Federal Court of Appeal Decisions

Date: 20030203

Docket: A-704-01

Neutral citation: 2003 FCA 55

CORAM:        DÉCARY J.A.

ROTHSTEIN J.A.

EVANS J.A.

BETWEEN:

                                                                MICHAEL TAYLOR

                                                                                                                                                       Appellant

                                                                                 and

                                                ATTORNEY GENERAL OF CANADA

                                                                                                                                                   Respondent

                                                                                 and

                                                   CANADIAN JUDICIAL COUNCIL

                                                                                                                                                     Intervener

                                           Heard at Toronto, Ontario, on October 31, 2002.

                                  Judgment delivered at Ottawa, Ontario, on February 3, 2003.

REASONS FOR JUDGMENT BY:                                                                                       EVANS J.A.

CONCURRED IN BY:                                                                                                         DÉCARY J.A.

                                                                                                                                         ROTHSTEIN J.A.

Date: 20030203

Docket: A-704-01

Neutral citation: 2003 FCA 55

CORAM:        DÉCARY J.A.

ROTHSTEIN J.A.

EVANS J.A.

BETWEEN:

                                                                MICHAEL TAYLOR

                                                                                                                                                       Appellant

                                                                                 and

                                                ATTORNEY GENERAL OF CANADA

                                                                                                                                                   Respondent

                                                                                 and

                                                   CANADIAN JUDICIAL COUNCIL

                                                                                                                                                     Intervener

                                                        REASONS FOR JUDGMENT

EVANS J.A.

A.        INTRODUCTION

[1]                 This appeal concerns the propriety of the Canadian Judicial Council's handling of a complaint made to it about Justice A. C. Whealy, a Judge of Ontario's Superior Court of Justice. As the presiding judge at a criminal trial, Justice Whealy had refused to allow Michael Taylor to remain in the courtroom as a member of the public while he was wearing a kufi, a small head covering. Mr. Taylor is of the Islamic faith and a spiritual leader in the African-Canadian community. He told the Judge that he could not remove his kufi because he wore it as part of his religious belief and practice. Nonetheless, the Judge insisted that he leave unless he removed it.

[2]                 In Mr. Taylor's view, Justice Whealy's ruling on the wearing of head coverings in court, and his subsequent explanations of it, raise a serious question about his fitness to continue to hold judicial office in a multicultural society that respects and celebrates diversity, including in matters of religion. Mr. Taylor complained to the Canadian Judicial Council in order to have this concern addressed.

[3]                 The Chairperson of the Council's Judicial Conduct Committee did not share Mr. Taylor's view of the seriousness of the Judge's conduct. Nonetheless, in closing the complaint file he stated that the exclusion of Mr. Taylor from the trial was improper and inappropriate, created the impression that the Judge was insensitive to minority groups, and merited an expression of disapproval. He did not refer the matter for a formal investigation by the Council which could have resulted in a recommendation by the Council that Justice Whealy be removed from office as a Judge on the ground that he had been "placed, by his conduct ... in a position incompatible with the due execution of that office": Judges Act, R.S.C. 1985, c. J-1, paragraph 65(2)(d).

[4]                 Mr. Taylor was dissatisfied with this disposition of his complaint and applied to the Trial Division of this Court for judicial review of the Chairperson's decision. Blanchard J. dismissed the application (Taylor v. Canada (Attorney General), 2001 FCT 1247, [2002] 3 F.C. 91), and Mr. Taylor has appealed to this Court from that decision.

[5]                 In oral argument before us, Mr. Rosenthal, counsel for Mr. Taylor, submitted that the Applications Judge erred in law in the following three respects. First, he erred in finding that the Chairperson's refusal to refer the matter for further investigation was reasonable. Second, the Chairperson's handling of the complaint should have been held to be vitiated by bias, on the ground that it gave rise to a reasonable apprehension of prejudgement. Third, the Council's dismissal of the complaint was in breach of Mr. Taylor's rights under section 15 of the Charter because the Council thereby condoned Justice Whealy's infringement of his rights under section 2 and 15 of the Charter and denied him access to the only forum in which he could seek an effective remedy. For this purpose, the Council was said to be in an analogous position to an employer with respect to federally appointed judges while performing judicial duties. Counsel asked the Court to set aside the decision to close the file on Justice Whealy and to remit the matter to the Council for reconsideration.

[6]                 In my opinion, while aspects of the handling of the complaint to the Council are not above criticism, Mr. Taylor has not established any of his grounds of appeal.

B.        FACTUAL BACKGROUND

(i) Courtroom Incidents

[7]                 The factual background to the present dispute has been described in the reasons for judgment below, and by both the Court of Appeal for Ontario in R. v. Laws (1998), 41 O.R. (3d) 499. (C.A.), and this Court in Taylor v. Canada (Attorney General), [2000] 3 F.C. 298 (F.C.A.). Nonetheless, it needs to be repeated here since it is essential to understanding the Council's disposition of the complaint and the bases of Mr. Taylor's appeal.

[8]                 The genesis of this litigation is the criminal trial in Toronto of Dudley Laws, a well-known leader in the African-Canadian community, who was charged with conspiring to smuggle people across the border between Canada and the United States. The trial started on November 15, 1993, and concluded the following March. The jury found Mr. Laws guilty on five counts, but his conviction was overturned on appeal and a new trial was ordered.

[9]                 The trial attracted considerable publicity; the public seating area was unusually full and included supporters of Mr. Laws. The trial proceeded without disruption, except for the protests sparked by the Judge's rulings on the head coverings worn by some of those attending the trial. On the first morning of the trial, the Judge said that any one who insisted on "wearing a hat" must leave the courtroom. As officials were removing one of those who retained a head covering, counsel for Mr. Laws' co-accused told the Judge that wearing a head coverings "is a religious matter". The Judge replied: "I do not care. I am not quarrelling with his religion, he is just not going to be in the courtroom."

[10]            As a result of these and similar incidents, Mr. Rosenthal, who was counsel for Mr. Laws, filed a motion requesting Justice Whealy to permit members of the public who were wearing head coverings for religious purposes to remain in the courtroom. However, before hearing argument on the motion, the Judge issued a "dress code protocol", which stated, among other things, "male heads must be bare", and "uncovering one's head as a mark of respect" is a "tradition honoured by well over 90% of the population of Canada."

[11]            The Judge went on to say that he would permit the wearing of a head covering by adherents of "a well established and recognizable ... religious community", one of which "is clearly within the purview of the Charter", but only if it was "an article of faith demanded by that well established and recognizable religious community". However, he would not allow adherents of "self-proclaimed and unrecognized forms of religion" that "may ... have limited Charter protection" to wear clothing that in his view was "derogatory to the proper process of the court."

[12]            On the day that Justice Whealy issued this order, November 22, 1993, Mr. Taylor appeared at the trial for the first time. He was wearing a kufi and told the court official who asked him to remove it, or to leave the courtroom, that he was a Muslim and wore a kufi as part of his religious practice. The officer replied that there were no exceptions and that he would have to go. As he was leaving, he heard the Judge say, "Muslims do not wear hats." Mr. Taylor was also prevented from entering the courtroom on November 25 while wearing his kufi. On this occasion, the court official told him that he was removing him in accordance with the orders of Justice Whealy.

[13]            Mr. Rosenthal filed another motion on December 1, seeking an order permitting the wearing of religious head coverings in the courtroom. Even though he had before him a sworn affidavit from Mr. Taylor stating that he wore a kufi as a matter of religious practice and conviction, Justice Whealy dismissed the motion on January 5, 1994. In his reasons, the Judge reiterated the terms of the dress protocol that he had announced on November 22.

[14]            Mr. Taylor and others again attempted to attend the trial on February 7, 1994, but were ejected by police officers and court officials after refusing to remove the head coverings that they were wearing for religious purposes.

