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Beno v. Canada (Somalia Inquiry Commission) In The Matter of an inquiry pursuant
to Part I of the Inquiries Act, R.S.C. 1985, c. I-11 into the chain of
command system, 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 of
Somalia and a report thereon, pursuant to Order in Council, P.C. 1995-442 (sub nom. Beno v. Canada
(Commissioner & Chairperson, Commission of Inquiry into the Deployment of
Canadian Forces to Somalia)), [1997] 2 F.C. 527, (sub nom. Beno v. Canada
(Commission of Inquiry into the Deployment of the Canadian Forces to Somalia))
146 D.L.R. (4th) 708, (sub nom. Beno v. Létourneau) 212 1997 CarswellNat 688 N.R. 357, 47 Admin. L.R. (2d)
244, (sub nom. Beno v. Létourneau) 129 F.T.R. 160 (note), 1997 CarswellNat
1572, 2 F.C. 527, [1997] F.C.J. No. 509 The Honourable Gilles Létourneau, Commissioner and
Chairperson Peter Desbarats, Commissioner, The Honourable Robert Rutherford,
Commissioner, Appellants (Respondents) and Brigadier-General Ernest B.
Beno, Respondent (Applicant) and Attorney General of Canada, Major Barry
Armstrong, Lcol. Paul Morneault Major Vincent J. Buonamici, Respondents
(Respondents) Federal Court of Canada, Appeal Division Isaac C.J., Pratte and Stone JJ.A. Heard: March 25 and 26, 1997 Judgment: May 2, 1997 Docket: A-124-97 Proceedings: reversing (1997), 144 D.L.R. (4th) 493 (Fed.
T.D.) SUBSEQUENT HISTORY: Leave to appeal refused by: Beno v. Canada (Somalia Inquiry Commission), 224 N.R. 395 (Note), [1997] S.C.C.A. No. 322 (S.C.C. Oct. 2, 1997) Counsel: Mr. Raynold Langlois Q.C., and Ms. Eve Stéphanie
Sauve, for the Appellant. Mr. J. Bruce Carr-Harris and Mr. Lawrence A. Elliot, for
Brigadier-General Ernest B. Beno. Mr. Graham Jones, for Major Vincent J. Buonamici. Subject: Public Administrative law -- Requirements of
natural justice -- Bias Chair of Commission made comments about EB during EB's
testimony and during private meetings which EB claimed indicated bias -- EB
unsuccessfully moved before Commission to have chair disqualified from acting
as commissioner or from making adverse findings against EB -- EB was successful
on application for judicial review in Federal Court, Trial Division, where
judge concluded that chair's comments indicated he would not treat EB fairly in
future -- On appeal from decision of Trial Division, court found that there was
nothing to support EB's allegations of bias -- In assessing behaviour of
commissioners, special nature of their functions should be taken into account,
and inquiry functions were not classified at adjudicative extreme --
Commissioner should be disqualified for bias only if challenger established
reasonable apprehension that commissioner would reach conclusion on basis other
than evidence, which was not established -- Flexible application of reasonable
apprehension of bias test required reviewing court to take into consideration
fact that commissioners were acting as investigators in context of long,
arduous and complex inquiry, and trial judge failed to appreciate this context
in applying test -- Trial judge found chair's remark indicative of bias because
he disagreed with chair's assessment of EB's demeanour and credibility, which
was not valid reason to question chair's impartiality. EB testified before the Somalia Inquiry Commission in 1996.
