Wewaykum Indian Band v. Canada

Wewaykum Indian Band v. Canada
Collection
Supreme Court Judgments
Date
2003-09-26
Neutral citation
2003 SCC 45
Report
[2003] 2 SCR 259
Case number
27641
Judges
McLachlin, Beverley; Gonthier, Charles Doherty; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Arbour, Louise; LeBel, Louis; Deschamps, Marie
On appeal from
Canada
Subjects
Courts
Notes
SCC Case Information: 27641
Decision Content
Wewaykum Indian Band v. Canada, [2003] 2 S.C.R. 259, 2003 SCC 45
Roy Anthony Roberts, C. Aubrey Roberts and John Henderson,
suing on their own behalf and on behalf of all other members of the
Wewaykum Indian Band (also known as the Campbell
River Indian Band) Appellants
v.
Her Majesty The Queen Respondent
and
Ralph Dick, Daniel Billy, Elmer Dick, Stephen Assu and
James D. Wilson, suing on their own behalf and on behalf
of all other members of the Wewaikai Indian Band
(also known as the Cape Mudge Indian Band) Respondents/Appellants
and between
Ralph Dick, Daniel Billy, Elmer Dick, Stephen Assu, Godfrey
Price, Allen Chickite and Lloyd Chickite, suing on their own behalf
and on behalf of all other members of the Wewaikai Indian Band
(also known as the Cape Mudge Indian Band) Appellants
v.
Her Majesty The Queen Respondent
and
Attorney General of Ontario, Attorney General of
British Columbia, Gitanmaax Indian Band, Kispiox
Indian Band and Glen Vowell Indian Band Interveners
Indexed as: Wewaykum Indian Band v. Canada
Neutral citation: 2003 SCC 45.
File No.: 27641.
2003: June 23; 2003: September 26.
Present: McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache, Arbour, LeBel and Deschamps JJ.
motion for directions
motions to vacate a judgment
Courts — Judges — Impartiality — Reasonable apprehension of bias — Supreme Court judgment dismissing Indian bands’ appeals — Indian bands presenting motions to set aside judgment alleging reasonable apprehension of bias arising from involvement of judge in bands’ claims while serving as federal Associate Deputy Minister of Justice over 15 years prior to hearing of appeals — Whether judgment tainted by reasonable apprehension of bias — Whether judgment should be set aside.
In 1985 and 1989 respectively, the Campbell River Band and the Cape Mudge Band instituted legal proceedings against each other and the Crown, each band claiming exclusive entitlement to two reserves on Vancouver Island. In 1995, the Federal Court, Trial Division dismissed the actions and the Federal Court of Appeal upheld the decision. In December 2002, in reasons written by Binnie J. and concurred in unanimously, this Court dismissed the bands’ appeals. In February 2003, the Campbell River Band made an access to information request to the federal Department of Justice seeking copies of all records to, from or which make reference to Mr. Binnie concerning the bands’ claims against the Crown Mr. Binnie, when he was Associate Deputy Minister of Justice in 1982‑1986, had been responsible for all litigation, except tax matters and cases in Quebec, involving the Government of Canada and had supervisory authority over thousands of cases. The Department of Justice found a number of internal memoranda which indicate that, in late 1985 and early 1986, Mr. Binnie had received some information concerning the Campbell River Band’s claim and that he had attended a meeting where the claim was discussed. The Crown filed a motion in this Court seeking directions as to any steps to be taken. Binnie J. recused himself from any further proceedings in this matter and filed a statement setting out that he had no recollection of personal involvement in the case. The bands sought an order setting aside this Court’s judgment. Both bands agree that actual bias is not at issue and accept Binnie J.’s statement that he had no recollection of personal involvement in the case. However, they allege that Binnie J.’s involvement as federal Associate Deputy Minister of Justice in the early stages of the Campbell River Band’s claim in 1985 and 1986 gives rise to a reasonable apprehension of bias.
Held: The motion for directions and the motions to vacate a judgment should be dismissed. In the circumstances of this case, no reasonable apprehension of bias is established and hence Binnie J. was not disqualified from hearing the appeals or participating in the judgment.
