Judgments

[1997] 2 F.C. 527

A-124-97

(T-1311-96)

The Honourable Gilles Létourneau, Commissioner and Chairperson, Peter Desbarats, Commissioner, The Honourable Robert Rutherford, Commissioner (Appellants) (Respondents)

v.

Brigadier-General Ernest B. Beno (Respondent) (Applicant)

and

Attorney General of Canada, Major Barry Armstrong, LCol. Paul Morneault, Major Vincent J. Buonamici (Respondents) (Respondents)

Indexed as: Beno v. Canada (Commissioner and Chairperson, Commission of Inquiry into the Deployment of Canadian Forces to Somalia) (C.A.)

Court of Appeal, Isaac C.J., Pratte and Stone JJ.A. —Ottawa, March 25, 26 and May 2, 1997.

Inquiries — Commission appointed under Inquiries Act, s. 3 to conduct inquiry, report on actions, decisions of Canadian Forces in Somalia — Officer served with notice under Act, s. 13 to face allegations of misconduct — Commission Chairman prohibited from making finding adverse to officer due to reasonable apprehension of bias — Trial Judge wrong in assimilating commissioners to judges — Public inquiry not equivalent to civil, criminal trial — Inquiry commissioners have broad investigative powers — Rules of evidence, procedure less strict — Reasonable apprehension of bias standard to be applied flexibly — Chairman not reaching conclusion on basis other than evidence.

Administrative law — Judicial review — Prohibition — Somalia Commission Chairman prohibited from making finding adverse to Armed Forces officer based on reasonable apprehension of bias — Role of commissioners, judges distinguished — Commissioners having broad investigative powers, judges determine rights as between parties — Rules of evidence, procedure less strict at inquiry than in court — Reasonable apprehension of bias, not “closed mind” test, standard applicable herein — Chairman not deciding on basis other than evidence — That Judge disagreed with Chairman’s assessment of officer’s credibility not basis for bias finding.

This was an appeal from a Trial Division order prohibiting the Chairman of the Commission of Inquiry into the Deployment of Canadian Forces to Somalia from making any finding adverse to respondent Beno due to a reasonable apprehension of bias. As an officer in the Canadian Armed Forces, Beno was served with a notice under section 13 of the Inquiries Act, indicating that allegations of misconduct on his part might be investigated by the Commission and lead to a finding adverse to him. In the course of the officer’s testimony before the Commission, the Chairman had interjected that Beno would not “gain much by fiddling around”. Shortly after, during a breakfast meeting at an officers’ mess in Calgary, the Chairman, according to an affidavit filed by a Brigadier-General, said that Brigadier-General Beno had not given straight answers and perhaps was trying to deceive. An application for judicial review to prohibit the Chairman from continuing to act as a Commissioner or, at least, from making findings adverse to Beno was granted by the Trial Division. The appellants invoked two main grounds of appeal. First, that the Trial Judge erred in deciding that commissioners exercise “trial like functions” and, consequently, their impartiality should be judged by the “closed mind” test rather than by the “reasonable apprehension of bias” test. Second, that whatever the applicable test, the Trial Judge’s conclusion was not supported by the evidence.

Held, the appeal should be allowed.