The chair of the Commission intervened while EB was being examined by
commission counsel, and pointed out that what EB had just said contradicted an
answer he had previously given. When EB denied that there was a contradiction,
the chair said: "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." Later,
while the chair was in Calgary to interview soldiers who might be of
assistance, he was accused of unfairly and aggressively treating EB. In reply,
the chair indicated his opinion that EB had not given straight answers, seemed
tense and unco-operative, and was perhaps trying to deceive the Commission. At
a subsequent meeting with EB's counsel, the chair assured them that his remark
merely expressed his perception of the evidence at the time, and that he would
read the transcript before reaching any definite conclusion. EB moved before the Commission to have the chair
disqualified from continuing to act as a commissioner or, in the alternative,
from making adverse findings against EB. The Commission dismissed the motion,
deciding that EB was mistaken in his contention that there existed a reasonable
apprehension of bias, and reiterating that EB would have other opportunities
for correcting any misapprehensions he felt the Commission had about his
evidence. When EB applied for judicial review of the Commission's decision, the
Federal Court, Trial Division, granted his application, and prohibited the
chair from participating in the making of findings adverse to EB. At the trial
level, the judge concluded that the chair's comments indicated he would not
treat EB fairly in the future. The Commission appealed. Held: The appeal was allowed. In assessing the behaviour of commissioners, the special
nature of their functions should be taken into account. Depending on its
nature, mandate, and function, the Somalia Inquiry was to be situated along the
spectrum between its legislative and adjudicative extremes. Because of the
significant differences between this inquiry and a civil or criminal
proceeding, the adjudicative extreme was inappropriate. A commissioner should
be disqualified for bias only if the challenger could establish a reasonable
apprehension that the commissioner would reach a conclusion on a basis other
than the evidence. Further, a flexible application of the reasonable
apprehension of bias test required that the reviewing court take into
consideration the fact that the commissioners were acting as investigators in
the context of a long, arduous, and complex inquiry. The judge failed to
appreciate this context in applying the test. There was nothing in the evidence to suggest that the remark
made by the chair on that day was inspired by something other than his own
honest, although probably mistaken, perception of EB's evidence. The chair was
clearly reacting to EB's testimony; in the circumstances, his comment could not
reasonably be seen as indicating a tendency to decide on some basis other than
the evidence. There was certainly no evidence that could displace the
presumption that the chair would act impartially. The only reason why the judge
found the chair's remark on that day to be indicative of bias was that he disagreed
with the chair's assessment of EB's demeanour and credibility. However, that
was not a valid reason to question the chair's impartiality. It was a gross
error for the judge to conclude that the events in question gave rise to a
suspicion that the chair was not impartial. Cases considered: Badu v. Canada (Minister of Employment & Immigration)
(January 6, 1994), Doc. A-85-93 (Fed. T.D.) -- referred to Bennett v. British Columbia (Superintendent of Brokers)
(1994), (sub nom.Bennett v. British Columbia Securities Commission (No. 3)) 48
B.C.A.C. 56, 36 C.P.C. (3d) 96, 7 C.C.L.S. 165, 30 Admin. L.R. (2d) 283, (sub
nom. Bennett v. British Columbia Securities Commission (No. 3)) 78 W.A.C. 56
(B.C. C.A. [In Chambers]) -- referred to Bennett v. British Columbia (Superintendent of Brokers)
(1994), 96 B.C.L.R. (2d) 274, 5 C.C.L.S. 93, 118 D.L.R. (4th) 449, (sub nom.
Bennett v. British Columbia Securities Commission (No. 4)) 51 B.C.A.C. 81, (sub
nom. Bennett v. British Columbia Securities Commission (No. 4)) 84 W.A.C. 81,
28 Admin. L.R. (2d) 102 (B.C. C.A.) -- referred to Bortolotti v. Ontario (Ministry of Housing) (1977), 15 O.R.
(2d) 617, 76 D.L.R. (3d) 408 (Ont. C.A.) -- referred to Canada (Attorney
General) v. Canada (Commissioner of the Inquiry on the Blood System) (1997),
142 D.L.R. (4th) 237, (sub nom. Canada (Attorney General) v. Royal Commission
of Inquiry on the Blood System in Canada) 207 N.R. 1 (Fed. C.A.) -- referred to Committee for Justice & Liberty v. Canada (National
Energy Board) (1976), [1978] 1 S.C.R. 369, 9 N.R. 115, 68 D.L.R. (3d) 716
(S.C.C.) -- referred to Di Iorio v. Montreal Jail, [1978] 1 S.C.R. 152, 33 C.C.C.