Public confidence in our legal system is rooted in the fundamental belief that those who adjudicate in law must always do so without bias or prejudice and must be perceived to do so. A judge’s impartiality is presumed and a party arguing for disqualification must establish that the circumstances justify a finding that the judge must be disqualified. The criterion of disqualification is the reasonable apprehension of bias. The question is what would an informed, reasonable and right‑minded person, viewing the matter realistically and practically, and having thought the matter through, conclude. Would he think that it is more likely than not that the judge, whether consciously or unconsciously, would not decide fairly?
It is necessary to clarify the relationship of this objective standard to two other factors: the subjective consideration of actual bias and the notion of automatic disqualification. Most arguments for disqualification are not based on actual bias. When parties say that there was no actual bias on the part of a judge, it can mean one of three things: (1) that reasonable apprehension is a surrogate for actual bias; (2) that unconscious bias can exist even where the judge acted in good faith; and (3) that looking for real bias is simply not the relevant inquiry since justice should not only be done but must be seen to be done. This third justification for the objective standard of reasonable apprehension of bias envisions the possibility that a judge may be totally impartial in circumstances which nevertheless create a reasonable apprehension of bias, requiring his disqualification. The idea that “justice must be seen to be done” cannot be severed from the standard of reasonable apprehension of bias. The relevant inquiry is not whether there was in fact either conscious or unconscious bias on the part of the judge, but whether a reasonable person properly informed would apprehend that there was. With respect to the notion of automatic disqualification, recent English case law suggests that automatic disqualification is justified in cases where a judge has an interest in the outcome of a proceeding. This case law is not helpful here because automatic disqualification does not extend to judges somehow involved in the litigation or linked to counsel at an earlier stage. In Canada, proof of actual bias or a reasonable apprehension of bias is required. In any event, on the facts of this case, there is no suggestion that Binnie J. had any financial interest in the appeals, or had such an interest in the subject matter of the case that he was effectively in the position of a party to the cause.
In this case, disqualification can only be based on a reasonable apprehension of bias. In light of the strong presumption of judicial impartiality, the standard refers to an apprehension based on serious grounds. Each case must be examined contextually and the inquiry is fact‑specific. Where, as here, the issue of bias arises after judgment has been rendered, it is not helpful to determine whether the judge would have recused himself had the matter come to light earlier. Although the standard remains the same, an abundance of caution guides many, if not most judges, at this early stage, and judges often recuse themselves where it is not legally necessary. Lastly, this Court’s dictum that judges should not preside over a case in which they played a part at any stage is but an illustration of the general principle. It does not suggest that any degree of earlier participation in a case is cause for automatic disqualification, but rather suggests that a reasonable and right‑minded person would likely view unfavourably the fact that the judge acted as counsel in a case over which he is presiding, and could take this fact as the foundation of a reasonable apprehension of bias.
Here, neither Binnie J.’s past status as Associate Deputy Minister nor his long‑standing interest in matters involving First Nations is by itself sufficient to justify his disqualification. The source of concern for the bands is Binnie J.’s involvement in this case in the mid‑1980s. The documentary record, however, does not support a reasonable apprehension of bias. Binnie J.’s involvement in the dispute was confined to a limited supervisory and administrative role. While his link to this litigation exceeded pro forma management of the files, he was never counsel of record and played no active role after the claim was filed, nor did he plan litigation strategy. Any views attributed to Binnie J. earlier on were offered in the context of wider implications of the negotiation process, and not in the context of litigation. Furthermore, in his capacity of Associate Deputy Minister, he was responsible for thousands of files at the relevant time and the matter on which he was involved in this file was not unique to this case but was an issue of general application to existing reserves in British Columbia. More importantly, Binnie J.’s supervisory role dates back over 15 years. This lengthy period is significant in relation to Binnie J.’s statement that he had no recollection of his involvement because it is a factor that a reasonable person would properly consider, and it makes bias or its apprehension improbable. Nor would a reasonable person, viewing the matter realistically, conclude that Binnie J.’s ability to remain impartial was unconsciously affected by a limited administrative and supervisory role dating back over 15 years.
Even if the involvement of a single judge had given rise to a reasonable apprehension of bias in this case, no reasonable person informed of the decision‑making process of this Court and viewing it realistically could conclude that the eight other judges who heard the appeals were biased or tainted.
