Wewaykum Indian Band v. Canada, [2003] 2 S.C.R. 259, 2003 SCC 45
Roy Anthony Roberts, C. Aubrey Roberts and John Henderson,
suing on their own behalf and on behalf of all other members of the
Wewaykum Indian Band (also known as the Campbell
River Indian Band) Appellants
v.
Her Majesty The Queen Respondent
and
Ralph Dick, Daniel Billy, Elmer Dick, Stephen Assu and
James D. Wilson, suing on their own behalf and on behalf
of all other members of the Wewaikai Indian Band
(also known as the Cape Mudge Indian Band) Respondents/Appellants
and between
Ralph Dick, Daniel Billy, Elmer Dick, Stephen Assu, Godfrey
Price, Allen Chickite and Lloyd Chickite, suing on their own behalf
and on behalf of all other members of the Wewaikai Indian Band
(also known as the Cape Mudge Indian Band) Appellants
v.
Her Majesty The Queen Respondent
and
Attorney General of Ontario, Attorney General of
British Columbia, Gitanmaax Indian Band, Kispiox
Indian Band and Glen Vowell Indian Band Interveners
Indexed as: Wewaykum Indian Band v. Canada
Neutral citation: 2003 SCC 45.
File No.: 27641.
2003: June 23; 2003: September 26.
Present: McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache, Arbour, LeBel and Deschamps JJ.
motion for directions
motions to vacate a judgment
Courts — Judges — Impartiality — Reasonable apprehension of bias — Supreme Court judgment dismissing Indian bands’ appeals — Indian bands presenting motions to set aside judgment alleging reasonable apprehension of bias arising from involvement of judge in bands’ claims while serving as federal Associate Deputy Minister of Justice over 15 years prior to hearing of appeals — Whether judgment tainted by reasonable apprehension of bias — Whether judgment should be set aside.
In 1985 and 1989 respectively, the Campbell River Band and the Cape Mudge Band instituted legal proceedings against each other and the Crown, each band claiming exclusive entitlement to two reserves on Vancouver Island. In 1995, the Federal Court, Trial Division dismissed the actions and the Federal Court of Appeal upheld the decision. In December 2002, in reasons written by Binnie J. and concurred in unanimously, this Court dismissed the bands’ appeals. In February 2003, the Campbell River Band made an access to information request to the federal Department of Justice seeking copies of all records to, from or which make reference to Mr. Binnie concerning the bands’ claims against the Crown Mr. Binnie, when he was Associate Deputy Minister of Justice in 1982‑1986, had been responsible for all litigation, except tax matters and cases in Quebec, involving the Government of Canada and had supervisory authority over thousands of cases. The Department of Justice found a number of internal memoranda which indicate that, in late 1985 and early 1986, Mr. Binnie had received some information concerning the Campbell River Band’s claim and that he had attended a meeting where the claim was discussed. The Crown filed a motion in this Court seeking directions as to any steps to be taken. Binnie J. recused himself from any further proceedings in this matter and filed a statement setting out that he had no recollection of personal involvement in the case. The bands sought an order setting aside this Court’s judgment. Both bands agree that actual bias is not at issue and accept Binnie J.’s statement that he had no recollection of personal involvement in the case. However, they allege that Binnie J.’s involvement as federal Associate Deputy Minister of Justice in the early stages of the Campbell River Band’s claim in 1985 and 1986 gives rise to a reasonable apprehension of bias.
Held: The motion for directions and the motions to vacate a judgment should be dismissed. In the circumstances of this case, no reasonable apprehension of bias is established and hence Binnie J. was not disqualified from hearing the appeals or participating in the judgment.
Public confidence in our legal system is rooted in the fundamental belief that those who adjudicate in law must always do so without bias or prejudice and must be perceived to do so. A judge’s impartiality is presumed and a party arguing for disqualification must establish that the circumstances justify a finding that the judge must be disqualified. The criterion of disqualification is the reasonable apprehension of bias. The question is what would an informed, reasonable and right‑minded person, viewing the matter realistically and practically, and having thought the matter through, conclude. Would he think that it is more likely than not that the judge, whether consciously or unconsciously, would not decide fairly?
It is necessary to clarify the relationship of this objective standard to two other factors: the subjective consideration of actual bias and the notion of automatic disqualification. Most arguments for disqualification are not based on actual bias. When parties say that there was no actual bias on the part of a judge, it can mean one of three things: (1) that reasonable apprehension is a surrogate for actual bias; (2) that unconscious bias can exist even where the judge acted in good faith; and (3) that looking for real bias is simply not the relevant inquiry since justice should not only be done but must be seen to be done. This third justification for the objective standard of reasonable apprehension of bias envisions the possibility that a judge may be totally impartial in circumstances which nevertheless create a reasonable apprehension of bias, requiring his disqualification. The idea that “justice must be seen to be done” cannot be severed from the standard of reasonable apprehension of bias. The relevant inquiry is not whether there was in fact either conscious or unconscious bias on the part of the judge, but whether a reasonable person properly informed would apprehend that there was. With respect to the notion of automatic disqualification, recent English case law suggests that automatic disqualification is justified in cases where a judge has an interest in the outcome of a proceeding. This case law is not helpful here because automatic disqualification does not extend to judges somehow involved in the litigation or linked to counsel at an earlier stage. In Canada, proof of actual bias or a reasonable apprehension of bias is required. In any event, on the facts of this case, there is no suggestion that Binnie J. had any financial interest in the appeals, or had such an interest in the subject matter of the case that he was effectively in the position of a party to the cause.