The Trial Judge was wrong in assimilating commissioners to judges and in holding that both exercise “trial like functions”. A public inquiry is not equivalent to a civil or criminal trial. In a trial, the judge sits as an adjudicator, and it is the responsibility of the parties alone to present the evidence. At an inquiry, the commissioners are endowed with wide-ranging investigative powers to fulfil their mandate. The rules of evidence and procedure are therefore less strict at an inquiry than in court. Judges determine rights as between parties whereas commissioners can only “inquire” and “report”. While a judge has power to impose monetary or penal sanctions, the only consequence of a negative finding by the Somalia Inquiry would be the loss of reputation. Whatever the applicable test, the special nature of the commissioners’ functions should be taken into account in assessing their behaviour. The reasonable apprehension of bias standard must be applied flexibly. The Commissioners of the Somalia Inquiry must perform their duties in a way which, having regard to the special nature of their functions, does not give rise to a reasonable apprehension of bias. They should be disqualified for bias only if the challenger establishes a reasonable apprehension that they would reach a conclusion on a basis other than the evidence. The Chairman’s “fiddling” remark was inspired by his own honest, although probably mistaken, perception of Beno’s evidence. It could not reasonably be seen as indicating a tendency to decide on some basis other than the evidence. If the Judge disagreed with the Chairman’s assessment of Beno’s demeanour and credibility, that was not a valid reason for questioning the Chairman’s impartiality. In retrospect, it is easy to say that the Chairman ought to have remained silent when criticized at the Calgary breakfast. But when one’s impartiality is challenged, it is normal to offer an explanation. It does not prove partiality.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Inquiries Act, R.S.C., 1985, c. I-11, ss. 3, 13.

CASES JUDICIALLY CONSIDERED

APPLIED:

Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623; (1992), 95 Nfld. & P.E.I.R. 271; 4 Admin. L.R. (2d) 121; 134 N.R. 241.

CONSIDERED:

Ringrose v. College of Physicians and Surgeons (Alberta), [1977] 1 S.C.R. 814; (1977), 1 A.R. 1; 67 D.L.R. (3d) 559; [1976] 4 W.W.R. 712; 9 N.R. 383.

REFERRED TO:

Greyeyes v. British Columbia (1993), 78 B.C.L.R. (2d) 80 (S.C.); Di Iorio et al. v. Warden of the Montreal Jail, [1978] 1 S.C.R. 152; (1976), 73 D.L.R. (3d) 491; 35 C.R.N.S. 57; 8 N.R. 361; Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), [1995] 2 S.C.R. 97; (1995), 124 D.L.R. (4th) 129; 31 Admin. L.R. (2d) 261; 39 C.R. (4th) 141; 180 N.R. 1; Irvine v. Canada (Restrictive Trade Practices Commission), [1987] 1 S.C.R. 181; (1987), 41 D.L.R. (4th) 429; 24 Admin. L.R. 91; 74 N.R. 33; Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311; (1978), 88 D.L.R. (3d) 671; 78 CLLC 14,181; 23 N.R. 410; Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; (1976), 68 D.L.R. (3d) 716; 9 N.R. 115; Brouillard v. The Queen, [1985] 1 S.C.R. 39; [1985] R.D.J. 38; (1985), 16 D.L.R. (4th) 447; 17 C.C.C. (3d) 193; 44 C.R. (3d) 124; 57 N.R. 168; Canada (Attorney General) v. Canada (Commissioner of the Inquiry on the Blood System), [1997] 2 F.C. 36(C.A.); Bortolotti v. Ontario (Ministry of Housing) (1977), 15 O.R. (2d) 617; 76 D.L.R. (3d) 408 (C.A.); Shulman, Re, [1967] 2 O.R. 375; (1967), 63 D.L.R. (2d) 578 (C.A.); Bennett v. British Columbia (Superintendent of Brokers) (1994), 30 Admin. L.R. (2d) 283; 48 B.C.A.C. 56; 7 C.C.L.S. 165; 36 C.P.C. (3d) 96; 78 W.A.C. 56 (C.A.); Bennett v. British Columbia (Superintendent of Brokers) (1994), 118 D.L.R. (4th) 449; 96 B.C.L.R. 274; 28 Admin. L.R. (2d) 102; 51 B.C.A.C. 81; 5 C.C.L.S. 93; 84 W.A.C. 81 (C.A.); Badu v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 5 (T.D.) (QL); Jones v. National Coal Board, [1957] 2 All E.R. 155 (C.A.).

AUTHORS CITED

Wilson, J. O. A Book for Judges. Ottawa: Minister of Supply and Services Canada, 1980.