Cases Cited
Applied: Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369; distinguished: R. v. Bow Street Metropolitan Stipendiary Magistrate, Ex parte Pinochet Ugarte (No. 2), [1999] 2 W.L.R. 272; referred to: Guerin v. The Queen, [1984] 2 S.C.R. 335; Valente v. The Queen, [1985] 2 S.C.R. 673; Locabail (U.K.) Ltd. v. Bayfield Properties Ltd., [2000] Q.B. 451; R. v. Bertram, [1989] O.J. No. 2123 (QL); R. v. S. (R.D.), [1997] 3 S.C.R. 484; Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623; R. v. Gough, [1993] A.C. 646; The Queen v. Barnsley Licensing Justices, [1960] 2 Q.B. 167; The King v. Sussex Justices, Ex parte McCarthy, [1924] 1 K.B. 256; Dimes v. Proprietors of the Grand Junction Canal (1852), 3 H.L.C. 759, 10 E.R. 301; Man O’War Station Ltd. v. Auckland City Council (Judgment No. 1), [2002] 3 N.Z.L.R. 577, [2002] UKPC 28; Panton v. Minister of Finance, [2001] 5 L.R.C. 132, [2001] UKPC 33.
Statutes and Regulations Cited
Access to Information Act, R.S.C. 1985, c. A‑1 .
Indian Act, R.S.C. 1985, c. I‑5 .
Rules of the Supreme Court of Canada, SOR/2002‑156, Rule 3.
Authors Cited
Canadian Judicial Council. Ethical Principles for Judges. Ottawa: The Council, 1998.
Wilson, Bertha. “Decision‑making in the Supreme Court” (1986), 36 U.T.L.J. 227.
MOTION FOR DIRECTIONS and MOTIONS TO VACATE a judgment of the Supreme Court of Canada, Wewaykum Indian Band v. Canada, [2002] 4 S.C.R. 245, 2002 SCC 79. Motions dismissed.
Michael P. Carroll, Q.C., and Malcolm Maclean, for the appellants Roy Anthony Roberts et al.
John D. McAlpine, Q.C., and Allan Donovan, for the respondents/appellants Ralph Dick et al.
J. Vincent O’Donnell, Q.C., and Jean Bélanger, for the respondent Her Majesty the Queen.
Written submissions only by Patrick G. Foy, Q.C., and Angus M. Gunn, Jr., for the intervener the Attorney General of British Columbia.
Written submissions only by Peter R. Grant and David Schulze, for the interveners the Gitanmaax Indian Band, the Kispiox Indian Band and the Glen Vowell Indian Band.
The following is the judgment delivered by
The Chief Justice and Gonthier, Iacobucci, Major, Bastarache, Arbour, LeBel and Deschamps JJ. —
I. Introduction
1 The Wewaykum or Campbell River Indian Band (“Campbell River”) and the Wewaikai or Cape Mudge Indian Band (“Cape Mudge”) allege that the unanimous judgment of this Court in Wewaykum Indian Band v. Canada, [2002] 4 S.C.R. 245, 2002 SCC 79, with reasons written by Justice Binnie, is tainted by a reasonable apprehension of bias and should be set aside. The alleged reasonable apprehension of bias is said to arise from Binnie J.’s involvement in this matter in his capacity as federal Associate Deputy Minister of Justice over 15 years prior to the hearing of the bands’ appeals by this Court.
2 An allegation that a judgment may be tainted by bias or by a reasonable apprehension of bias is most serious. That allegation calls into question the impartiality of the Court and its members and raises doubt on the public’s perception of the Court’s ability to render justice according to law. Consequently, the submissions in support of the applicant bands and the other parties have been examined in detail as reflected in the following reasons.
3 After an analysis of the allegations and the record upon which they are based, all of which is attached as an appendix to these reasons, we have concluded that no reasonable apprehension of bias is established and hence that Binnie J. was not disqualified. The involvement of Binnie J. in this dispute was confined to a limited supervisory and administrative role, over 15 years prior to the hearing of the appeals. In his written statement filed as part of the record, Binnie J. has stated that he has no recollection of any involvement in this litigation, and no party disputes that fact. In light of this and for the reasons which follow, we are of the view that a reasonable person could not conclude that Binnie J. was suffering from a conscious or unconscious bias when he heard these appeals, and that, in any event, the unanimous judgment of this Court should not be disturbed. Accordingly, the motions to set aside this Court’s judgment of December 6, 2002, are dismissed.