(ii) Pursuit of a Remedy

[15]            Different avenues were explored in an attempt to find a legal remedy for what Mr. Taylor regarded as Justice Whealy's discriminatory conduct: the Court of Appeal for Ontario, the Ontario and Canadian Human Rights Commissions, and the Canadian Judicial Council. A brief description of the relief sought from bodies other than the Council makes it clear that none addressed the concern that Mr. Taylor brought to the Council, namely, the Judge's fitness to remain in office.

(a) Ontario Court of Appeal

[16]            Mr. Taylor and the others who had been excluded from the trial of Mr. Laws did not themselves ask the Court to provide a remedy. Rather, in his appeal against his conviction, Mr. Laws argued that he was denied the right to a public trial when Justice Whealy excluded from the courtroom members of the public who were wearing head coverings as part of their religious practice.

[17]            After a thorough review of the events described above, as well as of the relevant case law balancing the right to a public trial and the exercise of the trial judge's discretion to maintain courtroom decorum, the Court found that, although his rulings did not deprive Mr. Laws of the right to a public trial, Justice Whealy erred in the exercise of his discretion in the following two respects. First, Charter protection for religious freedom is not restricted to "obligatory doctrine", as opposed to a "chosen religious practice" (R. v. Laws at para. 23). Second, the extent of the protection provided by the Charter to freedom of religion is not limited to persons who belong to one of the "major and recognizable religions" (at para. 24).

[18]            The Court concluded (at para. 26) that, while the Judge's erroneous rulings did not deprive Mr. Laws of the right to a public trial, "the trial judge by his rulings may well have inadvertently created the impression of an insensitivity as to the rights of minority groups." The Court went on to say that Justice Whealy's error in excluding certain members of the public from the courtroom "may well have resulted in creating an atmosphere that undermined the appearance of a fair trial." However, since it allowed the appeal on other grounds, the Court did not have to decide if the exclusion of persons from the courtroom, and the atmosphere created by the Judge's rulings, so prejudiced the fairness of the trial as to justify setting aside Mr. Laws' conviction.

[19]            The Court of Appeal thus vindicated the right of Mr. Taylor to attend court proceedings while wearing a kufi. By finding that the erroneous exclusion of Mr. Taylor and others from Mr. Laws' trial resulted from Justice Whealy's unduly narrow understanding of the Charter's protection of freedom of religion, the Court not only corrected Justice Whealy, but also sought to ensure that, in the future, trials are conducted in a manner that is respectful of religious diversity and avoids the appearance of insensitivity to minority rights.

(b) human rights commissions

[20]            Complaints to human rights bodies about Justice Whealy met with no success. An official of the Canadian Human Rights Commission initially advised Mr. Taylor that he should direct his complaint to the Ontario Human Rights Commission because the incident giving rise to the complaint took place in a court created by provincial legislation. However, the provincial human rights body rejected the complaint, on the ground that it had no jurisdiction over the exercise of powers by federally appointed officers, including judges of the Ontario Court - General Division, as the Superior Court of Justice was then called.

[21]            On returning to the Canadian Human Rights Commission, Mr. Taylor's complaint was again rejected: this time, on the ground that the independence of the judiciary conferred on Justice Whealy an absolute immunity from legal proceedings, including administrative proceedings under the Canadian Human Rights Act, R.S.C. 1985, c. H-6, in respect of his conduct while performing judicial duties.

[22]            An application for review of this decision was dismissed (Taylor v. Canada (Attorney General) (1997), 155 D.L.R. (4th) 740 (F.C.T.D.)) as was Mr. Taylor's appeal (Taylor v. Canada (Attorney General), [2000] 3 F.C. 298 (C.A.)). Both at first instance and on appeal, it was noted that the Canadian Judicial Council, to which Mr. Taylor had already complained, was a more appropriate forum than the Canadian Human Rights Commission in which to pursue a complaint about a judge's conduct in court.

(c) Canadian Judicial Council

[23]            A complaint to the Council about Justice Whealy's exclusion from the courtroom of men wearing religious head coverings, including Mr. Taylor, was first made by Mr. Rosenthal in a letter dated October 28, 1994, nearly four years before the Ontario Court of Appeal decided Laws. The letter set out the relevant events, as well as Mr. Rosenthal's view that "such rulings are not acceptable in our present multicultural society" and his hope that the "Judicial Council would take appropriate action."

[24]            In a letter of reply, dated December 28, 1994, Ms. Jeannie Thomas, the Executive Director of the Council, advised Mr. Rosenthal that, having reviewed his complaint and supporting documentation, Chief Justice McEachern, the then Chairperson of the Judicial Conduct Committee, had decided to take no further action on the complaint. He viewed Mr. Laws' appeal to the Court of Appeal for Ontario as the appropriate way of challenging a ruling made by a judge in the course of legal proceeding, including, in this case, "the steps he considered necessary to maintain order in his courtroom". The complaint file was accordingly closed.

[25]            Mr. Rosenthal was not satisfied with this response and, in a letter dated January 6, 1995, made two points. First, the appeal to the Court of Appeal was not an appropriate remedy for those excluded from the trial. Only parties could appeal rulings made during a trial and the Court would focus on the impact of the Judge's rulings on the conviction of the accused. Second, Mr. Rosenthal took exception to the Chairperson's comment that Justice Whealy's rulings had been made to ensure order in the courtroom, since there had been no disorder in court, except for the slight disruptions resulting from the exclusions. Accordingly, he asked for a reconsideration of the decision to close the file.

[26]            Ms. Thomas replied on January 23, 1995, conveying the Chairperson's decision not to reconsider because, while the in-court conduct of judges may be scrutinised by the Council "in appropriate circumstances", "rulings by judges in the independent discharge of their judicial functions are best left with appeal courts." And, since the Court of Appeal could examine the Judge's jurisdiction to make the impugned ruling, "the Council defers to that forum in the first instance." The letter left open the possibility that, if the Court of Appeal commented adversely on Justice Whealy's ruling, "this Council could well consider whether that conduct was such as would engage the jurisdiction of the Council which, as you know, is to determine whether a recommendation should be made that a judge should be removed from office."

[27]            As to Mr. Rosenthal's statement that the Judge's ruling could not be justified on the basis of disorder in the courtroom, the letter noted that it was impossible to know, two years later, whether the Judge was right in thinking that circumstances made it "necessary for him to assert his authority to ensure order in his courtroom". Accordingly, the letter concluded, "it is very unlikely that a single ruling in a single case would be considered conduct deserving a recommendation for removal."

[28]            As I have already noted, the Ontario Court of Appeal did indeed comment adversely on Justice Whealy's ruling in its disposition of the Laws appeal on September 9, 1998. In view of this decision, and of the previous letter from the Council, Mr. Rosenthal requested a reconsideration of Mr. Taylor's complaint.

[29]            In a letter dated December 9, 1998, Ms. Thomas advised Mr. Rosenthal that she had been asked by Chief Justice McEachern to reply to him as follows. Judges have the authority to take steps to keep order in court, and "Justice Whealy took the steps he considered necessary at the beginning of what was expected to be a very difficult trial." However, in recognition of the importance of individuals' freedom to practise their religion, "Judges need to be aware of the multicultural nature of their communities and keep this in mind in those few cases where it is necessary, in order to preserve decorum, to enforce a minimum standard for courtroom attire."

After setting out the Court of Appeal's censure of the Judge's rulings, the letter stated that Chief Justice McEachern adopted as his own the view of the Court of Appeal that "Justice Whealy's comments created the impression that he was insensitive to minority groups" and "as such the comments were inappropriate."

[30]            The Chief Justice also noted that, in a reply to his invitation for comments, Justice Whealy had stated: "I sincerely regret if the impression was created that I am insensitive to the rights of minority groups. That is not the case and was never my intent." Treating this as a recognition by Justice Whealy that his conduct had been inappropriate or improper, Chief Justice McEachern expressed disapproval of Justice Whealy's conduct, but concluded that it was not sufficiently serious to warrant further inquiry or action by the Council. The letter conveyed the Judge's apology to Mr. Taylor, even though, prior to Mr. Rosenthal's letter of September 8, 1995, the complainant had apparently been Mr. Rosenthal, not Mr. Taylor.

