Pelletier v. Canada (Attorney General)

Pelletier v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2008-06-26
Neutral citation
2008 FC 803
File numbers
T-2121-05
Decision Content
Date: 20080626
Docket: T-2121-05
Citation: 2008 FC 803
OTTAWA, Ontario, June 26, 2008
PRESENT: The Honourable Max M. Teitelbaum
BETWEEN:
JEAN PELLETIER
Applicant
and
THE ATTORNEY GENERAL OF CANADA
and
THE HONOURABLE JOHN H. GOMERY, IN HIS QUALITY AS EX-COMMISSIONER OF THE COMMISSION OF INQUIRY INTO THE SPONSORSHIP PROGRAM AND ADVERTISING ACTIVITIES
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1] This is an application for judicial review brought by Mr. Jean Pelletier (the “Applicant”), in respect of the Fact Finding Report of the Commission of Inquiry into the Sponsorship Program and Advertising Activities, dated November 1, 2005, entitled Who is Responsible?
BACKGROUND
[2] The Commission of Inquiry into the Sponsorship Program and Advertising Activities (the “Commission”) was created by Order in Council P.C. 2004-0110 on February 19, 2004, pursuant to Part I of the Inquiries Act, R.S.C. 1985, c. I-11. The Order in Council appointed the Honourable Mr. Justice John Howard Gomery (as he then was) as Commissioner and set the Terms of Reference. The Commissioner was given a double mandate to investigate and report on the sponsorship program and advertising activities of the Government of Canada and to make recommendations based on his factual findings to prevent mismanagement of sponsorship programs or advertising activities in the future.
[3] The Commission was established as a result of questions raised in Chapters 3 and 4 of the Auditor General of Canada’s November 2003 Report (the “Auditor General’s Report”), which reported problems with the management of the federal government’s Sponsorship Program, the selection of communications agencies for the government’s advertising activities, contract management, and the measuring and reporting of value-for-money. The Auditor General’s Report also noted that there was a lack of transparency in decision-making, a lack of written program guidelines, and a failure to inform Parliament of the Sponsorship Program, including its objectives, expenditures, and the results it achieved.
[4] In compliance with his mandate, the Commissioner was required to submit two reports to the Governor General. In the first report (the “Phase I Report”), the Commissioner was to provide his factual conclusions after completing the hearings of Phase I of his mandate, which was defined as follows:
a. to investigate and report on questions raised, directly or indirectly, by Chapters 3 and 4 of the November 2003 Report of the Auditor General of Canada to the House of Commons with regard to the sponsorship program and advertising activities of the Government of Canada, including
i. the creation of the sponsorship program,
ii. the selection of communications and advertising agencies,
iii. the management of the sponsorship program and advertising activities by government officials at all levels,
iv. the receipt and use of any funds or commissions disbursed in connection with the sponsorship program and advertising activities by any person or organization, and
v. any other circumstance directly related to the sponsorship program and advertising activities that the Commissioner considers relevant to fulfilling his mandate […]
[5] The second report was to be prepared in the context of Phase II of the mandate and was aimed at presenting the Commissioner’s recommendations. This second Phase was defined as follows:
[6] Although the Commissioner was given a broad mandate, the Terms of Reference made the express limitation that the Commissioner was “to perform his duties without expressing any conclusions or recommendation regarding the civil or criminal liability of any person or organization and to ensure that the conduct of the inquiry does not jeopardize any ongoing criminal investigation or criminal proceedings” (paragraph (k), Order in Council, supra).