APPEAL from a Trial Division order ([1997] 1 F.C. 911 prohibiting the Chairman of the Commission of Inquiry into the Deployment of Canadian Forces to Somalia from making any finding adverse to respondent Beno due to a reasonable apprehension of bias. Appeal allowed.

COUNSEL:

Raynold Langlois, Q.C., and Eve-Stéphanie Sauvé for appellants.

J. Bruce Carr-Harris and Lawrence A. Elliot for respondent Ernest B. Beno.

Graham E.S. Jones for respondent Vincent J. Buonamici.

SOLICITORS:

Langlois, Robert, Montréal, for appellants.

Scott & Aylen, Ottawa, for respondent Ernest B. Beno.

Shields & Hunt, Ottawa, for respondent Vincent J. Buonamici.

The following are the reasons for judgment of the Court delivered orally in English

This is an appeal from an order of the Trial Division [[1997] 1 F.C. 911 prohibiting the Chairman of the Commission of Inquiry into the Deployment of Canadian Forces to Somalia (hereinafter “the Commission”) from participating in the making of findings adverse to the respondent, Brigadier-General Beno (hereinafter “BGen Beno”). That order was based on the finding that there was a reasonable apprehension that the Chairman was biased against BGen Beno.

The appellants were appointed by the Governor in Council, pursuant to section 3 of the Inquiries Act [R.S.C., 1985, c. I-11], to conduct an inquiry and report on the actions and decisions of the Canadian Forces and the Department of National Defence in respect of the deployment of Canadian Forces to Somalia.

The respondent, BGen Beno, is an officer in the Canadian Armed Forces. He is a party before the Commission and was served with a notice, pursuant to section 13 of the Inquiries Act,[1] indicating, inter alia, that, in the course of the evidentiary hearings of the Commission, certain allegations of misconduct on his part might be investigated and might lead “to an adverse finding that would reasonably be expected to bring discredit upon you.”

BGen Beno testified before the Commission on January 29, 30 and 31, 1996. He was being examined by counsel for the Commission, on January 30, when the Chairman intervened to point out that what the witness had just said contradicted an answer that he had previously given to a question that the Chairman had put to him. As the witness maintained that there was no contradiction between his two statements, the Chairman interjected:

I might as well tell you that you won’t gain much by fiddling around. It was a clear question and you won’t gain much ….

That remark prompted BGen Beno’s counsel to rise and assert that the witness had not contradicted himself and was not “fiddling around”. The Chairman then put an end to the exchange by saying:

We’ll take it from the transcript.

That is the incident which is the source of these proceedings.

On February 6, 1996, the Chairman was in Calgary with the Commission’s Secretary and two investigators to interview soldiers who might be of assistance to the Commission. At the invitation of Brigadier-General Robert Meating (hereinafter “BGen Meating”), they all attended a breakfast meeting at the Calgary Base Officer’s Mess. The Chairman sat beside BGen Meating who, like many others, had been watching the public hearings of the Commission on television. During their conversation, BGen Meating expressed the opinion that BGen Beno, when he had testified before the Commission, had been unfairly and aggressively treated by the Chairman. According to the affidavit that was filed later by BGen Meating, the Chairman replied that “it was his opinion … that BGen Beno had not given straight answers and that perhaps Beno had been trying to deceive.”

The Chairman was about to leave that meeting when his host introduced him to a Mr. Mariage, a retired officer who happened to be sitting at another table. Mr. Mariage was a friend of BGen Beno and, like BGen Meating, he had been irritated by the Chairman’s reaction to Beno’s evidence. He took advantage of that occasion to express his concerns to the Chairman who, according to the affidavit later filed by Mr. Mariage, said that Beno, during his testimony, was “very tense … he seemed to be hiding things … he didn’t seem to want to cooperate with the Commission.”