In this case, disqualification can only be based on a reasonable apprehension of bias. In light of the strong presumption of judicial impartiality, the standard refers to an apprehension based on serious grounds. Each case must be examined contextually and the inquiry is fact‑specific. Where, as here, the issue of bias arises after judgment has been rendered, it is not helpful to determine whether the judge would have recused himself had the matter come to light earlier. Although the standard remains the same, an abundance of caution guides many, if not most judges, at this early stage, and judges often recuse themselves where it is not legally necessary. Lastly, this Court’s dictum that judges should not preside over a case in which they played a part at any stage is but an illustration of the general principle. It does not suggest that any degree of earlier participation in a case is cause for automatic disqualification, but rather suggests that a reasonable and right‑minded person would likely view unfavourably the fact that the judge acted as counsel in a case over which he is presiding, and could take this fact as the foundation of a reasonable apprehension of bias.
Here, neither Binnie J.’s past status as Associate Deputy Minister nor his long‑standing interest in matters involving First Nations is by itself sufficient to justify his disqualification. The source of concern for the bands is Binnie J.’s involvement in this case in the mid‑1980s. The documentary record, however, does not support a reasonable apprehension of bias. Binnie J.’s involvement in the dispute was confined to a limited supervisory and administrative role. While his link to this litigation exceeded pro forma management of the files, he was never counsel of record and played no active role after the claim was filed, nor did he plan litigation strategy. Any views attributed to Binnie J. earlier on were offered in the context of wider implications of the negotiation process, and not in the context of litigation. Furthermore, in his capacity of Associate Deputy Minister, he was responsible for thousands of files at the relevant time and the matter on which he was involved in this file was not unique to this case but was an issue of general application to existing reserves in British Columbia. More importantly, Binnie J.’s supervisory role dates back over 15 years. This lengthy period is significant in relation to Binnie J.’s statement that he had no recollection of his involvement because it is a factor that a reasonable person would properly consider, and it makes bias or its apprehension improbable. Nor would a reasonable person, viewing the matter realistically, conclude that Binnie J.’s ability to remain impartial was unconsciously affected by a limited administrative and supervisory role dating back over 15 years.
Even if the involvement of a single judge had given rise to a reasonable apprehension of bias in this case, no reasonable person informed of the decision‑making process of this Court and viewing it realistically could conclude that the eight other judges who heard the appeals were biased or tainted.
Cases Cited
Applied: Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369; distinguished: R. v. Bow Street Metropolitan Stipendiary Magistrate, Ex parte Pinochet Ugarte (No. 2), [1999] 2 W.L.R. 272; referred to: Guerin v. The Queen, [1984] 2 S.C.R. 335; Valente v. The Queen, [1985] 2 S.C.R. 673; Locabail (U.K.) Ltd. v. Bayfield Properties Ltd., [2000] Q.B. 451; R. v. Bertram, [1989] O.J. No. 2123 (QL); R. v. S. (R.D.), [1997] 3 S.C.R. 484; Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623; R. v. Gough, [1993] A.C. 646; The Queen v. Barnsley Licensing Justices, [1960] 2 Q.B. 167; The King v. Sussex Justices, Ex parte McCarthy, [1924] 1 K.B. 256; Dimes v. Proprietors of the Grand Junction Canal (1852), 3 H.L.C. 759, 10 E.R. 301; Man O’War Station Ltd. v. Auckland City Council (Judgment No. 1), [2002] 3 N.Z.L.R. 577, [2002] UKPC 28; Panton v. Minister of Finance, [2001] 5 L.R.C. 132, [2001] UKPC 33.
Statutes and Regulations Cited
Access to Information Act, R.S.C. 1985, c. A‑1.
Indian Act, R.S.C. 1985, c. I‑5.
Rules of the Supreme Court of Canada, SOR/2002‑156, Rule 3.
Authors Cited
Canadian Judicial Council. Ethical Principles for Judges. Ottawa: The Council, 1998.
Wilson, Bertha. “Decision‑making in the Supreme Court” (1986), 36 U.T.L.J. 227.
MOTION FOR DIRECTIONS and MOTIONS TO VACATE a judgment of the Supreme Court of Canada, Wewaykum Indian Band v. Canada, [2002] 4 S.C.R. 245, 2002 SCC 79. Motions dismissed.
Michael P. Carroll, Q.C., and Malcolm Maclean, for the appellants Roy Anthony Roberts et al.
John D. McAlpine, Q.C., and Allan Donovan, for the respondents/appellants Ralph Dick et al.
J. Vincent O’Donnell, Q.C., and Jean Bélanger, for the respondent Her Majesty the Queen.
Written submissions only by Patrick G. Foy, Q.C., and Angus M. Gunn, Jr., for the intervener the Attorney General of British Columbia.
Written submissions only by Peter R. Grant and David Schulze, for the interveners the Gitanmaax Indian Band, the Kispiox Indian Band and the Glen Vowell Indian Band.
The following is the judgment delivered by
The Chief Justice and Gonthier, Iacobucci, Major, Bastarache, Arbour, LeBel and Deschamps JJ. —
I. Introduction
1 The Wewaykum or Campbell River Indian Band (“Campbell River”) and the Wewaikai or Cape Mudge Indian Band (“Cape Mudge”) allege that the unanimous judgment of this Court in Wewaykum Indian Band v. Canada, [2002] 4 S.C.R. 245, 2002 SCC 79, with reasons written by Justice Binnie, is tainted by a reasonable apprehension of bias and should be set aside. The alleged reasonable apprehension of bias is said to arise from Binnie J.’s involvement in this matter in his capacity as federal Associate Deputy Minister of Justice over 15 years prior to the hearing of the bands’ appeals by this Court.