(2d) 289, 35 C.R.N.S. 57, 8 N.R. 361, 73 D.L.R. (3d) 491 (S.C.C.) -- referred
to Greyeyes v. British Columbia (1993), 78 B.C.L.R. (2d) 80
(B.C. S.C. [In Chambers]) -- referred to Irvine v. Canada (Restrictive Trade Practices Commission),
24 Admin. L.R. 91, 15 C.P.R. (3d) 289, (sub nom. Re Irvine and Restrictive
Trade Practices Commission) 34 C.C.C. (3d) 481, [1987] 1 S.C.R. 181, (sub nom.
Restrictive Trade Practices Commission v. Irvine) 74 N.R. 33, (sub nom. Re
Irvine and Restrictive Trade Practices Commission) 41 D.L.R. (4th) 429 (S.C.C.)
-- referred to Jones v. National Coal Board, [1957] 2 All E.R. 155, [1957]
2 Q.B. 55 (Eng. C.A.) -- referred to Newfoundland Telephone Co. v. Newfoundland (Board of
Commissioners of Public Utilities), 134 N.R. 241, 89 D.L.R. (4th) 289, 4 Admin.
L.R. (2d) 121, [1992] 1 S.C.R. 623, 95 Nfld. & P.E.I.R. 271, 301 A.P.R. 271
(S.C.C.) -- considered Nicholson v. Haldimand-Norfolk (Regional Municipality)
Commissioners of Police (1978), [1979] 1 S.C.R. 311, 88 D.L.R. (3d) 671, 78
C.L.L.C. 14,181, 23 N.R. 410 (S.C.C.) -- referred to Phillips v. Nova Scotia (Commissioner, Public Inquiries
Act), 39 C.R. (4th) 141, 31 Admin. L.R. (2d) 261, (sub nom. Phillips v.
Richard, J.) 180 N.R. 1, (sub nom. Phillips v. Richard, J.) 141 N.S.R. (2d) 1,
(sub nom. Phillips v. Richard, J.) 403 A.P.R. 1, (sub nom. Phillips v. Nova
Scotia (Commission of Inquiry into the Westray Mine Tragedy)) 98 C.C.C. (3d)
20, (sub nom. Phillips v. Nova Scotia (Commission of Inquiry into the Westray
Mine Tragedy)) 124 D.L.R. (4th) 129, (sub nom. Phillips v. Nova Scotia
(Commission of Inquiry into the Westray Mine Tragedy)) 28 C.R.R. (2d) 1, (sub
nom. Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine
Tragedy)) [1995] 2 S.C.R. 97 (S.C.C.) -- referred to R. v. Brouillard, (sub nom. Brouillard c. R.) [1985] 1
S.C.R. 39, 17 C.C.C. (3d) 193, 44 C.R. (3d) 124, [1985] R.D.J. 38, 16 D.L.R.
(4th) 447, 57 N.R. 168 (S.C.C.) -- referred to Ringrose v. College of Physicians & Surgeons (Alberta),
[1977] 1 S.C.R. 814, 1 A.R. 1, [1976] 4 W.W.R. 712, 9 N.R. 383, 67 D.L.R. (3d)
559 (S.C.C.) -- considered Shulman, Re, [1967] 2 O.R. 375, 63 D.L.R. (2d) 578 (Ont.