(iii) Correspondence Between Justice Whealy and the Council

[31]            The Council's complete record of its 1998 decision to close the file was delivered in the course of the application for judicial review. In addition to the documents reviewed above, the record contained correspondence between Justice Whealy and the Council, of which Mr. Rosenthal had previously been unaware.

[32]            In argument before the Court, Mr. Rosenthal attached considerable significance to the content of a three-page letter, dated November 30, 1994, which Justice Whealy had written to Chief Justice McEachern, but was not copied to Mr. Rosenthal. The letter was evidently sent in response to a letter from Ms. Thomas advising the Judge of Mr. Rosenthal's complaint to the Council.

[33]            Mr. Rosenthal submitted that the letter evidenced Justice Whealy's unfitness to continue to hold judicial office because in it he persisted in attempting to justify his ruling in a manner that indicated that he might be unable to assure the public and, in particular, members of minority groups who appeared before him, that he did not harbour prejudices that would prevent him from administering justice with the degree of impartiality expected of judges in a multicultural society. Because of the importance that Mr. Rosenthal attaches to this letter, I shall describe its content in some detail.

[34]            The Judge started by giving some background to the criminal trial, namely, that Mr. Laws was a Black activist who had often criticised the Metropolitan Toronto Police for targeting Black youths, and that his defence to the charges against him was that they had been concocted by the police in an attempt to silence a critic. Turning to the events at the trial, the Judge stated:

At the very first day, it was instantly apparent that a concerted effort was under way to turn this into a political rather than a legal trial. A kaleidoscopic array of hats, caps and other undefinable headgear that dotted the courtroom was really quite inventive. It was quite clear that none of those articles of headgear were matters of religious orthodoxy. A considerable number of these headpieces were green, gold and red, which of course are the national colours of Jamaica. The wearing of artifacts in those colours is quite common on the streets of Toronto. As a first step, I considered it important to make sure that the courtroom and the audience which I could anticipate appearing, should not be turned into a cheering section. Accordingly, I ordered all those wearing headgear to leave the courtroom.

I might say that on that occasion there was no one wearing a kufi and indeed Mr. Taylor was not introduced to the courtroom until a week later. It was quite clear that he was introduced as an element to test the perseverance of the court.

[35]            Justice Whealy went on to say that, before Mr. Taylor appeared in the courtroom, he had asked the Ontario Ministry of Multiculturalism whether the wearing of a head covering was required as an article of the Muslim faith, and was told that it was not, although many Muslims often did cover their heads. The Judge then observed that, throughout the trial, perhaps weekly, "some little incident to test the alertness of the court was tried", such as the exaggerated removal of a hat or "a female wearing some quite unconventional head covering." The Judge also said that, at the sentencing hearing, it took between 40 and 50 minutes for court officials to clear the courtroom of those who refused to remove their head coverings, because of the number of people involved. He concluded:

In short, this was an unusual trial which presented unusual problems, but which went, in my view, as smoothly as possible considering the personalities involved and the length of time it took to complete. I am of the view that it was the manner in which the court was administered which prevented this trial from degenerating into some spectacle. As well, it was my view that the conduct of the trial required a very stern hand indeed.

[36]            The letter referred to in Ms. Thomas' response to Mr. Rosenthal, dated December 9, 1998, was written by Justice Whealy to the Council on November 5, 1998, and was not copied to Mr. Rosenthal. Nor does the record include the letter from the Council to Justice Whealy, to which his letter of November 5 was the reply. However, it must have been apparent to Mr. Rosenthal from the Council's letter to him of December 8, 1998, that, before completing his reconsideration of the file, Chief Justice McEachern had written to Justice Whealy for his comments on Mr. Rosenthal's letter and had received a reply, which included the statement quoted above and an apology to be conveyed to Mr. Taylor.

[37]            Justice Whealy started his letter of November 5, 1998, by reiterating that most of those removed from his courtroom for retaining their head coverings "were wearing wooly knitted beret-style hats coloured gold, red and green which are the national colours of Jamaica. Mr. Taylor was wearing a fez-like hat." Parenthetically, I would note that the Judge is mistaken in one respect: the national colours of Jamaica are green, gold and black, not gold, red and green. These latter colours are, however, often associated with Rastafarianism, which originated in Jamaica.

[38]            Referring to the Ontario Court of Appeal's criticism of his exclusion from the courtroom of persons wearing head coverings with a religious significance, the Judge said: "Accepting as I must the decision of the Court of Appeal, I was in error in excluding Mr. Taylor." Justice Whealy concluded his letter by saying: "I sincerely regret if the impression was created that I am insensitive to the rights of minority groups. That is not the case and was never my intent."

C.        STATUTORY FRAMEWORK

[39]            The provisions of the Judges Act establishing the Canadian Judicial Council that are relevant to this appeal are as follows.

                               Judges Act, R.S.C. 1985, c. J-1

60(1) The objects of the Council are to promote efficiency and uniformity, and to improve the quality of judicial service, in superior courts and in the Tax Court of Canada. (2) In furtherance of its objects, the Council may                          ... (c) make the inquiries and the investigation of complaints or allegations described in section 63; and                          ... 63(2) The Council may investigate any complaint or allegation made in respect of a judge of a superior court or of the Tax Court of Canada. 65(2) Where, in the opinion of the Council, the judge in respect of whom an inquiry or investigation has been made has become incapacitated or disabled from the due execution of the office of judge by reason of (a) age or infirmity, (b) having been guilty of misconduct, (c) having failed in the due execution of that office, or (d) having been placed, by his conduct or otherwise, in a position incompatible with the due execution of that office, the Council, in its report to the Minister under subsection (1), may recommend that the judge be removed from office.

60(1) Le Conseil a pour mission d'améliorer le fonctionnement des juridictions supérieures et de la Cour canadienne de l'impôt, ainsi que la qualité de leurs services judiciaires, et de favoriser l'uniformité dans l'administration de la justice devant ces tribunaux. (2) Dans le cadre de sa mission, le Conseil a le pouvoir_:                          ... c) de procéder aux enquêtes visées à l'article 63;                          ... 63(2) Le Conseil peut en outre enquêter sur toute plainte ou accusation relative à un juge d'une juridiction supérieure ou de la Cour canadienne de l'impôt. 65(2) Le Conseil peut, dans son rapport, recommander la révocation s'il est d'avis que le juge en cause est inapte à remplir utilement ses fonctions pour l'un ou l'autre des motifs suivants_: a) âge ou invalidité; b) manquement à l'honneur et à la dignité; c) manquement aux devoirs de sa charge; d) situation d'incompatibilité, qu'elle soit imputable au juge ou à toute autre cause.

[40]            Also relevant are the following provisions of the Council's By-Laws, effective April 1, 1998, which the Council made under subsection 61(3) of the Judges Act.

                         Canadian Judicial Council By-Laws

26. There shall be a standing committee of the Council on each of the following subjects: (a) judicial conduct; 28 (1) The members of the Executive Committee shall constitute the Judicial Conduct Committee. (2) The Chairperson of the Council shall designate one of the Vice-Chairpersons of the Council to be the Chairperson of the Committee, who shall hold office at the pleasure of the Chairperson of the Council. 41(1) The Chairperson of the Judicial Conduct Committee shall carry out the duties set out in this Part with respect to complaints against judges. (2) The Chairperson of the Committee may assign to a Vice-Chairperson of the Committee complaints for which the Vice-Chairperson shall be responsible. 47. The Chairperson of the Committee shall review the complaint and may inquire into the matter by requesting comments from the judge concerned and from his or her chief justice. 48. The Chairperson of the Committee may cause further inquiries to be made if more information is required for the review or if the matter is likely to be referred to a Panel under section 53 and more information appears to be necessary for the Panel to fulfil its function. 49. If further inquiries are caused to be made, the judge concerned shall be provided with an opportunity to respond to the gist of the allegations and of any evidence against him or her and the judge's response shall be included in the report of the further inquiries. 50(1) Subject to section 51, the Chairperson of the Committee, having reviewed the complaint and any report of inquiries, may close the file and shall advise the complainant with an appropriate reply in writing if (a) the matter is trivial, vexatious or without substance; or (b) the conduct of the judge is inappropriate or improper but the matter is not serious enough to warrant removal.