2 An allegation that a judgment may be tainted by bias or by a reasonable apprehension of bias is most serious. That allegation calls into question the impartiality of the Court and its members and raises doubt on the public’s perception of the Court’s ability to render justice according to law. Consequently, the submissions in support of the applicant bands and the other parties have been examined in detail as reflected in the following reasons.
3 After an analysis of the allegations and the record upon which they are based, all of which is attached as an appendix to these reasons, we have concluded that no reasonable apprehension of bias is established and hence that Binnie J. was not disqualified. The involvement of Binnie J. in this dispute was confined to a limited supervisory and administrative role, over 15 years prior to the hearing of the appeals. In his written statement filed as part of the record, Binnie J. has stated that he has no recollection of any involvement in this litigation, and no party disputes that fact. In light of this and for the reasons which follow, we are of the view that a reasonable person could not conclude that Binnie J. was suffering from a conscious or unconscious bias when he heard these appeals, and that, in any event, the unanimous judgment of this Court should not be disturbed. Accordingly, the motions to set aside this Court’s judgment of December 6, 2002, are dismissed.
II. Factual Background
4 The bands have each presented motions to set aside the unanimous judgment of this Court, dated December 6, 2002, with reasons written by Binnie J. The judgment dismissed their appeals from an order of the Federal Court of Appeal. The motions to set aside allege that Binnie J.’s involvement as federal Associate Deputy Minister of Justice in the early stages of Campbell River’s claim in 1985 and 1986 gives rise to a reasonable apprehension of bias by properly informed and right-thinking members of the public. These motions were brought following an application by the Crown in right of Canada for directions and were heard on June 23, 2003. Binnie J. had recused himself from any participation in this process after filing a statement as part of this record indicating that he had no recollection of participating in the litigation process involving these claims while serving in the Department of Justice.
5 Prior to his appointment to the Supreme Court of Canada in 1998, Binnie J. had a long and varied career as a practising lawyer. Called to the Ontario Bar in 1967, Binnie J. practised litigation with Wright & McTaggart and successor firms until 1982. Between 1982 and 1986, and of most relevance to these motions, Binnie J. served as Associate Deputy Minister of Justice for Canada, having joined the federal civil service on a secondment. As Associate Deputy Minister of Justice, Binnie J. was responsible for all litigation involving the government of Canada, except cases originating from the province of Quebec and tax litigation. He also had special responsibilities for aboriginal matters. Upon leaving the Department of Justice on July 31, 1986, Binnie J. joined the firm of McCarthy Tétrault where he remained until his appointment to this Court. Understandably, when Binnie J. left the Department of Justice, the files he worked on, in accordance with usual practice, remained with the Department of Justice. As a result, in the absence of recollection, judges who leave their firms or institutions do not have the ability to examine their previous files in order to verify whether there has been any prior involvement in a matter coming before them.
6 To distinguish between his role as judge and as Associate Deputy Minister, Justice Binnie is referred to in these reasons as Binnie J. and Binnie respectively.
A. The Original Appeals
7 To understand the allegations of reasonable apprehension of bias, it is necessary to examine the factual and procedural background of this case. Campbell River and Cape Mudge are sister bands of the Laich-kwil-tach First Nation. Since the end of the 19th century, members of each band have inhabited two reserves located a few miles from each other on the east coast of Vancouver Island. In particular, members of Campbell River inhabit Reserve No. 11 (Campbell River) and members of Cape Mudge inhabit Reserve No. 12 (Quinsam). In 1985 and 1989 respectively, Campbell River and Cape Mudge instituted legal proceedings against each other and the Crown. In these proceedings, each band claimed exclusive entitlement to both Reserves Nos. 11 and 12.
8 The bands’ claims rely on a historical review of the process that led to the creation of the two reserves. In 1888, Mr. Ashdown Green, a federal government surveyor, recommended the creation of these reserves. In his report, however, he did not allocate the reserves to a particular band but rather to the Laich-kwil-tach Indians. The first Schedule of Indian Reserves, published in 1892 by the Department of Indian Affairs, listed Reserves Nos. 11 and 12 as belonging to Laich-kwil-tach Indians without any indication of how the reserves were to be distributed between the bands of the Laich-kwil-tach Indians. By 1902, the Schedule indicated that both reserves were allocated to the “Wewayakay” (Cape Mudge) Band. The Schedule allocated Reserves Nos. 7 through 12 to Cape Mudge. The name of the Cape Mudge Band (“Wewayakay”) was written in the entry corresponding to Reserve No. 7. Ditto marks were used to reproduce the same reference for entries corresponding to Reserves Nos. 8 through 12.
9 The allocation of Reserve No. 11 to Cape Mudge created difficulties. Cape Mudge was not and had never been in possession of Reserve No. 11. Members of Campbell River had occupied the reserve for several years to the exclusion of Cape Mudge. In 1905, a disagreement between the two bands over fishing rights in the Campbell River led to a dispute over possession of Reserve No. 11. In 1907, this dispute was settled by a resolution in which Cape Mudge ceded to Campbell River any claim to Reserve No. 11, subject to retaining fishing rights in the area. This resulted in the Department of Indian Affairs modifying the 1902 Schedule of Indian Reserves by marking “We-way-akum band” (Campbell River) in the entry corresponding to Reserve No. 11. By inadvertence, the “ditto marks” in the subsequent entry corresponding to Reserve No. 12 were not altered creating the erroneous appearance that Reserve No. 12 was also allocated to Campbell River. However, the alteration of the Schedule was intended to refer only to Reserve No. 11 and there was no intention to make any change to Reserve No. 12.