On the following day, Mr. Mariage telephoned BGen Beno and told him of his conversation with the Chairman. Beno conveyed that information to his counsel who communicated with the Secretary of the Commission and asked for an opportunity to meet privately with the three Commissioners. That meeting took place on February 12, 1996. The only persons present, apart from BGen Beno’s two counsel, were the three Commissioners and the Secretary of the Commission. According to the transcript of that meeting, BGen Beno’s counsel told the Commission that the Chairman’s “fiddling” remark, which they considered unjustified, had seriously damaged their client’s reputation; they suggested that the Chairman should do something to remedy that situation; they also referred to the Chairman’s conversation with Mr. Mariage, in Calgary, during which, they said, he had said that BGen Beno was hiding something; they expressed their concern that the Chairman had already made up his mind that their client was not to be believed. The Chairman answered that his “fiddling” remark merely expressed the perception of the evidence that he had at the time and he assured them that he would read the transcript before reaching any definite conclusion; he denied having said to Mr. Mariage that BGen Beno was hiding something; he also said, to explain his attitude at the hearing, that when he had problems with the testimony of a witness, he thought it preferable to express immediately his doubts or difficulties so as to give the witness, his counsel and other interested persons, the opportunity to clear up any misunderstanding.

A few weeks later, BGen Beno’s counsel had apparently decided to commence proceedings to obtain the disqualification of the Chairman. For that purpose, they were interviewing witnesses and obtaining affidavits concerning the Chairman’s visit to Calgary on February 6, 1996. This came to the ears of the Chairman on March 20, 1996; he immediately asked one of his subordinates to remind the authorities of the Calgary Base that they should not breach the Commission’s undertaking not to disclose the identity of the soldiers who had met with representatives of the Commission. The Chairman also phoned BGen Meating on the same subject and, during that call, told him that he considered that their conversation of February 6 was confidential.

On April 4, 1996, BGen Beno filed a notice of motion with the Commission seeking an order “disqualifying the Commission Chairman … from continuing to act as a Commissioner” or, in the alternative, “disqualifying [him] … from inquiring into, investigating, or participating in any way in the making of adverse findings … in relation to charges or allegations which are the subject matter of a Notice issued to the Applicant pursuant to Section 13 of the Public Inquiries Act , R.S.C. (1985) c. I-11, dated September 22nd, 1995.” The notice of motion was supported by material which established the facts that, until now, we have tried to summarize as faithfully as we could. The Commission dismissed that motion on May 7, 1996 and gave lengthy reasons in support of its decision. The concluding paragraphs of these reasons deserve to be quoted:

As was stated to counsel for the Applicant during the private meeting with Commissioners convened at his request, findings concerning the Applicant’s credibility or any determination as to whether adverse commentary should be made against him will not be made until all of the evidence that is to be called over the entire range of events that this Commission has been asked to investigate has been heard. Findings that may reveal individual failings will be based solely and scrupulously upon the evidence that has been formally disclosed to these individuals and received in our hearings. All such holdings, it need scarcely be stated, will be the findings and conclusions of the commission as a whole—not those of any single member of it. Also, it should be stated, no member of this Commission has had any prior knowledge of or ulterior, personal interest in Brigadier-General Beno. His evidence and his role in the events that transpired will be assessed solely in terms of what has been disclosed on the public record.

For the reasons given, we believe that the Applicant is mistaken in his contention that there exists a reasonable apprehension of bias. Such valid concerns as he may have regarding the completeness of the picture presented in these hearings and the fairness of its depiction of him can be addressed in other ways. Our process is such that the Applicant will be accorded other opportunities for correcting any misapprehensions he feels that we, as Commissioners, may have as regards his evidence or the issues affecting him. He may have other opportunities to testify …. He will also, like all parties affected by these proceedings, be given an opportunity at the conclusion of our evidentiary hearings to make submissions and suggest that other evidence be brought forward that may be germane to any findings or conclusions that the Commissioners may make. Given these avenues that are available to him, it is therefore difficult to envision any conceivable prejudice that the Applicant may ultimately suffer in the forthcoming phases of the Commission’s proceedings.