26. Le Conseil établit des comités permanents pour chacun des objets suivants : a) la conduite des juges; 28 (1) Le comité sur la conduite des juges est formé des membres du comité exécutif. (2) Le président du Conseil désigne à titre amovible l'un des vice-présidents président du comité. 41(1) Le président du comité sur la conduite des juges exerce les fonctions visées par la présente partie à l'égard des plaintes portées contre les juges. (2) Le président du comité peut déléguer ses responsabilités à l'égard de plaintes à un vice-président du comité. 47. Le président du comité examine la plainte et peut enquêter à cette fin en demandant des commentaires au juge en cause et à son juge en chef. 48. Le président du comité peut faire effectuer une enquête supplémentaire s'il a besoin d'autres renseignements pour procéder à l'examen ou si l'affaire est susceptible de renvoi devant un sous-comité visé à l'article 53 et qu'il semble que le sous-comité aura besoin d'autres renseignements pour s'acquitter de ses fonctions. 49. Lorsque l'enquête supplémentaire est effectuée, il est accordé au juge en cause la possibilité de répondre à l'essentiel de la plainte formulée contre lui et des éléments de preuve présentés à cet égard. Le cas échéant, la réponse est consignée dans le rapport d'enquête. 50(1) Sous réserve de l'article 51, après avoir examiné la plainte et tout rapport d'enquête, le président du comité peut, dans les cas suivants, fermer le dossier, auquel cas il en informe le plaignant par une réponse écrite appropriée : a) l'affaire est frivole, vexatoire ou dénuée de fondement; b) la conduite reprochée au juge est déplacée ou répréhensible, mais l'affaire n'est pas suffisamment grave pour justifier la révocation.

D.        DECISION OF THE TRIAL DIVISION

[41]            Blanchard J. first considered the standard of review applicable to the Council's decision not to refer Mr. Taylor's complaint for investigation by a Panel pursuant to section 53 of the By-Laws. After carefully conducting a pragmatic or functional analysis, he selected the most deferential standard of review, namely, patent unreasonableness. Further, he held, the Chairperson of the Judicial Conduct Committee did not act unreasonably when, on the material before him, he expressed disapproval of Justice Whealy's conduct, but did not refer the complaint for further investigation.

[42]            Second, he dismissed the argument that the Chairperson's decision not to refer the complaint for further investigation was a breach of Mr. Taylor's Charter rights to freedom of religion and equality. Since the Council is not the employer of, nor exercises control over, federally appointed judges, Blanchard J. held the analogy with the liability of employers for human rights infringements committed by their employees (Robichaud v. Canada (Treasury Board), [1987] 2 S.C.R. 84) was inapt.

[43]            Third, relying on Knight v. Indian Head School Division, No. 19, [1990] 1 S.C.R. 653, Blanchard J. held that no duty of fairness is owed to a person who complains to the Council about a judge, because of the investigative nature of the Council's functions and the absence of any interest of the complainant that could be injured by the closing of the file. However, if, contrary to his opinion, the duty of fairness applied, Blanchard J. concluded that the Council had discharged it. Mr. Taylor had been afforded an adequate opportunity to participate by making written submissions through his counsel, which the Chairperson considered before making his decision not to refer the complaint for further investigation.

[44]            Fourth, the Chairperson's 1998 reconsideration of his 1995 decision to close the file did not give rise to a reasonable apprehension of bias. Given the non-adjudicative nature of the Council's functions, the applicable test of bias was whether a reasonable person would believe that the Chairperson would not maintain an open mind throughout the process: Old St. Boniface Residents Association Inc. v. Winnipeg (City), [1990] 3 S.C.R. 1170. No reasonable and informed person who had viewed the matter realistically and thought it through, would conclude that it was more likely than not that the Chairperson had a closed mind on the complaint.

E.        ISSUES AND ANALYSIS

[45]            In his oral submissions, Mr. Rosenthal raised four issues for decision in this appeal.

1.         What is the standard for reviewing the decision of the Chairperson of the Judicial Conduct Committee to close the complaint file in this case: unreasonableness simpliciter or patent unreasonableness?

2.          Did the Chairperson's decision satisfy the applicable standard of review?

3.          Is the Chairperson's closing of a complaint file reviewable for bias and, if it is, did the handling of the request for reconsideration of Mr. Taylor's complaint give rise to a reasonable apprehension that the Chairperson was biased?

4.         In view of Justice Whealy's violation of Mr. Taylor's Charter rights and the Council's statutory power to recommend a judge's removal from office, did the closing of the complaint file constitute a breach of Mr. Taylor's Charter rights?

Issue 1: Standard of review

[46]            The Supreme Court of Canada recently held that patent unreasonableness was the appropriate standard for reviewing a provincial judicial council's recommendation that comments made by a judge about Acadians in New Brunswick were so egregious that, despite a full apology by the judge on the next day, she should be removed from office: Moreau-Bérubé v. New Brunswick (Judicial Council), 2002 SCC 11. In my opinion, Moreau-Bérubé is applicable to the instant case.

[47]            Mr. Rosenthal submitted that Moreau-Bérubé is distinguishable, on the ground that the decision to close the complaint file on Justice Whealy was taken by one member of the Council, the Chairperson of the Judicial Conduct Committee, and not, as in Moreau-Bérubé, by the Council in plenary session.

[48]            In support of this argument, counsel relied on passages in the reasons of Arbour J., writing for the Court in Moreau-Bérubé, that refer to the collegial nature of the Council's decision as a reason why its decisions should be reviewed only for patent unreasonableness. For example, Arbour J. said (at para. 49):

It is fair to say that the Council, in this case, is a tribunal with a rich and wide ranging collection of judicial expertise. The Council is eminently qualified to render a collegial decision regarding the conduct of a judge, including where issues of apprehension of bias and judicial independence are involved. There is no basis upon which one could claim that a single judge sitting in judicial review of a decision of the Council would enjoy a legal or judicial advantage [emphasis added].

[49]            Arbour J. also noted (at para. 50) that, under the enabling legislation of the New Brunswick Judicial Council, seven of its ten members are judges: the Chief Justice of the province, a judge of the New Brunswick Court of Appeal, three judges from the Court of Queen's Bench and two provincial court judges. Arbour J. returned to the same theme in stating (at para. 72):

The expertise to decide that difficult issue [namely, whether the judge's comments gave rise to such a degree of apprehension of bias that she should not remain on the bench] rests in the Council, a large collegial body composed primarily of judges of all levels of jurisdiction in the province, but also of non-judges whose input is important in formulating that judgment [emphasis added].

[50]            I am not persuaded that Blanchard J. erred in his selection of the standard of review, or that Moreau-Bérubé is distinguishable on the ground that, under the Canadian Judicial Council's By-Laws, the Chairperson of the Judicial Conduct Committee alone decides whether a complaint should proceed to the panel investigation stage of the complaints process.

[51]            First, the size of a tribunal has not been a factor in the pragmatic or functional analysis for determining the standard of review. I do not infer from the passages of Arbour J.'s reasons that she intended to add another discrete consideration to an analysis that can hardly be said to be insufficiently attentive to context.

[52]            Second, the pragmatic or functional analysis is multi-factored and, even if Arbour J. attached some weight to the size of the Council, and the collegial nature of its decision, she regarded other factors as being of at least equal importance in her selection of the most deferential standard of review. For example, the questions in dispute in the litigation were of mixed fact and law, not of law alone (at para. 41), and judicial councils perform a unique and sensitive role in ensuring the public accountability of judges and in maintaining public confidence in the judiciary, without, at the same time, compromising judicial independence (at para. 43 and following). These factors are also present in the instant case.