b. to make any recommendations that he considers advisable, based on the factual findings made under paragraph (a), to prevent mismanagement of sponsorship programs or advertising activities in the future, taking into account the initiatives announced by the Government of Canada on February 10, 2004, namely,
i. the introduction of legislation to protect “whistleblowers”, relying in part on the report of the Working Group on the Disclosure of Wrongdoing,
ii. the introduction of changes to the governance of Crown corporations that fall under Part X of the Financial Administration Act to ensure that audit committees are strengthened,
iii. an examination of
A. the possible extension of the Access to Information Act to all Crown corporations,
B. the adequacy of the current accountability framework with respect to Crown corporations, and
C. the consistent application of the provisions of the Financial Administration Act to all Crown corporations,
iv. a report on proposed changes to the Financial Administration Act in order to enhance compliance and enforcement, including the capacity to
A. recover lost funds, and
B. examine whether sanctions should apply to former public servants, Crown corporation employees and public office holders, and
v. a report on the respective responsibilities and accountabilities of Ministers and public servants as recommended by the Auditor General of Canada, […]
[7] To assist him in completing this mandate, the Commissioner had the support of administrative staff and legal counsel. Me Bernard Roy, Q.C., was appointed as lead Commission counsel. Mr. François Perreault acted as the Commission’s communications advisor and was responsible for media relations.
[8] The public hearings were held from September 7, 2004 until June 17, 2005, during which time 172 witnesses were heard. The hearings were completed in two phases. The Phase I hearings took place from September 2004 to February 2005. The Phase II hearings were held from February to May 2005. The Phase I and II Reports were submitted to the Governor General and made public on November 1, 2005 and February 1, 2006, respectively. As explained in my reasons below, the scope of this judicial review is limited to the Phase I Report and does not include the Commission’s Phase II Report.
The Sponsorship Program
[9] Before turning to the issues raised in this application, it is necessary to provide some details regarding the origins of the Sponsorship Program and advertising activities, which were the focus of the Commission’s investigation and Report.
[10] In 1993, the Liberal Party of Canada, led by the Right Honourable Jean Chrétien, won a majority of seats in the House of Commons. The official Opposition party at the time was the Bloc Québécois. The following year, the Parti Québécois, led by the Honourable Jacques Parizeau, came to power in Québec and soon announced that a provincial referendum would be held in October 1995 to decide whether or not Québec should separate from Canada. The “No” side won by a very slim majority. As a result, Québec would not attempt to secede from Canada but would remain part of the Canadian federation. Mr. Parizeau resigned as Premier and was replaced by the Honourable Lucien Bouchard, who pledged to hold another referendum when “winning conditions” were present.
[11] Following the close result of the Referendum and with this pledge from Mr. Bouchard, a Cabinet committee, chaired by the Honourable Marcel Massé (Minister of Intergovernmental Affairs at the time), was appointed to make recommendations on national unity. Based on the recommendations in the Cabinet committee’s report, the Government of Canada, after holding a meeting of Cabinet on February 1 and 2, 1996, decided it would undertake special measures to counteract the sovereignty movement in Québec. These special measures became known as the “national unity strategy” or “national unity file.” As stated by Mr. Chrétien in his opening statement before the Commission, national unity was his number one priority as Prime Minister. As a result, he placed his Chief of Staff, the Applicant, in charge of the national unity file in his office.
[12] The national unity strategy sought to increase federal visibility and presence throughout Canada, but particularly in Québec. This was to be accomplished in many ways, one of which was to prominently, systematically and repeatedly advertise federal programs and initiatives through a Sponsorship Program. Sponsorships were arrangements in which the Government of Canada provided organizations with financial resources to support cultural, community, and sporting events. In exchange, the organizations would provide visibility through promotional material and by displaying symbols such as the Canadian flag or the Canada wordmark. According to the Auditor General’s Report, from 1997 until March 31, 2003, the Government of Canada spent approximately $250 million to sponsor 1,987 events.
[13] Responsibility for administering the Sponsorship Program was given to Advertising and Public Opinion Research Sector (APORS), a sector of the Department of Public Works and Government Services Canada (PWGSC) which later became the Communication Coordination Service Branch (CCSB) with the merger of APORS and other PWGSC sectors in October 1997. Mr. Joseph Charles Guité was Director of APORS from 1993 to 1997 and Executive Director of CCSB from 1997 until his retirement in 1999.
[14] APORS (and later CCSB) did not have the personnel, training or expertise necessary to manage and administer the sponsorships. As a result, contracts were awarded to advertising and communication agencies to complete these tasks and, in exchange for these services, the agencies received remuneration in the form of commissions and production costs. Over $100 million of the total expenditures of the Sponsorship Program was paid to communications agencies in the form of production fees and commissions.