One additional observation on the matter of final submissions is merited. Final submissions, whether at the conclusion of a trial or upon the completion of proceedings, represents an occasion for counsel to “set the record right” and present a client’s perspective in the strongest and most favourable light possible. This opportunity has not been lost. It awaits Brigadier-General Beno and his counsel. A tribunal does not reach its conclusions until such submissions have been received. Nothing that has been heard or received to date in our proceedings has been set in stone. Indeed, what may have appeared important at an early stage of the process may, in the end, turn out to be less significant, or pale in comparison with more fundamental matters revealed by the process. Our minds remain open and there is much terrain yet to be traversed before we reach the point of final submissions.

BGen Beno then commenced an application for judicial review in the Trial Division seeking an order setting aside the decision that the Commission had just rendered and prohibiting its Chairman either from continuing to act as a Commissioner or, in the alternative, from participating in the making of findings adverse to BGen Beno. That motion was granted by the order of the Trial Division against which this appeal is directed.

In the reasons that he gave in support of his order, the Judge first considered the branch of BGen Beno’s motion seeking an order setting aside the decision of the Commission; he concluded on that point that the Commission had no jurisdiction to rule on the disqualification of its Chairman and that, for that reason, its decision was a nullity. The appellants and the respondents do not challenge that conclusion.

Turning to the second branch of BGen Beno’s application seeking an order in the nature of prohibition, the Judge expressed the view that, as commissioners have “trial like” functions, the test for determining whether they have the required impartiality is not different from the test applicable to judges, namely, whether the evidence discloses circumstances giving rise to a reasonable apprehension of bias on their part. After recalling what he considered to be the general “expectations of judicial conduct in relation to bias,” the Judge of first instance examined the evidence in order to determine whether it gave rise to a reasonable apprehension of bias on the part of the Chairman. According to BGen Beno, evidence of a reasonable apprehension of bias was to be found in the evidence relating to the hearing of January 30 during which the “fiddling” remark was made, the meeting of the Chairman with BGen Meating and Mr. Mariage in Calgary, on February 6, the informal meeting of the Commission of February 12, the Chairman’s phone call to BGen Meating on March 20, 1996, and, finally, the reasons given by the Commission in support of its decision to dismiss BGen Beno’s application to disqualify the Chairman.

The Judge held that no evidence of bias was provided by the reasons of the Commission or by the telephone conversation of March 20, 1996. In his view, the decision of the Commission was a nullity and was devoid of any evidentiary value; as to the telephone conversation of March 20, he thought that what was said by the Chairman on that occasion was not relevant to the bias issue.

The Judge of first instance, therefore, rested his decision solely on the evidence relating to the hearing of January 30, the visit of the Chairman to Calgary on February 6, and the informal meeting of the Commission on February 12.

It is during the hearing of January 30 that the Chairman made his “fiddling” remark. The Judge, after watching the videotapes of BGen Beno’s evidence on that day,[2] concluded that BGen Beno had testified in an exemplary manner and that the intervention of the Chairman on that occasion had clearly been prompted by a misunderstanding of certain answers given by BGen Beno. The Judge expressed himself as follows [at pages 957-958]:

There is no question that Commissioner Létourneau was wrong in his assessment of BGen Beno, and any misunderstanding about BGen Beno’s intentions could have been easily corrected from carefully listening to the manner and style of BGen Beno’s evidence giving, and from reading the exact words used.

About this, the bystander’s concern would not be so much about the error made in misinterpreting the complex evidence, which is not uncommon in judicial proceedings, but about why it was necessary for Commissioner Létourneau to make the “fiddling” remark. Even considering the allowances for intervention cited by Chief Justice Wilson [in A Book for Judges][3], I think the bystander would be correct in concluding that this highly disrespectful remark is evidence of an opinion held by Commissioner Létourneau about BGen Beno’s credibility which is unsubstantiated by inspecting the evidence he gave.

