity of the process. I believe trial practice shows that when faced with a bias concern that is not unsupported or frivolous, and therefore, is capable of placing a cloud of doubt over the case, a decision maker will usually opt to do the same as Mr. Justice Locke. It might very well be that reluctance to do so arises from concern for disruption to the expeditious movement of the case through the system. But this concern is usually resolved by focussing on the larger potential damage that will be done to the case, and to the image of the administration of justice, by a decision being overturned on a bias concern which was known from the outset.
I also do not consider the position adopted by a decision maker to be a “decision” which is subject to challenge on judicial review. It is merely a statement of opinion which allows the parties in the case to determine if some further action is needed to test whether the decision maker has reached the right conclusion.
That is, if the decision maker decides not to stand down, common sense dictates that the litigant must have a right to take the bias concern to a superior authority to have an independent objective evaluation of the merits of the complaint. If the superior authority decides that the bias concern has merit, the decision maker can be prohibited from proceeding with the case.
As everyone is always accountable to someone for his or her actions, all parties to the expression of a bias concern are accountable for their positions. For example, in Duncan, Re, after the bias concern was raised, Mr. Justice Locke withdrew, but, nevertheless, Mr. Duncan remained accountable for his position by being found to be in contempt for raising the concern with no substantiation. Had Mr. Justice Locke refused to stand down, I think he would also have been accountable for this position. The question is: to whom and on what ground?
I have not researched the point of whom the superior authority to Mr. Justice Locke might have been, but it must be true that no judicial officer, including a justice of the Supreme Court of Canada, is exempt from a binding direction that he or she has left his or her jurisdiction to decide a given case because of a disabling bias. Accordingly, the focus should not be on the quality of the expression of the position, but on the evidence produced to substantiate it.
Whether the decision maker gets involved in an adversarial test before a superior authority on whether a disabling bias exists is up to the decision maker. The most likely condition under which a decision maker will choose to object to an allegation of bias is when there is a substantial disagreement on the facts alleged to support the bias allegation.
In such a case, in order to determine the facts, the superior authority must have evidence from both the decision maker and the applicant upon which to decide.[10] It is obvious that in the case of a substantial disagreement that, in the interests of the applicant, the decision maker, and in the interests of justice, the evidence must be capable of being tested by cross-examination in order for the independent reviewer to make critical findings of fact and thus a credible decision. In fact, these common sense conclusions are embodied in the provisions of section 18.1 of the Federal Court Act and the rules which govern judicial review procedure.[11]
It might very well be unseemly and uncomfortable for a decision maker to put his or her credibility up against that of a person expressing a bias concern, and, as a result, probably most decision makers would decide as Mr. Justice Locke did. But if the questions of fact are important and the decision maker holds strong views in favour of continuing, then well recognized adversarial procedures must be followed. However, since a bias application goes to the very heart of the integrity of the process of justice delivery, the integrity of the process whereby this issue is resolved must be equally beyond reproach.
Therefore, I find that if the decision maker decides not to put him or herself before the superior authority in the same position as the person holding the bias concern, that is by providing sworn evidence, then the facts attested to by the person holding the bias concern should be considered uncontested.
E. What is the general legal value of the Commissioners’ decision?
When this application was first brought before this Court, BGen Meating sought leave to intervene. Leave was denied by Cullen J. [[1996] F.C.J. No 1129 (T.D.) (QL)] and that decision was upheld by the Appeal Division.[12] In his decision, Pratte J.A. at paragraph 4, note 1, made the following comment about the jurisdiction of the Commission to hear the motion to disqualify Commissioner Létourneau:
The judge of first instance seems to have assumed that the Commission had the jurisdiction to rule on the ability of its Chairman to participate in the inquiry and that the only question raised by Beno’s application for judicial review related to the legality of that decision. He accordingly held that the judicial review proceedings would be decided only on the basis of the evidence that the Commission had before it. We doubt the correctness of those assumptions and of that conclusion. We incline to think that the Commission lacked the jurisdiction to rule on the disqualification of its Chairman ….
On the analysis I have just provided, Pratte J.A.’s obiter comment rings true to me. The fact that BGen Beno made the application to the Commission to have Commissioner Létourneau disqualified is irrelevant. It was for the Commission to decide whether it was the appropriate authority to rule on the motion. During the February 12 meeting, in the presence of the other Commissioners, Commissioner Létourneau made his decision not to withdraw vis-à- vis BGen Beno. In the face of this, what would a knowledgeable objective observer have expected the results of the formal motion to be? It would merely be a faint hope to think that Commissioner Létourneau would change his opinion after hearing formal argument. And what about the other Commissioners? By allowing the application to proceed they left themselves open to criticism, whether properly placed or not, that they could not be independent in their judgment of the question when it was their colleague, Commissioner Létourneau, who was being challenged.
To have such doubts about the outcome being created proves the point that the Commissioners should never have attempted to decide the question in the first place. Why? Because they could not be perceived as independent. That is, how can a tribunal hear and decide an application of bias against one of its members, with that member participating, and having already communicated a decision on the issue? Applying an apparent bias in deciding an apparent bias, for me, means that no jurisdiction exists to decide.
In addition to this common sense reason, I do not think that the Commission should have heard the motion because it was not the authority in law which possessed the power to decide whether Commissioner Létourneau should be disqualified from proceeding in whatever fashion. The application to the Commission for an order “disqualifying” Commissioner Létourneau is really an application for a prerogative writ of prohibition. Suppose that two of the members of the Commission had granted the motion but Commissioner Létourneau continued to object to being “disqualified” and refused to stand down. What power would those Commissioners have had by their mandate to enforce their decision? None has been shown to me in the course of this proceeding,[13] and I find that none exists. Clearly, the Inquiry has not been provided with prerogative writ powers. Since the Inquiry is a “commission” appointed under federal legislation, the only authority that has the power to “disqualify” Commissioner Létourneau is a justice of the Trial Division of the Federal Court of Canada by an order of prohibition made under the authority of section 18.1 of the Federal Court Act.
As a result, as to the general legal value of the Commissioners’ decision, I find there is none. I consider the decision as nothing more than a confirmation of the position that Commissioner Létourneau took when originally confronted in the meeting of February 12. As such, I find there is no decision in law to quash or set aside.
F. What is the specific evidentiary value of the Commissioners’ decision of May 7, 1996?
In my opinion, there is none. For the reasons provided in section D of this Part, I find that the evidence that Commissioner Létourneau purported to give through the decision is inadmissible.
G. What is the relevance of the motion to file BGen Meating’s third affidavit?
In an attempt to counter the version of events which Commissioner Létourneau provided in the Commissioners’ May 7 decision, BGen Beno applied before me to have further affidavit evidence admitted from BGen Meating. For the reasons provided in sections D, E, and F of this Part, I find there is nothing to counter and, accordingly, I decline to rule on the motion.
III
THE EVIDENCE OF BIAS IN THIS CASE
A. What definition of bias should be used in this case?
In order to decide what evidence is relevant, it is necessary to select a definition of bias which most suits the circumstances of this case. I find that from the definitions cited in Part II above, a combination of the general Canadian Law Dictionary and more precise Black’s accurately defines what is of most concern here, and is as follows:
Bias refers to a mental attitude or disposition of Commissioner Létourneau towards BGen Beno which tends, or is seen as tending, to cause Commissioner Létourneau to decide issues relating to BGen Beno’s s. 13 notice on another basis than the evidence.
Upon reviewing the evidence according to this definition, and with regard to my findings set out in Part II, I find that the only admissible and relevant evidence before me of bias by Commissioner Létourneau vis-à-vis BGen Beno is contained in the transcripts of the hearing of January 30; the affidavits of BGen Meating and Mr. Mariage about their conversations with Commissioner Létourneau on February 6; the transcript of the informal meeting on February 12; and the affidavit evidence of BGen Meating, Mr. Braun and Mr. Cohen regarding telephone calls about the events of February 6.