[15] In March 2002, the Minister of PWGSC, then the Honourable Don Boudria, asked the Office of the Auditor General to audit the government’s handling of three contracts totalling $1.6 million awarded to Groupaction Marketing, a communications agency based in Montréal. Findings of shortcomings in the contract management process led to an RCMP investigation and the initiation of a government-wide audit of the Sponsorship Program and the public opinion research and advertising activities of the Government of Canada. The results of this audit were released in the Auditor General’s November 2003 Report, which in turn led to the creation of the Commission and the Report at issue in this application.
INTERLOCUTORY MOTIONS
[16] The parties to this application brought two interlocutory motions relating to these proceedings. My decisions on these motions are set out below.
1. Motion by the Attorney General of Canada to quash paragraphs from the Applicant’s affidavit
[17] This first motion presented by the Attorney General of Canada is to quash paragraphs and expurgate exhibits from the affidavit sworn by the Applicant on May 29, 2007 in support of his application for judicial review.
[18] At the hearing on this matter, the Attorney General submitted that he no longer objected to paragraphs 18, 19 and 23 and to corresponding exhibits 5 to 12 and 15 of the affidavit. These paragraphs and exhibits deal with interviews that Commissioner Gomery gave to the media in December 2004. Since Commissioner Gomery acknowledged to have granted these interviews and admitted to the truth of what was stated in quotation marks, the paragraphs and exhibits in question can remain in the Applicant’s affidavit.
[19] However, the Attorney General seeks to have removed from the Applicant’s affidavit paragraphs 11 to 14 and corresponding exhibits 2 to 4 of the affidavit, which make allegations pertaining to Me Bernard Roy as the Commission’s lead counsel. These documents are included in the Applicant’s affidavit in support of his allegation that Commissioner Gomery has shown a reasonable apprehension of bias towards him. Me Roy was Principal Secretary to former Prime Minister the Right Honourable Brian Mulroney from 1984 to 1988. Me Roy is now a partner in the same law firm as Me Sally Gomery (the Commissioner’s daughter) and Mr. Mulroney.
[20] The Attorney General submits that these allegations, and therefore the documents that support them and that are sought to be introduced by exhibits 2 to 4, are irrelevant to the application for judicial review of Commissioner Gomery’s Phase I Report. The Applicant insists that I should be extremely careful in my assessment of what is relevant or irrelevant to the present case. He submits that the relevance of evidence is determined by the grounds in support of the application for judicial review (Canada (Human Rights Commission) v. Pathak, [1995] 2 F.C. 455 (F.C.A.) [hereinafter Pathak]).
[21] I agree with the Attorney General that paragraphs 11 to 14 and corresponding exhibits 2 to 4 are irrelevant to the issue of whether Commissioner Gomery has shown a reasonable apprehension of bias towards the Applicant. The professional career and the political allegiances of Me Roy are of no use in the analysis of Commissioner Gomery’s conduct. I acknowledge that pursuant to the decision in Pathak, above, the relevance of the evidence is a function of the grounds in support of the application for judicial review. Paragraph 10 of Pathak reads as follows:
A document is relevant to an application for judicial review if it may affect the decision that the Court will make on the application. As the decision of the Court will deal only with the grounds of review invoked by the respondent, the relevance of the documents requested must necessarily be determined in relation to the grounds of review set forth in the originating notice of motion and the affidavit filed by the respondent.
[22] The Applicant submits that if I were to quash some evidence as being irrelevant at this stage, such as the documents regarding Me Roy, my decision would have the effect of striking one of the grounds in support of his application for judicial review, since the ground in question is based on the evidence, the relevance of which I must now determine. In other words, in the Applicant’s opinion, if I quash some portions of the evidence now, I deprive him at the same time of a ground of review.