In analyzing the remark, “I might as well tell you that you won’t gain much by fiddling around. It was a clear question and you won’t gain much”, the bystander would have a number of questions. These would include: what did Commissioner Létourneau think BGen Beno wanted to gain; was he generally viewed as a person who was attempting to avoid responsibility; did “fiddling around” mean not paying attention or being evasive, or did Commissioner Létourneau think BGen Beno was just not telling the truth?

I think the bystander would think that Commissioner Létourneau was suspicious of BGen Beno’s evidence and that suspicion came from some source other than the evidence.

The Judge was also of opinion that the reasonable conclusion to be drawn from the conversations of the Chairman with BGen Meating and Mr. Mariage on February 6, in Calgary, was that the Chairman [at pages 958-959] “really believed what he said to BGen Meating, being that BGen Beno ‘was being less than open and truthful in his testimony’, and to Mr. Mariage being that ‘he seemed to be hiding things’, and had no hesitation in saying so in defence of his remark in the January 30 hearing.”

Finally, for the Judge, what the Chairman had said at the informal meeting of the Commission on February 12, showed that the Chairman had [at page 960] “a general suspicion of BGen Beno and his evidence” and “was completely committed to the opinions he expressed to BGen Meating and Mr. Mariage on February 6”. The Judge added [at page 961]:

Thus, even though Commissioner Létourneau said and reiterated on February 12 that he would look at all the evidence at the end of Inquiry and decide on BGen Beno’s credibility at that time, his commitment to the conclusions which he has already drawn would cause the bystander to put no weight on this assurance.

The Judge concluded that a reasonable bystander, considering all that evidence [at pages 961-962], “would say that BGen Beno has not and would not in the future be treated fairly by Commissioner Létourneau because of Commissioner Létourneau’s unjustified and entrenched negative opinion about BGen Beno’s credibility.”

He, for those reasons, granted the application.

Before discussing the merit of the appeal, we wish to dispose immediately of an argument put forward on behalf of BGen Beno and according to which the Judge of first instance erred in ruling that neither the decision of the Commission respecting Beno’s application nor the Chairman’s phone call to BGen Meating on March 20 provided evidence relevant to the bias issue. We agree with the Judge of first instance that those two pieces of evidence do not support a finding of bias or of reasonable apprehension of bias. But we do not share the Judge’s view that, in the case of the decision of the Commission, this conclusion flows from the fact that the decision was a nullity because it exceeded the Commission’s jurisdiction. The decision was rendered by the Commission, it is part of the record and cannot be ignored even though its evidentiary value must, in each case, be weighed.[4] The fact is, however, that there is nothing in that decision that supports BGen Beno’s allegation of apprehension of bias.

The appellants invoke two main grounds of appeal. First, they say that the Judge of first instance erred in deciding that commissioners exercise “trial like functions” and that, as a consequence, their impartiality should be judged by the “closed mind” test rather than by the “reasonable apprehension of bias” test (see Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623, at page 636 & ff.). Second, they say that, in any event, whatever the applicable test, the Judge’s conclusion is not supported by the evidence.