C.A.) -- referred to Statutes considered: Inquiries Act, R.S.C. 1985, c. I-11 s. 3 -- referred to s. 13 -- referred to APPEAL from order of Federal Court, Trial Division,
prohibiting chair of Somalia Inquiry from participating in making of findings
adverse to respondent Brigadier-General. Per curiam: 1
This is an appeal from an order of the Trial Division prohibiting the
Chairman of the Commission of Inquiry into the Deployment of Canadian Forces to
Somalia from participating in the making of findings adverse to the respondent,
Brigadier-General Beno. That order was based on the finding that there was a
reasonable apprehension that the Chairman was biased against Beno. 2
The appellants were appointed by the Governor in Council, pursuant to
section 3 of the Inquiries Act, to conduct an inquiry and report on the actions
and decisions of the Canadian Forces and the Department of National Defence in
respect of the deployment of Canadian Forces to Somalia. 3
The respondent, Beno, is an officer in the Canadian Armed Forces. He is
a party before the Commission and was served with a Notice, pursuant to section
13 of the Inquiries Act,[FN1] indicating, inter alia, that, in the course of
the evidentiary hearings of the Commission, certain allegations of misconduct
on his part might be investigated and might lead "to an adverse finding
that would reasonably be expected to bring discredit upon you..." 4
Beno testified before the Commission on January 29, 30 and 31, 1996. He
was being examined by counsel for the Commission, on January 30, when the
Chairman intervened to point out that what the witness had just said
contradicted an answer that he had previously given to a question that the
Chairman had put to him. As the witness maintained that there was no
contradiction between his two statements, the Chairman interjected: 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... That remark prompted Beno's counsel to rise and assert that
the witness had not contradicted himself and was not "fiddling
around". The Chairman then put an end to the exchange by saying: We'll take it from the transcript. 5
That is the incident which is the source of these proceedings. 6
On February 6, 1995, the Chairman was in Calgary with the Commission's
Secretary and two investigators to interview soldiers who might be of
assistance to the Commission. At the invitation of Brigadier-General Robert
Meating, they all attended a breakfast meeting at the Calgary Base Officer's
Mess. The Chairman sat beside Meating who, like many others, had been watching
the public hearings of the Commission on television. During their conversation,
Meating expressed the opinion that Beno, when he had testified before the
Commission, had been unfairly and aggressively treated by the Chairman.
According to the affidavit that was filed later by Meating, the Chairman
replied that "it was his opinion ... that BGen. Beno had not given straight
answers and that perhaps Beno had been trying to deceive." 7
The Chairman was about to leave that meeting when his host introduced
him to a Mr. Mariage, a retired officer who happened to be sitting at another
table. Mariage was a friend of Beno and, like Meating, he had been irritated by
the Chairman's reaction to Beno's evidence. He took advantage of that occasion
to express his concerns to the Chairman who, according to the affidavit later
filed by Mariage, said that Beno, during his testimony, was "very tense
... he seemed to be hiding things ... he didn't seem to want to cooperate with
the Commission." 8
On the following day, Mariage telephoned Beno and told him of his
conversation with the Chairman. Beno conveyed that information to his counsel
who communicated with the Secretary of the Commission and asked for an
opportunity to meet privately with the three Commissioners. That meeting took
place on February 12, 1996. The only persons present, apart from Beno's two