[23] I am fully aware that in the course of the present interlocutory application, I must avoid deciding on the merits of the application for judicial review. However, I do not think that assessing the relevance of the evidence at this stage amounts to deciding the soundness of the grounds in support of the application. That is not the way I read and interpret the Pathak decision. In that case, the Court of Appeal stated “the relevance of the documents requested must necessarily be determined in relation to the grounds of review (in French: “la pertinence des documents demandés doit nécessairement être établie en fonction des motifs de contrôle”) [my emphasis]. I understand from this passage that I have the discretion to “determine” or “establish” what is relevant from what is not. My task is to proceed with the assessment of the relevance of the evidence by relying on the grounds of review set forth in the notice of application. I do not think that, in Pathak, the Court of Appeal wanted to suggest that all the evidence relating more or less to the grounds of review must automatically be considered as relevant. My role consists precisely in filtering, “determining” or “establishing,” what is relevant from what is not.
[24] For this reason and by virtue of the discretion that is conferred upon me, paragraphs 11 to 14 are quashed and corresponding exhibits 2 to 4 are expurgated from the Applicant’s affidavit. However, at this point, for the sake of efficiency and practicality, I do not require that the affidavit be in fact modified. I shall simply not take into consideration this portion of the evidence in the course of my analysis of the application on the merits.
[25] The Attorney General further seeks to have removed paragraphs 40 to 42 and corresponding exhibits 36 to 43 of the affidavit, which all pertain to the media coverage surrounding the Commissioner and the publication of his Phase I Report. These documents and newspaper articles are included in the Applicant’s affidavit in support of his allegation that his reputation has been damaged by the Commissioner’s findings and by the statements the Commissioner made to the media. The Attorney General alleges that the newspaper articles that mention the Applicant’s name in relation to the Commission constitute hearsay in that they reflect only the opinions of the journalists who wrote them. Furthermore, it is impossible to cross-examine these journalists. The Attorney General does not deny that Commissioner Gomery has made declarations to journalists; however, evidence of these declarations cannot be established by relying on the journalists’ opinions.
[26] I agree with the Attorney General that the newspapers articles that allude to the Applicant in relation to the Commission constitute hearsay in that they merely represent the opinions of the journalists who wrote them. As we will see below in the course of the application presented by the Applicant based on Rule 312 of the Federal Courts Rules, only a limited number of newspaper articles will be admissible in evidence for the limited purpose of providing the context for some statements in quotation marks that Commissioner Gomery acknowledged as having been made by him. That is not the case of the newspaper articles we are dealing with here. For this reason, paragraphs 40 to 42 are quashed and corresponding exhibits 36 to 43 are expurgated from the Applicant’s affidavit. Here again, I do not require that the affidavit be in fact modified. I shall simply not take into consideration this portion of the evidence in the course of my analysis of the application on the merits.
[27] The Attorney General also seeks to have removed exhibits 13, 16, 17 and 22 of the affidavit, which consist of transcripts of public hearings of the Commission. The Attorney General submits that these exhibits already form part of the evidence filed in electronic form.
[28] Exhibits 13, 16, 17 and 22 do indeed already form part of the record filed electronically. Since there is an Order rendered by Mr. Justice Simon Noël that states that the evidence filed electronically by the Attorney General is automatically part of the Applicant’s record, I must require that these exhibits be expurgated from the Applicant’s affidavit. Here again, I do not require that the affidavit be in fact modified.
[29] The Attorney General further seeks to have removed paragraphs 32 to 39, and the corresponding exhibits 23 to 35 of the affidavit, which all relate to Phase II of the Commission’s mandate, and more particularly to the Phase II Report entitled Restoring Accountability – Recommendations. The Attorney General asserts that everything that relates to the Commission’s Phase II mandate is irrelevant to the application for judicial review of the Phase I Report.
[30] I agree with the Attorney General that any allusion or reference to the Phase II mandate of the Commission is irrelevant to the present application for judicial review. I apply the same reasoning as that used above as to what constitutes relevance (see Pathak, above). For this reason, paragraphs 32 to 39 are quashed and the corresponding exhibits 23 to 35 are expurgated from the Applicant’s affidavit. Here again, I do not require that the affidavit be in fact modified. I shall simply not take into consideration this portion of the evidence in the course of my analysis of the application on the merits.