10 In 1912, the McKenna McBride Commission was established to address continuing disagreements between the federal and provincial governments about the size and number of reserves in British Columbia. The Commission acknowledged that Reserve No. 11 was properly allocated to Campbell River but noted the irregularity that was the source of the confusion with respect to Reserve No. 12. Nevertheless, the Commission made no alteration to the Schedule so that matters remained with Cape Mudge occupying Reserve No. 12 and Campbell River occupying Reserve No. 11 subject to the fishing rights in the waters of the Campbell River given to Cape Mudge.
11 The McKenna McBride Report did not receive approval by the province. Both the provincial and federal governments then established the Ditchburn Clark Commission to resolve the outstanding federal-provincial disagreements. In its 1923 report, the Ditchburn Clark Commission restated the position proposed in the McKenna McBride Report concerning Reserves Nos. 11 and 12. In 1924, both levels of government adopted the McKenna McBride recommendations as modified by the Ditchburn Clark Commission. In 1938, a provincial Order-in-Council was issued transferring administration and control of the reserve lands to the federal Crown.
12 In the 1970s, a dispute between the bands resurfaced. Eventually, in December 1985, Campbell River started an action against the Crown and Cape Mudge in the Federal Court. It claimed that the Crown had acted in breach of its fiduciary duty, had acted negligently, had committed fraud, equitable fraud and deceit, and had breached and continued to breach statutory duties owed to Campbell River. Campbell River further claimed that Cape Mudge had trespassed and continued to trespass on Reserve No. 12. In 1989, Cape Mudge counterclaimed against Campbell River and brought its own claim against the Crown. Cape Mudge claimed that the Crown had breached its fiduciary duty, duty of trust and statutory duties under the Indian Act, R.S.C. 1985, c. I-5. Each band thus claimed both reserves for itself, but sought compensation from the Crown as relief rather than dispossession of either band from their respective Reserves Nos. 11 and 12.
13 The two joined actions were heard together in the Federal Court, Trial Division by Teitelbaum J. The trial lasted 80 days and the actions were dismissed on September 19, 1995 (99 F.T.R. 1). The bands appealed to the Federal Court of Appeal. By unanimous judgment the appeals were dismissed on October 12, 1999 (247 N.R. 350).
14 The bands applied for and were granted leave to appeal on October 12, 2000, [2000] 2 S.C.R. vii. The appeals were heard by the full Court on December 6, 2001. On December 6, 2002, in reasons written by Binnie J. and concurred in unanimously, the appeals were dismissed. The Court held that the Crown had not breached its fiduciary duty to either band. In any event, it found that the equitable defences of laches and acquiescence were available to the Crown. As well, the Court concluded that the bands’ claims were statute barred under the applicable statutes of limitations.
B. The Access to Information Request
15 In February 2003, a request under the Access to Information Act, R.S.C. 1985, c. A-1, made by Campbell River was received by the Department of Justice. The request sought:
. . . copies of all records, including letters, correspondence and internal memoranda to, from or which make reference to Mr. William Binnie (Ian Binnie) [now Justice Binnie] in the matter of the claim against Canada by the Wewaykum (or Campbell River) Indian Band and the Wewaikai (or Cape Mudge) Indian Band for Quinsam IR 12 and Campbell River IR 11 between the years 1982 and 1986.
16 During the hearing of these motions, counsel for Campbell River explained the origin of the access to information request. Subsequent to the release of the Court’s reasons, the band’s solicitor, Mr. Robert T. Banno, reviewed the reasons with the band and, as stated by its counsel, the band was upset both by the tone and the result of the appeal. Counsel for Campbell River stated that:
They were upset, quite frankly, with the tenor of the reasons in the sense that the claim had been dismissed; some of the words used were “a paper claim”. And in effect they thought, as parties sometimes feel when they lose cases, that their arguments had not been properly addressed.
17 Counsel for Campbell River offered the following explanation as to why an unsuccessful litigant would be unusually inclined to present an access to information request about one of the authors of the reasons of the Court:
Now, one could look at the FOI [freedom of information] request and could sort of infer something from it other than perhaps a proper -- well, something improper about doing it. In my submission, what happens if a client is upset, an FOI request may be the very thing to satisfy that client or that litigant that everything is fine. I mean that may be the type of situation that comes back -- the FOI request comes back with nothing and the client is satisfied. Well, the chips fall where they fall. . . .
. . .
. . . in something like this, in sitting down with a client and -- a litigant and explaining what has happened, this is the kind of thing that helps explain what has happened. You say, look, there is nothing untoward here, everything is above board.
. . .
. . . in my submission, there should be no improper motive at all attributed to the filing of that information. That sometimes helps lawyers explain to litigants, helps quell those kinds of concerns.
18 Counsel for Campbell River offered this explanation as a rejection of any suggestion that Binnie J.’s involvement in the band’s claim as Associate Deputy Minister in the Department of Justice many years previous was suspected prior to or during the hearing before this Court but only investigated subsequently when a negative decision was rendered.