II. Factual Background
4 The bands have each presented motions to set aside the unanimous judgment of this Court, dated December 6, 2002, with reasons written by Binnie J. The judgment dismissed their appeals from an order of the Federal Court of Appeal. The motions to set aside allege that Binnie J.’s involvement as federal Associate Deputy Minister of Justice in the early stages of Campbell River’s claim in 1985 and 1986 gives rise to a reasonable apprehension of bias by properly informed and right-thinking members of the public. These motions were brought following an application by the Crown in right of Canada for directions and were heard on June 23, 2003. Binnie J. had recused himself from any participation in this process after filing a statement as part of this record indicating that he had no recollection of participating in the litigation process involving these claims while serving in the Department of Justice.
5 Prior to his appointment to the Supreme Court of Canada in 1998, Binnie J. had a long and varied career as a practising lawyer. Called to the Ontario Bar in 1967, Binnie J. practised litigation with Wright & McTaggart and successor firms until 1982. Between 1982 and 1986, and of most relevance to these motions, Binnie J. served as Associate Deputy Minister of Justice for Canada, having joined the federal civil service on a secondment. As Associate Deputy Minister of Justice, Binnie J. was responsible for all litigation involving the government of Canada, except cases originating from the province of Quebec and tax litigation. He also had special responsibilities for aboriginal matters. Upon leaving the Department of Justice on July 31, 1986, Binnie J. joined the firm of McCarthy Tétrault where he remained until his appointment to this Court. Understandably, when Binnie J. left the Department of Justice, the files he worked on, in accordance with usual practice, remained with the Department of Justice. As a result, in the absence of recollection, judges who leave their firms or institutions do not have the ability to examine their previous files in order to verify whether there has been any prior involvement in a matter coming before them.
6 To distinguish between his role as judge and as Associate Deputy Minister, Justice Binnie is referred to in these reasons as Binnie J. and Binnie respectively.
A. The Original Appeals
7 To understand the allegations of reasonable apprehension of bias, it is necessary to examine the factual and procedural background of this case. Campbell River and Cape Mudge are sister bands of the Laich-kwil-tach First Nation. Since the end of the 19th century, members of each band have inhabited two reserves located a few miles from each other on the east coast of Vancouver Island. In particular, members of Campbell River inhabit Reserve No. 11 (Campbell River) and members of Cape Mudge inhabit Reserve No. 12 (Quinsam). In 1985 and 1989 respectively, Campbell River and Cape Mudge instituted legal proceedings against each other and the Crown. In these proceedings, each band claimed exclusive entitlement to both Reserves Nos. 11 and 12.
8 The bands’ claims rely on a historical review of the process that led to the creation of the two reserves. In 1888, Mr. Ashdown Green, a federal government surveyor, recommended the creation of these reserves. In his report, however, he did not allocate the reserves to a particular band but rather to the Laich-kwil-tach Indians. The first Schedule of Indian Reserves, published in 1892 by the Department of Indian Affairs, listed Reserves Nos. 11 and 12 as belonging to Laich-kwil-tach Indians without any indication of how the reserves were to be distributed between the bands of the Laich-kwil-tach Indians. By 1902, the Schedule indicated that both reserves were allocated to the “Wewayakay” (Cape Mudge) Band. The Schedule allocated Reserves Nos. 7 through 12 to Cape Mudge. The name of the Cape Mudge Band (“Wewayakay”) was written in the entry corresponding to Reserve No. 7. Ditto marks were used to reproduce the same reference for entries corresponding to Reserves Nos. 8 through 12.
9 The allocation of Reserve No. 11 to Cape Mudge created difficulties. Cape Mudge was not and had never been in possession of Reserve No. 11. Members of Campbell River had occupied the reserve for several years to the exclusion of Cape Mudge. In 1905, a disagreement between the two bands over fishing rights in the Campbell River led to a dispute over possession of Reserve No. 11. In 1907, this dispute was settled by a resolution in which Cape Mudge ceded to Campbell River any claim to Reserve No. 11, subject to retaining fishing rights in the area. This resulted in the Department of Indian Affairs modifying the 1902 Schedule of Indian Reserves by marking “We-way-akum band” (Campbell River) in the entry corresponding to Reserve No. 11. By inadvertence, the “ditto marks” in the subsequent entry corresponding to Reserve No. 12 were not altered creating the erroneous appearance that Reserve No. 12 was also allocated to Campbell River. However, the alteration of the Schedule was intended to refer only to Reserve No. 11 and there was no intention to make any change to Reserve No. 12.
