Wednesday, February 6

Louder, Mr Whyte, I can't hear you. Section 13, M-446, Maclean's, Ezra Levant

Re opinions in the Taylor Section 13 appeal to Canada's Supreme Court. Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892:

John Ross Taylor and the Western Guard Party lost their appeal to the Supreme Court but this is the landmark case to study. There is enough material there to keep bloggers, journalists, and Constitutional attorneys occupied for months. Here is the link to the Supreme Court web page on the case; for readers who don't like clicking on links here is the URL:

It's all in this one case: all the arguments for and against Section 13, its constitutionality, the deep issues giving rise to it -- everything. The Taylor case is so important that one really can't argue in any depth for M-446 without first studying the Supreme Court's arguments and dissenting opinions.

But here I want to focus on the issue of bias raised by the Taylor appellants and how the judges viewed it. The bias complaint relates to the CHRC -- or any human rights commission -- handing down their investigation to a tribunal, thereby prejudicing the case, or so the argument goes.

This argument could certainly be used by Levant, and by Rogers Communications and Maclean's in two of the Section 13 complaints. And from a study of how the Supreme Court treated the bias issue in the Taylor case, it seems the respondents should have already brought the issue to the courts. In other words, they should have raised the issue as soon as they were notified by the various commissions that they were named respondents. Yet I don't think it's too late provided the respondents move like lightning.

I know of only one firm Section 13 hearing for Maclean's, which is to take place in British Columbia in June. If I recall the human rights commission in that province was disbanded, so the Section 13 cases would go directly to a tribunal. In that event Maclean's could not use the bias argument in the BC case. Yet registering the issue of bias regarding the other two complaints, which are being investigated by human rights commissions and which will go to a tribunal if the case moves forward, would send a strong message to the BC tribunal. It would convey that the respondents dispute the legality of the entire proceedings and intend to appeal.

Of course it's getting into considerable legal fees to bring up the bias issue, but I recall the words of Kenneth Whyte, the Maclean's Editor-in-Chief, in response to the unreasonable demands of the Osgoode 4:
"I told them I would rather go bankrupt than let somebody from outside of our operations dictate the content of the magazine. I still feel that way."
Of course it's one thing to utter the words and another to have to act on them. I doubt that Kenneth Whyte said as a child, 'I want to grow up to go bankrupt.' But when life hands you a role on which many fates turn, the best you can do is play the role to the hilt.

It comes down to one question: In a time of war, do you think it's a life-and-death matter that the Canadian public be well informed on issues relating to their society's survival? If the answer is yes, then fight with all you've got and when you can fight no more cross that bridge when you come to it.

Here is the discussion in the Taylor Supreme Court case regarding the bias issue; as you can see the Court looked favorably on Taylor's argument but not on the timing of it. (Emphasis throughout is mine):
V. Bias

The appellants, relying on the Federal Court of Appeal decision in MacBain v. Lederman, [1985] 1 F.C. 856, argue that the findings of the Human Rights Tribunal were flawed because of an apprehension of bias. Pursuant to the scheme of the [Human Rights] Act the Commission investigated, found that there was sufficient basis for proceeding, and prosecuted the complaint. The same Commission appointed the members of the Tribunal, which heard and decided the case. The appellants argue that this gives rise to an apprehension of bias, and as such they were not afforded a fair hearing in accordance with principles of fundamental justice.

In MacBain the same appointment procedure as that in question in the present case was challenged. The Federal Court of Appeal found that there was a reasonable apprehension of bias because there was a direct connection between the prosecutor of the case, the Canadian Human Rights Commission, and the decision-maker. That connection gave rise to a suspicion of influence or dependency. The court thus concluded that the applicant was not afforded a fair hearing in accordance with principles of fundamental justice, as guaranteed by s. 2(e) of the Canadian Bill of Rights.

The Canadian Human Rights Commission argues that MacBain was wrongly decided. They also argue that if the validity of the Tribunal's order is questionable due to an apprehension of bias, such defect merely makes the Federal Court order voidable and does not affect the contempt proceedings. The appropriate course would be for the appellants to move to have the order set aside.

Because the facts in the present case render the MacBain decision clearly distinguishable, it is not necessary for me to decide the validity of the principles set forth in MacBain. In MacBain, the issue of bias was raised at the outset of the process, as MacBain alleged bias even before the first meeting of the tribunal. Conversely, the appellants in this case raised the issue of bias several years after the initial hearing.

By not raising the issue at the outset and by proceeding with the Tribunal hearings and contempt hearings without raising the issue, the appellants must be deemed to have waived any right to raise an issue of bias now.

I would adopt the reasons of MacGuigan J. in Re Human Rights Tribunal and Atomic Energy of Canada Ltd., [1986] 1 F.C. 103 (C.A.). There, as here, the applicant failed to raise the allegation of bias at the commencement of the proceedings. MacGuigan J., distinguishing MacBain, held, at p. 113, that the principle in MacBain was limited to situations where the applicants raise allegations of bias at the outset of the proceedings:

". . . AECL's whole course of conduct before the Tribunal constituted an implied waiver of any assertion of a reasonable apprehension of bias on the part of the Tribunal. The only reasonable course of conduct for a party reasonably apprehensive of bias would be to allege a violation of natural justice at the earliest practicable opportunity. Here, AECL called witnesses, cross-examined the witnesses called by the Commission, made many submissions to the Tribunal, and took proceedings before both the Trial Division and this Court, all without challenge to the independence of the Commission. In short, it ... impliedly ... waived its right to object."

In the case at bar, no evidence was presented to prove that the bias issue was raised at any time prior to argument before the Federal Court of Appeal. There may be circumstances in which failure to raise bias from the outset does not amount to implied waiver (for example, where, as here, the party was unrepresented at the initial hearing). However, it is not necessary for the purpose of this case to delineate a precise time at which bias must be raised because I am satisfied on the facts of this case that the appellants did not raise the allegation at the "earliest practicable opportunity". I conclude that, like the applicant in Re Human Rights Tribunal, the appellants must be deemed to have impliedly waived any right to allege bias.
Gentlemen, much of the hard work has already been done for your attorneys. So get them moving.

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