C. Results of the Access to Information Request
19 Pursuant to the access to information request, the Department of Justice found a number of internal memoranda to, from or making reference to Binnie and related to Campbell River’s claim. These memoranda show that in late 1985 and early 1986, Binnie, in his capacity at that time as Associate Deputy Minister of Justice, received some information and attended a meeting in the early stages of Campbell River’s claim. On May 23, 2003, the Assistant Deputy Attorney General, James D. Bissell, Q.C., wrote the Registrar of the Supreme Court of Canada to inform her that as a result of the preparation of the Department’s response to the access to information request, it appeared “that Mr. W.I.C. Binnie in 1985 and early 1986, in the course of his duties as Associate Deputy Minister of Justice, participated in discussions with Department of Justice counsel in the Wewaykum [Campbell River] Indian Band case”.
20 Accompanying Assistant Deputy Attorney General Bissell’s letter to the Registrar were several documents, dated between 1985 and 1988, referring to Mr. Binnie and the Campbell River claim against Canada in regard to Reserves Nos. 11 and 12. Assistant Deputy Attorney General Bissell advised the Registrar that, in view of its duty as an officer of the Court, the Department was waiving solicitor-client privilege to these documents and that they would be provided to the requester under the Access to Information Act. He also advised that the Department intended to file a motion for directions, pursuant to Rule 3 of the Rules of the Supreme Court of Canada, SOR/2002-156, as to what steps, if any, should be taken by reason of the information found in his letter. Attached to the letter was a Statement setting forth the following factual information that is part of the motion record:
1. The case of Wewaykum Indian Band v. Canada, [2002] S.C.C. 79, file no. 27641 was heard in the Supreme Court of Canada on December 6, 2001 and judgment was rendered December 6, 2002.
2. The original claim in the case was filed in December 1985 and the original Defense on behalf of the Crown was filed on February 28, 1986.
3. The trial judgment was released by the Federal Court Trial Division on September 19, 1995 and the appeal judgment was released on October 12, 1999 by the Federal Court of Appeal.
4. Mr. W.I.C. Binnie was Associate Deputy Minister of Justice from September 2nd, 1982 until July 31st, 1986; at that time he left the Department of Justice and entered private practice.
5. As Associate Deputy Minister, Mr. Binnie’s duties included responsibility for all litigation, civil as well as criminal matters, involving the Government of Canada as a party, arising in the common law provinces and territories of Canada; in that context he would have had under his general supervisory authority thousands of cases. In addition to his responsibilities for litigation, Mr. Binnie was also responsible for Native Law in the Department.
6. In the course of the preparation of a response to a request for information under the Access to Information Act received in February 2003, it has come to light that Mr. Binnie had occasion to discuss the case with Department of Justice counsel, in late 1985 and early 1986.
7. In the course of preparing for the hearing of the case before the Supreme Court of Canada, Department of Justice counsel noted the fact of Mr. Binnie’s position as Associate Deputy Minister in 1985 and 1986, and asked themselves whether Mr. Binnie had had any specific involvement in the case.
8. Counsel did not conduct a thorough examination of the files. Consequently, Mr. Binnie’s involvement was not discovered by counsel at that time.
21 Copies of Assistant Deputy Attorney General Bissell’s letter, the Statement and the documents were provided to counsel for the other parties and the interveners.
D. The Motion for Directions
22 The Crown served and filed a motion for directions on May 26, 2003, on the following grounds:
1. Judgment in this appeal was handed down on December 6, 2002. The appeal from the Federal Court of Appeal was unanimously dismissed (9:0). The Honourable Mr. Justice Binnie wrote the decision;
2. It has recently come to the attention of counsel for the Respondent, Her Majesty The Queen, that in 1985 and 1986, when Mr. Justice Binnie was Associate Deputy Minister of Justice (Litigation), he had been involved in some of the early discussions within the Department of Justice regarding the proceeding that eventually came before the Court as this appeal;
3. The Respondent therefore brings this motion in order to formally place this fact before the Court, and to ask this Court for directions as to any steps to be taken.
23 Produced with the motion for directions were the documents referring to Mr. Binnie while in the employ of the Department of Justice and Campbell River’s claim in relation to Reserves Nos. 11 and 12. Upon receipt of the motion by the Court, Binnie J. recused himself from any further proceedings on this matter and, on May 27, 2003, filed the following statement with the Registrar of the Supreme Court:
With respect to the Motion for Directions filed yesterday by the Crown, would you please place this note on the Court file and communicate its contents to counsel for the parties.
It is a matter of public record that between September 1982 and July 1986 I was Associate Deputy Minister of Justice responsible for all litigation for and against the federal Crown except tax matters and cases in Quebec. This included Indian claims. At any given time, the responsibility covered several thousand cases.
When this appeal was pending before the Court in 2002, I had no recollection of personal involvement 17 years earlier at the commencement of this particular file, which was handled by departmental counsel in the Vancouver Regional Office.
I do not recall anything about any involvement in this case to add to what is set out in the departmental file.
I recuse myself from consideration of the pending motion.
24 The Court invited further submissions by the parties with respect to the Crown’s motion for directions. The Crown filed a memorandum in which it submitted that there was no reasonable apprehension of bias affecting the Court’s judgment as a result of Binnie J.’s employment in the Department of Justice and involvement in this matter some 17 years earlier and for which he had no recollection. In response, Cape Mudge sought an order setting aside the Court’s judgment of December 6, 2002, and requesting that the Court recommend that the parties enter into a negotiation and reconciliation process. In the alternative, Cape Mudge sought an order suspending the operation of the judgment for a period of four months to permit negotiation and reconciliation between the parties with further submissions to the Court if required.