10 In 1912, the McKenna McBride Commission was established to address continuing disagreements between the federal and provincial governments about the size and number of reserves in British Columbia. The Commission acknowledged that Reserve No. 11 was properly allocated to Campbell River but noted the irregularity that was the source of the confusion with respect to Reserve No. 12. Nevertheless, the Commission made no alteration to the Schedule so that matters remained with Cape Mudge occupying Reserve No. 12 and Campbell River occupying Reserve No. 11 subject to the fishing rights in the waters of the Campbell River given to Cape Mudge.
11 The McKenna McBride Report did not receive approval by the province. Both the provincial and federal governments then established the Ditchburn Clark Commission to resolve the outstanding federal-provincial disagreements. In its 1923 report, the Ditchburn Clark Commission restated the position proposed in the McKenna McBride Report concerning Reserves Nos. 11 and 12. In 1924, both levels of government adopted the McKenna McBride recommendations as modified by the Ditchburn Clark Commission. In 1938, a provincial Order-in-Council was issued transferring administration and control of the reserve lands to the federal Crown.
12 In the 1970s, a dispute between the bands resurfaced. Eventually, in December 1985, Campbell River started an action against the Crown and Cape Mudge in the Federal Court. It claimed that the Crown had acted in breach of its fiduciary duty, had acted negligently, had committed fraud, equitable fraud and deceit, and had breached and continued to breach statutory duties owed to Campbell River. Campbell River further claimed that Cape Mudge had trespassed and continued to trespass on Reserve No. 12. In 1989, Cape Mudge counterclaimed against Campbell River and brought its own claim against the Crown. Cape Mudge claimed that the Crown had breached its fiduciary duty, duty of trust and statutory duties under the Indian Act, R.S.C. 1985, c. I-5 . Each band thus claimed both reserves for itself, but sought compensation from the Crown as relief rather than dispossession of either band from their respective Reserves Nos. 11 and 12.
13 The two joined actions were heard together in the Federal Court, Trial Division by Teitelbaum J. The trial lasted 80 days and the actions were dismissed on September 19, 1995 (99 F.T.R. 1). The bands appealed to the Federal Court of Appeal. By unanimous judgment the appeals were dismissed on October 12, 1999 (247 N.R. 350).
14 The bands applied for and were granted leave to appeal on October 12, 2000, [2000] 2 S.C.R. vii. The appeals were heard by the full Court on December 6, 2001. On December 6, 2002, in reasons written by Binnie J. and concurred in unanimously, the appeals were dismissed. The Court held that the Crown had not breached its fiduciary duty to either band. In any event, it found that the equitable defences of laches and acquiescence were available to the Crown. As well, the Court concluded that the bands’ claims were statute barred under the applicable statutes of limitations.
B. The Access to Information Request
15 In February 2003, a request under the Access to Information Act, R.S.C. 1985, c. A-1 , made by Campbell River was received by the Department of Justice. The request sought:
. . . copies of all records, including letters, correspondence and internal memoranda to, from or which make reference to Mr. William Binnie (Ian Binnie) [now Justice Binnie] in the matter of the claim against Canada by the Wewaykum (or Campbell River) Indian Band and the Wewaikai (or Cape Mudge) Indian Band for Quinsam IR 12 and Campbell River IR 11 between the years 1982 and 1986.
16 During the hearing of these motions, counsel for Campbell River explained the origin of the access to information request. Subsequent to the release of the Court’s reasons, the band’s solicitor, Mr. Robert T. Banno, reviewed the reasons with the band and, as stated by its counsel, the band was upset both by the tone and the result of the appeal. Counsel for Campbell River stated that:
They were upset, quite frankly, with the tenor of the reasons in the sense that the claim had been dismissed; some of the words used were “a paper claim”. And in effect they thought, as parties sometimes feel when they lose cases, that their arguments had not been properly addressed.
17 Counsel for Campbell River offered the following explanation as to why an unsuccessful litigant would be unusually inclined to present an access to information request about one of the authors of the reasons of the Court:
Now, one could look at the FOI [freedom of information] request and could sort of infer something from it other than perhaps a proper -- well, something improper about doing it. In my submission, what happens if a client is upset, an FOI request may be the very thing to satisfy that client or that litigant that everything is fine. I mean that may be the type of situation that comes back -- the FOI request comes back with nothing and the client is satisfied. Well, the chips fall where they fall. . . .
