Commission of Inquiry – Judicial Control – Standard of Review – Procedural Fairness - Apprehension of Bias
David Scott and Peter K. Doody for Applicant Jean Chrétien
Guy Pratte and Nadia Effendi for Applicant Jean Pelletier

These were two judicial review applications concerning the Report, Phase I of Commissioner Gomery published November 1, 2005 following the Commission of Inquiry into the Sponsorship Program and Advertising Activities of the Government of Canada. The Court had to determine whether Commissioner Gomery had shown a reasonable apprehension of bias towards the Applicants.

The court allowed the interlocutory motions presented by the Attorney General for some paragraphs in the affidavit of Jean-Sébastien Gallant to be quashed, in the first case, and some paragraphs in the affidavit of the Applicant to be quashed, in the second case. These paragraphs concerned Bernard Roy as Chief Prosecutor of the Commission as well as the media coverage of Commissioner Gomery and the publication of his Report. However, the court did not set aside the paragraphs relating to François Perreault's book concerning the internal operation of the Commission. The court also allowed the interlocutory motions presented by the Applicants under Rule 312 of the Federal Courts' Rules and granted the filing of a supplementary affidavit containing newspaper articles and transcriptions of interviews given by the Commissioner.

In analyzing factors listed in Baker (Supreme Court of Canada), the court concluded that the Applicants were entitled to a high degree of fairness before the Commission. The court quoted the Morneau decision (Federal Court of Appeal) with regards to the standard of review applicable to the findings of the Commission, that is whether the findings were “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.” On the subject of procedural fairness, the court found that the applicable standard was that of the correctness. On the subject of the evidence submitted concerning the declarations of Commissioner Gomery, the court deemed that a reasonable observer would conclude that Commissioner Gomery had prejudged the outcome of the inquiry and that he had shown a reasonable apprehension of bias towards the Applicants. The Commissioner's interventions with the media and his conduct outside of the courtroom were deemed detrimental to the fairness of the proceedings and detrimental towards Applicants Chrétien and Pelletier. The court rejected the findings related to the Applicants in the Report of the Commission. Costs for the applications and the interlocutory motions were awarded to the Applicants and costs for the Attorney General's motions were awarded to the Attorney General.