Gagliano v. Canada (Commission of Inquiry into the Sponsorship Program and Advertising Activities)

Gagliano v. Canada (Commission of Inquiry into the Sponsorship Program and Advertising Activities)
Court (s) Database
Federal Court Decisions
Date
2008-09-05
Neutral citation
2008 FC 981
File numbers
T-2086-05
Decision Content
Date: 20080905
Docket: T-2086-05
Citation: 2008 FC 981
Ottawa, Ontario, September 5, 2008
PRESENT: THE HONOURABLE MAX M. TEITELBAUM
BETWEEN:
THE HONOURABLE ALFONSO GAGLIANO
Applicant
and
THE HONOURABLE JOHN H. GOMERY, IN HIS QUALITY AS EX-COMMISSIONER OF THE COMMISSION OF INQUIRY INTO THE SPONSORSHIP PROGRAM AND ADVERTISING ACTIVITIES
and
ATTORNEY GENERAL OF CANADA
Respondent
and
THE HOUSE OF COMMONS
Intervener
REASONS FOR JUDGMENT AND JUDGMENT
Introduction
[1] This is an application for judicial review brought by the Honourable Alfonso Gagliano (the Applicant) in respect of the report of the Commission of Inquiry into the Sponsorship Program and Advertising Activities (the Commission), dated November 1, 2005 and entitled Who is Responsible? – Fact Finding Report (the Phase I Report).
[2] The Attorney General of Canada (the Attorney General) and Commissioner John H. Gomery, in his quality as former Commissioner (the Commissioner), are challenging the application.
[3] The House of Commons (the House) had intervener status in the context of the interlocutory motions.
BACKGROUND
[4] The Commission was created by Order in Council P.C. 2004-110 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.
[5] 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 identified 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.
[6] In compliance with his mandate, the Commissioner was required to submit two reports to the Governor General. In the first report (Phase I Report), he 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 […]
[7] The second report (Phase II 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:
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, […].
[8] 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).
[9] 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. François Perreault acted as the Commission’s communications advisor and was responsible for media relations.
[10] 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
[11] Before turning to the issues raised in this application, it is necessary to provide some details regarding the origins of the Sponsorship Program.
[12] 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.
[13] 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 struck 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. Accordingly, he placed his Chief of Staff, Jean Pelletier, in charge of the national unity file.
[14] 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.
[15] 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. Joseph Charles Guité was Director of APORS from 1993 to 1997 and Executive Director of CCSB from 1997 until his retirement in 1999. Pierre Tremblay, then executive assistant to the Applicant, took over from Mr. Guité as CCSB Director. The Applicant was the Minister of PWGSC from 1997 to 2002.
[16] 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.
[17] In March 2002, the new Minister of PWGSC, 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.
The Report’s Findings – Applicant’s Responsibility
[18] In the Phase I Report section entitled “Assigning Responsibility,” the Commissioner found the Applicant had personally met with and personally gave instructions to Mr. Guité, thereby excluding the Deputy Minister of PWGSC, Ronald Quail, from the supervision of Mr. Guité. The Commissioner also found that the Applicant had failed to give sufficient attention to the adoption of guidelines and criteria when it came to awarding sponsorships to advertising agencies. He also failed to exercise oversight with respect to the activities of Mr. Guité and his successor (as of 1999) in the top position at CCSB, Mr. Tremblay. Indeed, Mr. Guité and Mr. Tremblay were systematically bypassing Deputy Minister Quail, who, under normal circumstances, would have been responsible for providing the aforementioned oversight. The Commissioner also found that the Applicant had become directly involved in decisions to provide funding to events and projects based more on partisan objectives than on considerations of national unity. Finally, the Commissioner found that the Applicant was obliged to accept responsibility for the actions and decisions of his exempt staff, such as his chiefs of staff Mr. Tremblay and, later, Jean-Marc Bard. The exempt staff refers to the political employees of the minister who report directly to him.
INTERLOCUTORY MOTIONS
[19] Five interlocutory motions were brought in these proceedings: two by the Applicant, one by the Attorney General and two by the House. I shall deal with them in the order they were filed with the Court.