. . .
. . . in something like this, in sitting down with a client and -- a litigant and explaining what has happened, this is the kind of thing that helps explain what has happened. You say, look, there is nothing untoward here, everything is above board.
. . .
. . . in my submission, there should be no improper motive at all attributed to the filing of that information. That sometimes helps lawyers explain to litigants, helps quell those kinds of concerns.
18 Counsel for Campbell River offered this explanation as a rejection of any suggestion that Binnie J.’s involvement in the band’s claim as Associate Deputy Minister in the Department of Justice many years previous was suspected prior to or during the hearing before this Court but only investigated subsequently when a negative decision was rendered.
C. Results of the Access to Information Request
19 Pursuant to the access to information request, the Department of Justice found a number of internal memoranda to, from or making reference to Binnie and related to Campbell River’s claim. These memoranda show that in late 1985 and early 1986, Binnie, in his capacity at that time as Associate Deputy Minister of Justice, received some information and attended a meeting in the early stages of Campbell River’s claim. On May 23, 2003, the Assistant Deputy Attorney General, James D. Bissell, Q.C., wrote the Registrar of the Supreme Court of Canada to inform her that as a result of the preparation of the Department’s response to the access to information request, it appeared “that Mr. W.I.C. Binnie in 1985 and early 1986, in the course of his duties as Associate Deputy Minister of Justice, participated in discussions with Department of Justice counsel in the Wewaykum [Campbell River] Indian Band case”.
20 Accompanying Assistant Deputy Attorney General Bissell’s letter to the Registrar were several documents, dated between 1985 and 1988, referring to Mr. Binnie and the Campbell River claim against Canada in regard to Reserves Nos. 11 and 12. Assistant Deputy Attorney General Bissell advised the Registrar that, in view of its duty as an officer of the Court, the Department was waiving solicitor-client privilege to these documents and that they would be provided to the requester under the Access to Information Act . He also advised that the Department intended to file a motion for directions, pursuant to Rule 3 of the Rules of the Supreme Court of Canada, SOR/2002-156, as to what steps, if any, should be taken by reason of the information found in his letter. Attached to the letter was a Statement setting forth the following factual information that is part of the motion record:
1. The case of Wewaykum Indian Band v. Canada, [2002] S.C.C. 79, file no. 27641 was heard in the Supreme Court of Canada on December 6, 2001 and judgment was rendered December 6, 2002.
2. The original claim in the case was filed in December 1985 and the original Defense on behalf of the Crown was filed on February 28, 1986.
3. The trial judgment was released by the Federal Court Trial Division on September 19, 1995 and the appeal judgment was released on October 12, 1999 by the Federal Court of Appeal.
4. Mr. W.I.C. Binnie was Associate Deputy Minister of Justice from September 2nd, 1982 until July 31st, 1986; at that time he left the Department of Justice and entered private practice.
5. As Associate Deputy Minister, Mr. Binnie’s duties included responsibility for all litigation, civil as well as criminal matters, involving the Government of Canada as a party, arising in the common law provinces and territories of Canada; in that context he would have had under his general supervisory authority thousands of cases. In addition to his responsibilities for litigation, Mr. Binnie was also responsible for Native Law in the Department.
6. In the course of the preparation of a response to a request for information under the Access to Information Act received in February 2003, it has come to light that Mr. Binnie had occasion to discuss the case with Department of Justice counsel, in late 1985 and early 1986.
7. In the course of preparing for the hearing of the case before the Supreme Court of Canada, Department of Justice counsel noted the fact of Mr. Binnie’s position as Associate Deputy Minister in 1985 and 1986, and asked themselves whether Mr. Binnie had had any specific involvement in the case.
8. Counsel did not conduct a thorough examination of the files. Consequently, Mr. Binnie’s involvement was not discovered by counsel at that time.
21 Copies of Assistant Deputy Attorney General Bissell’s letter, the Statement and the documents were provided to counsel for the other parties and the interveners.
