A-282-06
A-337-06
A-281-06
BETWEEN:
THE RIGHT HONOURABLE JEAN CHRÉTIEN
Appellant
and
THE HONOURABLE JOHN H. GOMERY, IN HIS CAPACITY AS EX-COMMISSIONER OF THE COMMISSION OF INQUIRY INTO THE SPONSORSHIP PROGRAM AND ADVERTISING ACTIVITIES
and
THE ATTORNEY GENERAL OF CANADA
Respondents
_____________________________________
A-282-06
BETWEEN:
JEAN PELLETIER
Appellant
and
THE ATTORNEY GENERAL OF CANADA and
THE HONOURABLE JOHN H. GOMERY, IN HIS CAPACITY AS EX-COMMISSIONER OF THE COMMISSION OF INQUIRY INTO THE SPONSORSHIP PROGRAM AND ADVERTISING ACTIVITIES
_______________________________
A-337-06
BETWEEN:
THE HONOURABLE JOHN H. GOMERY, IN HIS CAPACITY AS EX-COMMISSIONER OF THE COMMISSION OF INQUIRY INTO THE SPONSORSHIP PROGRAM AND ADVERTISING ACTIVITIES
Appellant
and
ALFONSO GAGLIANO and
THE ATTORNEY GENERAL OF CANADA
Respondents
Hearing held at Montréal, Quebec, on March 29, 2007.
Judgment delivered at Montréal, Quebec, on March 29, 2007
REASONS FOR JUDGMENT OF THE COURT BY: DÉCARY J.A.
Date: 20070329
Dockets: A-281-06
A-282-06
A-337-06
Citation: 2007 FCA 131
CORAM: DESJARDINS J.A.
DÉCARY J.A.
NOËL J.A.
A-281-06
BETWEEN:
THE RIGHT HONOURABLE JEAN CHRÉTIEN
Appellant
and
THE HONOURABLE JOHN H. GOMERY, IN HIS CAPACITY AS EX-COMMISSIONER OF THE COMMISSION OF INQUIRY INTO THE SPONSORSHIP PROGRAM AND ADVERTISING ACTIVITIES
and
THE ATTORNEY GENERAL OF CANADA
Respondents
_____________________________________
A-282-06
BETWEEN:
JEAN PELLETIER
Appellant
and
THE ATTORNEY GENERAL OF CANADA and
THE HONOURABLE JOHN H. GOMERY, IN HIS CAPACITY AS EX-COMMISSIONER OF THE COMMISSION OF INQUIRY INTO THE SPONSORSHIP PROGRAM AND ADVERTISING ACTIVITIES
Respondents
_______________________________
A-337-06
BETWEEN:
THE HONOURABLE JOHN H. GOMERY, IN HIS CAPACITY AS EX-COMMISSIONER OF THE COMMISSION OF INQUIRY INTO THE SPONSORSHIP PROGRAM AND ADVERTISING ACTIVITIES
Appellant
and
ALFONSO GAGLIANO and
THE ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR JUDGMENT
[1] These appeals and cross-appeals, that have been consolidated to be heard and ruled on jointly, relate to an interlocutory order delivered by Teitelbaum J. of the Federal Court (2006 CF 720).
[2] Therein, Teitelbaum J. ordered, pursuant to section 317 of the Federal Courts Rules (the Rules), that the following documents be transmitted to Messrs. Chrétien, Gagliano and Pelletier:
1. Copies of e-mails received by the Commission from September 7, 2004 to August 25, 2005 inclusive referring to Mr. Chrétien, Mr. Jean Pelletier, Mr. Gagliano, or the Prime Minister’s Office, if still possessed by the Commission, are to be transmitted to the parties within thirty (30) days of the issuance of these Reasons.
2. Copies of all materials related to François Perreault’s mandate at the Commission, related to any and all instructions he received regarding the activities and audiences of the Commission from the Commissioner or Commission staff, and materials related to interviews accorded to the media by the Commissioner on December 16 and 17, 2004, are to be transmitted to the parties within thirty (30) days of the issuance of these Reasons.
[3] During argument before us, the parties have focused mainly on the first series of documents, that is, the e-mails. In any event, no serious argument could have been advanced against the part of the order relating to the transmission of the second series of documents.
[4] As to the e-mails, counsel for Messrs. Chrétien, Gagliano and Pelletier submitted that the judge should have ordered, in addition, the transmission of the e-mails received by the Commission after August 25, 2005. The Attorney General of Canada and Commissioner Gomery submitted for their part that the judge erred in ordering the transmission of the e-mails received between September 7, 2004 and August 25, 2005, since they were of the opinion that those documents have no relevancy.
[5] At the hearing, the arguments of the parties have focused on the following statement made by Commissioner Gomery in the introductory part of his Phase I report:
A vast quantity of documentary evidence was put into evidence and forms part of the record of the Commission. A list of the exhibits, many of which are books of documents, is attached as Appendix F. As Commissioner, I have systematically avoided taking cognizance of any document or evidence which has not been produced into the record at the public hearings, although I am conscious that Commission counsel have had access to many documents that I have not seen and have had meetings and discussions with witnesses and other persons on matters that are not part of the evidence that I have heard. Commission counsel have respected my expressed wishes that any information acquired in this fashion would not be communicated to me. This Report has been written solely on the basis of the evidence in the public record.