[20] First, the House of Commons’ motion to strike paragraph 2(b) from the Applicant’s notice of application for judicial review dated November 22, 2005 on the basis of parliamentary immunity had been decided in favour of the House (Gagliano v. Canada (Commission of Inquiry into the Sponsorship Program and Advertising Activities) 2008 FC 261). I shall therefore not deal with it in these reasons. The consequence of my decision in the context of that motion was to obviate the need for the House to appear and submit arguments on the merits concerning the principle of parliamentary immunity, which it intended to invoke against the Applicant’s arguments under paragraph 2(b) of his notice of application for judicial review. Since I ruled in the aforementioned decision (2008 FC 261) that the principle applied in this case and that the Applicant should strike paragraph 2(b) from his notice of application, the House did not need to present arguments on the merits in Court.
[21] For that reason, I shall not elaborate on the House’s second interlocutory motion, which sought to file additional evidence regarding the principle of parliamentary immunity pursuant to Rule 312 of the Federal Court Rules. That motion was allowed by consent at the hearing of February 8, 2008, but then it became moot as a result of my decision on the first motion.
1. Attorney General’s motion to expurgate Me Anouk Fournier’s affidavit from the record
[22] The Attorney General filed a motion to expurgate from the record the affidavit signed on May 29, 2007 by one of the Applicant’s counsel, Me Anouk Fournier, on the basis of Rule 82 of the Federal Court Rules (SOR/98-106) (the Rules), which reads as follows:
82. Except with leave of the Court, a solicitor shall not both depose to an affidavit and present argument to the Court based on that affidavit.
82. Sauf avec l’autorisation de la Cour, un avocat ne peut à la fois être l’auteur d’un affidavit et présenter à la Cour des arguments fondés sur cet affidavit.
The Attorney General alleges that because Me Anouk Fournier was one of the Applicant’s solicitors and did not obtain leave of the Court pursuant to Rule 82, she could not sign the affidavit filed with the Applicant’s judicial review application.
[23] The Attorney General contends, in the alternative, that if I determine that the affidavit signed by Me Anouk Fournier can remain in the record, I must strike the four following categories of paragraphs and exhibits from the affidavit: the paragraphs introducing exhibits that duplicate evidence already in the record in electronic format (paragraphs 3, 9, 10 and 11), the paragraph introducing exhibits relating to the Commission’s Phase II Report (paragraph 10), the paragraph introducing exhibits relating to Mr. Perreault’s book entitled Gomery – L’enquête (hereinafter Inside Gomery, the title of the published English translation) (paragraph 10), and the paragraphs introducing exhibits pertaining to Mr. Chrétien’s case that are unrelated to the Applicant’s case (paragraphs 16 and 17).
[24] The Applicant asserts that the affidavit signed by Me Anouk Fournier satisfies the requirements of Rule 82 because she will not be presenting any arguments based on her affidavit. The Applicant’s counsel in charge of pleading his case in court will be Me Pierre Fournier, her associate. That is why the Applicant is of the view that the affidavit complies with Rule 82 and should remain in the record. Alternatively, the Applicant argues that certain paragraphs and certain exhibits should not have to be expurgated from the affidavit. While he concedes that paragraphs 3, 9, 10 and 11 of the affidavit do in fact introduce exhibits which duplicate evidence already in the record, the Applicant asserts that the Commission Phase II Report, the book by Mr. Perreault and the exhibits relating to Mr. Chrétien’s case are germane to his judicial review application. The Applicant further states that if Me Anouk Fournier’s affidavit did in fact have to be struck from the record, Mr. Gagliano would file his own affidavit.
[25] For the reasons that follow, I deny, in part, the Attorney General’s motion.
[26] Although it is not good practice for an affidavit to be signed by a lawyer from the same firm as the lawyer who will be pleading the case in court, Rule 82 provides that the prohibition applies only when the same lawyer signs the affidavit and is also presenting arguments based on that affidavit (Agustawestland International Ltd. v. Canada (Minister of Public Works and Government Services), 2006 FC 1371, Kelen J., at para. 16). The affidavit of Me Anouk Fournier can therefore remain in the docket, but subject to the following modifications. I note here that the affidavit the Applicant was suggesting he could file, i.e., his own, if the one signed by Me Anouk Fournier had to be struck out, would have introduced the same categories of exhibits; for that reason, it would have been subject to the same modifications as those I am ordering for the affidavit currently in the docket. Therefore, it would be pointless to substitute affidavits.
[27] The exhibits duplicating evidence already in the record must be struck. My colleague, Mr. Justice Simon Noël issued an order on January 18, 2006 stipulating that the evidence introduced by the Attorney General was automatically included in the Applicant’s docket. Moreover, the Applicant himself concedes that certain paragraphs simply duplicate evidence that is already in the electronic record. Accordingly, paragraphs 3, 9, 10 and 11 of Me Anouk Fournier’s affidavit shall be struck and the exhibits introduced thereby shall be expurgated. In fact, I do not require that these modifications actually be made to the affidavit.