D. The Motion for Directions
22 The Crown served and filed a motion for directions on May 26, 2003, on the following grounds:
1. Judgment in this appeal was handed down on December 6, 2002. The appeal from the Federal Court of Appeal was unanimously dismissed (9:0). The Honourable Mr. Justice Binnie wrote the decision;
2. It has recently come to the attention of counsel for the Respondent, Her Majesty The Queen, that in 1985 and 1986, when Mr. Justice Binnie was Associate Deputy Minister of Justice (Litigation), he had been involved in some of the early discussions within the Department of Justice regarding the proceeding that eventually came before the Court as this appeal;
3. The Respondent therefore brings this motion in order to formally place this fact before the Court, and to ask this Court for directions as to any steps to be taken.
23 Produced with the motion for directions were the documents referring to Mr. Binnie while in the employ of the Department of Justice and Campbell River’s claim in relation to Reserves Nos. 11 and 12. Upon receipt of the motion by the Court, Binnie J. recused himself from any further proceedings on this matter and, on May 27, 2003, filed the following statement with the Registrar of the Supreme Court:
With respect to the Motion for Directions filed yesterday by the Crown, would you please place this note on the Court file and communicate its contents to counsel for the parties.
It is a matter of public record that between September 1982 and July 1986 I was Associate Deputy Minister of Justice responsible for all litigation for and against the federal Crown except tax matters and cases in Quebec. This included Indian claims. At any given time, the responsibility covered several thousand cases.
When this appeal was pending before the Court in 2002, I had no recollection of personal involvement 17 years earlier at the commencement of this particular file, which was handled by departmental counsel in the Vancouver Regional Office.
I do not recall anything about any involvement in this case to add to what is set out in the departmental file.
I recuse myself from consideration of the pending motion.
24 The Court invited further submissions by the parties with respect to the Crown’s motion for directions. The Crown filed a memorandum in which it submitted that there was no reasonable apprehension of bias affecting the Court’s judgment as a result of Binnie J.’s employment in the Department of Justice and involvement in this matter some 17 years earlier and for which he had no recollection. In response, Cape Mudge sought an order setting aside the Court’s judgment of December 6, 2002, and requesting that the Court recommend that the parties enter into a negotiation and reconciliation process. In the alternative, Cape Mudge sought an order suspending the operation of the judgment for a period of four months to permit negotiation and reconciliation between the parties with further submissions to the Court if required.
25 Campbell River for its part sought an order vacating the Court’s judgment of December 6, 2002, and the reasons for judgment, as well as an order permitting a further application for relief in the event the Supreme Court’s decision was vacated. The Crown opposed both motions. It also opposed Cape Mudge’s submission that further negotiation would be an appropriate remedy in this matter.
26 The Attorney General of British Columbia, an intervener, submitted that there was no reasonable apprehension of bias and that the motions to vacate should be dismissed.
27 Several other interveners, being the Gitanmaax Band, the Kispiox Band and the Glen Vowell Band, submitted that the Court’s judgment should be vacated.
E. Details of Binnie J.’s Involvement in the Appellants’ Litigation 1985-86
28 We turn now to the documents produced by the Crown, in order to determine the nature and extent of Binnie’s involvement in the Campbell River claim in 1985-86. Seventeen documents were produced by the Crown. As noted previously, the documents are reproduced in their entirety in the Appendix. All documents were shown to or seen by Binnie in his official capacity as Associate Deputy Minister of Justice. Where relevant, the documents relate to the Campbell River claim. Cape Mudge’s claim was commenced in 1989, several years after Binnie left the Department of Justice. As can be seen, the 17 documents include one letter and 16 internal memoranda. The letter, dated May 23, 1985, is from Binnie to Chief Sol Sanderson of the Federation of Saskatchewan Indian Nations and is obviously not relevant to these motions. Of the remaining 16 documents, two were produced twice; they are the memorandum dated December 13, 1985, and the memorandum dated February 25, 1986, from Ms. Mary Temple to Binnie. Consequently, 14 documents require examination, which will be done in chronological order.
29 Memorandum No. 1, dated June 19, 1985, is a memo to file written by Ms. Temple, Acting Senior Counsel, Office of Native Claims. The memorandum refers to Binnie by reason of the fact that it includes a reference to his letter of May 23, 1985, to Chief Sanderson. The memorandum does not detail any involvement of Binnie in the Campbell River claim and is of no relevance to these motions.