counsel, were the three commissioners and the Secretary of the Commission.
According to the transcript of that meeting, Beno's counsel told the Commission
that the Chairman's "fiddling" remark, which they considered
unjustified, had seriously damaged their client's reputation; they suggested
that the Chairman should do something to remedy that situation; they also
referred to the Chairman's conversation with Mariage, in Calgary, during which,
they said, he had said that Beno was hiding something; they expressed their
concern that the Chairman had already made up his mind that their client was
not to be believed. The Chairman answered that his "fiddling" remark
merely expressed the perception of the evidence that he had at the time and he
assured them that he would read the transcript before reaching any definite
conclusion; he denied having said to Mariage that Beno was hiding something; he
also said, to explain his attitude at the hearing, that when he had problems
with the testimony of a witness, he thought it preferable to express immediately
his doubts or difficulties so as to give the witness, his counsel and other
interested persons, the opportunity to clear up any misunderstanding. 9
A few weeks later, Beno's counsel had apparently decided to commence
proceedings to obtain the disqualification of the Chairman. For that purpose,
they were interviewing witnesses and obtaining affidavits concerning the
Chairman's visit to Calgary on February 6, 1996. This came to the ears of the
Chairman on March 20, 1996; he immediately asked one of his subordinates to
remind the authorities of the Calgary Base that they should not breach the
Commission's undertaking not to disclose the identity of the soldiers who had
met with representatives of the Commission. The Chairman also phoned Meating on
the same subject and, during that call, told him that he considered that their
conversation of February 6 was confidential. 10
On April 4, 1996, Beno filed a Notice of Motion with the Commission
seeking an order "disqualifying the Commission Chairman ... from
continuing to act as a Commissioner" or, in the alternative,
"disqualifying [him] ... from inquiring into, investigating, or
participating in any way in the making of adverse findings ... in relation to
charges or allegations which are the subject matter of a Notice issued to the
Applicant pursuant to Section 13 of the Inquiries Act R.S.C. (1985) c. I-11,
dated September 22nd, 1995." The Notice of Motion was supported by
material which established the facts that, until now, we have tried to summarize
as faithfully as we could. The Commission dismissed that motion on May 7, 1996
and gave lengthy reasons in support of its decision. The concluding paragraphs
of these reasons deserve to be quoted: As was stated to counsel for the Applicant during the private
meeting with Commissioners convened at his request, findings concerning the
Applicant's credibility or any determination as to whether adverse commentary
should be made against him will not be made until all of the evidence that is
to be called over the entire range of events that this Commission has been
asked to investigate has been heard. Findings that may reveal individual
failings will be based solely and scrupulously upon the evidence that has been
formally disclosed to these individuals and received in our hearings. All such
holdings, it need scarcely be stated, will be the findings and conclusions of
the commission as a whole - not those of any single member of it. Also, it
should be stated, no member of this Commission has had any prior knowledge of
or ulterior, personal interest in Brigadier-General Beno. His evidence and his
role in the events that transpired will be assessed solely in terms of what has
been disclosed on the public record. For the reasons given, we believe that the Applicant is
mistaken in his contention that there exists a reasonable apprehension of bias.