[53]            Third, the Canadian Judicial Council's Judicial Conduct Committee is chaired by a senior judge who brings to the position his or her own experience of handling judicial conduct issues as chief justice. The Chairperson of the Committee not only acquires an expertise while acting in this capacity, but also has the benefit of the insights that she or he has obtained as a senior member of Council, as a result of dealing with, talking with colleagues about and reflecting upon, a wide range of sensitive and important issues concerning judicial conduct and the proper role of the Council.

[54]            The By-Laws of the Council respecting the selection of the Chairperson of the Judicial Conduct Committee reflect the special responsibilities of this office and the expertise of the person holding it. While members of standing committees of the Canadian Judicial Council typically select their own Chairperson from among themselves (section 27), the members of the Executive Committee of the Council, who comprise the Judicial Conduct Committee (subsection 28(1)), do not select the Chairperson. The Chairperson of the Judicial Conduct Committee is designated by the Chairperson of the Canadian Judicial Council from one of the Vice-Chairpersons of the Council (subsection 28(2)), who need not necessarily be a member of the Executive Committee (subsection 3(2)).

[55]            Finally, I should note that, when Arbour J. in Moreau-Bérubé contrasted the experience of the collegial provincial council with that of a single judge, she was referring to a single judge hearing an application for judicial review. She did not have in mind a person of the experience of the Vice-Chairperson of the Canadian Judicial Council who has been asked by the Chairperson of the Council, the Chief Justice of Canada, to chair the Judicial Conduct Committee.

Issue 2: Was the Decision Patently Unreasonable?

[56]            Counsel argued that, in view of the material before Chief Justice McEachern, his decision not to refer Mr. Taylor's complaint for further investigation was patently unreasonable. Mr. Rosenthal submitted that a file may not be closed by the Chairperson of the Judicial Conduct Committee when a complainant establishes a prima facie case that the conduct in question warrants the removal of a judge. Here, he says, Justice Whealy's conduct during Mr. Laws' trial, and his continuing inability to understand the grievous nature of his errors, as evidenced by his correspondence with the Council, are prima facie evidence that he may be recommended for removal by the Council pursuant to the Judges Act, paragraph 65(2)(d), on the ground that he has "been placed, by his conduct ... in a position incompatible with the execution of that office."

[57]            I cannot accept this argument. First, the standard of patent unreasonableness requires a very high degree of deference to the decision-maker: a reviewing court must neither substitute its opinion for that of the administrative decision-maker on the matter in dispute, nor even subject the reasons given for the decision to "a somewhat probing examination" (Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748 at para. 56). Rather, a decision reviewable for patent unreasonableness will only be vitiated by an error that is "apparent on the face of the tribunal's reasons" without the need for "significant searching or testing" (Southam Inc. at para. 57), or is so serious as to amount to "a fraud on the law or a deliberate refusal to comply with it" and "is treated as an act which is done arbitrarily or in bad faith and is contrary to the principles of natural justice" (Syndicat des employés de production du Québec et de l'Acadie v. Canada Labour Relations Board, [1984] 2 S.C.R. 412 at 420).

[58]            Second, it is not alleged in this case that the Chairperson of the Judicial Conduct Committee misdirected himself on the legal test to be applied when considering the disposition of a complaint, or based his decision on a finding of fact that was unsupported by the evidence. Rather, the allegation is that the legal test for referring a complaint to further investigation was applied to the facts in a manner that was patently unreasonable. At this stage I need only say that this is a particularly difficult ground of review to establish since it impugns the exercise of judgment in a specific factual context. Decisions of this kind by tribunals are at the heart of their specialist jurisdiction.

[59]            Third, I do not accept the premise of Mr. Rosenthal's argument, namely, that the legal test to be applied by the Chairperson of the Judicial Conduct Committee in deciding whether to close a file is whether there is a prima facie case for the removal of a judge who has been the subject of a complaint.

[60]            The Judges Act says only that the Council may investigate a complaint made in respect of a judge of a superior court or of the Tax Court of Canada: subsection 63(2). It does not specify the criteria governing the exercise of that discretion. However, paragraph 50(1)(b) of the Council's By-Laws deals directly with the role of the Chairperson of the Judicial Conduct Committee by providing that, after reviewing the complaint, the Chairperson may close the file if she or he considers that the matter is not sufficiently serious as to warrant removal. I infer from this that the Chairperson must form a view as to whether removal is warranted, and not simply whether there is a prima facie case for removal.

[61]            Paragraph 50(1)(b) also provides that, if the Chairperson is not of the view that the conduct is serious enough to warrant removal but, nonetheless, considers that the conduct of the judge was "inappropriate or improper", she or he may "express disapproval of the judge's conduct", if the judge recognizes the impropriety or inappropriateness of the conduct. This, of course, is what happened in this case.

[62]            Accordingly, the question to be decided in this appeal is whether it was patently unreasonable for Chief Justice McEachern to decide that Justice Whealy's conduct was not serious enough to warrant removal from the Bench, and accordingly not to refer the matter to a Panel for investigation with a view to the Council's recommending his removal pursuant to paragraph 65(2)(d) of the Judges Act, but serious enough to be the subject of an expression of disapproval.

[63]            The precise nature of the question that the Chairperson had to ask when reviewing the complaint was further elucidated in Moreau-Bérubé (at para. 51), where Arbour J. adopted a statement by Gonthier J. in Therrien (Re), 2001 SCC 35, [2001] 2 S.C.R. 3 at para. 147, referring to paras. 80-81 in Martin L. Friedland, A Place Apart: Judicial Independence and Accountability in Canada (Ottawa: Canadian Judicial Council, 1995). In the passage in question, Professor Friedland explained as follows the test prescribed in paragraph 65(2)(d):

... before making a recommendation that a judge be removed, the question to be asked is whether the conduct for which he or she is blamed is so manifestly and totally contrary to the impartiality ... of the judiciary that the confidence of individuals appearing before the judge, or of the public in its justice system, would be undermined, rendering the judge incapable of performing the duties of his office.

[64]            Fourth, the manifest impartiality of the judiciary is one of the pillars on which public confidence in the administration of justice rests. In a multicultural society, impartiality in judges includes their ability to take proper account of ethnic, racial and religious diversity in order to ensure that justice is administered to all equally without discrimination, and to appear to reasonable observers to be fair to all who come before them: see R. v. S. (R.D.), [1997] 3 S.C.R. 484 at para. 95. Protecting the manifest impartiality of judges also requires the assiduous protection of their independence.

[65]            At the heart of judicial independence is the freedom of judges to administer justice to the best of their ability, without fear or favour, and in accordance with the evidence and with what they believe is required or permitted by law. Hence, the appeal process is normally the appropriate way of correcting errors committed by judges in the performance of their judicial duties. The Court of Appeal for Ontario performed this function in Laws when it corrected Justice Whealy's erroneous ruling on the wearing of religious head coverings in court.

[66]            Identifying unusual cases where a right of appeal is inadequate to repair the harm inflicted on the administration of justice by a judge's in-court conduct is the province of judicial councils and is a task of the utmost delicacy: Moreau-Bérubé at para. 60. It would take a significantly stronger case than this to persuade me that the Chairperson of the Judicial Conduct Committee had struck such an inappropriate balance between the need for judicial accountability outside the appeal process and judicial independence that the decision to close a complaint file with an expression of disapproval warranted the intervention of the Court in judicial review proceedings.

[67]            Fifth, in deciding whether Mr. Taylor's complaint warranted the removal of Justice Whealy from office, the Chairperson was entitled to take into account the Judge's admission that his ruling was incorrect, his expression of regret if his conduct had created the erroneous impression that he harboured prejudices against any minority groups in our society, and his denial that he was biased against them. It was on the basis of this correspondence that Chief Justice McEachern was able to express disapproval of the Judge's conduct.

[68]            However, I would also agree with Mr. Rosenthal that the Judge's statements are far from the fulsome apology that might be thought to have been called for in the circumstances. The somewhat grudging tone of his remarks is hard to miss. Nonetheless, while Justice Whealy continued to insist that the public interest in the trial, the passions that it aroused, and the presence in the courtroom of supporters of Mr. Laws, posed a threat to the orderliness of the proceedings (a matter on which this Court is in no position to comment) in order to explain his conduct, he did not seek to defend the propriety of his ruling on the wearing of head coverings, or to castigate his critics.