[28] Paragraph 10 of Me Anouk Fournier’s affidavit, which seeks to introduce the Commission’s Phase II Report (exhibit J), as well as newspaper articles relating to the report (exhibits E and F), must be struck, and the exhibits expurgated. I agree entirely with the Attorney General that these exhibits are not relevant to the application for judicial review. The relevance of exhibits is determined according to the test established by the Federal Court of Appeal in paragraph 10 of Canada (Human Rights Commission) v. Pathak, [1995] 2 F.C. 455 (C.A.) [hereinafter Pathak] :
[10] 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.
[29] As I stated in Chrétien v. Canada (Commission of Inquiry into the Sponsorship Program and Advertising Activities), 2008 FC 802, at paragraph 23 [hereinafter Chrétien] and Pelletier v. Canada (Attorney General), 2008 FC 803, at paragraph 23 [hereinafter Pelletier], I do not believe that the Court of Appeal in Pathak intended to create a test that seriously limits the examination of the relevance of evidence to the grounds of review supporting the application for judicial review, nor one that automatically admits as relevant all evidence relating to the content of the notice of application for judicial review. The relevance of evidence must be evaluated on the basis of the grounds of review (Pathak, para. 10). That being said, I am satisfied that I have a discretionary role consisting in “establishing” or “determining” (those are the words used by the Court of Appeal in paragraph 10 of Pathak) what is relevant from what is not. It is by virtue of this discretionary power that I determine that paragraph 10, which seeks to introduce the Phase II Report and newspaper articles relating to Phase II of the Commission mandate, must be struck, and exhibits E, F, and J of Me Anouk Fournier’s affidavit expurgated. However, as stated previously, I do not require that the affidavit actually be modified at this stage. I shall simply not consider this evidence in my analysis of the case.
[30] The Attorney General also seeks removal of paragraph 10 and Mr. Perreault’s book (exhibit K) on the ground that the book constitutes hearsay. The Applicant believes that Mr. Perreault’s book should remain in evidence because Commissioner Gomery attested, in the foreword of the book, to the accuracy of Mr. Perreault’s chronicle of the “inner workings of the Commission”. The Attorney General insists that this comment by the Commissioner should not be likened to an admission that everything in the book is accurate.
[31] I agree with the Applicant that Commissioner Gomery’s statement in the book’s foreword to the effect that Mr. Perreault’s chronicle of the inner workings of the Commission is “as fascinating as it is accurate” gives the distinct impression that he is thereby attesting to the accuracy of the entire book. I would assume that Commissioner Gomery read the whole book before agreeing to write the foreword. It follows that if any passage had struck him as inaccurate, he would have suggested to Mr. Perreault that he change it; or at the very least, he would have distanced himself from the passage by refraining from using the word “accurate” in reference to the way Mr. Perreault chronicled the inner workings of the Commission. For this reason, I am of the view that Mr. Perreault’s book is admissible in evidence. The portion of paragraph 10 of Me Anouk Fournier’s affidavit seeking to introduce Mr. Perreault’s book as exhibit K can therefore remain in the affidavit.
[32] Finally, the Attorney General objects to exhibits L and M, which the Applicant seeks to enter in evidence at paragraphs 16 and 17 of Me Anouk Fournier’s affidavit, on the ground that these documents are irrelevant to the Applicant’s case. For the same reason, the Attorney General objects to the introduction of exhibits C and D in paragraph 10 of the affidavit. The Applicant maintains that these exhibits are relevant to his case because they support his contention that Commissioner Gomery is biased against politicians and members of the Liberal Party.
[33] Although it is not my role at this point to rule on the validity of that assertion for the purposes of the review application, I find nevertheless that exhibit C is relevant to the Applicant’s case. This exhibit consists of a newspaper article dated January 12, 2005 which deals with comments made by the Commissioner in interviews he granted in December 2004 and how these comments raised concerns among the applicants. It is correct that Mr. Chrétien’s name appears most often, but the name of the Applicant also appears; as well, his counsel is quoted in the article. Accordingly, I am satisfied that this exhibit is relevant to the Applicant’s case. As to the article in exhibit D, while it deals with the same events and alludes to the same concerns raised by Commissioner Gomery’s comments, my close reading of the article does not permit me to conclude that it applies directly to the Applicant’s case. For that reason, I strongly doubt it is relevant, and I am satisfied that it should not form part of the Applicant’s evidence. As for exhibit L, which represents nearly 2,000 pages in Mr. Chrétien’s docket, the only part of it relevant to the Applicant’s case is to be found on pages 33 to 44. These pages relate to newspaper articles having to do with statements the Commissioner made in interviews granted to the media in December 2004, while the Commission was on recess for the holidays. Exhibit M introduces newspaper articles detailing the financial scandal of the Sponsorship Program, specifically, allegations to the effect that members of the Liberal Party of Canada had received “kickbacks” in the selection of advertising agencies. Although these articles deal with the sponsorship scandal, they do not relate directly to the subject of the judicial review application before me and, as such, are not relevant to the Applicant’s case.