Apart from my findings on the general legal and evidentiary value of the Commissioners’ decision, an argument has been advanced on behalf of BGen Beno that the making of the decision itself, whether the contents are admissible as evidence or not, aggravates the appearance of bias. In reaching the conclusions they did, it appears that the Commissioners accepted Commissioner Létourneau’s version of events as evidence, untested as it was and told to them primarily in private, over the affidavit evidence provided by BGen Beno. Strong objection has been taken to this as a breach of procedural fairness and it is easy to agree with this submission. But, I do not think that the fact that the Commissioners went through the exercise of holding a hearing and deciding as they did aggravates the appearance of bias. As I have said, I consider the making of the decision to be nothing more than a confirmation of the position Commissioner Létourneau took when originally confronted in the meeting of February 12. Thus, I do not accept BGen Beno’s argument on this point and, accordingly, find that no evidence of bias is provided by the fact that the Commissioners made the decision of May 7.
B. What is the most cogent evidence upon which the central question may be decided:
(1) From the hearing of January 30?
Commissioner Létourneau’s “fiddling” remark as quoted at the outset is the essential concern under this heading. But to appreciate the weight to be placed on this remark, which will be addressed in Part V below, it is necessary to provide the context in which it was made.
During the January 30 hearing, a great deal of attention was given to a document entitled “Briefing for the CDS, Additional Information”, (the briefing note) and in particular to the fourth of four sections of the document entitled “Breakdown of Mbrs to be Moved or Left Behind”. In that section there are three subsections, the latter two being particularly referred to in the evidence of January 30. The second subsection refers to “officers” and the third to “soldiers”. In the analysis which follows, I will refer to the second and third subsections by these labels. The fourth section of the briefing note is as follows:
BREAKDOWN OF MBRS TO BE MOVED AROUND OR LEFT BEHIND:
— BGen Beno recommended to LCols Morneault & Mathieu to move generically:
— From 2 Cdo: 10 Ptes, 6 Cpls, 6 MCpls, 3 Sgts and 1 PI Comd
— From Recce PI: 2 Cpls, 2 MCpls and 1 Sgt
— BGen Beno recommended to LCols Morneault & Mathieu not to bring specifically:
— Maj Seward (OC 2 Cdo), Maj McKay (DCO), Capt Rainville (Recce PI Comd) and MWO Vienneau (SSM 3 Cdo) [Officers]
— The list of suspects (2/3 Oct 92 + SIROS) provided by the MPs to LCol Morneault & BGen Beno contained the following names which influenced BGen Beno’s proposal:
— MCpl Matchee (2 Cdo)
— Cpl Powers (2 Cdo)
— Cpl MacKay (2 Cdo)
— Pte Brocklebank (2 Cdo)
— Smith (2 Cdo)
— Sinclair (2 Cdo)
— Leach (2 Cdo)
— Murphy (2 Cdo)
— Cooper (2 Cdo)
— Thompson (2 Cdo) [Soldiers] [Emphasis added.]
Some time before Commissioner Létourneau’s remark, Commission counsel Stauffer was examining BGen Beno on “soldiers”, that is, comments relating to the third subsection, soldiers. The following passage is particularly important:
Q. Could I refer you have, please, sir, to the bottom of the page which talks about the list of suspects (2/3 October ‘92, plus SIROS) provided by the MPs, Lieutenant-Colonel Morneault and Brigadier-General Beno, and it says it contains the following names which influenced Brigadier-General Beno’s proposal.
Can I ask you, sir, those names which are listed there starting with Master Corporal Matchee, were you aware of those names following the investigation into the October incidents?
A. I was aware of most of those names because they were on two military police reports which came forward to me in October.
Q. All right. Did you take any action in terms of advising Colonel Morneault or Colonel Mathieu about those individuals and whether they should be held back from going to Somalia?
A. I spoke to Colonel Morneault and Colonel Mathieu about the incidents which took place and the names which they had which were extracted from military police reports and other investigations.
Q. But my question, sir, is did you say to either of those colonels: Hold back one or more of the people whose names appear on this list?
A. I will check the list.
Q. Yes, look at the list.
A. No, I did not.[14] [Emphasis added.]
Thus, BGen Beno confirmed that, as regards soldiers, he did speak to both Colonel Morneault and Colonel Mathieu.
Questioning about the briefing note continued for some time but only on “soldiers”, until Commissioner Létourneau intervened as follows to question BGen Beno about “officers”:
THE CHAIRMAN: Just before you do. So when we see in this briefing for CDS that Brigadier-General Beno recommended to Colonel Morneault and Mathieu not to bring specifically Major Seward, Major MacKay, Captain Rainville and Master Warrant Officer Vienneau, you say that this is wrong?
You never recommended anything of the kind?
BRIGADIER-GENERAL BENO: Sir, I would not—that is correct. That is wrong.[15] [Emphasis added.]
It is clear that Commissioner Létourneau intervened in the course of Mr. Stauffer’s questioning on “soldiers” to ask a question about “officers”, and got a clear answer to the way that subsection read. Later the following exchange took place between Commissioner Desbarats and BGen Beno regarding the role of commanding officers and the deployment of the soldiers named under “soldiers”, in the course of which Commissioner Létourneau again intervened, this time with his remark:
COMMISSIONER DESBARATS: Right. But he hasn’t found these people guilty of anything, he’s just making an administrative decision not to send them.
BRIGADIER-GENERAL BENO: Sir, he has the powers to do both, the disciplinary matters and the administrative matters.
He may decide to leave people behind for administrative matters. Not only may he do so, he was advised to do so and he was advised to move people around and you may—and you will see in one of the documents where I specifically advised Colonel Mathieu what I would do and, again, without taking—pushing him aside and taking over his command, I told him how I would move about 25 people at different rank levels within the unit, in addition to leaving personnel behind.
THE CHAIRMAN: But I thought you just said that you did not advise the commanding officers about leaving people behind or moving them around.
I asked you the question a few minutes ago and I said—and I read an excerpt of this briefing to the commanding officer saying that you’re commanded or commander advised—recommended to Lieutenant-Colonel Morneault and Mathieu not to bring specifically, and so on and on, and you said that you hadn’t done that.
BRIGADIER-GENERAL BENO: Sir, I said I had not told Colonel Morneault to do that. You asked me the question, had I advised Colonel Morneault and Colonel Mathieu”
THE CHAIRMAN: No, but I read from here—
BRIGADIER-GENERAL BENO: Yes, sir, and I did not—
THE CHAIRMAN: Lieutenant-Colonel Morneault and Mathieu, and you said no. Now you say that you’ve done that with Lieutenant-Colonel Mathieu.
BRIGADIER-GENERAL BENO: I did, sir. I answered—your question was, you read me what was there, I answered it, sir, respectfully, and the answer to that question was no. Did I advise Colonel Mathieu, the answer to that question, if I were asked, is absolutely yes.
THE CHAIRMAN: I might as well tell you that you won’t gain much by fiddling around. It was a clear question and you won’t gain much”
BRIGADIER-GENERAL BENO: Sir, could you repeat the question?[16] [Emphasis added.]
I conclude from the above, when Commissioner Létourneau intervened it appears he was stirred to do so because of the statement that Colonel Mathieu had been told how to move “25 people at different rank levels within the unit” being within both “officers” and “soldiers”. It appears that Commissioner Létourneau took this evidence as meaning that BGen Beno had talked to Colonel Mathieu about “officers”, which, therefore, seemed to be in conflict to what he had just previously said, that is, he had not talked to Colonel Morneault and Colonel Mathieu.
But when BGen Beno’s answer is read carefully it is very clear what he meant when he answered Commissioner Létourneau’s initial question regarding the wording of “officers”; he had not spoken to both Colonel Morneault and Mathieu, but only Mathieu.
(2) From the affidavits of BGen Meating and Mr. Mariage about their conversations with Commissioner Létourneau on February 6?
Rather than paraphrase the brief but important evidence provided in the affidavits, they are quoted here in their entirety.
(a) Affidavit of BGen Meating dated March 20, 1996.
