Tuesday, December 19, 2017


No matter how convoluted the arguments may become about what constitutes bias, when all is said the distilled truth is simply this, "Justice must not only be done, it must be seen to be done".  Period.  It has nothing whatever to do with the character or qualification of the adjudicator. And it certainly has nothing to do with the capacity of the adjudicator to distance himself or herself from the object of adjudication nor the ability to conceive the application of purely legal principles.

In the United States, Crowe might have been one of Robert McNamara’s Whiz Kids, the young experts who brought business-style analysis to government. Crowe, though more reserved than the often-outspoken Americans, could be just as hard-headed. Says Buchan, “The big thing was (his) intellectual rigour and his integrity. Crowe later became president and chairman of the Canada Development Corp, charged with spurring investment by Canadians in their country. He next headed the National Energy Board, regulating the gas and oil pipelines that had become vital to the country’s energy policies. Such appointments are political, of course. But if Crowe had shown he could be of like mind with the ruling Liberals on policy, he had also shown his aversion to doctrine. Those who know him say he never could have worn partisanship in comfort. 

My introduction to the theory of bias arose from a ruling of the Supreme Court of Canada being the last court of appeal in the matter of an allegation of bias against Marshall Crowe as Chairman of the National Energy Board in relation to the certification of the McKenzie Valley Pipeline. While you would have thought that the First Nations' lawyers who attended the hearing of first instance in the Federal Court of Canada were the champions of the allegation, in fact the proponents of the cause were none other than the lawyers for the oil and gas companies who stood to gain the most from a favourable ruling of the National Energy Board. The problem however was that Marshall Crowe used to work for those companies before being appointed Chairman of the National Energy Board.  Though every one of the 25 silk-gowned barristers agreed that Marshall Crowe was a fine man - and the Chief Justice of the Federal Court apparently found no reason to think otherwise - the Supreme Court of Canada thought otherwise.

In a matter of minutes only the Chief Justice of the Supreme Court of Canada (Bora Laskin) interruped the Attorney General for Canada during his glowing reference to Marshall Crowe and said, "You've got to be kidding!"  This heralded what became known as the "sharpness" of the contrary result reached by the Federal Court of Appeal. Interestingly Chief Justice Jackett of the Federal Court of Appeal had assigned five judges to the panel to hear the case rather than the normal three. One of those judges was Jake Urie who was the father of David Urie.  David and I had been in boarding school together at St. Andrew's College.  On a similar social subject, one of the lead counsel in the appeal to the Supreme Court of Canada was W. G. Burke-Robertson, QC representing Alberta Gas Trunk Line (Canada) Ltd.  "Bill" Burke-Robertson was a classically distinguished lawyer who lived in fashionable Dunrobin on the Ottawa River.  He occasionally drove his black Buick Riviera to the Almonte Land Registry Office.  Mr. Burke-Robertson's daughter Alexandra ("Sandy") lives with her husband Dr. David Atack (neurologist) on the outskirts of Almonte.  Mr. Burke-Robertson and Justice Urie formerly practiced law together before the latter was elevated to the bench. Counsel for the National Energy Board was Hyman Soloway, QC (in deference to whom most of the other lawyers simply rose and "agreed with my learned friend"). I represented West Coast Transmission Co. Ltd. and I believe I was the only lawyer in a stuff gown since all the others had "taken silk" (having been appointed One of Her Majesty's Counsel Learned-in-the-Law or what is more popularly known as Queen's Counsel). My exoneration on that point of possible embarrassment is that I hadn't yet practiced law for ten years which was then the minimum requirement for consideration for appointment as a Queen's Counsel.

The issue in this appeal arose in connection with the organization of hearings by the National Energy Board to consider competing applications for applications for a certificate of public convenience and necessity under s. 44 of the National Energy Board Act, R.S.C. 1970, c. N-6. The Board assigned Mr.Crowe, Chairman of the Board, and two other of its members to be the panel to hear the applications. The appellants were recognised by the Board as “interested persons” under s. 45 of the Act. The appellants objected to the participation of Mr. Crowe as a member of the panel because of reasonable apprehension or reasonable likelihood of bias: Mr. Crowe became Chairman and Chief Executive Officer of the National Energy Board on October, 15, 1973. Immediately prior to that date he was president of the Canada Development Corporation, having assumed that position late in 1971 after first having been a provisional director following the enactment of the Canada Development Corporation Act,1971 (Can.), c.49. The objects of that Corporation included assisting in business and economic development and investing in shares, securities, ventures, enterprises and property to that end. As Corporation president and as its representative Mr. Crowe was associated with the Gas Arctic-Northwest Project Study Group which considered the physical and economic feasibility of a northern natural gas pipeline to bring natural gas to southern markets. The Agreement setting up the Study Group brought together two groups of companies which merged their efforts and pursuant to the agreement set up two companies of which Canadian Arctic Gas Pipeline Limited was one. Mr.Crowe was an active participant in the Study Group as a member of its Management Committee and a member and subsequently vice-chairman of its Finance, tax and accounting committee and during his period of membership of the Management Committee he participated in the seven meetings held during that time and joined in a unanimous decision of the Committee on June 27, 1973, respecting the ownership and routing of a Mackenzie Valley pipeline. The Canada Development Corporation remained a full participant in the Study Group until long after the applications were made for certificates of public convenience and necessity and until after the hearings had commenced, in effect to the time of the reference of the question of reasonable apprehension of bias in Mr.Crowe to the Federal Court of Appeal. Further, during the period of Mr.Crowe’s association with the Study Group as the representative of the Canada Development Corporation the latter contributed $1,200,000 to the Study Group as its share of expenses.