[34] In summary, Me Anouk Fournier’s affidavit can remain in the record. However, paragraphs 3, 9, 11 and 17 of the affidavit must be struck and their corresponding exhibits expurgated. Exhibits D, E, F and J of paragraph 10 must also be expurgated. Exhibit L, introduced by paragraph 16, cannot remain in the record except for pages 33 to 44 (newspaper articles). Finally, paragraph 17 must be struck and its corresponding exhibit M expurgated.
[35] Given the divided outcome of this motion, it will be dismissed without costs.
2. Motion by the Applicant to file additional evidence (Rule 312)
[36] The Applicant filed a motion under Rule 312 of the Rules for leave to file additional evidence. Rule 312 reads as follows:
312. With leave of the Court, a party may
(a) file affidavits additional to those provided for in rules 306 and 307;
(b) conduct cross-examinations on affidavits additional to those provided for in rule 308; or
(c) file a supplementary record.
312. Une partie peut, avec l'autorisation de la Cour :
a) déposer des affidavits complémentaires en plus de ceux visés aux règles 306 et 307;
b) effectuer des contre-interrogatoires au sujet des affidavits en plus de ceux visés à la règle 308;
c) déposer un dossier complémentaire.
[37] The additional evidence the Applicant intends to file in support of his application consists of an article that appeared in the newspaper La Presse on November 15, 2007, entitled: [TRANSLATION] “Judge Gomery willing to share his experience with David Johnston.” In the article, Commissioner Gomery indicates that he would have turned down any offer to preside over the public inquiry into the Mulroney-Schreiber affair, but that he is willing to share his experience with David Johnston, the government’s advisor in the creation of that particular inquiry commission. Commissioner Gomery also states that one of the reasons why he would refuse to serve on the commission is his close association with Me Roy, a friend and confidant of Mr. Mulroney, and the fact that his daughter, Me Sally Gomery, is a lawyer in the same firm as Mr. Mulroney and Me Roy. The Applicant asserts that this article is helpful to his argument that the conduct of Commission counsel Me Roy was influenced by a bias against him.
[38] The appropriate test for determining whether additional evidence may be filed was established by the Federal Court of Appeal in Atlantic Engraving Ltd. v. Rosenstein, 2002 FCA 503, at paragraphs 8 and 9 [hereinafter Atlantic Engraving]. It is a four-part test that involves examining whether the evidence to be adduced 1) will serve the interests of justice, 2) will assist the Court, 3) will not cause substantial or serious prejudice to the other side, and 4) was not available beforehand. Although the facts in Atlantic Engraving involved the filing of additional affidavits (312(a)) and not a supplementary record (312(c)), the same four-part test applies in this case. Indeed, I specified in Pfizer Canada Inc. v. Canada (Minister of Health) et al., 2006 FC 984, [2007] 2 F.C.R. 371, at paragraphs 19 and 22, that the Atlantic Engraving test applied to all motions brought under Rule 312 :
[19] […] Although Atlantic Engraving was a trade‑marks case, in my view the Federal Court of Appeal’s comments with respect to the rules governing the filing of additional affidavits apply to all motions brought under rule 312..
[39] On the basis of the four-part test set down in Atlantic Engraving, I reject the Applicant’s motion. I rendered my decision at the hearing on February 8, 2008 and stated at that time that the article referred to in the motion was of no value insofar as the judicial review application was concerned and would not be useful to the Court in its analysis of the case. The Applicant therefore failed to persuade me that all parts of the Atlantic Engraving test had been met. More specifically, in this case, it was the second part of the test that was not met. I do not think it necessary at this point to elaborate further on the explanations provided in my decision given from the bench.
[40] This motion is denied with costs payable to the Attorney General.