I, Robert G. Meating, a Brigadier-General in the Canadian Armed Forces, MAKE OATH AND SAY AS FOLLOWS:
1. I am the Commander of 1 Canadian Mechanized Brigade Group stationed at Currie Barracks in Calgary, Alberta and as such have knowledge of the matters to which I hereinafter depose.
2. On December 8th, 1995, I attended a gathering of some 200 soldiers in Edmonton, Alberta at which time the three Commissioners of the Commission of Inquiry into the Deployment of Canadian Forces to Somalia were in attendance and the Chairman of the Commission, Judge Gilles Létourneau, gave an oral presentation. I believe the purpose of the presentation was to give the audience a situation report as to the process involved in the Inquiry and to invite anyone with information which might aid the Commission’s task to speak to the Commissioners in confidence.
3. I met the Commission Chairman, Judge Létourneau, on that occasion and he told me that he would be returning to Western Canada by way of a follow-up trip in early 1996. I suggested to the Chairman at the time that he include Calgary in his itinerary, largely because there were many soldiers in Calgary, now with 1st Battalion, Princess Patricia’s Canadian Light Infantry (1PPCLI), who had formerly been with the Canadian Airborne Regiment and had not been able to come to Edmonton.
4. Subsequently, in February, 1996, I was advised by the representatives of the Somalia Inquiry Liaison Team (SILT) that, of the Commissioners, only Judge Létourneau would be visiting Calgary and that there would be no group presentation but rather that the purpose of the trip was to follow up with specific and identified individuals and to once again ask for any further information that the soldiers may have that would be of assistance to the Commission.
5. Arrangements were made for the Calgary Base Commander, Col. Ray Romses, and myself to meet Commissioner Létourneau and his team, which included two RCMP and Commission Secretary, Mr. Stanley Cohen, in the Currie Officers Mess, on Tuesday, February 6th. Commissioner Létourneau and his team, except Mr. Stanley Cohen, arrived at the Mess just before 0725 hours and, following the depositing of coats in the cloakroom, we all proceeded to sit down to breakfast. I sat immediately beside Commissioner Létourneau. Because Commissioner Létourneau and the RCMP Officers in his team had already had breakfast at their hotel, most of the time of our meeting was devoted to discussion. The discussion included the following:
(a) Commissioner Létourneau asked me if I had been following the Commission proceedings to which I replied that I had been, however not continuously. Commissioner Létourneau asked for my impressions and I conveyed to him that the media coverage was causing considerable angst amongst soldiers and their families and that the work of the Commission would have a significant impact on morale in the Canadian Army. Commissioner Létourneau told me that he was aware of my concerns and that the second phase of the Inquiry would commence with lengthy evidence of the good work done in Somalia by the Canadian Forces in an effort to balance the negative coverage to date.
(b) I also told Commissioner Létourneau that I had perceived that he had shown a bias in favour of LCol Morneault and his testimony during his time on the stand, as compared with the manner and tone of questioning he had used with BGen Ernest Beno. I told him that I knew both officers well, and I felt that I could give a fair opinion as to the balance and fairness of the tribunal. I used the word “aggressive” to describe the manner in which he had questioned BGen Beno and that I had not discerned any aggressiveness in his handling of LCol Morneault. Commissioner Létourneau told me that it was his opinion, and the opinion of “other counsel” that BGen Beno had not given straight answers and that perhaps Beno had been trying to deceive. Present during this discussion with Commissioner Létourneau, which lasted approximately 15 minutes in total, were Col. Ray Romses and two RCMP officers.
6. Shortly thereafter at approximately 0750 hours, I introduced MGen Mariage to Commissioner Létourneau. MGen Mariage is the honourary Colonel Commandant, Infantry Corps, of the Canadian Army and resides in the Province of Quebec and was in Calgary in connection with those duties. In the course of their conversation, which lasted approximately 10 minutes, part of which was in French, MGen Mariage expressed his concern as to how Commissioner Létourneau had questioned BGen Beno during his testimony. Commissioner Létourneau told MGen Mariage that in his opinion, and the opinion of the other Commissioners, BGen Beno was perhaps being less than open and truthful in his testimony. Present during Commissioner Létourneau’s discussion with MGen Mariage which lasted approximately 8-10 minutes, were myself and LCol Semianiw, Commanding Officer of 1 PPCLI.
7. While I expected the Commission Chairman to be interested in my comments, and comments of the others, concerning the Inquiry proceedings to date, I was surprised that the Commission Chairman would express his opinion so freely as to the conclusions he had reached about the credibility of an individual, in this case, BGen Beno. [Emphasis added.]
(b) Affidavit of Mr. Mariage dated March 26, 1996.
I, Frederic Mariage, businessman, of the City of Montreal in the Province of Quebec, MAKE OATH AND SAY AS FOLLOWS:
1. I hold the honourary appointment of Colonel-Commandant, Infantry Corps, of the Canadian Army and, in connection with those duties, was present at Canadian Forces Base Calgary on February 5 & 6, 1996.
2. At approximately 0730 hours on Tuesday February 6, I attended at the Currie Officers Mess for breakfast with a group of individuals including LCol Walter Semianiw, Commanding Officer, 1st Battalion, Princess Patricia’s Canadian Light Infantry. In the Mess, sitting at a different table with a different group of individuals, was Judge Létourneau, Chairman of the Commission of Inquiry into the Deployment of Canadian Forces to Somalia. I had expressed an interest in meeting Commissioner Létourneau to BGen Meating and LCol Semianiw because I intended to communicate to the Commission Chairman my concern over his treatment of BGen Beno during his testimony, which I thought had been too aggressive. I also wished to assure the Commissioner that I had known BGen Beno for some time and that I could assure him that BGen Beno was not anti-francophone or anti-Vingt-Deux (Royal 22nd Regiment) which had been the subject of unsupported allegations during the testimony of a witness before the inquiry.
3. As I prepared to leave the Mess, some time before 0800 hours, BGen Meating brought Commissioner Létourneau over so that I might be introduced to him. After introductions, our conversation began generally on the subject of the objects of Somalia Inquiry and Commissioner Létourneau expressing himself that he felt in the end it would be good for the military and I expressed my concern for the potential harm to the military as a result of the negative publicity associated with the inquiry. I then expressed my concerns to Commissioner Létourneau concerning his treatment of BGen Beno during the latter’s testimony and the matter of the unsubstantiated allegations. Commissioner Létourneau, in referring to the unsubstantiated allegations, responded “just remember, that was LCol Morneault’s statement not the Commission’s”. Commissioner Létourneau then offered his opinion of BGen Beno’s testimony, commenting that during BGen Beno’s testimony before the Inquiry, the latter was “… very tense … he seemed to be hiding things … he didn’t seem to want to cooperate with the Commission”. Although I do not recall whether he specifically said so at the time, I was left with the impression by Justice Létourneau that he believed BGen Beno did not want to tell the truth during his testimony. My conversation with Commissioner Létourneau lasted a total of between 5 to 10 minutes.
4. I was alarmed that the Commission Chairman would have formed such an opinion regarding BGen Beno and, as a consequence, on February 7, 1996, upon my return to Montreal, I telephoned BGen Beno and informed him of my encounter with Commissioner Létourneau and the very negative opinion Commissioner Létourneau had of BGen Beno’s credibility. [Emphasis added.]
(3) From the meeting of February 12?
As a result of the information disclosed by Mr. Mariage to BGen Beno, Mr. Bruce Carr-Harris and Mr. David Scott, counsel for BGen Beno met in-camera with the Commissioners and Mr. Stanley Cohen, Commission Secretary, on February 12, 1996 in Ottawa. The incident involving Commissioner Létourneau and BGen Meating was not known to counsel for BGen Beno at this time. The following is a precis, with quotations, of the essential features of what was discussed.