Such valid concerns as he may have regarding the completeness of the picture
presented in these hearings and the fairness of its depiction of him can be
addressed in other ways. Our process is such that the Applicant will be
accorded other opportunities for correcting any misapprehensions he feels that
we, as Commissioners, may have as regards his evidence or the issues affecting
him. He may have other opportunities to testify... He will also, like all
parties affected by these proceedings, be given an opportunity at the
conclusion of our evidentiary hearings to make submissions and suggest that
other evidence be brought forward that may be germane to any findings or
conclusions that the Commissioners may make. Given these avenues that are
available to him, it is therefore difficult to envision any conceivable
prejudice that the Applicant may ultimately suffer in the forthcoming phases of
the Commission's proceedings. One additional observation on the matter of final
submissions is merited. Final submissions, whether at the conclusion of a trial
or upon the completion of proceedings, represents an occasion for counsel to
"set the record right" and present a client's perspective in the
strongest and most favourable light possible. This opportunity has not been
lost. It awaits Brigadier-General Beno and his counsel. A tribunal does not
reach its conclusions until such submissions have been received. Nothing that
has been heard or received to date in our proceedings has been set in stone.
Indeed, what may have appeared important at an early stage of the process may,
in the end, turn out to be less significant, or pale in comparison with more
fundamental matters revealed by the process. Our minds remain open and there is
much terrain yet to be traversed before we reach the point of final
submissions. 11
Beno then commenced an application for judicial review in the Trial
Division seeking an order setting aside the decision that the Commission had
just rendered and prohibiting its Chairman either from continuing to act as a
Commissioner or, in the alternative, from participating in the making of
findings adverse to Beno. That motion was granted by the order of the Trial
Division against which this appeal is directed. 12
In the reasons that he gave in support of his order, the judge first
considered the branch of Beno's motion seeking an order setting aside the
decision of the Commission; he concluded on that point that the Commission had
no jurisdiction to rule on the disqualification of its Chairman and that, for
that reason, its decision was a nullity. The appellants and the respondents do
not challenge that conclusion. 13
Turning to the second branch of Beno's application seeking an order in
the nature of prohibition, the judge expressed the view that, as Commissioners
have "trial like" functions, the test for determining whether they
have the required impartiality is not different from the test applicable to
judges, namely, whether the evidence discloses circumstances giving rise to a
reasonable apprehension of bias on their part. After recalling what he
considered to be the general "expectations of judicial conduct in relation
to bias," the judge of first instance examined the evidence in order to
determine whether it gave rise to a reasonable apprehension of bias on the part
of the Chairman. According to Beno, evidence of a reasonable apprehension of
bias was to be found in the evidence relating to the hearing of January 30
during which the "fiddling" remark was made, the meeting of the
Chairman with Meating and Mariage in Calgary, on February 6, the informal
meeting of the Commission of February 12, the Chairman's phone call to Meating
on March 20, 1996, and, finally, the reasons given by the Commission in support
of its decision to dismiss Beno's application to disqualify the Chairman. 14
The judge held that no evidence of bias was provided by the reasons of
the Commission or by the telephone conversation of March 20, 1996. In his view,
the decision of the Commission was a nullity and was devoid of any evidentiary
value; as to the telephone conversation of March 20, he thought that what was
said by the Chairman on that occasion was not relevant to the bias issue. 15
The judge of first instance, therefore, rested his decision solely on
the evidence relating to the hearing of January 30, the visit of the Chairman
to Calgary on February 6, and the informal meeting of the Commission on
February 12. 16
It is during the hearing of January 30 that the Chairman made his
"fiddling" remark. The judge, after watching the videotapes of Beno's
evidence on that day,[FN2] concluded that Beno had testified in an exemplary
manner and that the intervention of the Chairman on that occasion had clearly
been prompted by a misunderstanding of certain answers given by Beno. The judge
expressed himself as follows: 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 [in A
Book for Judges[FN3]], 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. 17
The judge was also of opinion that the reasonable conclusion to be drawn
from the conversations of the Chairman with Meating and Mariage on February 6,
in Calgary, was that the Chairman "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 30th
hearing." 18
Finally, for the judge, what the Chairman had said at the informal
meeting of the Commission on February 12, showed that the Chairman had "a
general suspicion of BGen. Beno and his evidence" and "was completely
committed to the opinions he expressed to BGen. Meating and Mr. Mariage on
February 6th". The judge added: Thus, even though Commissioner Létourneau said and
reiterated on February 12th 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. 19
The judge concluded that a reasonable bystander, considering all that
evidence, "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." 20
He, for those reasons, granted the application. 21
Before discussing the merit of the appeal, we wish to dispose
immediately of an argument put forward on behalf of Beno and according to which
the judge of first instance erred in ruling that neither the decision of the
Commission respecting Beno's application nor the Chairman's phone call to
Meating on March 20 provided evidence relevant to the bias issue. We agree with
the judge of first instance that those two pieces of evidence do not support a
finding of bias or of reasonable apprehension of bias. But we do not share the
judge's view that, in the case of the decision of the Commission, this
conclusion flows from the fact that the decision was a nullity because it
exceeded the Commission's jurisdiction. The decision was rendered by the
Commission, it is part of the record and cannot be ignored even though its
evidentiary value must, in each case, be weighed.[FN4] The fact is, however,
that there is nothing in that decision that supports Beno's allegation of
apprehension of bias. 22
The appellants invoke two main grounds of appeal. First, they say that
the judge of first instance erred in deciding that Commissioners exercise
"trial like functions" and that, as a consequence, their impartiality
should be judged by the "closed mind" test rather than by the
"reasonable apprehension of bias" test (see Newfoundland Telephone
Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1
S.C.R. 623 (S.C.C.), at 636 & ff.). Second, they say that, in any event,
whatever be the applicable test, the judge's conclusion is not supported by the
evidence. 23
It is clear from his reasons for judgment that the judge of first
instance assimilated Commissioners to judges. Both, in his view, exercise
"trial like functions." That is clearly wrong. A public inquiry is
not equivalent to a civil or criminal trial (see Canada (Attorney General) v.
Canada (Commissioner of the Inquiry on the Blood System) [now reported at
(1997), 142 D.L.R. (4th) 237 (Fed. C.A.)] January 17, 1997, Court File Number
A-600-96 at paragraphs 36, 73; Greyeyes v. British Columbia (1993), 78 B.C.L.R.