[31] Next, the Attorney General seeks to have removed paragraphs 43 to 46 and corresponding exhibits 44 and 45 of the affidavit, which deal with Mr. François Perreault’s book entitled Inside Gomery. These documents are included in the Applicant’s affidavit in support of his allegation that Commissioner Gomery has shown a reasonable apprehension of bias towards him. The Applicant believes that Mr. Perreault’s book should be admitted into evidence because in the foreword written by him, Commissioner Gomery recognizes the accuracy of Mr. Perreault’s “chronicle of the inner workings of the commission.” On the other hand, the Attorney General insists that this statement by Commissioner Gomery should not be perceived as an admission that the entirety of the book is accurate. In the Attorney General’s opinion, Mr. Perreault’s book constitutes hearsay.
[32] I agree with the Applicant that Commissioner Gomery’s statement in his foreword to the effect that the inner workings of the Commission, as chronicled by Mr. Perreault, are accurate, strongly suggests that he in fact attests to the accuracy of the entire book. I assume Commissioner Gomery read Mr. Perreault’s book before agreeing to author its foreword, and that if there was a passage of the book that struck him as inaccurate, he would have suggested to Mr. Perreault to modify the passage, or at the very least, that he would have distanced himself from the book by not using the term “accurate” in reference to the manner Mr. Perreault chronicled the inner workings of the Commission. For this reason, Mr. Perreault’s book is admissible, and paragraphs 43 to 46 and corresponding exhibits 44 and 45 can remain in the Applicant’s affidavit.
2. Motion by the Applicant pursuant to Rule 312 of the Federal Courts Rules
[33] The Applicant filed a motion for leave to file the supplemental affidavit of Ms. Patricia Prud’homme, sworn on November 9, 2007, pursuant to Rule 312. This affidavit introduces additional evidence that consists of newspaper articles and transcripts of interviews granted by Commissioner Gomery when he retired from the Superior Court of Québec in August 2007. In the course of these interviews, Commissioner Gomery made some comments that the Applicant considers relevant to his application for judicial review.
[34] However, relevance of the documents sought to be adduced is not the only condition that has to be met in order to file a supplemental affidavit. Other conditions are: 1) the evidence must serve the interests of justice; 2) it must assist the Court; 3) it must not cause substantial or serious prejudice to the other side; and 4) the evidence must not have been available prior to the cross-examination of the opponent’s affidavits (Atlantic Engraving Ltd v. Rosenstein, 2002 FCA 503 at paras. 8-9).
[35] I agree with the Applicant that all these conditions have been satisfied in the present case. The motion for leave to file Ms. Prud’homme’s supplemental affidavit pursuant to Rule 312 is therefore granted. The evidence introduced by that affidavit is henceforth part of the record.
ISSUES ON JUDICIAL REVIEW APPLICATION
[36] Taking into account the submissions of the parties, the issues in this application may be framed as follows:
What content of procedural fairness was owed to persons appearing before the Commission?
What are the applicable standards of review?
Did the Commissioner breach the duty of procedural fairness?
Was there a reasonable apprehension of bias on the part of the Commissioner toward the Applicant? Was the Applicant given adequate notice pursuant to section 13 of the Inquiries Act? Did the Commissioner err by making findings not supported by some evidence on the record? Was the Commissioner’s act of allowing Commission counsel to provide him with summaries of the evidence a breach of the duty of fairness?
ANALYSIS
Issue 1: The Content of Procedural Fairness owed to persons appearing before the Commission
[37] Procedural fairness is a basic tenant of our legal system. It requires that public decision-makers act fairly in coming to decisions that affect the rights, privileges or interests of an individual. There is no exception of the application of this principle for commissions of inquiry. As stated by Justice Cory in Canada (Attorney General) v. Canada (Commission of Inquiry on the Blood System), [1997] 3 S.C.R. 440, at paras. 30-31 [hereinafter Krever]:
Undoubtedly, the ability of an inquiry to investigate, educate and inform Canadians benefits our society. A public inquiry before an impartial and independent commissioner which investigates the cause of tragedy and makes recommendations for change can help to prevent a recurrence of such tragedies in the future, and to restore public confidence in the industry or process being reviewed.