At the outset of the meeting, Mr. Carr-Harris was very direct in explaining his concerns about the way BGen Beno had been treated in the January 30 hearing and put to the Commissioners that Commissioner Létourneau, “attacked [his client] in a direct way challenging to anyone watching it his credibility as a witness and communicating to him that you didn’t believe him”.[17] He also emphasized that he had no objection to the Commissioners questioning and even cross-examining, “so long as it’s done appropriately and with respect for the witness and for the matters of procedural fairness”.[18] He submitted that Commissioner Létourneau’s intervention was inappropriate.
In requesting action be taken on his complaint, Mr. Carr-Harris explained that he asked for the private meeting to voice his concerns so the Commissioners “can do what they will about it, if anything, rather than force the issue by putting it on the public record”.[19] The following exchange then took place which provides Commissioner Létourneau’s apparent reason for his intervention. Mr. Carr-Harris’ response clearly put Commissioner Létourneau on notice that he was wrong in his assessment of the evidence:
THE CHAIRMAN: But I would like you to come to the real issue that has triggered this meeting because if we are to discuss the credibility of witnesses.
I would have thought, for example, that you would like to know if on one issue we believe or we don’t believe the issue so you can adjust as we go along, you can try to bring evidence that would support what the witness has said and, in a sense, it’s a notice to you that in relation to this witness, this statement of the witness that we don’t believe it or we tend not to believe it, and it’s proper to command on the credibility of witnesses. And I would have thought that you would have preferred knowing that right now than us not saying anything and saying that in the final report when it’s too late, but ….
MR. CARR-HARRIS: I accept that comment and it would be helpful to know as between the counsel how that happens.
But, Mr. Chairman, what happened instead in this case is that—just jumping ahead to the next point—in that testimony on that day you accused General Beno of fiddling around in his evidence.
THE CHAIRMAN: Yes.
MR. CARR-HARRIS: And you said to him, suggesting that he changed his evidence or was some way manipulating the process. With respect, sir, the record indicates you were wrong in saying that and the difficulty is that the CBC that night ran an article on — ….[20]
In maintaining the reason for his intervention, Commissioner Létourneau made the following statement:
THE CHAIRMAN: But see this is the perception I had, and I cannot speak for the other Commissioners, if they want to speak they can speak for themselves, this is the perception I had, this is the perception I expressed to the witness and to you, putting you on warning that I had difficulties with his testimony the way he was presenting it and that I saw a contradiction in it.
Now, in the end, when it comes to the end we are going to be reviewing the transcript, reading the evidence again, and whatever adjustment has to be made we will make that.
See, the Commission of Inquiry obviously is a broader process than the evidentiary hearings. You have got an investigation stage, you have got a research stage and you have got the evidentiary hearing stage as well. All of that will make up for a report.
Now, when it comes—in which I suppose there will be recommendations relating to institutional changes and, let’s say, institutional changes. When it comes to the individuals and recommendations dealing with individuals, if there are and I don’t know at this stage, but if there are, then they will be based only on the evidence that was put before—in the evidentiary hearings and was subjected to cross-examination, nothing else.[21]
Mr. Carr-Harris then clearly stated that he thought the proposed course of action to be inadequate:
MR. CARR-HARRIS: I’m concerned, sir, that all that will be left of General Beno if we proceed on the basis that these thoughts that you have as you go along become part of the public record and therefore reprinted, it really is academic if later on you write in your report later on that General Beno—I have considered on all the evidence that he has been truthful because the world has been told by no less a person than the Chairman of the Commission that he’s fiddling around with his evidence.[22]
Mr. Carr-Harris then turned his focus to the conversation that Commissioner Létourneau had with Mr. Mariage on February 6, and set out what he had learned and his opinion on the matter:
That then brings us to the Mariage conversation which we had reported to us last week and I spoke to Mr. Mariage who I understand is a reserve general and he told us—he told me that he had run into you at breakfast last week in Calgary on Tuesday morning, he sat down and you engaged in a conversation about the Somalia Inquiry generally.
He volunteered to you his view of General Beno and your response to him was that General Beno, commenting on his testimony at the Inquiry was very tense, that he seemed to be hiding things and that he didn’t want to tell the truth.
… Our concern is that, first of all, you appear, on the basis of those remarks if they are true, to have concluded on the credibility of General Beno and based perhaps on your fiddling around perception, which I suggested to you on the record is not the case, but in any event you’re expressing it outside the Commission chambers to individuals who are out there, and this does terrific damage to General Beno. These people will go some place and say: Well, I was talking to the Commissioner and he told me General Beno doesn’t tell the truth, so what are we supposed to do with him . … And so when we heard about this, our concern was that in fact what went on last week was a demonstration of your view of General Beno and, quite frankly, a concern that you have made up your mind about him.[23]
To the concerns, Commissioner Létourneau had the following reply:
THE CHAIRMAN: [Regarding] Mr. Mariage. I never sat with him, he was not at our table, he was at a different table. He was on the way out when General Meating wanted me to say hello to him because, from what I have been told, he ran two careers, one in the private sector and one in the army sector and General Meating explained to me that it was quite unusual so he took me up to Mr. Mariage who was going out, and so I congratulated him on his career and we had a little chat on his career standing up there, and I’ve got witnesses, as many as you want, and then he mentioned something about the testimony of General Beno and I said nothing more than what I had said on the record, that was already on the public record and that was the end of it.
It lasted—the whole thing at the most lasted about 40 seconds and he was standing up as he was walking out and I was dragged by General Meating actually to talk to him because of his peculiar and outstanding career and that’s the end of it, and I said nothing more than what I had said already on the public record and so …
MR. SCOTT: Well, he says, sir, that you said that General Beno was hiding something.
THE CHAIRMAN: I never said that.[24]
After Mr. Scott spoke at length about how he felt the Commission should avoid conduct which might intimidate a witness on national television, and Mr. Carr-Harris again asked the Commissioners to find some mechanism to correct the problem identified, the following exchange took place wherein Commissioner Létourneau again confirmed his opinion of BGen Beno’s evidence:
THE CHAIRMAN: … But your client is not the only witness with respect to whom we have expressed our disbelief at times and not only myself but Commissioner Rutherford as well and Commissioner Desbarats when we feel that the witness is not giving all the information that he could be giving or he’s putting on it a spin that we can hardly believe.
And so in that sense your client is not in a different position from any of the other witnesses that we have heard so far.
And the question that you are putting, I suppose, is that proper in relation to every witness not only to General Beno but in relation to every witness for us to express our disbelief at what the witness says. And surely we can look at that and think about it and we can decide on that whether it’s proper for us to do or not and I can discuss it with the two other Commissioners obviously.
As far as General Beno is concerned, as I said, whatever his testimony stands for it will be assessed in relation to the other testimony, the other evidence including the documentary evidence and we will see then.
I cannot at this stage say that what he says, because you will have me asking me go the other way around and perhaps show a predisposition in his favour which I cannot, until I have heard all the evidence, I cannot do that.
MR. SCOTT: But Chairman, not to prolong this, but just to make one final point, if I might. Don’t you think that it is more difficult for you as a trier of fact which you are in an inquiry if you express disbelief before the evidence is in.
I’m not sure of the precise context, whether you mean expressing incredulity by questioning or expressing disbelief. I would be very frank to say that I do not think it is in the interest of the orderly disposition of the inquiry’s business to express disbelief of a witness when they are in the course of giving their testimony.
What happens to the inquiry’s credibility when it turns out with further evidence that the expression of disbelief was not warranted.
I can understand questioning but to question to the point of an expression of disbelief, I say with the greatest of respect, is going too far.
THE CHAIRMAN: Well, as I said, you have made that point, we will look at it and assess it and we’ll see from there, because if you express this belief or incredulity in relation to a statement that a witness has made on a specific issue, that doesn’t mean that you don’t believe the witness on everything else, it’s on what he just said.
MR. SCOTT: Well, it must be admitted it’s much more difficult to then defend his credibility at some later stage. Why say anything.[25]
(4) From the affidavits of BGen Meating, Inspector G.B. Braun[26] and Mr. Stanley Cohen regarding a March 20, 1996 telephone call about the events of February 6?