3. Applicant’s motion to subpoena Mr. Perreault (Rule 316)
[41] The Applicant filed a motion under Rule 316 of the Rules to require Mr. Perreault to testify in Court if his book is admitted as part of the Attorney General’s motion. Rule 316 provides as follows:
316. On motion, the Court may, in special circumstances, authorize a witness to testify in court in relation to an issue of fact raised in an application.
316. Dans des circonstances particulières, la Cour peut, sur requête, autoriser un témoin à témoigner à l’audience quant à une question de fait soulevée dans une demande.
[42] In a letter dated December 5, 2007, the Commissioner, through his counsel, acknowledged that he had written the foreword and also attested to the accuracy of the foreword’s content. The Commissioner pointed out however that this acknowledgement was limited to the foreword and did not extend to the content of Mr. Perreault’s book.
[43] The Applicant explains the need for his Rule 316 motion in two stages. First, he argues that if I determine, in the context of the Attorney General’s motion to quash, that Mr. Perreault’s book is not relevant to the application for judicial review, the motion automatically becomes moot, as the book will not be filed in evidence and, thus, there will be no need to hear the testimony of its author. On the other hand, argues the Applicant, if I find that the book is in fact relevant, I must proceed to the second stage of the analysis and determine whether Mr. Perreault’s book constitutes hearsay. If I find that it is not hearsay, I am essentially recognizing the accuracy of its content on the basis of the Commissioner’s statement in the foreword and, accordingly, there will be no point in having its author testify as to whether or not the content of his book is accurate. Conversely, the Applicant asserts that if I find that the book does in fact constitute hearsay but is still admissible in evidence on the basis of its relevance, then the motion under Rule 316 before me will enable the Applicant to question Mr. Perreault and force him to confirm or deny the accuracy of the content of his book.
[44] The Attorney General maintains that the Applicant’s motion should fail for two reasons. First, he asserts that it is not necessary to hear the testimony of Mr. Perreault, for even if I find that the book is relevant at this early stage in the proceedings, it will still be his prerogative to dispute the relevance of the book on the merits of the case. Second, the Attorney General argues that the Applicant has failed to disclose any “special circumstances” that would authorize Mr. Perreault’s testimony, as required by Rule 316.
[45] I ruled at the hearing of February 8, 2008 that I would grant the Applicant’s motion if it became necessary. In light of my decision on the Attorney General’s motion with respect to the admissibility of Mr. Perreault’s book, I now wish to clarify that ruling. In that I have found that Mr. Perreault’s book is relevant to the judicial review application and does not constitute hearsay, the Commissioner having attested to its accuracy in the foreword, the present motion under Rule 316 becomes moot. Accordingly, I dismiss the motion, but without costs.
SUBMISSIONS OF THE PARTIES
[46] The Applicant raises two main arguments in support of his judicial review application. First, he alleges that the Commissioner violated procedural fairness by limiting his right to cross-examine Mr. Guité, a portion of whose testimony was used against the Applicant; by exceeding the mandate of his inquiry, by imposing rules upon the Applicant that did not exist when he was a minister; and by raising a reasonable apprehension of bias, mainly through his conduct during the Commission hearings. Second, the Applicant alleges that the Commissioner erred in his appraisal of the evidence by, among other things, making findings unsupported by the evidence and by failing to take into account evidence that was favourable to the Applicant.
[47] The Attorney General is the respondent who must answer the allegations regarding the violations of procedural fairness.
[48] The Commissioner is also represented in this application, not personally as John H. Gomery, but rather, qua ex-Commissioner of the Commission. It is in this sense that I shall use, in the following analysis, the term “Commissioner” when I refer to the “arguments of the Commissioner” or to “allegations or assertions of the Commissioner.” The Commissioner’s position is limited to the argument that the findings of the Phase I Report are based on the evidence.
ISSUES
[49] With regard to the submissions of the parties, the issues raised by the present review application are as follows:
1. What are the appropriate standards of review?
2. To what degree of procedural fairness were persons who appeared before the Commission entitled?
3. Did the Commissioner violate procedural fairness with respect to the Applicant?
4. Did the Commissioner err by making findings unsupported by the evidence or by failing to consider the evidence in the record?
ANALYSIS
1. The standards of review applicable in this judicial review application.
[50] Essentially, the Applicant is asking this Court to intervene on two principal grounds: first, on the ground that procedural fairness was violated, and second, on the ground that there was no evidence to support the Commissioner’s findings.