It is clear from his reasons for judgment that the Judge of first instance assimilated commissioners to judges. Both, in his view, exercise “trial like functions.” That is clearly wrong. A public inquiry is not equivalent to a civil or criminal trial (see Canada (Attorney General) v. Canada (Commissioner of the Inquiry on the Blood System) , [1997] 2 F.C. 36(C.A.), at paragraphs 36, 73 [hereinafter Krever]; Greyeyes v. British Columbia (1993), 78 B.C.L.R. (2d) 80 (S.C.), at page 88; Di Iorio et al. v. Warden of the Montreal Jail, [1978] 1 S.C.R. 152, at page 201; Bortolotti v. Ontario (Ministry of Housing) (1977), 15 O.R. (2d) 617 (C.A.), at pages 623-624; Shulman, Re, [1967] 2 O.R. 375 (C.A.), at page 378)). In a trial, the judge sits as an adjudicator, and it is the responsibility of the parties alone to present the evidence. In an inquiry, the commissioners are endowed with wide-ranging investigative powers to fulfil their investigative mandate (Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), [1995] 2 S.C.R. 97, at page 138). The rules of evidence and procedure are therefore considerably less strict for an inquiry than for a court. Judges determine rights as between parties; the Commission can only “inquire” and “report” (see Irvine v. Canada (Restrictive Trade Practices Commission), [1987] 1 S.C.R. 181, at page 231; Greyeyes, supra, at page 88). Judges may impose monetary or penal sanctions; the only potential consequence of an adverse finding by the Somalia Inquiry is that reputations could be tarnished (see Westray, supra, at page 163, per Cory J.; Krever, supra at paragraph 29; Greyeyes, supra, at page 87).

It does not follow, however, that the impartiality of commissioners should always be judged by applying the “closed mind” test rather than the “apprehension of bias” test. Rather, whatever the applicable test, in assessing the behaviour of commissioners, the special nature of their functions should be taken into account: Newfoundland Telephone, supra, at pages 636, 638; Irvine, supra, at pages 230-231; Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311, at page 327.

In Newfoundland Telephone, Cory J. established a spectrum for assessing allegations of bias against members of commissions or administrative boards. He held (supra, at pages 638-639):

It can be seen that there is a great diversity of administrative boards. Those that are primarily adjudicative in their functions will be expected to comply with the standard applicable to courts. That is to say that the conduct of the members of the board should be such that there could be no reasonable apprehension of bias with regard to their decision. At the other end of the scale are boards with popularly elected members such as those dealing with planning and development whose members are municipal councillors. With those boards, the standard will be much more lenient. In order to disqualify the members a challenging party must establish that there has been a pre-judgment of the matter to such an extent that any representations to the contrary would be futile. Administrative boards that deal with matters of policy will be closely comparable to the boards composed of municipal councillors. For those boards, a strict application of a reasonable apprehension of bias as a test might undermine the very role which has been entrusted to them by the legislature.

It is not necessary, for the purposes of this appeal, to determine with precision the test of impartiality that is applicable to members of commissions of inquiry.[5] Depending on its nature, mandate and function, the Somalia Inquiry must be situated along the Newfoundland Telephone spectrum somewhere between its legislative and adjudicative extremes. Because of the significant differences between this Inquiry and a civil or criminal proceeding, the adjudicative extreme would be inappropriate in this case. On the other hand, in view of the serious consequences that the report of a commission may have for those who have been served with a section 13 notice, the permissive “closed mind” standard at the legislative extreme would also be inappropriate. We are of the opinion that the Commissioners of the Somalia Inquiry must perform their duties in a way which, having regard to the special nature of their functions, does not give rise to a reasonable apprehension of bias. As in Newfoundland Telephone, the reasonable apprehension of bias standard must be applied flexibly. Cory J. held (supra, at pages 644-645):

Once matters proceeded to a hearing, a higher standard had to be applied. Procedural fairness then required the board members to conduct themselves so that there could be no reasonable apprehension of bias. The application of that test must be flexible. It need not be as strict for this Board dealing with policy matters as it would be for a board acting solely in an adjudicative capacity. This standard of conduct will not of course inhibit the most vigorous questioning of witnesses and counsel by board members.

Applying that test, we cannot but disagree with the findings of the Judge of first instance. A commissioner should be disqualified for bias only if the challenger establishes a reasonable apprehension that the commissioner would reach a conclusion on a basis other than the evidence. In this case, a flexible application of the reasonable apprehension of bias test requires that the reviewing court take into consideration the fact that the commissioners were acting as investigators in the context of a long, arduous and complex inquiry. The Judge failed to appreciate this context in applying the test.