The affidavits concern Commissioner Létourneau’s intention in making a telephone call to BGen Meating on March 20, 1996, the subject matter of which was the February 6 conversation between them.
According to BGen Meating’s affidavit,[27] on March 20, Commissioner Létourneau telephoned BGen Meating and stated that he had heard lawyers were in Calgary asking questions about what took place on February 6, and they were probably gathering information which they would, “try to use against him,” and would perhaps attempt to have him removed as a Commissioner of the Inquiry. Commissioner Létourneau expressed to BGen Meating that the meeting with Mr. Mariage had been very brief and that the conversation had been mostly about Mr. Mariage’s two careers, one in civilian life and one as a reservist. Regarding this, Commissioner Létourneau stated, “you know that we didn’t talk about much else,” and further said that, “everyone in the chain of command should be aware that discussions with himself, his Commissioners and investigators are done in confidence”, and wished to remind BGen Meating that what was discussed between them on February 6 was in confidence and that, “to disclose … information is a serious breach of confidentiality”. From the conversation, BGen Meating concluded that Commissioner Létourneau did not want him to communicate the substance of the February 6 conversations.
The question posed on behalf of BGen Beno is that, if Commissioner Létourneau’s statements made on February 6 were benign and not reflective of a bias, why did he wish them suppressed? In answer to this question, I find the statements provided by BGen Meating to be highly ambiguous and the affidavits of Inspector Braun and Mr. Cohen, as to their knowledge of the situation, do not make them less so. The call was about routine Commission confidentiality rules, and I find that any connection of it to the issue of bias falls into the category of speculation. Thus, on the whole of the evidence, I am unable to conclude on a balance of probabilities that Commissioner Létourneau’s intention in making the March 20 call was to suppress knowledge that he had communicated any bias to BGen Meating. Thus, I find that the evidence relating to this element of the case tendered on behalf of BGen Beno provides no evidence contributing to the bias concern.
IV
THE DUTY OF FAIRNESS AND
THE TEST FOR BIAS
A. What is the nature of the Commissioners’ duty to act fairly towards BGen Beno?
In Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, L’Heureux-Dubé J. closely analysed the factors to be considered when determining the existence of a general common law duty to act fairly, and at page 669 set them out as follows:
The existence of a general duty to act fairly will depend on the consideration of three factors: (i) the nature of the decision to be made by the administrative body; (ii) the relationship existing between that body and the individual; and (iii) the effect of that decision on the individual’s rights.
As a preface to her analysis, however, on the same page L’Heureux-Dubé J. emphasized that:
Obviously, if either the statute or the contract confers upon the employee a right to procedural fairness, there is no need to consider the factors I have alluded to above in order to determine the existence of a similar general right, such a right becoming redundant.
In Knight, since L’Heureux-Dubé J. determined that neither the statute nor contract of concern in that case conferred a right to procedural fairness, the search for the common law duty to act fairly was necessary. In this case, however, a search for a common law duty is not necessary since statutory rights to procedural fairness establish the duty. The statutory rights are found in the provisions of the Inquiries Act itself:
12. The commissioners may allow any person whose conduct is being investigated under this Act, and shall allow any person against whom any charge is made in the course of an investigation, to be represented by counsel.
13. No report shall be made against any person until reasonable notice has been given to the person of the charge of misconduct alleged against him and the person has been allowed full opportunity to be heard in person or by counsel.
In addition, the Commission of Inquiry into the Deployment of Canadian Forces in Somalia Rules[28] (the Rules) which provide rules of practice and procedure applicable to the Inquiry, detail of how the rights accorded by sections 12 and 13 might be exercised, the essence of which are underlined below:
6(1) Any person requesting standing to participate in the inquiry shall make application by way of a written motion to the Commission.
…
7 In granting an applicant the right to participate in the inquiry, the Commission determines whether that party has full or limited standing.
8 A party who is granted full standing is entitled, in addition to the filing of written submissions, to examine or cross-examine witnesses and make oral submissions subject to such terms as the Commission may direct. Such party may also be authorized to call witnesses.
…
12 Parties should provide to Commission Counsel the names and addresses of all witnesses they believe ought to be heard.
13 Commission Counsel have a discretion to decline to call witnesses whose evidence does not appear to them relevant or falls within an area which they intend to cover with other witnesses.
…
14 If a party believes that a person who has not been called by Commission Counsel has relevant evidence, the party may apply in writing to the Commission for an order to have that person called as a Commission witness. If the Order is granted, Commission Counsel shall call that person.
…
16(1) A Commissioner on application by a party may authorize the issue of a summons to compel the attendance of a witness before any hearing to give evidence and to produce documents.
…
16(4) The applicant shall be advised of the Commissioner’s decision, as to whether a summons should be issued or not, at least ten (10) days prior to the date fixed for the hearing at which such witness is to be called.
…
21 Parties who have been authorized to call witnesses and who intend to do so shall, fifteen (15) days prior to the date on which they are scheduled to call such witness, file with the Inquiry a list of documentary evidence within their possession and which they intend to introduce into evidence at the Inquiry. Commission Counsel and parties shall be granted the opportunity to inspect such documentary evidence.
…
23 Documentary evidence received from a party, or from any other person, shall be treated as confidential by Commission Counsel unless and until it is made part of the public record as an exhibit …. [Emphasis added.]
In this case, as a person granted standing and as a person served with a section 13 notice, the Commissioners have a statutory duty to act fairly towards BGen Beno as required by the Rules and by sections 12 and 13 of the Inquiries Act respectively. Indeed, this is admitted by the Commissioners, but with contention about the content of the duty.
B. What is the content of the duty of the Commissioners to act fairly towards BGen Beno?
A primary issue concerning the content of the duty owed in this case is the selection of the appropriate test for bias. As Cory J. articulated in Newfoundland Telephone as quoted in Part II above, the test for bias, as an element of the duty of fairness, is a flexible one, and depends upon the nature and function of the tribunal. On one end of the spectrum are those administrative bodies with a primarily adjudicative function where a low tolerance for bias is required, while on the other end of the spectrum are those that perform a policy formation function where a higher tolerance for bias is permitted.
Thus, in this case, my decision selecting the test for bias as an element of the duty to act fairly owed by the Commissioners to BGen Beno depends on the characterization of the nature and certain functions of the Inquiry and, in particular, as those functions relate to him. This focus on the individual and what is fair to him or her was the subject of comment by Estey J. in Irvine v. Canada (Restrictive Trade Practices Commission), [1987] 1 S.C.R. 181, at page 231, where he said:
Fairness is a flexible concept and its content varies depending on the nature of the inquiry and the consequences for the individuals involved. The characteristics of the proceeding, the nature of the resulting report and its circulation to the public, and the penalties which will result when events succeeding the report are put in train will determine the extent of the right to counsel and, where counsel is authorized by statute without further directive, the role of such counsel …. [Emphasis added.]
Therefore, even where there are statutory provisions which dictate surface features of the duty to act fairly, the requirements of fairness in each case can give content to these features. Thus, to determine the content or extent of the duty to act fairly, the focus must be not only on the general nature of the Inquiry but on its precise functions and how these functions impact on individuals involved.
(1) What is the general nature and precise functions of the Inquiry?
Being a public inquiry, the commonly understood general nature of the Inquiry is investigative and its function is primarily fact finding as suggested by Cory J. in Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), [1995] 2 S.C.R. 97, where at page 137 he said:
One of the primary functions of public inquiries is fact-finding. They are often convened, in the wake of public shock, horror, disillusionment, or scepticism, in order to uncover “the truth”. Inquiries are, like the judiciary, independent; unlike the judiciary, they are often endowed with wide-ranging investigative powers.
However, imported into the general nature and function of the Inquiry are rights to procedural fairness of persons granted standing and served with a section 13 notice which approach those accorded an accused in a criminal trial or a litigant in a civil trial. With respect to the rights to be represented, to be heard and to make argument, persons who have standing have “trial-like” rights to procedural fairness.[29] Thus, the general investigative nature and fact finding function of the Inquiry incorporates a precise “trial-like” function for persons granted standing and served with a section 13 notice.
