Date: 19990121
Docket: T-790-98
BETWEEN:
CONSTANCE CLARA FOGAL and
THE DEFENCE OF CANADIAN LIBERTY COMMITTEE/
LE COMITE DE LA LIBERTE CANADIENNE,
Applicants,
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA,
SECRETARY OF STATE, THE MINISTER OF EXTERNAL AFFAIRS,
THE DEPARTMENT OF FOREIGN AFFAIRS AND INTERNATIONAL TRADE,
THE RIGHT HONOURABLE SERGIO MARCHI,
THE RIGHT HONOURABLE JEAN CHRETIEN and
OTHER MEMBERS OF CABINET,
Respondents.
REASONS FOR ORDER
DUBE, J.
[1] This application for judicial review was on my rota list for Vancouver for January 19 and 20, 1999. When the applicants learned from the registry that I would be the presiding judge, they filed a motion for my recusal on the ground that "due to his past political connection and affiliation in the federal Cabinet with a named party and potential witness Jean Chretien which raises a gross apprehension of bias and breaches the Applicants' rights to a fair and independent judiciary....".1
[2] This judicial review application is a constitutional challenge of the jurisdiction of the Canadian Crown to sign, ratify and implement a Multilateral Agreement on Investment (or MAI) on behalf of Canada. The negotiations towards developing an agreement on investment were launched by the Organization of Economic Cooperation and Development (OECD) in 1995. As a member of the OECD, Canada took part in them.
[3] In support of the motion for recusal is the affidavit of Roger Rodrigues, a Toronto solicitor, who states that "It is common and widespread knowledge that Mr. Justice Dube had a long and visible profile as a federal politician and federal Cabinet Minister prior to his appointment to the Federal Court by Pierre Trudeau.". The affidavit goes on to state that Prime Minister Jean Chrétien is an ex-Cabinet colleague, and in annex is a copy of my memoirs, Du banc D'école au banc fédéral. At page 220 of that book there is one reference to Jean Chrétien which reads as follows:
| "Il a été remplacé par Jean Chrétien, un bon ami que tout le monde connaît et que je n'ai pas à présenter.". |
Paragraphs 7 and 8 of Mr. Rodrigues' affidavit read as follows:
| "7. It is alarming, beyond belief, given the transparent nature of the relief sought, inter alia, a conversion into a trial as well as disclosure of Cabinet documents, as well as the issue of Cabinet privilege, and that subpoenas against cabinet Ministers as well as Mr. Chretien, may be sought, with respect to the MAI, that Mr. Justice Dube would even make a direction on the matter. |
| 8. It is clear beyond argument that, as a member of the bar, any involvement by Mr. Justice Dube with this application would flauntingly invite the administration of justice into complete disrepute and render impotent any semblance of a pretence of the constitutional right to an independent judiciary in Canada.". |
[4] In contrast to the affidavit, Mr. Rocco Galati, who presented the oral arguments, was moderate and respectful. He readily conceded that as a former Cabinet Minister it would not be improper for me to hear applications directed at the Government of Canada. But he alleged that in this particular instance, The Right Honourable Jean Chrétien was a respondent and that he may be called as a witness if the present application for judicial review is converted into an action.
[5] Counsel insisted that it was the element of "friendship" (based upon that single quote from my book) that would raise a reasonable apprehension of bias. He also claimed that, my Cabinet experience may affect my consideration of a certificate from the Privy Council's office opposing disclosure. He referred to several decisions relating to bias, the most recent one being a decision of the House of Lords in Re Pinochet2. Therein Lord Browne-Wilkinson said as follows:
| "2. Apparent bias |
| As I have said, Senator Pinochet does not allege that Lord Hoffmann was in fact biased. The contention is that there was a real danger or reasonable apprehension or suspicion that Lord Hoffmann might have been biased, that is to say, it is alleged that there is an appearance of bias not actual bias. |
| The fundamental principle is that a man may not be a judge in his own cause. This principle, as developed by the courts, has two very similar but not identical implications. First it may be applied literally: if a judge is in fact a party to the litigation or has a financial or proprietary interest in its outcome then he is indeed sitting as a judge in his own cause. In that case, the mere fact that he is a party to the action or has a financial or proprietary interest in its outcome is sufficient to cause his automatic disqualification. The second application of the principle is where a judge is not a party to the suit and does not have a financial interest in its outcome, but in some other way his conduct or behaviour may give rise to a suspicion that he is not impartial, for example because of his friendship with a party. This second type of case is not strictly speaking an application of the principle that a man must not be judge in his own cause, since the judge will not normally be himself benefiting, but providing a benefit for another by failing to be impartial. |
| In my judgment, this case falls within the first category of case, viz where the judge is disqualified because he is a judge in his own cause. In such a case, once it is shown that the judge is himself a party to the cause, or has a relevant interest in its subject matter, he is disqualified without any investigation into whether there was a likelihood or suspicion of bias. The mere fact of his interest is sufficient to disqualify him unless he has made sufficient disclosure: see Shetreet, Judges on Trial, (1976), p. 303; De Smith, Woolf & Towel, Judicial Review of Administrative Action, 5th ed. (1995), p. 525. I will call this "automatic disqualification."." |
My understanding of these reasons is that Lord Hoffmann belonged to the first category and was disqualified for being a judge in his own cause. I presume the applicants would have me in the second category because my "conduct or behaviour may give rise to a suspicion that [I am] not impartial" because of my friendship with one of the respondents. That "second type of case is not strictly speaking an application of the principle that a man must not be judge in his own cause". In the present instance, my friendship with Mr. Chrétien was as between Cabinet colleagues more than twenty-five years ago.