Chapter I: Introduction, Phase I Report, at page 5.
[6] We are not sure that Teitelbaum J. was correct when he opined that that declaration by the Commissioner “creates a strong presumption that he only considered material which can be found in the public record” (para. 69 of his reasons).
[7] However, that has little importance. In any event, in relation to the motion, there were enough elements in the record to justify the belief that the Commissioner had a general idea of the tenor and the flavour of the e-mails. Hence, Teitelbaum J. appropriately left to the judge who was to hear the case on the merits the task of assessing their probative value, or lack thereof, as the case maybe.
[8] As to the e-mails received by the Commission after August 25, 2005, that is, after the Commissioner had asked Canadians, by public notice, to express their point of view as to what was to follow, it is clear, on the basis of the news release published on the Internet, that that notice related to Phase II of his mandate, that is to the recommendations pertaining to the action to be taken in the future. Teitelbaum J. did not err in finding, at paragraph 61, that “the Commissioner did not offer the public with an opportunity to provide input that could have been used to assist him with the Phase I fact-finding portion of the Commission’s inquiry”. It was thus open to him to find, at paragraph 72, that those e-mails were not relevant for the purposes of section 317 of the Rules “since if they were admitted, they would not affect the decision that the reviewing court might make”.
[9] As to the cross-appeal of Mr. Gagliano from the order of Nadon J.A. extending the Commissioner’s time to appeal, it is not based on any serious argument.
[10] Therefore, we would dismiss the appeals of Messrs. Chrétien and Pelletier and of Commissioner Gomery in dockets A-281-06, A-282-06 and A-337-06 and would dismiss the cross‑appeals in each of said dockets.
[11] In the circumstances, each party is to bear its own costs.
[12] The original version of these reasons will be filed in docket A-281-06, and a copy thereof in dockets A-282-06 and A-337-06.
Certified true translation
François Brunet, LL.B., B.C.L.
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A-281-06
STYLE OF CAUSE: THE RIGHT HONOURABLE JEAN CHRÉTIEN v. THE HONOURABLE JOHN H. GOMERY
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: MARCH 29, 2007
REASONS FOR JUDGMENT OF THE COURT BY: DESJARDINS J.A.
DÉCARY J.A.
NOËL J.A.
DELIVERED ORALLY BY: DÉCARY J.A.
APPEARANCES:
|
FOR THE APPELLANT
|
|
|
André Lespérance |
FOR THE RESPONDENT/ - HONOURABLE JOHN H. GOMERY
FOR THE RESPONDENT – THE ATTORNEY GENERAL OF CANADA |
SOLICITORS OF RECORD:
|
BORDEN LADNER GERVAIS
|
FOR THE APPELLANT
|
|
LANGLOIS KRONSTRÖM DESJARDINS
André Lespérance JOHN H. SIMS, Q.C. Deputy Attorney General of Canada |
FOR THE RESPONDENT – THE HONOURABLE JOHN H. GOMERY
FOR THE RESPONDENT – THE ATTORNEY GENERAL OF CANADA |
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A-282-06
STYLE OF CAUSE: JEAN PELLETIER
v. THE ATTORNEY GENERAL OF
CANADA ET AL.
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: MARCH 29, 2007
REASONS FOR JUDGMENT OF THE COURT BY: DESJARDINS J.A.
DÉCARY J.A.
NOËL J.A.
DELIVERED ORALLY BY: DÉCARY J.A.
APPEARANCES:
|
Guy Pratte |
FOR THE APPELLANT
|
|
André Lespérance
Raynold Langlois |
FOR THE RESPONDENT - THE ATTORNEY GENERAL OF CANADA
FOR THE RESPONDENT, THE HONOURABLE JOHN H. GOMERY |
SOLICITORS OF RECORD:
|
Guy Pratte Maria Reit BORDEN LADNER GERVAIS
|
FOR THE APPELLANT
|
|
André Lespérance JOHN H. SIMS, C.R. Deputy Attorney General of Canada
Raynold Langlois LANGLOIS KRONSTRÖM DESJARDINS |
FOR THE RESPONDENT - THE ATTORNEY GENERAL OF CANADA
FOR THE RESPONDENT, THE HONOURABLE JOHN H. GOMERY |
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A-337-06
STYLE OF CAUSE: THE HONOURABLE JOHN H.
GOMERY v. ALFONSO GAGLIANO
ET AL.
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: MARCH 29, 2007
REASONS FOR JUDGMENT OF THE COURT BY: DESJARDINS J.A.
DÉCARY J.A.
NOËL J.A.
DELIVERED ORALLY BY: DÉCARY J.A.
APPEARANCES:
|
Raynold Langlois |
FOR THE RESPONDENT
|
|
Pierre Fournier
André Lespérance |
FOR THE RESPONDENT - ALFONSO GAGLIANO
FOR THE RESPONDENT - THE ATTORNEY GENERAL
|
SOLICITORS OF RECORD:
|
Raynold Langlois LANGLOIS KRONSTRÖM DESJARDINS
|
FOR THE RESPONDENT
|
|
Pierre Fournier FOURNIER AVOCATS
André Lespérance JOHN H. SIMS, Q.C. Deputy Attorney General of Canada |
FOR THE RESPONDENT - ALFONSO GAGLIANO
FOR THE RESPONDENT - THE ATTORNEY GENERAL |