(2) What are the consequences of the “trial-like” function?
The potential for damage is clear on the face of the notice that BGen Beno received:
At the evidentiary hearings, in relation to shortcomings or failures in the fulfilment of your military duties, your actions or the role played by you, Commissioners’ counsel may investigate charges of misconduct or allegations that may lead to an adverse finding that could reasonably be expected to bring discredit upon you … [Emphasis added.]
It is also clear that as a practical fact, a person whose conduct is being investigated pursuant to a section 13 notice under the Inquiries Act faces a trial in the court of public opinion, and further, that the results of this trial can be every bit as damaging in terms of loss of reputation as a finding of guilt in a criminal trial. The following observation made by Sopinka J., drives this point home:
These inquiries, operating under the full glare of media attention, have all the appearances of trials without the safeguards for individual rights which trial practice affords.
The public is fully justified in asking whether these inquiries are not in fact trials under another name.[30]
Thus, the consequences of the “trial-like” function of the Inquiry are “trial-like” results.[31]
Therefore, based on this analysis, I find the Commissioners perform a “quasi-judicial” function with respect to persons granted standing and served with a section 13 notice, and the content of the duty to act fairly towards them must be responsive to this function. That is, the content of the duty must incorporate essential features of the judicial decision-making process, including the test for bias.
C. What precise test for bias should be applied in this case?
Cory J. in Newfoundland Telephone, at page 636, sets out the judicial decision making or “adjudicative” test for bias as: “whether a reasonably informed bystander could reasonably perceive bias on the part of the adjudicator”. By applying the definition of bias constructed under Part III to this test in an effort to answer the central question of whether Commissioner Létourneau has demonstrated a disabling bias against BGen Beno, the precise test becomes: “whether a reasonably informed bystander could reasonably perceive a mental attitude or disposition of Commissioner Létourneau towards BGen Beno which tends, or is seen as tending, to cause Commissioner Létourneau to decide issues relating to BGen Beno’s section 13 notice on another basis than the evidence”.
V
WEIGHING THE EVIDENCE
A. Who is the bystander?
Of course, it is my judgment that is being applied in this case. But as best as I am able, I must try to analyze the evidence from the perspective provided by the test. That is, it is not my findings of fact as a legally trained person that are important. It is the perspective of a “reasonably informed bystander”, whom I find to be a non-legally trained person who will apply the test from a common sense point of view.
B. What does the bystander need to know?
To be reasonably informed, the bystander would need to know and understand what I have written thus far. But to be able to decide on Commissioner Létourneau’s actions vis-à-vis BGen Beno, the bystander would also need to be instructed on the standards of decision-making conduct to be expected in a judicial proceeding, and what might be expected of Commissioner Létourneau in meeting this standard. This is particularly important since the appearance of bias is an issue and it is important for the bystander to understand what practice is generally reasonable and expected so that conduct of this type might be excluded from consideration.
Since I have found that decision making in relation to BGen Beno is judicial in nature, the expectations placed on judges become the issue.
(1) With regard to bias, what are the general expectations of judges?
A very important statement on the expectations of judicial conduct in relation to bias has recently been made by Chief Justice Bayda, Chief Justice, Court of Appeal of Saskatchewan, in the Report of the Canadian Judicial Council to the Minister of Justice of Canada under ss. 63(1) of the Judges Act concerning the Conduct of Mr. Justice Jean Bienvenue of the Superior Court of Québec in R. v. T. Théberge (Canadian Judicial Council, October 1, 1996), where he says at page 7:
Every judge knows, and every reasonably informed person not a judge who approaches the issue objectively ought to know, that like every other member of the human species all judges have certain predilections. Judges are not—and society does not want them to be” intellectual eunuchs devoid of any philosophy of life, of society, of government or of law and a judge’s world is the same as the public’s—a world of realism rather than a world of idealism. The critical question is not: Does the judge have a predilection? Rather the critical question is: Is the judge able and prepared to set the predilection aside and not put it to work in the exercise of his or her judicial functions? [Underlining added.]
Thus, when “put to work” in the exercise of a judge’s judicial function, a predilection can become an impairing bias, and judges are expected to exhibit the required discipline to make sure this does not happen.
The principles that a judge must listen to the testimony in its entirety with an objective and open mind, and testimony given under oath is presumed to be true unless there are valid reasons to doubt its truthfulness, are fundamental to proper findings of credibility.[32] These principles are important because all witnesses are entitled to start from a position where they are respected and their evidence is believed.
Obviously, if a judge holds a negative view towards or a suspicion about members of a particular group, whether it be based on ethnic, gender, sexual orientation, abilities, or age considerations, to name a few examples, and unless this view is properly held in check, the judge will “put to work” a predilection which can be an impairing bias. There is no doubt that this principle also applies in situations where the negative view or suspicion is held about members of a certain professional group, which in the context of this case, might include persons who are officials of high rank in the Canadian military.
When it comes to judicial conduct in the course of a hearing, the Honourable J. O. Wilson in his A Book for Judges,[33] recognizes that a judge’s duty to ascertain the truth not only justifies, but, on occasion, requires intervention. But at page 44 he also has this to say:
That extraordinary man Francis Bacon, who wrote so many admirable precepts for judicial behaviour, so many ethical and moral pronouncements was eventually, when Lord High Chancellor of England, impeached for taking bribes from suitors. He had a gift for striking phrases and one of the best remembered is this: “Patience and gravity of hearing is an essential part of justice; and an overspeaking judge is no well-tuned cymbal”. There are instances in which the “overspeaking” judge has been publicly reproved by a higher court for persistent, unnecessary and sometimes offensive intervention in a trial.
But the rule is not against any intervention; it is against excessive intervention.
Chief Justice Wilson’s words of caution are good ones for all decision makers whether presiding in a policy formation or adjudicative capacity, because the integrity of the process depends on the degree to which all persons involved, whether they be counsel, witnesses or observers, feel that the process is fair. Respect to be accorded to all concerned is the best guarantee of this result.
C. With the above considerations in mind, what would the bystander think:
(1) About the hearing on January 30?
I was urged to watch the video tapes of BGen Beno’s evidence on January 30 to assist in assessing what went on that day. The words on the transcript only partially convey BGen Beno’s manner of giving evidence. The tapes depict BGen Beno as a very serious, formal, and highly respectful senior military officer who was doing his absolute best to answer the questions posed to him precisely, fully, and as professionally as possible. From this viewing and reading the transcript, the bystander would judge BGen Beno’s answers to be exactly responsive to the questions posed. That is, he gave precise answers to precise questions, and it is obvious from the detail that he provided in doing so that he was attempting to be meticulous in giving his evidence.
If it was not clear up to the time the remark was made, it was made clear shortly thereafter, that BGen Beno took the questions posed to him very literally and answered them in the same way. The following exchange between Mr. Stauffer and BGen Beno regarding “officers” shows that Mr. Stauffer appreciated this:
Q. All right. The second paragraph there where it says:
“Brigadier-General Beno recommended to Lieutenant-Colonels Morneault and Mathieu not to bring specifically: Major Seward, Major MacKay, Captain Rainville and Master Warrant Officer Vienneau.” Did you make that recommendation?
A. No, I did not.
Q. Did you just make that recommendation to Colonel Mathieu?
A. No, I did not.
Q. All right. Did you make any recommendation comparable to what is contained in that second part?
A. Yes.
Q. What did you recommend?
A. I recommended that Major Seward not go and that Colonel Mathieu look at him.
Q. Yes.
A. I had discussed Major MacKay with Colonel Morneault, not with Mathieu, but with Colonel Morneault.
Perhaps with Colonel Mathieu I pointed out some of Major MacKay’s weaknesses, however at that stage he had already done Stalwart Providence and he was up to speed.
Captain Rainville, I recommended to both of them that they examine very closely military police reports which were not actioned in his previous brigade and that they examine him very closely with a view to leaving him behind.