The inquiry's roles of investigation and education of the public are of great importance. Yet those roles should not be fulfilled at the expense of the denial of the rights of those being investigated. The need for the careful balancing was recognized by Décary J.A. [in the Court of Appeal’s decision in the same case] when he stated at para. 32 "[t]he search for truth does not excuse the violation of the rights of the individuals being investigated". This means that no matter how important the work of an inquiry may be, it cannot be achieved at the expense of the fundamental right of each citizen to be treated fairly.
[38] The content of the duty of fairness is variable and flexible. The requirements of procedural fairness will depend on the nature and function of the administrative board (see generally Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653 [hereinafter Knight]; Baker v. Minister of Citizenship and Immigration, [1999] 2 S.C.R. 817 [hereinafter Baker]; Moreau-Bérubé v. New Brunswick (Judicial Council), [2002] 1 S.C.R. 249, 2002 SCC 11, at paras. 74-75; Dunsmuir v. New Brunswick, 2008 SCC 9 at para. 79 [hereinafter Dunsmuir]).
[39] In Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), [1995] 2 S.C.R. 97 [hereinafter Westray], Justice Cory noted the following about the function of public inquiries in Canada:
Commissions of inquiry have a long history in Canada. This Court has already noted (Starr v. Houlden, supra, at pp. 1410-11) the significant role that they have played in our country, and the diverse functions which they serve. As ad hoc bodies, commissions of inquiry are free of many of the institutional impediments which at times constrain the operation of the various branches of government. They are created as needed, although it is an unfortunate reality that their establishment is often prompted by tragedies such as industrial disasters, plane crashes, unexplained infant deaths, allegations of widespread child sexual abuse, or grave miscarriages of justice.
[…]
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. In following their mandates, commissions of inquiry are, ideally, free from partisan loyalties and better able than Parliament or the legislatures to take a long-term view of the problem presented. Cynics decry public inquiries as a means used by the government to postpone acting in circumstances which often call for speedy action. Yet, these inquiries can and do fulfil an important function in Canadian society. In times of public questioning, stress and concern they provide the means for Canadians to be apprised of the conditions pertaining to a worrisome community problem and to be a part of the recommendations that are aimed at resolving the problem. Both the status and high public respect for the commissioner and the open and public nature of the hearing help to restore public confidence not only in the institution or situation investigated but also in the process of government as a whole. They are an excellent means of informing and educating concerned members of the public: Westray, supra, at paras. 60, 62.
[40] With respect to the nature of public inquiries, Justice Cory set out the following basic principles in Krever, supra, at paragraph 57:
(a) (i) a commission of inquiry is not a court or tribunal, and has no authority to determine legal liability;
(ii) a commission of inquiry does not necessarily follow the same laws of evidence or procedure that a court or tribunal would observe.
(iii) It follows from (i) and (ii) above that a commissioner should endeavour to avoid setting out conclusions that are couched in the specific language of criminal culpability or civil liability. Otherwise the public perception may be that specific findings of criminal or civil liability have been made.
(b) a commissioner has the power to make all relevant findings of fact necessary to explain or support the recommendations, even if these findings reflect adversely upon individuals;
(c) a commissioner may make findings of misconduct based on the factual findings, provided that they are necessary to fulfill the purpose of the inquiry as it is described in the terms of reference;
(d) a commissioner may make a finding that there has been a failure to comply with a certain standard of conduct, so long as it is clear that the standard is not a legally binding one such that the finding amounts to a conclusion of law pertaining to criminal or civil liability;
(e) a commissioner must ensure that there is procedural fairness in the conduct of the inquiry.