(2d) 80 (B.C. S.C. [In Chambers]) at 88; Di Iorio v. Montreal Jail , [1978] 1
S.C.R. 152 (S.C.C.), at 201; Bortolotti v. Ontario (Ministry of Housing)
(1977), 15 O.R. (2d) 617 (Ont. C.A.) at 623-4); Shulman, Re , [1967] 2 O.R. 375
(Ont. C.A.) at 378). In a trial, the judge sits as an adjudicator, and it is
the responsibility of the parties alone to present the evidence. In an inquiry,
the commissioners are endowed with wide-ranging investigative powers to fulfil
their investigative mandate (Phillips v. Nova Scotia (Commissioner, Public
Inquiries Act), [1995] 2 S.C.R. 97 (S.C.C.), at 138). The rules of evidence and
procedure are therefore considerably less strict for an inquiry than for a
court. Judges determine rights as between parties; the Commission can only
"inquire" and "report" (see Irvine v. Canada (Restrictive
Trade Practices Commission), [1987] 1 S.C.R. 181 (S.C.C.), at 231; Greyeyes,
supra at 88). Judges may impose monetary or penal sanctions; the only potential
consequence of an adverse finding by the Somalia Inquiry is that reputations
could be tarnished (see Phillips, supra at 163, per Cory J.; Krever, supra at
paragraph 29; Greyeyes, ibid at 87). 24
It does not follow, however, that the impartiality of Commissioners
should always be judged by applying the "closed mind" test rather
than the "apprehension of bias" test. Rather, whatever be the
applicable test, in assessing the behaviour of Commissioners, the special
nature of their functions should be taken into account: Newfoundland Telephone,
supra at 636, 638; Irvine v. Canada (Restrictive Trade Practices Commission),
supra at 230-31; Nicholson v. Haldimand-Norfolk (Regional Municipality)
Commissioners of Police (1978), [1979] 1 S.C.R. 311 (S.C.C.), at 327. 25
In Newfoundland Telephone, Cory J. established a spectrum for assessing
allegations of bias against members of commissions or administrative boards. He
held (supra, at 638-639): 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
trusted to them by the legislature. 26
It is not necessary, for the purposes of this appeal, to determine with
precision the test of impartiality that is applicable to members of Commissions
of Inquiry.[FN5] Depending on its nature, mandate and function, the Somalia
Inquiry must be situated along the Newfoundland Telephone spectrum somewhere
between its legislative and adjudicative extremes. Because of the significant
differences between this inquiry and a civil or criminal proceeding, the
adjudicative extreme would be inappropriate in this case. On the other hand, in
view of the serious consequences that the report of a Commission may have for
those who have been served with a section 13 Notice, the permissive
"closed mind" standard at the legislative extreme would also be
inappropriate. We are of the opinion that the Commissioners of the Somalia
Inquiry must perform their duties in a way which, having regard to the special
nature of their functions, does not give rise to a reasonable apprehension of
bias. As in Newfoundland Telephone, the reasonable apprehension of bias
standard must be applied flexibly. Cory J. held (supra, at 644-645): Once matters proceeded to a hearing, a higher standard had
to be applied. Procedural fairness then required the board members to conduct
themselves so that there could be no reasonable apprehension of bias. The
application of that test must be flexible. It need not be as strict for this
Board dealing with policy matters as it would be for a board acting solely in
an adjudicative capacity. This standard of conduct will not of course inhibit
the most vigorous questioning of witnesses and counsel by board members. 27
Applying that test, we cannot but disagree with the findings of the
judge of first instance. A commissioner should be disqualified for bias only if
the challenger establishes a reasonable apprehension that the commissioner
would reach a conclusion on a basis other than the evidence. In this case, a
flexible application of the reasonable apprehension of bias test requires that
the reviewing court take into consideration the fact that the commissioners
were acting as investigators in the context of a long, arduous and complex
inquiry. The judge failed to appreciate this context in applying the test. 28
The judge first considered the evidence relating to the hearing of
January 30 and the "fiddling" remark. He found that Beno was an
exemplary witness; that the "fiddling" remark was prompted by the
Chairman's misunderstanding of Beno's evidence, and, finally, 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." He concluded that the Chairman "was suspicious of
Beno's evidence and that [that] suspicion came from some source other than the
evidence." 29
It should first be observed that there is nothing, absolutely nothing,
in the evidence that might suggest that the remark made by the Chairman on that
day was inspired by something other than his own honest, although probably
mistaken, perception of Beno's evidence. The Chairman was clearly reacting to
Beno's testimony; in the circumstances, his comment cannot reasonably be seen
as indicating a tendency to decide on some basis other than the evidence. There
was certainly no evidence that could displace the presumption that the Chairman
would act impartially (see, Bennett v. British Columbia (Superintendent of
Brokers) (1994), 48 B.C.A.C. 56 (B.C. C.A. [In Chambers]), per Taylor J.A.,
affd (1994), 51 B.C.A.C. 81 (B.C. C.A.); Badu v. Canada (Minister of Employment
& Immigration) (January 6, 1994), Doc. A-85-93 (Fed. T.D.) ). More than a
mere suspicion, or the reservations of a "very sensitive or scrupulous
conscience," is required to displace that presumption (see Committee for
Justice & Liberty v. Canada (National Energy Board) (1976), [1978] 1 S.C.R.