And I specifically wrote to Colonel Mathieu on this particular individual because I had concerns about him and, again, because of disciplinary matters, Colonel Mathieu is the only one who could deal with him.
I did ask about Sergeant-Major Vienneau and the reason I asked about him, it was post Colonel Morneault’s command, it was because of the manner in which he was asking questions of General de Chastelain on the 1st of December, which was quite some time after Colonel Morneault had left. And I just found his questions to the Chief of Defence Staff to be somewhat rude, and I asked that Colonel Mathieu think about that.
I did not recommend that he be left behind, I would not recommend that.[34] [Emphasis added.]
There is no question that Commissioner Létourneau was wrong in his assessment of BGen Beno, and any misunderstanding about BGen Beno’s intentions could have been easily corrected from carefully listening to the manner and style of BGen Beno’s evidence giving, and from reading the exact words used.
About this, the bystander’s concern would not be so much about the error made in misinterpreting the complex evidence, which is not uncommon in judicial proceedings, but about why it was necessary for Commissioner Létourneau to make the “fiddling” remark. Even considering the allowances for intervention cited by Chief Justice Wilson, I think the bystander would be correct in concluding that this highly disrespectful remark is evidence of an opinion held by Commissioner Létourneau about BGen Beno’s credibility which is unsubstantiated by inspecting the evidence he gave.
In analyzing the remark, “I might as well tell you that you won’t gain much by fiddling around. It was a clear question and you won’t gain much”, the bystander would have a number of questions. These would include: what did Commissioner Létourneau think BGen Beno wanted to gain; was he generally viewed as a person who was attempting to avoid responsibility; did “fiddling around” mean not paying attention or being evasive, or did Commissioner Létourneau think BGen Beno was just not telling the truth?
I think the bystander would think that Commissioner Létourneau was suspicious of BGen Beno’s evidence and that suspicion came from some source other than the evidence. I also think the bystander would be right in deciding that the suspicion was a predilection “put to work” about which Chief Justice Bayda warned.
(2) About the meetings of February 6?
I think the bystander’s primary question would be: why did Commissioner Létourneau so casually and frankly talk about such a delicate matter as his concerns about BGen Beno’s credibility to people who had declared themselves to be supporters of BGen Beno? I think the reasonable conclusion that the bystander would come to is that Commissioner Létourneau really believed what he said to BGen Meating, being that BGen Beno “was being less than open and truthful in his testimony”, and to Mr. Mariage being that “he seemed to be hiding things”, and had no hesitation in saying so in defence of his remark in the January 30 hearing.
(3) About the meeting of February 12?
First, I think the bystander would make special note of Commissioner Létourneau’s reaction to being told that he was wrong in his interpretation of BGen Beno’s evidence on January 30, and might expect him to be concerned enough about the challenge to ask for details of where he was seen to go wrong. I think the bystander would look for such a response because only Commissioner Létourneau would know whether the source of his remark was not some predilection but simply frustration about the pace of the evidence or some other inconsequential reason.
However, at no time during the meeting did Commissioner Létourneau ask to have the point more clearly described so that he could better understand it. At no time did he say that he regretted the disrespectful nature of his comments or apologize if they left a wrong impression. At no time did he show the faintest recognition that he might be wrong and ask counsel that, if he was, what would they suggest he should do to correct the error.
Indeed, in the February 12 meeting, Commissioner Létourneau stated and restated that he had formed an opinion about BGen Beno’s evidence, which is particularly captured by these two portions already cited above:
But your client is not the only witness with respect to whom we have expressed our disbelief at times and not only myself but Commissioner Rutherford as well and Commissioner Desbarats when we feel that the witness is not giving all the information that he could be giving or he’s putting on it a spin that we can hardly believe.
Well, as I said, you have made that point, we will look at it and assess it and we’ll see from there, because if you express this belief or incredulity in relation to a statement that a witness has made on a specific issue, that doesn’t mean that you don’t believe the witness on everything else, it’s on what he just said. [Emphasis added.]
From this, I think that the bystander would conclude that Commissioner Létourneau knew the source of his remark to be a general suspicion of BGen Beno and his evidence.
In his statements at the February 12 meeting, Commissioner Létourneau took the position that in his conversations with BGen Meating and Mr. Mariage he said nothing more than what he had said on the public record in the hearing of January 30. A problem with this statement is that, apart from the “fiddling” remark, Commissioner Létourneau really said nothing on the public record. Given the fine detail cited in the sworn statements that both BGen Meating and Mr. Mariage provided, the bystander would give no weight to Commissioner Létourneau’s statement. In addition, Commissioner Létourneau’s simple denial on February 12 that he never said that BGen Beno was hiding something would similarly be given no weight because the evidence to the contrary is sworn, consistent, detailed and, as such, is thoroughly credible.
Thus, the most immediate conclusion that the bystander would draw from Commissioner Létourneau’s comments at the meeting is that he was completely committed to the opinions he expressed to BGen Meating and Mr. Mariage on February 6.
At the time of this meeting, BGen Beno and his counsel were unaware of the conversation which took place on the same date between Commissioner Létourneau and BGen Meating or of BGen Meating’s presence during Mr. Mariage’s conversation with Commissioner Létourneau. The argument has been advanced that “this lack of forthrightness” aggravates the appearance of bias. In considering this argument, I think the bystander would understand that Commissioner Létourneau is under no duty to reveal his private conversations and nothing can be taken from not doing so on February 6.
The bystander would also see the events of January 30, February 6 and 12 as more than discreet elements to be considered on their own. Indeed, I think if is fair to say that the result of the sequence would be more than just seeing them in combination. The practical approach that would be adopted by the bystander would see each event building on the one before so as to strengthen the concern and questions about the January 30 remark into a fear of commitment in the February 6 statements, to being certain that Commissioner Létourneau’s mind was made up as evidenced by the February 12 exchange.
The bystander would find this “stacking up” of the expression of negative opinion by Commissioner Létourneau against BGen Beno a grave problem because the Inquiry has not concluded. Not only is all the evidence to be considered together, but argument must be heard before any decisions are made. That is, the negative opinion already reached has put BGen Beno at an unfair disadvantage, from which he may not recover.
Thus, even though Commissioner Létourneau said and reiterated on February 12 that he would look at all the evidence at the end of Inquiry and decide on BGen Beno’s credibility at that time, his commitment to the conclusions which he has already drawn would cause the bystander to put no weight on this assurance.
D. What would the bystander conclude?
I have no doubt that the bystander would say that BGen Beno has not and would not in the future be treated fairly by Commissioner Létourneau because of Commissioner Létourneau’s unjustified and entrenched negative opinion about BGen Beno’s credibility.
Thus, on the whole of the evidence before me, applying the test of “whether a reasonably informed bystander could reasonably perceive a mental attitude or disposition of Commissioner Létourneau towards BGen Beno which tends, or is seen as tending, to cause Commissioner Létourneau to decide issues relating to BGen Beno’s section 13 notice on another basis than the evidence”, I find the answer is yes.
VI
ANSWER TO THE CENTRAL
QUESTION AND RELIEF
On the application for prohibition, the central question to be answered is “has Commissioner Létourneau demonstrated a disabling bias against BGen Beno?”. Based on the analysis provided above, I find the answer is yes.
In determining the relief to be granted, I think that a solution should be found that is the least disrupting to the ongoing work of the Inquiry. Indeed, the application on behalf of BGen Beno also asks for the course of least intervention and has been focussed on seeking an order in effect prohibiting Commissioner Létourneau from further participating in any investigation, or hearings, or making any findings, in relation to BGen Beno.
I believe it is appropriate to comply with this application. I recognize that for their written reasons of May 7, Commissioners Desbarats and Rutherford dismissed the application then before them and thus effectively ruled that Commissioner Létourneau has not demonstrated a disabling bias against BGen Beno. But the fact that they are of this opinion about Commissioner Létourneau does not mean that they hold a bias against BGen Beno. Indeed, no suggestion of this nature has been made. Accordingly, I see no reason why the mandate of the Inquiry in so far as it relates to the section 13 notice served on BGen Beno cannot be carried out by Commissioners Desbarats and Rutherford.