[6] My colleague, Teitelbaum, J. was also faced with an application for recusal in the Chief Victor Buffalo3 case wherein he made an exhaustive review of the Canadian jurisprudence with regards to reasonable apprehension of bias with which I concur entirely. For the present purposes I will limit myself to reproducing these two paragraphs:
| "[65] It appears to be plaintiffs' belief or, at least, it is the belief of plaintiffs' counsel, that knowing certain individuals involved in the governing of Canada, either as prime minister or as a minister of the Crown or as a member of the House of Commons or of the Senate or of a committee thereof or of having been a member or fund raiser for a legal federal political party gives rise to a reasonable apprehension of bias. |
| [66] My first comment is that this submission, in the manner it is stated in the notice of motion is outrageous and is totally irrelevant to the issue of a reasonable apprehension of bias.". |
Mr Justice Teitelbaum denied the application for his recusal and his decision was confirmed by the Federal Court of Appeal.
[7] As to the hypothetical situation where this application for judicial review would be converted into an action and Mr. Chrétien would be called as a witness, I can do no better than to refer to the judgment of the Federal Court of Appeal in Flamborough v. National Energy Board,4 wherein Mahoney, J. referred to the decision of the Supreme of Canada in The Committee for Justice and Liberty et al. v. The National Energy Board:5
| "The test of whether a reasonable apprehension of bias exists is objective. It has been variously expressed but we do not think that it is any different whether the term "reasonable apprehension" or "reasonable suspicion" is used. The question here is whether a reasonably well informed person, viewing the matter realistically and practically and having thought it through, would likely conclude that Mr. Stewart's prior relationship with Mr. Caughey would lead him to a biased appraisal of his evidence. |
| A prior business association is not, per se, a basis upon which to find a reasonable apprehension of bias, even when it was an association with an organization having a direct interest in the matter to be decided, unless the tribunal member had been involved with the organization when it made its decisions regarding that matter. That was the dictum of the Supreme Court of Canada in the Crowe case. It follows that a prior business association with a witness in a business organization when none of them: tribunal member, witness or organization, had any interest whatsoever in the matter to be decided, cannot be accepted as a basis for a reasonable apprehension of bias on application of the objective test stated.". |
Obviously, my prior association in the Cabinet with Mr. Chrétien from 1968 to 1974 had no relation whatsoever with the MAI negotiations commenced in 1995. As a matter of fact I was not even aware of the existence of these negotiations until I opened the file.
[8] Personally, I am proud to have served my country as Minister of Veterans Affairs and Minister of Public Works a quarter of a century ago. In 1975 I was appointed to the Federal Court and took an oath of office to be fair and impartial. For the past twenty-four years I have dealt with trials, appeals, motions and judicial reviews in all ten provinces of Canada, quite often involving the government. Never have I been asked to recuse myself.
[9] I do not intend to do so now.
[10] Judges do not descend from heaven. They come from various fields of activities. Some of us are former academics, others were in the public service, others practiced law in small towns or large firms. And some of us were in politics. The variety of our individual careers is a rich source of knowledge and experience for the courts. Once we took our oath of office, we divorced ourselves from our past and dedicated ourselves to our new vocation. Our duty is to render justice without fear or favours.
[11] As I mentioned at the end of the hearing of this motion for recusal, I am not seized with the main application for judicial review nor with any of the other motions pending in this matter. The two days set aside in the Vancouver rota for this matter have now been spent. The Associate Chief Justice is free to assign this matter to any judge, including myself, sitting on the Vancouver rota or elsewhere.
[12] Consequently, this motion for recusal is dismissed with costs in any event of the cause.
(Sgd.) "J.E. Dubé"
J.F.C.C.
Vancouver, British Columbia
21 January 1999
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: T-790-98
STYLE OF CAUSE: Constance Clara Fogal and others
| v. |
| HMQ and others |
PLACE OF HEARING: Vancouver, BC
| DATE OF HEARING: January 19, 1999 |
REASONS FOR ORDER OF THE COURT BY:
DUBE, J.
DATED: January 21, 1999
SOLICITORS OF RECORD:
| Mr. Rocco Galati for the Applicants |
Galati, Rodrigues & Assoc.
Toronto, ON
| Mr. Harry Rankin for the Applicants |
Rankin & Co.
Vancouver, BC
| Mr. Manuel Azevedo and for the Applicants |
| Mr. Albert Peeling |
Azevedo & Peeling
Vancouver, BC
| Mr. David Sgayias for the Respondents |
Department of Justice
| per Mr. Morris Rosenberg |
Deputy Attorney General
of Canada
__________________1 Applicants' motion record, filed in the registry January 14, 1999, at page 2.
2 Opinions of the House of Lords of Appeal for Judgment in the Cause In Re Pinochet (Petition to set aside for bias), January 15, 1999 (H.L.).
3 Samson Indian Nation and Band v. Canada, [1998] 3 F.C. 3 (T.D.); affirmed A-893-97, 15 May 1998 (F.C.A.).
4 Flamborough v. National Energy Board, Interprovincial Pipe Line Ltd. and Canada, [1984] 55 N.R. 95 (F.C.A.).
5 The Committee for Justice and Liberty et al. v. The National Energy Board et al., [1978] 1 S.C.R. 369.