[41] In Baker, the Supreme Court of Canada identified five non-exhaustive factors that are to be considered when determining the content of the duty of fairness. They are: (i) the nature of the decision and the decision-making process; (ii) the statutory scheme; (iii) the importance of the decision to the individuals affected; (iv) the legitimate expectations of the parties; and (v) the choices of procedure made by the decision-making body. Justice L’Heureux-Dubé in Baker stressed that:
[…] underlying all these factors is the notion that the purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker: Baker, supra, at para. 22.
[42] The Applicant argues that these factors indicate that a high duty of procedural fairness was owed to parties appearing before the Commission. The Attorney General submits that the duty of procedural fairness imposed on commissions of inquiry is more limited than that put forward by the Applicant. The Attorney General does not dispute that the content of the duty of fairness is variable, but suggests that the content of the duty of fairness is to be decided using the following three factors established in Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643 and applied in Knight, supra: (i) the nature of the decision to be made by the administrative body in question; (ii) the relationship between that body and the individual, and; (iii) the effect of that decision on the individual’s rights. However, in my reading of Knight, these factors do not apply when determining the content of the duty of fairness; instead, their proper application is in the context of determining whether or not a general duty to act fairly exists at all. Whether a duty to act fairly exists is not at issue here and the jurisprudence is clear that procedural fairness is essential in commissions of inquiry (see Krever, supra, at para. 55). Thus, the content of fairness in the present case shall be determined using the five non-exhaustive factors set out in Baker.
(i) The nature of the decision and the decision-making process
[43] In Knight, the Supreme Court held that “the closeness of the administrative process to the judicial process should indicate how much of those governing principles should be imported into the realm of administrative decision making” (Knight, supra, at p. 683). In Baker, the Supreme Court added “[t]he more the process provided for, the function of the tribunal, the nature of the decision-making body, and the determinations that must be made to reach a decision resemble judicial decision making, the more likely it is that procedural protections closer to the trial model will be required by the duty of fairness” (Baker, supra, at p. 838).
[44] Some of the rules and procedures adopted by the Commission are similar to the procedures found in the judicial process. For example, there existed the right to discovery of relevant documents, witnesses gave their evidence under oath or affirmation, proceedings could be held in camera at the discretion of the Commission (despite this being a public inquiry), parties had the right to be represented by counsel, the right to give evidence and to call and question witnesses, and the opportunity to cross-examine witnesses. Parties were also entitled to bring procedural motions, to have those motions argued and decided upon by the Commissioner, and to make final submissions, both written and oral. Further, pursuant to the Inquiries Act, the Commissioner had the power to summons witnesses and to compel witnesses to give evidence and produce documents.
[45] Despite these similarities, however, commissions of inquiry are not synonymous to trials. In Beno v. Canada (Commissioner and Chairperson, Commission of Inquiry into the Deployment of Canadian Forces to Somalia), [1997] 2 F.C. 527 (F.C.A.) [hereinafter Beno (FCA)], the Federal Court of Appeal held that Mr. Justice Campbell had erred in his decision at the trial level when he characterized the Commission as “trial-like” (see Brigadier-General Ernest B. Beno v. The Honourable Gilles Létourneau, [1997] 1 F.C. 911 at para. 74 (F.C.T.D.) per Campbell J. [hereinafter Beno (TD)]). The Federal Court of Appeal stated at paragraph 23:
It is clear from his reasons for judgment that the Judge of first instance assimilated commissioners to judges. Both, in his view, exercise “trial like functions.” That is clearly wrong. A public inquiry is not equivalent to a civil or criminal trial (see Canada (Attorney General) v. Canada (Commissioner of the Inquiry on the Blood System), [1997] 2 F.C. 36 (C.A.), at paragraphs 36, 73 [hereinafter Krever]; Greyeyes v. British Columbia (1993), 78 B.C.L.R. (2d) 80 (S.C.), at page 88; Di Iorio et al. v. Warden of the Montreal Jail, [1978] 1 S.C.R. 152, at page 201; Bortolotti v. Ontario (Ministry of Housing) (1977), 15 O.R. (2d) 617 (C.A.), at pages 623-624; Shulman, Re, [1967] 2 O.R. 375 (C.A.), at page 378)). In a trial, the judge sits as an adjudicator, and it is the responsibility of the parties alone to present the evidence. In an inquiry, the commissioners are endowed with wide-ranging investigative powers to fulfil their investigative mandate (Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), [1995] 2 S.C.R. 97, at page 138). The rules of evidence and procedure are therefore considerably less strict for an inquiry than for a court. Judges determine rights as between parties; the Commission can only “inquire” and “report” (see Irvine v. Canada (Restrictive Trade Practices Commission), [1987] 1 S.C.R. 181, at page 231; Greyeyes, supra, at page 88). Judges may impose monetary or penal sanctions; the only potential consequence of an adverse finding by the Somalia Inquiry is that reputations could be tarnished (see Westray, supra, at page 163, per Cory J.; Krever, supra at paragraph 29; Greyeyes, supra, at page 87).
