The Federal Court found a reasonable apprehension of bias on the part of a commissioner of inquiry on the basis of the commissioner’s repeated inappropriate statements to the media. The media is not an appropriate forum in which a decision-maker should become engaged while presiding over a commission of inquiry, a trial, or any other type of hearing or proceeding. The only appropriate forum in which a decision-maker is to become engaged is within the hearing room of the very proceeding over which he or she is presiding.

Administrative law – Investigative bodies – Commission of Inquiry – Commissioner – Reasonable apprehension of bias – Test – Evidence – Judicial review – Procedural requirements and fairness

Chretien v. Canada (Commission of Inquiry into the Sponsorship Program and Advertising Activities, Gomery Commission), [2008] F.C.J. No. 973, 2008 FC 802, Federal Court, June 26, 2008, Teitelbaum D.J.

Right Honourable Jean Chretien (“Applicant”) applied for judicial review in respect of the Fact Finding Report of the Commission of Inquiry into the sponsorship and advertising activities of the federal government. The investigative hearing was conducted by the Commissioner, Mr. Justice Gomery. The Federal Court set aside the Commission’s findings on the basis of a reasonable apprehension of bias on the part of the Commissioner.

The first issue before the Court was what level of procedural fairness was required in an inquiry.

While the rules and procedures of Commission were similar to the procedures found in the judicial process, an inquiry is not synonymous to a trial. Unlike a trial, the inquiry is inquisitorial in nature. The findings of the Commissioner are findings of fact and statements of opinion that carry no legal consequences. They are not enforceable and do not bind Courts considering the same subject matter.

On the other hand, the Commission’s findings are final. The Commissioner’s report is determinative of the inquiry and has the potential to cause serious damage to the reputation of the individuals investigated. These individuals have a legitimate expectation of a fair process.

Although the nature of the proceedings before the Commission does not provide for the same level of procedural fairness required in a trial, the potential damage that the findings of the Commission could have on the reputations of the parties involved in the investigation is of such serious consequence that a high degree of fairness is required.

Procedural fairness requires the Commissioner to make his decisions impartially. The applicable test of bias is whether there is a reasonable apprehension that the Commissioner would reach a conclusion on a basis other than the evidence.

A number of remarks made by the Commissioner to the press indicated that he reached conclusions and drew inferences of fact before the evidence was complete and submissions from all participants received.

For example, the Commissioner commented to the media following three of nine months of hearings that the sponsorship program was “run in a catastrophically bad way”. Without having heard the testimony of all witnesses who were to appear before the Commission, especially those whom the Commissioner found to be in charge of the program, the Commissioner was not in a position to make this conclusion.

Other remarks also raised an apprehension of bias. The Commissioner was quoted as having said, in reference to upcoming evidence that the “juicy stuff” was yet to come. In addition, he was cited as having stated that the answer the Applicant gave at the hearing was “the only answer that counted” and that with that answer he had “everything he needed”.

In addition, statements made to the press by the Commissioner’s spokesperson that people were emailing him asking “What’s Chretien got to hide?” were inappropriate and damaging to the Applicant’s reputation.

Aside from the bias towards the issues in the case, the Commissioner made pejorative remarks about the Applicant himself, and called on a number of occasions the process of inquiry a “show” and a “spectacle” to which he had the “best seat in town”.

On the totality of the evidence presented, the Federal Court was satisfied that the Commissioner was preoccupied with the media spotlight which had an impact on the fairness of the proceeding. The media is not an appropriate forum in which a decision-maker should become engaged while presiding over a commission of inquiry, a trial, or any other type of hearing or proceeding. The only appropriate forum in which a decision-maker is to become engaged is within the hearing room of the very proceeding over which he or she is residing. Comments revealing impressions and conclusions related to the proceedings should not be made extraneous to the proceedings either prior, concurrently or even after the proceedings have concluded. This is so even in public inquiries where the purpose of the proceeding is to educate and inform the public.

The decision maker speaks by his or her decision. This is the only appropriate forum in which he or she should state his or her conclusions.

The Commissioner failed to abide by these rules. His conduct satisfied the bias test and his findings were set aside.

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