25 Campbell River for its part sought an order vacating the Court’s judgment of December 6, 2002, and the reasons for judgment, as well as an order permitting a further application for relief in the event the Supreme Court’s decision was vacated. The Crown opposed both motions. It also opposed Cape Mudge’s submission that further negotiation would be an appropriate remedy in this matter.
26 The Attorney General of British Columbia, an intervener, submitted that there was no reasonable apprehension of bias and that the motions to vacate should be dismissed.
27 Several other interveners, being the Gitanmaax Band, the Kispiox Band and the Glen Vowell Band, submitted that the Court’s judgment should be vacated.
E. Details of Binnie J.’s Involvement in the Appellants’ Litigation 1985-86
28 We turn now to the documents produced by the Crown, in order to determine the nature and extent of Binnie’s involvement in the Campbell River claim in 1985-86. Seventeen documents were produced by the Crown. As noted previously, the documents are reproduced in their entirety in the Appendix. All documents were shown to or seen by Binnie in his official capacity as Associate Deputy Minister of Justice. Where relevant, the documents relate to the Campbell River claim. Cape Mudge’s claim was commenced in 1989, several years after Binnie left the Department of Justice. As can be seen, the 17 documents include one letter and 16 internal memoranda. The letter, dated May 23, 1985, is from Binnie to Chief Sol Sanderson of the Federation of Saskatchewan Indian Nations and is obviously not relevant to these motions. Of the remaining 16 documents, two were produced twice; they are the memorandum dated December 13, 1985, and the memorandum dated February 25, 1986, from Ms. Mary Temple to Binnie. Consequently, 14 documents require examination, which will be done in chronological order.
29 Memorandum No. 1, dated June 19, 1985, is a memo to file written by Ms. Temple, Acting Senior Counsel, Office of Native Claims. The memorandum refers to Binnie by reason of the fact that it includes a reference to his letter of May 23, 1985, to Chief Sanderson. The memorandum does not detail any involvement of Binnie in the Campbell River claim and is of no relevance to these motions.
30 Memorandum No. 2, dated August 9, 1985, is from Ms. Temple to Binnie. The memo pre-dates Campbell River’s statement of claim. It indicates that an issue raised by the Campbell River claim and another matter known as the Port Simpson claim were referred to Mr. Tom Marsh of the Vancouver Office for his opinion. The memo further states that Mr. Marsh’s opinion would not be ready before the middle of September. It concludes with a request to be informed of any further communications with respect to the Port Simpson opinion from Band representatives.
31 Memorandum No. 3 also pre-dates Campbell River’s statement of claim. It is from Mr. R. Green, General Counsel in the Department of Indian Affairs and Northern Development, to Binnie and is dated October 11, 1985. This memo, which relates to the Campbell River and Port Simpson claims, was prepared for a meeting between Binnie and Mr. Green to discuss a legal issue “which potentially touches on all claims from B.C. bands, or at least all involving a determination of rights and liabilities arising out of the pre-McKenna/McBride period”. The memo addresses the gazetting of notices and reserve creation in British Columbia. In his memo, Mr. Green refers to the work of Mr. Marsh and sets out three likely interpretations of the B.C. legislation:
1. no reserve is legally established until the notice is Gazetted;
2. the Gazetting provision is for the purpose of land banking;
3. the Gazetting process is a condition precedent to transferring administration and control of reserves to the federal government but not to the creation of the Indian interest.
32 A handwritten note on the margin, presumably from Mr. Green to Binnie, reads: “On the surface argument 3 seems to be the least damaging way to go.”
33 Memorandum No. 4, dated December 12, 1985, is from Mr. Duff Friesen, General Counsel, Civil Litigation Section, to Binnie. In it, Mr. Friesen proposes that Campbell River’s statement of claim, filed on December 2, 1985, be referred to the Vancouver Regional Office of the Department of Justice. In a handwritten note on the memo, Binnie wrote “I agree”.
34 Memorandum No. 5, dated December 13, 1985, is from Ms. Temple to Mr. G. Donegan, General Counsel, Vancouver Regional Office, and copied to Binnie. The memo indicates that Campbell River had filed a statement of claim and intended to proceed by way of litigation rather than negotiation under the Department of Indian Affairs policy. The memo also indicates that certain aspects of the claim were the subject of correspondence with Mr. Marsh of the Vancouver Regional Office and were also discussed with Binnie in Ottawa. With respect to these discussions, Ms. Temple wrote that:
In particular, Ian Binnie formed the opinion that the McKenna McBride report, to the extent that it specified that Quinsam Reserve No. 12 was the Campbell River Band’s Reserve, should be taken at its face value notwithstanding the apparent fact that the designation of the Reserve for this band stemmed from an administrative error in the list of reserves on which the Commission relied as its primary source of information.
35 Memorandum No. 6, dated January 14, 1986, is from Binnie to Ms. Temple. It acknowledges receipt of Memorandum No. 5 and sets out the above-quoted passage from that memorandum. Binnie then wrote:
I recall some discussion about this, but not in the raw terms you have stated it. Could you let me have a note setting out the factual circumstances of the case and the legal points addressed in our discussion and any other relevant legal points you think should be considered?
36 Memorandum No. 7, dated January 15, 1986, is from Binnie to Mr. Harry Wruck of the Vancouver Regional Office. In it Binnie wrote that he is delighted with the assignment of this matter to Mr. Bill Scarth (now Scarth J.). He further asks to be informed of anything that the Minister should be made aware of.