The National Energy Board referred to the Federal Court of Appeal the following question, “Would the Board err in rejecting the objection and in holding that Mr.Crowe was not disqualified from being a member of the panel on grounds of reasonable apprehension or reasonable likelihood of bias?” pursuant to the Federal Court Act, 1970-71-72 (Can.), c.28(4).

That Court answered in the negative. (Martland, Judson and de Grandpré JJ. dissenting): The appeal should be allowed.Laskin C.J. and Ritchie, Spence, Pigeon and Dickson JJ.

In dealing with applications under s.44 of the National Energy Board Act,the function of the Board is quasi‑judicial, or, at least, is a function which the Board must discharge in accordance with the rules of natural justice: and if not necessarily the full range of such rules as would apply to a Court (though the Board is a court of record under s.10 of the Act) certainly to a degree that would reflect integrity of its proceedings and impartiality in the conduct of those proceedings. A reasonable apprehension of bias arises where there exists a reasonable probability that the judge might not act in an entirely impartial manner. The issue in this situation was not one of actual bias. Thus the facts that Mr. Crowe had nothing to gain or lose either through his participation in the Study Group or in making decisions as chairman of the National Energy Board and that his participation in the Study Group was in a representative capacity became irrelevant. The participation of Mr.Crowe in the discussions and decisions leading to the application by Canadian Arctic Gas Pipeline Limited for a certificate did however give rise to a reasonable apprehension, which reasonably well-informed persons could properly have, of a biased appraisal and judgment of the issues to be determined. The test of probability or reasoned suspicion of bias, unintended though the bias may be, is grounded in the concern that there be no lack of public confidence in the impartiality of adjudicative agencies, and emphasis is added to this concern in this case by the fact that the Board is to have regard for the public interest.

The subject of bias has lately surfaced in the political controversy swirling around the investigation of US President Donald J. Trump's administration for collusion with the Russians.

Robert Swan Mueller III born August 7, 1944) is an American lawyer and civil servant who was the sixth Director Federal Bureau of Investigation from 2001 to 2013. A Republican, he was appointed by President George W. Bush; and his original ten-year term was given a two-year extension by President Barack Obama, making him the longest-serving FBI director since J. Edgar Hoover. He is currently head of the Special Counsel investigation of Russian interference in the 2016 United States elections.

There was no particularly visible interest by President Trump in the evolution of the investigation until it began cutting too close to the quick.  The stakes rose when a succession of former members of the Trump inner-circle staff were either indicted or made confessions of guilt. Shamefully Fox News celebrities have assumed the mantel of alarmists by proclaiming among other things that there is a coup d'√©tat under way to overthrow the government. Apart from the discreditable source of the story, the absurdity of that claim is exceeded only by the purported legal basis of the claim; namely, bias (as primarily promoted by Mr. Trump himself).  Regrettably for Mr. Trump he is a victim of his own accusation since his obvious self-interest does more than a little to disqualify him from firing Mr. Mueller. It is likely that it is only this perception of malfeasance which restrains Mr. Trump from precipitous action especially as his popularity is at an all-time historical low.

As a result this potentially disastrous proceeding has become a model of political spin.  There are so many politicians who have a vested interest in the outcome of the investigation of Russian interference; their very futures are on the line, not just some abstract legal principle or democractic nicety.  It therefore makes no sense whatsoever to debate the legal issues applicable to this matter.  The outcome depends upon forces far beyond esoteric factors such as whether the reasonable apprehension of bias exists.  This battle will be fought like most of Mr. Trump's other battles; that is, in a circus-like arena promoted by popular vulgarity and visceral passion.  Where Mr. Trump may end being sadly disappointed is the discovery that his base of reputed "deplorables" (his so-called populist proponents) haven't the persuasion which will nag Congress if and when the issue of removing Mr. Mueller arises.

What mustn't be overlooked is that the promotion of legal principles is the furthest thing from the backbone of political success.  No more today than in 1776 are the Philosopher Kings of any importance other than as fodder in the propoganda mill.  Benjamin Franklin pretended to be a friend to Thomas Paine (one of the architects of the American Constitution) but disavowed him at his funeral.  Paine's "Age of Reason" was only meaningful to real thinkers, not spin-doctors. While one might hope that, even following the rejection of Roy Moore for the US Senate, things will change for the better, it is important to remind ourselves that we have cultivated a disposition which inclines us to support our own warmongering pursuits.  There is no global view of which I am aware that supports anyone's entitlement to destroy others.  Yet it doesn't require much invention to get an entire nation to mobilize against another.  The lubricant is propoganda.

Propaganda doesn't have its roots in principle, science or law.  The devious nature of propoganda is that it admits to no analysis on the basis of underlying rules. There are no rules. And there is certainly nothing which would qualify as principle. Its only purpose is to advance a theme by any means.  If we allow ourselves to be confounded by additives (anything other than fact-based propositions) we risk contaminating the strict principles that should govern our intellect and behaviour.  Balancing that laudable motivation is the explicit reality that manipulation is often the only way to accomplish certain goals (whatever they may be).  It is a huge task to contain our own personal propoganda.  Basically we all have prejudices even though we likely think otherwise.  Or we may just consider our prejudices defensible. In a nutshell we have our own biases. Isolating the key elements of our own bias is just as tricky as asserting those of Mr. Mueller.  We're all awash in bias of one form or another, either the broad cultural and demographic hues or the more specific baggage of historical education and employment.  To advance a case of meaningful bias is a difficult task more easily sustained by less critical propaganda.

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