The Judge first considered the evidence relating to the hearing of January 30 and the “fiddling” remark. He found that BGen Beno was an exemplary witness; that the “fiddling” remark was prompted by the Chairman’s misunderstanding of Beno’s evidence, and, finally, that [at page 958] “this highly disrespectful remark is evidence of an opinion held by Commissioner Létourneau about BGen Beno’s credibility which is unsubstantiated by inspecting the evidence he gave.” He concluded that the Chairman [at page 958] “was suspicious of BGen Beno’s evidence and that [that] suspicion came from some source other than the evidence.”

It should first be observed that there is nothing, absolutely nothing, in the evidence that might suggest that the remark made by the Chairman on that day was inspired by something other than his own honest, although probably mistaken, perception of Beno’s evidence. The Chairman was clearly reacting to Beno’s testimony; in the circumstances, his comment cannot reasonably be seen as indicating a tendency to decide on some basis other than the evidence. There was certainly no evidence that could displace the presumption that the Chairman would act impartially (see, e.g., Bennett v. British Columbia (Superintendent of Brokers) (1994), 30 Admin. L.R. (2d) 283 (B.C.C.A.), per Taylor J.A., affd (1994), 118 D.L.R. (4th) 449 (C.A.); Badu v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 5 (T.D.) (Q.L.)). More than a mere suspicion, or the reservations of a “very sensitive or scrupulous conscience,” is required to displace that presumption (see Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369, at pages 394-395, per de Grandpré J., dissenting).

Moreover, that remark would have been entirely justified if, as the Chairman obviously thought, Beno had contradicted himself. It is entirely appropriate even for a trial judge to interject in order to clarify inconsistencies in the evidence: see Brouillard v. The Queen, [1985] 1 S.C.R. 39, at pages 42-48; Jones v. National Coal Board, [1957] 2 All E.R. 155 (C.A.). Indeed, BGen Beno’s testimony that day was sufficiently unclear that Commissioner Desbarats was also struggling to understand it, and said so.[6]

The only reason why the Judge found the Chairman’s remark on that day to be indicative of bias is that he disagreed with the Chairman’s assessment of BGen Beno’s demeanour and credibility. But that is not a valid reason to question the Chairman’s impartiality. There is a difference between being impartial and being right. The Chairman had to form an opinion on the evidence of the witness; he had to base that opinion on his own honest perception of things. It matters little, in so far as the allegation of bias is concerned, that he may have misunderstood the evidence or been less impressed than was the Judge by the candour of the witness. It was, in our view, a gross error for the Judge to conclude that the events of January 30 gave rise to a suspicion that the Chairman was not impartial. The only reasonable inference that could be drawn from those events was that the Chairman had misunderstood the evidence and that he would, as he had said, look at the transcript before making up his mind.

Having drawn that wrong conclusion from the events of January 30, the Judge had no difficulty in finding a confirmation of his opinion in the evidence relating to the Chairman’s visit to Calgary and the informal meeting of the Commission. That evidence, as we read the reasons for judgment, would show that the Chairman persisted in his error and, therefore, in his bias. Again, this is wrong.

The Chairman’s visit to Calgary where he met BGen Meating and Mr. Mariage took place a week after the incident of January 30. There is no reason to believe that the Chairman had given any further thought to that incident or to BGen Beno’s evidence. One may assume that he had many other things on his mind. It must have been a shock for him to hear BGen Meating’s and Mr. Mariage’s criticisms of his behaviour. It is easy now to say that he should then have remained silent. But it is not abnormal for a person in that situation whose impartiality is openly put in question to try to explain the reasons that motivated his behaviour. It does not show that he was partial or had already reached a definite conclusion about BGen Beno’s evidence.

Finally, contrary to what the Judge found, the Chairman said nothing, during the private meeting of February 12, that could be interpreted as an indication that he was biased or committed to the views he had expressed at the January 30 hearing.

We would allow the appeal, set aside the decision of the Trial Division and dismiss BGen Beno’s application for judicial review.

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