Thus, unlike trials, commissions of inquiry are inquisitorial in nature rather than adversarial.
[46] There are also significant differences in the nature of the decisions. As held in Krever, the findings of a Commissioner “are simply findings of fact and statements of opinion” that carry “no legal consequences…They are not enforceable and do not bind courts considering the same subject matter” (Krever, supra, at para. 34). Further, as noted above, section (k) of the Order in Council provided that the Commissioner was to perform his duties “without expressing any conclusion or recommendation regarding the civil or criminal liability of any person or organization.” Thus, the nature of the Commission’s report and recommendations are vastly different than judicial decisions.
[47] Although there are similarities in procedure, the role played by Commissioners is distinct from the role of a judge presiding over a trial. The nature of a Commission’s report and recommendations are also vastly different than judicial decisions. This suggests that a lower content of procedural fairness is required.
(ii) The nature of the statutory scheme and the precise statutory provisions
[48] The Commission was created by an Order in Council pursuant to section 2 of the Inquiries Act, which provides that the Governor in Council may “cause inquiry into and concerning any matter connected with the good government of Canada or the conduct of any part of the public business thereof.”
[49] The Inquiries Act also contains fairness guarantees in sections 12 and 13. Section 12 provides that persons whose conduct is under investigation may be represented by counsel. Section 13 provides that notice must be given to persons against who there are allegations of misconduct.
[50] The finality of the decision also affects the content of procedural fairness. In Baker, the Court held that greater procedural protections will be required when no appeal procedure is provided within the statute, or when the decision is determinative of the issue and further requests cannot be submitted (Baker, supra, at p. 838). The Order in Council and the Inquiries Act are silent on the availability of an appeal. This suggests that, with the exception of challenging findings on judicial review, the Commission’s findings are final. Further, the objective of such a commission of inquiry is to produce a fact-finding report that sheds light on the matter or conduct it was created to investigate. After conducting the inquiry, the commission is expected to produce a report and recommendations based on its factual findings. Thus, the report is determinative of the issue insofar as it relates to the public inquiry, recognizing of course that the report is not determinative of any other proceedings and hearings. On the other hand, the Inquiry also seems preliminary in nature in that no rights or interests are determined and the result of the Inquiry is simply findings of fact and recommendations. However, since the report is determinative of the Inquiry, I am satisfied that the second factor in this analysis also suggests that a high degree of fairness is owed.
(iii) The importance of the decision to the individuals affected
[51] The more important the decision is to the lives of those affected and the greater its impact, the greater the procedural protections to be provided (Baker, supra, at pp. 838-839). In Krever, the Supreme Court recognized that findings of commissions of inquiry may damage the reputation of witnesses and that, “[f]or most, a good reputation is their most highly prized attribute” (Krever, supra, at para. 55). “It is therefore essential,” stated the Court in Krever, “that procedural fairness be demonstrated in the hearings of a commission” (ibid.). In the present case, the Commissioner, himself, recognized the potential for evidence emerging throughout the inquiry that “might be perceived as adverse or unfavourable to persons’ reputations” and stated that it was “of paramount importance that the Inquiry’s process be scrupulously fair” (Phase I Report, Appendix C: Opening Statement at p. 524-525).
[52] This is not to say, however, that the content of fairness is necessarily more stringent where there is a risk that one’s