37 Memorandum No. 8, dated January 20, 1986, is from Ms. Temple to Binnie in response to Memorandum No. 6. In this memo, Ms. Temple describes the factual background of Campbell River’s claim. She concludes the memo with the following description of their discussions in relation to the claim:
In our discussion of this claim in October 1985, we spent most of the time on another legal issue. However, when we turned to the issue of the effect of the McKenna McBride Commission report vis a vis Reserves No.’s 11 and 12, you indicated that such a qualification of the apparent terms of the McKenna McBride Report, as suggested by me, should not be supported and that a report should be accepted on its face so as to result in the legal vesting of an interest for the Campbell River Band only in these two reserves. My understanding of your reasons for such a position was that if we started to qualify the face of the record in any way, we would call into question other aspects of the McKenna McBride exercise.
The other issue on which we spent most of our time during the October discussion was in relation to the question of the effect of the B.C. Land Act Legislation on the establishment of Reserves during the time of the nineteen [sic] century reserve commissions. In particular, one interpretation of this legislation would have confirmed the necessity of publishing in the B.C. Gazette the decision of the B.C. Government or officials authorized by it to establish reserves for bands before a band could be considered to have a vested interest in such a reserve. We concluded that notwithstanding the basis for such an interpretation, we should maintain the position that at least with respect to the Campbell River and Quinsam Reserves there was no requirement to gazette notices of those reserves before they could be considered to have been established. The legislation in question was somewhat ambiguous and our decision reflected an attempt to support an interpretation which was, of course, reasonably arguable but which also was reflective of the treatment of these reserves during the period preceeding [sic] the McKenna McBride report implementation.
As indicated in the above-quoted passage, the discussions referred to by Ms. Temple occurred in October 1985, before Campbell River filed its statement of claim and while the parties were still in the negotiation process.
38 Memorandum No. 9 is dated February 25, 1986, and is also from Ms. Temple to Binnie. The memo transmits to Binnie a copy of Campbell River’s statement of claim. The memo clarifies that when Binnie participated in discussions in this case “it was still in the ONC [Office of Native Claims] claims process and before the Campbell River Band decided to proceed with litigation”. The memo further advises that Mr. Scarth, who had earlier been retained and had carriage of the action, had been instructed to file a full defense. Ms. Temple also indicates in her memo that:
I would just like to note for your information that a full defense of the action by the Crown might involve the Crown in arguing some qualification or interpretation of the implementation of the McKenna McBride Report which was a position which in our discussions respecting negotiation of the claim you advised against. It seemed to Bob Green and I [sic] and to the Departmental officials that such a defense in the context of this court action was, nevertheless, justified.
39 Memorandum No. 10 is also dated February 25, 1986, and is from Ms. Temple to Mr. Scarth. The memo conveys instructions to file a full statement of defense. The following passage from this memo relates to Binnie’s involvement in discussions relating to the claim:
Since such a defense might result in legal arguments which involve “going behind” the face of the McKenna McBride decisions as implemented by the legislation and Orders in Council, these instructions are being communicated to Ian Binnie because when the Government position respecting the claim was initially discussed with him, he advised that, at least, in the claims process we should not challenge the McKenna McBride report itself.
40 Memos 8, 9 and 10 establish that any advice given by Binnie in relation to the preferred treatment of the McKenna McBride Report was offered in the context of the negotiation process not litigation. Indeed, Binnie’s advice, in the context of the negotiation towards a settlement of Campbell River’s claim, is what led to acceptance of the claim as valid for the purposes of negotiation. In Memorandum No. 9, Ms. Temple wrote:
When we discussed the position the Crown should take for the purpose of negotiating a settlement under the claims process, we decided to recommend acceptance of the Campbell River Band’s claim for negotiation since to do otherwise would suggest that the implementation of the McKenna McBride Report was ineffective to vest Reserve No. 12 in the Campbell River Indian Band. At the time, this position was understood to be justified since although both on legal issues and factual issues the claim was debatable, there seem to be sufficiently reasonable arguments to support it so as to justify settlement, at least on a pro-rated basis, especially since it would presumably have involved a surrender by the Campbell River Band and therefore a clarification of the interest of the Cape Mudge Band in the Reserve.
41 Memorandum No. 11, dated February 27, 1986, is from Ms. Temple to Ms. Carol Pepper, Legal Counsel, Specific Claims Branch Vancouver. The memo transmits to Ms. Pepper a number of opinions culled from the Campbell River claim file. In this memo, Ms. Temple writes that her opinions eventually reflected Ian Binnie’s preferred position “to not ‘go behind’ the McKenna McBride Report”.
42 Memorandum No. 12, dated March 3, 1986, is from Mr. Scarth to Binnie. The memo transmits to Binnie a copy of the statement of defence presumably prepared by Mr. Scarth and filed on behalf of the Crown on February 28, 1986. In this memo, Mr. Scarth indicates that he believes that the defence reflects the positions of both Justice and Indian Affairs. He further indicates that he has attempted not to repudiate the McKenna McBride Commission Report.
43 Memorandum No. 13, dated March 5, 1986, is from Binnie to Ms. Temple and is in response to Memorandum No. 9. In this memo, Binnie wrote:
With respect to the treatment of the McKenna McBride Report, I suggest that we all await the advice of Bill Scarth as to how this aspect of our possible defence should be dealt with. So far as I am concerned Bill Scarth is in charge of the file. I am sure he will take note of the view expressed by you and Bob Green and “departmental officials” that it would be appropriate in the Crown’s defence to argue some qualification or interpretation of the implementation of the McKenna McBride Report.
I look forward to hearing Bill Scarth’s views on this aspect of the matter in due course. We will then decide what to do.