[69]            I do not agree with Mr. Rosenthal's suggestion that the decision to close the file with an expression of disapproval was erroneous because Justice Whealy never recognized the impropriety or inappropriateness of his conduct. The provision permitting the Chairperson to express disapproval of a judge's conduct when the judge has recognized that it was improper or inappropriate is intended to protect the judge from the adverse consequences of an erroneous negative decision. Hence, only a judge, and not a complainant such as Mr. Taylor, can impugn a Chairperson's decision to close a file with an expression of disapproval, on the ground that the judge had not recognized that his or her conduct was inappropriate or improper within the meaning of subsection 50(2) of the Council's By-Laws.

Issue 3: Bias

[70]            Mr. Rosenthal argued that Chief Justice McEachern's handling of Mr. Taylor's complaint gave rise to a reasonable apprehension that he was biased. Counsel submitted that the Chairperson of the Judicial Conduct Committee did not approach the determination of whether the complaint should be referred for further investigation by a Panel with a mind that would appear to the reasonable observer to have been impartial.

(i) applicability of the rule against bias

[71]            In both their written submissions and in oral argument counsel for the Attorney General took the position that the Chairperson of the Judicial Conduct Committee owed no duty to a complainant to observe procedural fairness in the course of determining whether to close a file. Hence, a complainant could not apply for judicial review on the ground of bias, no matter how egregious.

[72]            Counsel argued that complainants have no legal right to an impartial disposition of the complaint because the complaints process is not adjudicative and does not affect the rights or interests of complainants. In addition, the power of the Chairperson to close a file is exercisable at the preliminary stage of the Council's process, which can only culminate in a recommendation that a judge should be removed or the dismissal of a complaint, not a determination of legal rights. Nonetheless, counsel stated, the Chairperson of the Judicial Conduct Committee is bound to afford procedural fairness to a judge against whom a complaint is made and, accordingly, is under a duty to avoid conduct that gives rise to a reasonable apprehension of bias against the judge.

[73]            I should note that, although she had not addressed this issue in her written materials, in her oral submissions Ms. Brooks, counsel for the Canadian Judicial Council, an intervener in the appeal, disassociated herself from this asymmetrical view of the applicability of the duty of impartiality. She stated that both complainants and judges are entitled to expect the Chairperson to decide without bias whether or not to close a file. However, this concession, made on behalf of an intervener, neither binds the respondent Attorney General, nor relieves me of the task of deciding whether a complainant has a right to procedural fairness before the Chairperson closes a complaint file.

[74]            The basic test for determining whether the exercise of a particular power is subject to the duty of fairness is contained in the reasons of Le Dain J. in Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643 at 653, where, in delivering the judgment of the Court, he said that the duty applies whenever administrative action "affects the rights, privileges or interests of an individual". The Supreme Court of Canada added some precision to this open-ended test in Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653. However, as I understand Knight, the Court did not retreat from the flexibility and breadth of the Cardinal test, where, as here, the administrative action impugned is not essentially of a broad policy or legislative nature.

[75]            Counsel for the Attorney General advanced two principal reasons why the Chairperson of the Judicial Conduct Committee owes no duty of fairness to a complainant when exercising the power to close a file. First, and most important, a complainant has no interest that is affected by the exercise of this power. A complainant to the Canadian Judicial Council is not seeking to vindicate any right or personal interest. Mr. Taylor's concern was that the Council thoroughly investigate Justice Whealy's conduct in order to reassure the public, and members of religious and racial minorities in particular, either that the Judge had not compromised his ability to judge impartially, or to recommend his removal in order to protect litigants and witnesses from having to appear before a judge whose conduct is incompatible with the high standard of impartiality that the public rightly demands of judges.

[76]            Moreover, the argument goes, when considering a complaint against a judge, the Council is not deciding a dispute between a complainant and a judge, or determining whether to grant or deny relief to the complainant. Rather, its function is to decide whether a judge's misconduct is so serious as to merit removal from office. At the preliminary stage of the Council's process, with which this case is concerned, the duty of the Chairperson of the Judicial Conduct Committee is to determine whether a judge's conduct is serious enough to warrant either an expression of disapproval, or further investigation with a view to a recommendation by the Council of removal. The filing of a complaint simply draws to the attention of the Council a possible instance of judicial misconduct, which the Council is obliged to dispose of in one of the statutorily prescribed ways.

[77]            On the basis of existing case law, this argument is not without merit. Canadian administrative law has not so far committed itself to the proposition that the public interest in accurate administrative decision-making is in itself sufficient to engage the duty of fairness. Thus, even though the duty of fairness performs, among other things, the instrumental function of enhancing the substantive quality of administrative action, the duty does not apply where an individual is not adversely affected by the impugned decision. Despite the elasticity of the concepts of "affect" and "interest" in the Cardinal test, they have not been abandoned as necessary triggers for the duty of fairness.

[78]            Nonetheless, in my opinion, this is an exceptional case. While the closing of a file may not adversely affect a personal interest of the complainant, more is at stake than accurate decision-making. To deny a complainant the right to procedural fairness is apt to frustrate the ability of the Council to perform its statutory function of improving the quality of judicial services by thoroughly and impartially investigating complaints in order that it may take appropriate action, and thereby enhance public confidence in the judiciary.

[79]            The fact that a judge is entitled to an impartial consideration by the Council of a complaint further strengthens the case for imposing the duty of fairness in favour of a complainant. In my opinion, it would be inimical to the sensitive role of the Council in enhancing the administration of justice in Canada to impose the duty of fairness to protect the independence of the judiciary, as well as the private interest of judges in their reputations and livelihood, but not to impose it to protect the equally important public interest in ensuring that judicial misconduct is accurately identified and appropriately dealt with. In a sense, a complainant may be seen as the self-appointed representative of the public interest in protecting "the right of person who come before the courts to a fair public trial by an impartial tribunal", to borrow words from Moreau-Bérubé at para. 45. The fact that the By-Laws confer participatory rights on the judge who is the subject of the complaint, but only provide that the complainant be advised when a file is closed, does not, in my view, preclude the imposition of the duty of fairness in favour of a complainant.

[80]            A second argument made against the application of the duty of fairness to complainants before a complaint file is closed by the Chairperson of the Judicial Conduct Committee is that, at this stage, the Council's function is incomplete. Counsel for the Attorney General rely on Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653 at 670, to demonstrate that the duty of fairness does not apply to non-final administrative action.

[81]            I do not accept this argument for two reasons. First, from the perspective of a complainant, the Chairperson's closing of the file is a final disposition of the complaint and the end of the statutory process by which an individual can have a judge's suitability to continue in office considered by the body entrusted with this responsibility. It has long been recognized that complainants to human rights commissions are entitled to procedural fairness before their complaints of discrimination are dismissed without being referred to adjudication, because a dismissal at this stage of the process may effectively be the end of the line for a complainant: Syndicat des employés de production du Québec et de l'Acadie v. Canada (Human Rights Commission), [1989] 2 S.C.R. 879.

[82]            I recognize that this analogy is not perfect. Individuals have a statutory right not to be discriminated against, and the dismissal of a complaint by a human rights commission deprives a complainant of an adjudication of whether that right has been violated and, if so, what remedy should be awarded. In contrast, the Judges Act confers no rights on individuals with respect to judicial misconduct, and the Council does not exist to enforce the rights of complainants or to provide them with redress. Nonetheless, in the context of this scheme, a complainant to the Council may be regarded as raising a matter of public interest, namely, that alleged judicial misconduct is properly investigated. A closing of the file will normally terminate the inquiry, subject to a reopening if, as in this case, new material comes to light.