369 (S.C.C.), at 394, per de Grandpré J., dissenting). 30
Moreover, that remark would have been entirely justified if, as the
Chairman obviously thought, Beno had contradicted himself. It is entirely
appropriate even for a trial judge to interject in order to clarify
inconsistencies in the evidence: see R. v. Brouillard, [1985] 1 S.C.R. 39
(S.C.C.), at 42-48; Jones v. National Coal Board, [1957] 2 All E.R. 155 (Eng.
C.A.). Indeed, Beno's testimony that day was sufficiently unclear that
Commissioner Desbarats was also struggling to understand it, and said so. [FN6] 31
The only reason why the judge found the Chairman's remark on that day to
be indicative of bias is that he disagreed with the Chairman's assessment of
Beno's demeanour and credibility. But that is not a valid reason to question
the Chairman's impartiality. There is a difference between being impartial and
being right. The Chairman had to form an opinion on the evidence of the
witness; he had to base that opinion on his own honest perception of things. It
matters little, in so far as the allegation of bias is concerned, that he may
have misunderstood the evidence or been less impressed than was the judge by
the candour of the witness. It was, in our view, a gross error for the judge to
conclude that the events of January 30 gave rise to a suspicion that the
Chairman was not impartial. The only reasonable inference that could be drawn
from those events was that the Chairman had misunderstood the evidence and that
he would, as he had said, look at the transcript before making up his mind. 32
Having drawn that wrong conclusion from the events of January 30, the
judge had no difficulty in finding a confirmation of his opinion in the
evidence relating to the Chairman's visit to Calgary and the informal meeting
of the Commission. That evidence, as we read the reasons for judgment, would
show that the Chairman persisted in his error and, therefore, in his bias.
Again, this is wrong. 33
The Chairman's visit to Calgary where he met Meating and Mariage took
place a week after the incident of January 30. There is no reason to believe
that the Chairman had given any further thought to that incident or to Beno's
evidence. One may assume that he had many other things on his mind. It must
have been a shock for him to hear Meating's and Mariage's criticisms of his
behaviour. It is easy now to say that he should then have remained silent. But
it is not abnormal for a person in that situation whose impartiality is openly
put in question to try to explain the reasons that motivated his behaviour. It
does not show that he was partial or had already reached a definite conclusion
about Beno's evidence. 34
Finally, contrary to what the judge found, the Chairman said nothing,
during the private meeting of February 12, that could be interpreted as an
indication that he was biased or committed to the views he had expressed at the
January 30 hearing. 35
We would allow the appeal, set aside the decision of the Trial Division
and dismiss Beno's application for judicial review. Appeal allowed. FN1. That section reads as follows: 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 had been allowed full opportunity to be
heard in person or by counsel. FN2. Counsel told us at the hearing that the viewing of
those tapes would not assist us in the decision of this appeal. FN3. J.O. Wilson, A Book for Judges, Ottawa: Minister of
Supply and Services Canada, 1980. FN4. As was noted by Cory J. in Newfoundland Telephone, at
p. 636: "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." In Ringrose v.
College of Physicians & Surgeons (Alberta), [1977] 1 S.C.R. 814 (S.C.C.),
at pp. 821-822, the Supreme Court, per de Grandpré J., adopted the view that,
while evidence for the purpose of having the relevant circumstances before the
Court is admissible, evidence for the purpose of establishing that a person
that the law presumes to be biased was not in fact biased is not admissible.
This, or course, presupposes the existence of a situation creating a reasonable
apprehension of bias. FN5. It is possible that different tests are applicable to
apprehensions of bias arising from events prior to their appointment as
Commissioners and to those arising from subsequent events. FN6. Transcript, January 30, 1996, p. 7936, Appeal Book at
178. |