30 Memorandum No. 2, dated August 9, 1985, is from Ms. Temple to Binnie. The memo pre-dates Campbell River’s statement of claim. It indicates that an issue raised by the Campbell River claim and another matter known as the Port Simpson claim were referred to Mr. Tom Marsh of the Vancouver Office for his opinion. The memo further states that Mr. Marsh’s opinion would not be ready before the middle of September. It concludes with a request to be informed of any further communications with respect to the Port Simpson opinion from Band representatives.
31 Memorandum No. 3 also pre-dates Campbell River’s statement of claim. It is from Mr. R. Green, General Counsel in the Department of Indian Affairs and Northern Development, to Binnie and is dated October 11, 1985. This memo, which relates to the Campbell River and Port Simpson claims, was prepared for a meeting between Binnie and Mr. Green to discuss a legal issue “which potentially touches on all claims from B.C. bands, or at least all involving a determination of rights and liabilities arising out of the pre-McKenna/McBride period”. The memo addresses the gazetting of notices and reserve creation in British Columbia. In his memo, Mr. Green refers to the work of Mr. Marsh and sets out three likely interpretations of the B.C. legislation:
1. no reserve is legally established until the notice is Gazetted;
2. the Gazetting provision is for the purpose of land banking;
3. the Gazetting process is a condition precedent to transferring administration and control of reserves to the federal government but not to the creation of the Indian interest.
32 A handwritten note on the margin, presumably from Mr. Green to Binnie, reads: “On the surface argument 3 seems to be the least damaging way to go.”
33 Memorandum No. 4, dated December 12, 1985, is from Mr. Duff Friesen, General Counsel, Civil Litigation Section, to Binnie. In it, Mr. Friesen proposes that Campbell River’s statement of claim, filed on December 2, 1985, be referred to the Vancouver Regional Office of the Department of Justice. In a handwritten note on the memo, Binnie wrote “I agree”.
34 Memorandum No. 5, dated December 13, 1985, is from Ms. Temple to Mr. G. Donegan, General Counsel, Vancouver Regional Office, and copied to Binnie. The memo indicates that Campbell River had filed a statement of claim and intended to proceed by way of litigation rather than negotiation under the Department of Indian Affairs policy. The memo also indicates that certain aspects of the claim were the subject of correspondence with Mr. Marsh of the Vancouver Regional Office and were also discussed with Binnie in Ottawa. With respect to these discussions, Ms. Temple wrote that:
In particular, Ian Binnie formed the opinion that the McKenna McBride report, to the extent that it specified that Quinsam Reserve No. 12 was the Campbell River Band’s Reserve, should be taken at its face value notwithstanding the apparent fact that the designation of the Reserve for this band stemmed from an administrative error in the list of reserves on which the Commission relied as its primary source of information.
35 Memorandum No. 6, dated January 14, 1986, is from Binnie to Ms. Temple. It acknowledges receipt of Memorandum No. 5 and sets out the above-quoted passage from that memorandum. Binnie then wrote:
I recall some discussion about this, but not in the raw terms you have stated it. Could you let me have a note setting out the factual circumstances of the case and the legal points addressed in our discussion and any other relevant legal points you think should be considered?
36 Memorandum No. 7, dated January 15, 1986, is from Binnie to Mr. Harry Wruck of the Vancouver Regional Office. In it Binnie wrote that he is delighted with the assignment of this matter to Mr. Bill Scarth (now Scarth J.). He further asks to be informed of anything that the Minister should be made aware of.
37 Memorandum No. 8, dated January 20, 1986, is from Ms. Temple to Binnie in response to Memorandum No. 6. In this memo, Ms. Temple describes the factual background of Campbell River’s claim. She concludes the memo with the following description of their discussions in relation to the claim:
In our discussion of this claim in October 1985, we spent most of the time on another legal issue. However, when we turned to the issue of the effect of the McKenna McBride Commission report vis a vis Reserves No.’s 11 and 12, you indicated that such a qualification of the apparent terms of the McKenna McBride Report, as suggested by me, should not be supported and that a report should be accepted on its face so as to result in the legal vesting of an interest for the Campbell River Band only in these two reserves. My understanding of your reasons for such a position was that if we started to qualify the face of the record in any way, we would call into question other aspects of the McKenna McBride exercise.
The other issue on which we spent most of our time during the October discussion was in relation to the question of the effect of the B.C. Land Act Legislation on the establishment of Reserves during the time of the nineteen [sic] century reserve commissions. In particular, one interpretation of this legislation would have confirmed the necessity of publishin