[83]            Second, L'Heureux-Dubé J. observed in Knight that lack of finality is a factor in the applicability of the duty of fairness. She did not exclude the consideration of other contextual factors that could tilt the balance the other way, despite the non-dispositive nature of the administrative action being impugned. Moreover, the mischief that L'Heureux-Dubé J. may have had in mind is that courts should not unduly hamper the efficiency and effectiveness of the administrative process by imposing the duty of fairness at a preliminary stage, when the individual concerned has a subsequent right to procedural protection before the agency makes its final determination. However, that is not the situation here. When the Chairperson closes a file, a complainant has no opportunity to be heard later, except by requesting a reconsideration.

[84]            Finally, I would note that, in addition to the importance of the duty of fairness to the Council's ability to perform its function, its applicability is indicated by the nature of the decision made by the Chairperson of the Judicial Conduct Committee that a judge's conduct does or does not warrant removal from office. A determination of this question involves the application of a statutory standard that is not at the general or policy end of the spectrum, and requires an appreciation of the facts about an individual's conduct and the exercise of judgment about whether the conduct was improper and, it if was, its seriousness when viewed against the public interests in ensuring that judges do not misconduct themselves and in maintaining judicial independence. This is the kind of question that is more likely to be answered appropriately by an impartial person.

[85]            For these reasons, I conclude that the duty of fairness, including the duty of impartiality, applies to the Chairperson's decision to close a file pursuant to subsection 50(1) of the Council's By-Laws. I turn now to consider the content of the duty and, in particular, the standard of impartiality applicable in this case.   

(ii) standard of impartiality

[86]            It is trite law that the content of the duty of fairness varies according to the legal and administrative contexts in which impugned administrative action is located. In Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at paras. 21-28, the Supreme Court of Canada identified a non-exhaustive list of factors for determining where on the scale or spectrum of procedural models a particular statutory power falls.

[87]            Most cases on the content of the duty of fairness have concerned participatory and associated process rights, rather than the standard of impartiality to which a decision-maker should be held. However, it is evident that in Baker the Court regarded the contextual factors for determining the content of the duty of fairness as equally applicable to the other two branches of the duty: impartiality (paras. 47-48) and the giving of reasons (para. 43).

[88]            The Supreme Court of Canada has given minimal content to the duty of impartiality in some contexts. For example, it has held that municipal zoning by-laws to which the duty of fairness applied could only be set aside for prejudgment on the basis of statements previously made by members of council if those statements indicated that members had so firmly made up their minds that they were not amenable to persuasion by those exercising a statutory right to make representations: Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 S.C.R. 1170 at 1197; Save Richmond Farmland Society v. Richmond (Township), [1990] 3 S.C.R. 1213.

[89]            A similar test was applied in Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623, to an allegation of pre-judgment on a regulatory issue on the part of Mr. Wells, a consumer advocate who had been appointed to an independent administrative agency. Cory J. held (at 642) that the appropriate test of bias applicable to statements made by Mr. Wells during the investigative stage of the agency's decision-making process was whether they indicated a mind so closed that representations on behalf of the regulated industry at the hearing stage would be futile.

[90]            Under this test, it seems that the reviewing court must determine for itself whether the conduct of the decision-maker establishes a closed mind, and not ask whether a reasonable person would so conclude: Old St. Boniface Residents Assn. at 1197, and Newfoundland Telephone Co. at 638 and 642-43. If this is the law, then it may be inappropriate even to characterise the test under the rubric of bias. The failure of statutory decision-makers to take into account a factor that they are required by law to consider is a ground for setting aside a decision on an application for judicial review, regardless of whether the duty of fairness applies to the making of the decision: Mullan, Administrative Law (Toronto: Irwin Law, 2001), at 115; de Smith, Woolf and Jowell, Judicial Review of Administrative Action, 5^th edn. (London: Sweet & Maxwell Ltd., 1995), at 346-55.

[91]            In my opinion, the closed mind test is too low a standard to be applied to the decision to close a complaint file. Unlike the cases described above, the Chairperson of the Judicial Conduct Committee is not dealing with essentially political issues on which she or he can appropriately be expected to have formed a view before considering the complaint and, possibly, inquiring into the matter by requesting comments from the judge and her or his chief justice. Neither the identity nor the statutory functions of the Chairperson of the Judicial Conduct Committee are incompatible with a higher duty of impartiality than the closed mind test.

[92]            On the contrary, because the Chairperson is almost certain to be a chief justice or an associate chief justice, and is required to consider whether a complaint discloses conduct that warrants the removal of a judge, it is appropriate to impose a more demanding standard. Again, since the duty of fairness imposes on the Chairperson a duty to avoid creating a reasonable apprehension that he or she was biased against the judge whose conduct has been the subject of a complaint, it would not be appropriate that a complainant could expect only that the Chairperson had not made up her or his mind before considering whether to close the file. Accordingly, the appropriate test in this case is that of a reasonable apprehension of bias as formulated in Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R . 369 at 394.

[93]            However, an application of the test requires a reviewing court to take into account contextual factors. Thus, when determining whether reasonable people, having informed themselves of the facts and thought the matter through in a practical manner, would conclude that there was a real likelihood that Chief Justice McEachern had prejudged the complaint before making the decision under review in these proceedings, the Court must take account of the non-adjudicative nature of the process and the absence of an adversely affected interest

[94]            In addition, since the process is investigative, it is ongoing; consequently, a decision to close a file can always be revisited, as it was in this case, if new information becomes available. It may thus fall to the Chairperson to reconsider a file on which he or she had already formed a clear view. In view of the nature of the process, a decision by the Chairperson not to send a complaint for further investigation cannot be set aside for reasonable apprehension of bias on the ground that she or he had previously closed the file.

[95]            Finally, I should consider the attributes of the reasonable person of the bias test. Determining the characteristics of the "reasonable person" presents difficulties in a situation where reasonable people may view a matter differently, depending, in part, on their perspective. Members of visible or religious minorities, for instance, may be more likely than others to apprehend bias in the manner in which Mr. Taylor's complaint was handled. However, the view of the reasonable person in legal tests represents a normative standard constructed by the courts, not an actuality that can be empirically verified.

[96]            In determining whether a reasonable person would apprehend bias, a court must take account of the existence of a range of perspectives through which members of the public may view a matter. While the standard of bias cannot be the perspective of the most sensitive, the reasonable person is supportive of the basic principles on which our constitution is based, including the principle of equality: S.(R.D.) at paras. 46 and 48 (per McLachlin and L'Heureux-Dubé JJ.).

(iii) application of the standard

[97]            I turn now to the specifics of Mr. Taylor's allegation of bias in order to determine whether, individually or collectively, the events on which he relies would lead a reasonable person to believe that Chief Justice McEachern was likely biased when, after considering the opinion of the Ontario Court of Appeal in Laws, he closed the file with an expression of disapproval of Justice Whealy's conduct.

[98]            For this purpose, I shall consider the whole record submitted by the Council, including statements made with respect to an earlier decision to close the file, even though that decision is not the subject of this application for judicial review. An attitude of mind disclosed at an earlier stage of the process could lead a reasonable person to think that it carried over to the decision that is under review in this proceeding. I have grouped below the principal items on which Mr. Rosenthal relied as evidence of the Chairperson's bias.

(a) letter from the Council dated December 28, 1994

[99]            Mr. Rosenthal relies on two statements in the Council's first response to the complaint. First, he submits that the assertion that Justice Whealy's rulings, "may only be challenged by way of appeal to the Court of Appeal", amounted to a declining of jurisdiction by the Council. However, it is relevant to note that, in a letter of January 23, 1995, the Chairperson modified the position apparently taken in his initial response by saying that, "in appropriate circumstances", a judge's in-court conduct could be investigated by the Council. This statement is qualified by the next sentence, which states that rulings made by judges in the performance of their judicial functions are best left to appeal courts.

[100]        In any event, even if it could be said that the Council initially declined jurisdiction over the complaint, a mistaken view about the Council's jurisdiction would not lead a reasonable person to believe that, in the circumstances of this case, the Chairperson's reconsideration of his decision to dismiss the complaint was tainted by an improper prejudgment.