[51] It is settled law that the standard-of-review analysis is not applied to questions of procedural fairness (C.U.P.E. v. Ontario (Minister of Labour), 2003 CSC 29, [2003] 1 S.C.R. 539). Such questions are always reviewed as questions of law and are therefore reviewable on the standard of correctness (Sketchley v. Canada (Attorney General), 2005 CAF 404, [2005] 3 F.C.R. 392 (F.C.A.), at para. 46; Dunsmuir v. New Brunswick, 2008 CSC 9). If I find there was a breach of procedural fairness on any of the grounds raised by the Applicant, then the findings of the Phase I Report concerning the Applicant will have to be set aside and there will be no need to pursue the analysis of the other grounds (Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623 at 645 [hereinafter Newfoundland Telephone]).
[52] With respect to the Report’s findings, the standard of review is the one established by the Federal Court of Appeal in Morneault v. Canada (Attorney General), [2001] 1 F.C. 30 (C.A.), at paragraph 46 [hereinafter Morneault] :
Given that the findings are those of a commission of inquiry, I prefer to review them on a standard of whether they are supported by some evidence in the record of the inquiry.
In [Mahon v. Air New Zealand Ltd., [1984] 1 A.C. 808 (P.C.)] at page 814, Lord Diplock remarked on differences between an investigative inquiry and ordinary civil litigation and went on, at page 820, to lay down the two rules of natural justice in the passage quoted above.
The technical rules of evidence applicable to civil or criminal litigation form no part of the rules of natural justice. What is required by the first rule is that the decision to make the finding must be based on some material that tends logically to show the existence of facts consistent with the finding and that the reasoning supportive of the finding, if it be disclosed, is not logically self-contradictory.
[my emphasis]
[53] Thus, the standard of review applicable to an inquiry commission’s findings consists of three cumulative elements: 1) the finding must be based to a certain extent on evidence, 2) this evidence must tend logically to show the existence of facts consistent with the finding, and 3) the reasoning supportive of the finding must not be significantly self-contradictory.
[54] That standard was subsequently re-applied by this Court in Beno v. Canada (Attorney General), 2002 FCTD 142, [2002] 3 F.C. 499 (T.D.), Heneghan J., at paragraphs 110 to 115 [hereinafter Beno (2002)].
2. Degree of procedural fairness to which persons who appeared before the Commission were entitled.
[55] The degree of procedural fairness to which parties appearing before administrative or judicial decision-makers are entitled varies depending on the context (Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at 837). That is why it is important to determine the degree of procedural fairness that parties who appear before the Commission have a right to expect before we examine whether this right was violated in the specific case of the Applicant. However, as I have already established, the degree of procedural fairness in Chrétien, supra (at paragraphs 39 to 61), and Pelletier, supra (at paragraphs 37 to 59), I do not believe it is necessary for me to engage in the same detailed analysis to determine the requisite degree of procedural fairness in this case. Indeed, since we are dealing with the same commission of inquiry, what I decided regarding Commissioner Gomery’s procedural fairness obligation in the cases of Mr. Chrétien and Mr. Pelletier applies in the same way here. The fact that Mr. Gagliano’s allegations regarding the merits of his review application may be different or differently structured from those of Mr. Chrétien and Mr. Pelletier has no bearing on the degree of procedural fairness he is entitled to expect from Commissioner Gomery.
[56] In an effort to be concise, I shall simply repeat that, under the five criteria set out in Baker, supra, to wit (i) the nature of the decision being made and process followed in making it, (ii) the nature of 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 agency, the Applicant was entitled to a high degree of procedural fairness before the Commission.
3. Did Commissioner Gomery violate procedural fairness with respect to the Applicant?
[57] The Applicant alleges that the Commissioner violated procedural fairness in four ways: 1) by raising a reasonable apprehension of bias, 2) by exceeding the mandate of his inquiry, 3) by imposing rules on the Applicant that did not exist when he was a minister, and 4) by limiting his right to cross-examination.
[58] According to the Applicant, elements 2), 3) and 4) not only constitute grounds for judicial review on their own, they also serve as illustrations of the Commissioner’s bias. The Applicant suggests that I should take all elements of evidence into account when I am determining whether a reasonable apprehension of bias exists.
1) Allegation of reasonable apprehension of bias
Reasonable apprehension of bias test
[59] Procedural fairness requires that decisions be made free from a reasonable apprehension of bias by an impartial decision-maker (Baker, supra, para. 45). The standard of impartiality expected of a decision-maker is variable depending on the role and function of the decision-maker involved (Newfoundland Telephone, supra). In Newfoundland Telephone, the Supreme Court, in