Therefore, as requested, I hereby prohibit Commissioner Létourneau, for the purpose of the Inquiry and its final report, from participating in any way in the making of adverse findings, directly or indirectly in relation to charges or allegations which are the subject-matter of a notice issued to BGen Beno pursuant to section 13 of the Inquiries Act.
As I find there are no special reasons to do so, I make no order as to costs.
* This decision has been reversed on appeal. The appeal decision will be published in the Federal Court Reports.
[1] Hereinafter referred to as BGen Beno.
[2] By Minutes of a Meeting of the Committee of Privy Council (P.C. 1995-442), dated March 20, 1995, the Commission of Inquiry into the Deployment of Canadian Forces to Somalia was established pursuant to Part I of the Inquiries Act, R.S.C., 1985, c. I-11 (hereinafter referred to as the Inquiry). Pursuant to the terms of the Minutes, the Commission was established to:
Inquire into and report on the chain of command, leadership within the chain of command, discipline, operations, actions and decisions of the Canadian Forces and the actions and decisions of the Department of National Defence in respect of the Canadian Forces deployment to Somalia.
The Commissioners ultimately appointed were the Honourable Gilles Létourneau as Commissioner and Chairperson, and Mr. Peter Desbarats and the Honourable Robert Rutherford as Commissioners. At this time the Inquiry is still ongoing.
BGen Beno is a 30-year member of the Armed Forces and was the Commander of the Special Service Force in Petawawa from August 7, 1992 until July 8, 1994. During BGen Beno’s tenure as Commander of the Special Service Force, the Canadian Airborne Regiment, now disbanded, had been one of the units under his command before and after its deployment to Somalia. Because of this involvement, BGen Beno applied for and, by order dated May 24, 1995, received status as a party with full standing before the Inquiry which accorded him full rights of participation.
The Commission advised parties with standing that the evidentiary hearing phase would be pursued by the Commission in a non-adversarial manner with due regard to procedural fairness and fundamental justice.
[3] Hereinafter referred to as Commissioner Létourneau.
[4] Hereinafter referred to as Mr. Mariage.
[5] On February 6, two conversations took place closely together in time, the contents of which are evidence in this case. The first was with Brigadier-General Meating (hereinafter referred to as BGen Meating), and the second was with Mr. Mariage as mentioned. The evidence regarding both conversations is set out in Part III below.
[6] Dimes v. Grand Junction Canal (Proprietors of) (1852), 10 E.R. 301 (H.L.).
[7] Toronto: Law and Business Publications, 1980.
[8] This definition was first set out in Regina v. East Kerrier Justices. Ex parte Mundy, [1952] 2 Q.B. 719.
[9] 6 ed., St. Paul, Minn.: West Publishing Co., 1990.
[10] While affidavit evidence is not admissible for the purposes of establishing that a person is not in fact biased, evidence regarding the circumstances which create a reasonable apprehension of bias is admissible. This approach was enunciated by the Supreme Court of Canada in Ringrose v. College of Physicians and Surgeons (Alberta), [1977] 1 S.C.R. 814 where de Grandpré J. cites Prowse J.A. [(1975), 52 D.L.R. (3d) 584 (Alta. C.A.)] at pp. 821-822 as follows:
In my view these cases merely support the conclusion that when circumstances exist from which a reasonable apprehension of bias arises evidence is not admissible for the purpose of establishing that a person the law presumes to be biased was not in fact biased. They do not purport to deal with the question of the admissibility of evidence for the purpose of having the relevant circumstances before the court so that it may consider whether in those circumstances a reasonable apprehension of bias arises. [Emphasis added.]
de Grandpré J. then makes the following observation at p. 822:
This is a correct summary of the law and it is not contradicted by the reasons of Laskin C.J., in P.P.G Industries Canada Ltd. et al. v. The Attorney General of Canada ([1976] 2 S.C.R. 739), which refer to “the introduction of evidence to explain away a situation which raised a reasonable apprehension of bias affecting that party’s position in respect of a decision which he challenged” (p. 748). On the contrary, I read this sentence as supporting one part of the proposition stated by the Court of Appeal.
[11] Rule 1603 [Federal Court Rules, C.R.C., c. 663 (as enacted by SOR/92-43, s. 19; 94-41, s. 15], deals with affidavits to be filed in relation to an originating notice of motion, the provisions of which read as follows:
Rule 1603. (1) At the time of filing the notice of motion, the applicant shall also file one or more affidavits verifying the facts relied on by the applicant.
(2) Any adverse party may file one or more affidavits in reply.
(3) Any affidavits of an adverse party shall be filed and served no later than 30 days after the day the adverse party was served with the notice of motion.
[12] [1996] F.C.J. No. 1493 (C.A.) (Q.L.).
[13] The Inquiries Act essentially only provides Commissions of Inquiry with powers concerning the production of evidence, and in this regard the power to compel the attendance of witnesses and documentary evidence are particularly important. The rules under which the Inquiry functions are named Rules of Practice and Procedure Applicable to the Commission of Inquiry into the Deployment of Canadian Forces in Somalia and deal only with such matters as notices, standing, procedural hearings, public hearings, witnesses, documentary evidence, written submissions, and media coverage. See Part IV (A) below.
[14] Applicant’s supplementary record, Tab 3; transcript of evidentiary hearing, at p. 7918.
[15] Id., at pp. 7925-7926.
[16] Id., at pp. 7940-7942.
[17] Application record, Tab 2; transcript of informal meeting, at p. 2.
[18] Id., at p. 2.
[19] Id., at p. 5.
[20] Id., at pp. 6-7.
[21] Id., at pp. 7-8.
[22] Id., at pp. 8-9.
[23] Id., at pp. 9-11.
[24] Id., at pp. 12-13.
[25] Id., at pp. 22-24.
[26] Inspector Braun was one of the RCMP officers who accompanied Commissioner Létourneau and Mr. Cohen, Commission Secretary, to the breakfast at the Currie Officers’ Mess on February 6.
[27] Application record, Tab 2E.
[28] The Rules were not provided in the material filed in the hearing before me but the copy subsequently obtained are those as amended on May 24, 1995.
[29] While it is true that the Commissioners retain the discretion regarding the calling of witnesses, this discretion is subject to hearing argument. Although by s. 45 of the Rules the Commission may dispense with the Rules “where, in its opinion, it is in the interests of justice to do so”, the statutory rights remain and would need to be recognized.
[30] J. Sopinka, “The Role of Commission Counsel”, in Pross, Paul A., et al., Commissions of Inquiry (Toronto: Carswell, 1990), at p. 76.
[31] Concern about the impact of an adverse finding is clearly expressed by Edward L. Greenspan in the following passage from “The Royal Commission: History, Powers and Functions, and the Role of Counsel” in F. Moskoff, Administrative Tribunals , Aurora, Ont.: Canada Law Book, 1989, at p. 341:
A person whose reputation has been ruined by a commission of inquiry’s accusatory report that was released to the public, gains little consolation from the knowledge that a supervisory court has ruled that the commission disregarded the individual’s rights when it initially published its findings. It is important, therefore, that just as an individual compelled to appear before a Royal Commission must respect the commission’s legal exercise of the powers granted to it, so must the commission of inquiry be acutely aware and respectful of the rights of those persons appearing before it or subject to its investigation.
[32] See Okyere-Akosah v. Minister of Employment and Immigration (1992), 157 N.R. 387 (F.C.A.); Maldonado v. Minister of Employment and Immigration, [1980] 2 F.C. 302 (C.A.); Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298 (C.A.); and Hilo v. Canada (Minister of Employment & Immigration) (1991), 15 Imm. L.R. (2d) 199 (F.C.A.).
[33] J. O. Wilson, A Book for Judges (Ottawa: Minister of Supply and Services Canada, 1980).
[34] Applicant’s supplementary record, Tab 3; transcript of evidentiary hearing, at pp. 7946-7948.