[101]        Second, counsel relies on the Chairperson's statement, "it is apparent that Mr. Justice Whealy took the steps he considered necessary to maintain order in his courtroom", as indicative of such a categorical pre-judgment as to constitute bias. This impression, he says, was confirmed by the Chairperson's refusal to reconsider the matter after Mr. Rosenthal had sought to show that there was no evidence of disorderly conduct by members of the public attending the trial, except that provoked by the Judge's ruling on head coverings.

[102]        I see nothing wrong with Chief Justice McEachern's statement. He did not say that the steps taken were necessary, but only that Justice Whealy considered them to be necessary. As far as I am aware, the truth of this latter statement has not been questioned. I do not regard the statement by the Chairperson of the Judicial Conduct Committee on this issue to be evidence of bias.

(b) failure to disclose Justice Whealy's response to the complaint

[103]        As I have already noted, Mr. Rosenthal only became aware of the Judge's letter to the Council, dated November 30, 1994, when it was included in the record filed by the Council for the purpose of the application for judicial review. The Council did not inform Mr. Rosenthal that it had received a letter from the Judge, which the Chairperson presumably took into account in deciding to close the file.

[104]        I can think of no good reason why this letter should not have been disclosed to Mr. Rosenthal upon its receipt. While in some circumstances it may be inappropriate for the Chairperson to disclose a judge's response in its entirety, this case is not one of them. Justice Whealy's letter was clearly not intended to be confidential to the Council because he ended it by saying that it "was not written as some secret communication". Public confidence in the Council's efficacy is likely to be enhanced by the transparency of the complaints process.

[105]        Nonetheless, the failure to disclose this communication was not evidence of bias. Non-disclosure of information on which a decision-maker has relied is relevant to the other branch of the duty of fairness, namely, the duty to provide a reasonable opportunity for those affected by administrative action to make representations and to answer adverse material that the decision-maker takes into account. However, since the non-disclosure was not alleged to have violated this aspect of the duty of fairness, I do not propose to consider it further.

(c) failure adequately to investigate the complaint

[106]        Contrary to Mr. Rosenthal's submission, the Chairperson's failure to take up Mr. Rosenthal's offer to provide witnesses of events in the courtroom, and his decision that he needed to make no further investigations before closing the file, do not establish disqualifying bias by way of pre-judgment.

[107]        The failure of an administrative decision-maker to conduct a thorough investigation of a complaint may be a breach of the duty of fairness: Slattery v. Canada (Human Rights Commission), [1994] 2 F.C. 574 (T.D.), aff'd (1996), 205 N.R. 383 (F.C.A.). However, given the administrative and legal contexts of the complaints process under consideration in the instant case, the Chairperson has a wide discretion in the manner in which a complaint is investigated. The duty of fairness did not, in my opinion, oblige the Chairperson to inquire into the complaint in the manner suggested by Mr. Rosenthal.

(d) letter from the Council dated January 23, 1995

[108]        Mr. Rosenthal submitted that the Chairperson's statement that he would look again at the complaint after the Ontario Court of Appeal had decided Mr. Laws' appeal was evidence of bias. The argument was that the Chairperson thereby declined jurisdiction and failed to appreciate that only the Council had jurisdiction to consider whether Justice Whealy's rulings warranted a recommendation that he be removed from the Bench.

[109]        However, the fact is that Chief Justice McEachern did reopen the file when the Ontario Court of Appeal's decision became available and used it, as well as the Judge's expression of regret, as the basis for finding that Justice Whealy's conduct had been improper and deserving of an expression of disapproval. I do not think that it was an error of any kind for the Chairperson to await the decision of the Court of Appeal in Laws, where the propriety of Justice Whealy's conduct with respect to the wearing of head coverings was the subject of a full appellate hearing, even though the Court's focus was not the same as the Council's. It is entirely appropriate for the Council to defer to the normal forum for examining the propriety of a judge's in-court conduct, namely, an appellate court, before dealing with a complaint arising from it.

[110]        Mr. Rosenthal also took exception to the statement, "It is not possible at this time, and outside the ambience of that particular courtroom, to decide whether the decision of Mr. Justice Whealy was right or not". He submitted that this gave the false impression that the Council had no powers of investigation. Whether or not further investigation would have elucidated the circumstances in which the Judge made his rulings, or would have been relevant to his fitness to continue in office, the Chairperson's statement is not evidence of pre-judgment. Right or wrong, it was merely an expression of the difficulty of accurately reconstructing the courtroom atmosphere, not a denial that the Council lacked statutory powers of investigation. In any event, in the decision under review in these proceedings, the Chairperson adopted the view of the Ontario Court of Appeal that the Judge had erred in his ruling to exclude Mr. Taylor from the courtroom.

(e) disposition of the complaint

[111]        Finally, Mr. Rosenthal advanced two arguments to show that the Chairperson's disposition of the complaint was itself evidence of bias. First, the only disapproval expressed by the Chairperson related, not to the rulings of the Judge, but to the impression that they created. However, the power of the Chairperson to express disapproval of a judge's conduct is limited to the extent that the judge recognizes its inappropriateness or impropriety. Following the decision of the Court of Appeal for Ontario, Justice Whealy acknowledged that he had been in error and regretted that his comments had caused the complainant and others to think that he was prejudiced. In my opinion, the Chairperson's expression of disapproval properly reflected the Judge's acknowledgment that he had been in error. This is not evidence of bias.

[112]        Second, Mr. Rosenthal submitted that bias can be inferred from the fact that the Council's record does not reveal that the Chairperson ever considered whether the Judge harboured such prejudices as to make him unfit for office. In my opinion, this argument is misconceived. The burden is on an applicant challenging a decision to satisfy a reviewing court that a decision-maker failed to address a relevant issue. I cannot infer from the Chairperson's letter of December 9, 1998 that he did not consider this central issue. The fact that the Chairperson made a decision with which Mr. Taylor disagrees is not, of course, evidence of bias.

(f) conclusion

[113]        For the reasons given above, I am not persuaded that the Chairperson's conduct would have caused reasonable persons, who had informed themselves of the facts and thought the matter through in a practical manner, to believe that it was more likely than not that Chief Justice McEachern had prejudged Mr. Taylor's complaint, and did not impartially reconsider his decision to close the file in light of the decision and comments of the Ontario Court of Appeal, and the other material before him.

Issue 4: Did the Council's Closing of the File Breach Mr. Taylor's Charter Rights?

[114]        In oral argument, Mr. Rosenthal indicated that this was not his strongest point. I agree and adopt the reasons of the Applications Judge for rejecting it.

F.        CONCLUSIONS

[115]        For these reasons, I would dismiss the appeal but, in view of the importance of the issues raised, without costs.

                                                                                         "John M. Evans"             

                                                                                                              J.A.                        

"I agree

     Robert Décary J.A."

"I agree

     Marshall Rothstein J.A."

                          FEDERAL COURT OF APPEAL

                                                         

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                 A-704-01

STYLE OF CAUSE:              MICHAEL TAYLOR

                                                                                                     Appellant

- and -

THE ATTORNEY GENERAL OF CANADA

                                                                                                 Respondent

-and-

CANADIAN JUDICIAL COUNCIL

Intervener

PLACE OF HEARING:         TORONTO, ONTARIO

DATE OF HEARING:           OCTOBER 31, 2002

REASONS FOR JUDGMENT BY:             EVANS J.A.

CONCURRED IN BY:          DÉCARY J.A.

ROTHSTEIN J.A.

DATED:                                    FEBRUARY 3, 2003

APPEARANCES:

                        

Peter Rosenthal                         FOR THE APPELLANT

M. Sean Gaudet & Michael Morris                     FOR THE RESPONDENT

Nancy Brooks                           FOR THE INTERVENER

SOLICITORS OF RECORD:

Roach, Schwartz and Associates

Toronto, Ontario                        FOR THE APPELLANT

Department of Justice

Toronto, Ontario                        FOR THE RESPONDENT

Blake Cassels and Graydon LLP

Ottawa, Ontario                         FOR THE INTERVENER