44 Memorandum No. 13 is the last document evidencing Binnie’s involvement in this matter. As conceded by the parties, the Court’s determination of the extent of Binnie’s involvement in the Campbell River claim is limited by the documentary record produced by the Crown. The record does not disclose any further involvement on Binnie’s part and, in particular, no involvement in this matter between March 5, 1986, and his departure from the Department of Justice on July 31, 1986.
45 Finally, Memorandum No. 14 is dated February 3, 1988, after Binnie left the Department of Justice, and is from Mr. Scarth to Mr. E.A. Bowie, Q.C., Assistant Deputy Attorney General (now Bowie J.). In this memo, Mr. Scarth provides a summary of the Campbell River case to Mr. Bowie. In the body of his memo, Mr. Scarth writes:
I point out, parenthetically, that Ian Binnie, during his time as Associate Deputy Minister, suggested, because of its wider impact, that we not challenge the validity of what was done by the Royal Commission. With respect, I continue to concur with that advice, and suggest it is a question of defining more narrowly what the Commission did, at least insofar as the Reserves in question are concerned.
III. The Parties’ Arguments
A. Cape Mudge, Campbell River and the Interveners the Gitanmaax Band, the Kispiox Band and the Glen Vowell Band
46 Campbell River and Cape Mudge both agree that actual bias is not at issue. Neither band makes any submission that actual bias affected Binnie J., the reasons for judgment or the judgment of the Court. Both bands unreservedly accept Binnie J.’s statement that he had no recollection of personal involvement in the case. The bands submit, however, that the material disclosed by the Crown gives rise to a reasonable apprehension of bias.
47 Cape Mudge submitted that Binnie J.’s involvement in Campbell River’s claim was so significant that he effectively acted as a senior counsel for the Crown and that he was disqualified on account of the principle that no judge should sit in a case in which he or she acted as counsel at any stage of the proceeding. According to Cape Mudge, the disclosed documents reveal that Binnie J. was actively involved in risk analysis and the development of litigation strategy on behalf of the defendant Crown. Cape Mudge submitted that Binnie J.’s involvement in the litigation while he was Associate Deputy Minister of Justice raises legitimate questions as to whether the positions he formulated and recommended and the various memoranda and documents he read would have had an influence on his approach to the same case as a judge. In Cape Mudge’s submission, such influence could well be unconscious and Binnie J.’s lack of recollection does not change the fact that he was involved in a significant and material way. According to Cape Mudge, the fact that Binnie J. was involved as a lawyer for the defendant Crown, combined with the fact that some 15 years later he wrote a judgment in the same litigation that freed the Crown of potential liability, gives rise to a reasonable apprehension of bias. Cape Mudge submitted that had the documents disclosed by the Crown come to light prior to the hearing before the Court, Binnie J. would have recused himself from the hearing of the appeals.
48 Campbell River submitted that the test for reasonable apprehension of bias is met where a judge sits in a case in which he or she has had any prior involvement. In Campbell River’s view, the documents disclosed by the Crown indicate that Binnie J.’s prior involvement in the band’s claim was substantial. Like Cape Mudge, Campbell River submitted that had Binnie J.’s earlier involvement in these matters come to light prior to the hearing he would have had no choice but to recuse himself absent the consent of all the parties. According to Campbell River, subjective evidence of a judge’s state of mind, and thus Binnie J.’s absence of recollection, is legally irrelevant to a determination of whether there is a reasonable apprehension of bias. Moreover, Campbell River submitted that, owing to Binnie J.’s special interest in aboriginal matters, the unique “ditto mark error” at issue in this case and his involvement as counsel in Guerin v. The Queen, [1984] 2 S.C.R. 335, common sense would indicate that some contaminating knowledge would have survived the passage of time, albeit unconsciously.
49 With respect to remedy, both bands submitted that a judgment affected by a reasonable apprehension of bias is void and must be set aside. According to Campbell River, the concurrence of the eight other judges of this Court does not remove the taint of bias. Campbell River submitted that in law a reasonable apprehension of bias taints the entire proceeding and is presumed to be transmitted among decision-makers.
50 As indicated previously, Cape Mudge submitted that this Court should also recommend that the parties enter into a negotiation and reconciliation process or, in the alternative, suspend operation of the judgment for four months so that discussions between the parties could take place. For its part, Campbell River requested an order permitting it to bring an application for further relief following a decision to set aside the judgment. During oral argument, counsel for both bands indicated that a rehearing of the appeals may ultimately become necessary should the decision be set aside and agreement between the parties prove impossible.
51 The interveners the Gitanmaax Band, the Kispiox Band and the Glen Vowell Band presented written arguments in support of the motions to vacate the Court’s judgment. In their submission, the facts of this case give rise to a reasonable apprehension of bias and a legal finding of bias must result. Binnie J.’s lack of actual recollection is, in their view, irrelevant. The interveners go further suggesting that actual bias may have existed on Binnie J.’s part even if he neither intended it nor recalled his involvement in the case. Like Campbell River and Cape Mudge, the interveners submitted that Binnie J. would have recused himself had he recalled his participation in this case before the hearing.
B. The Crown and the Intervener the Attorney General of British Columbia
52 The Crown submitted that the Court’s judgment should not be set aside and that no other remedy was required. In the Crown’s view, the rule that a judge is disqualified if he or she previously acted as counsel in the case is subject to the general principle that disqualification results only where there is a reasonable apprehension of bias. Accordingly, the Crown submitted that the general test set out by de Grandpré J. in dissent in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, and approved in Valente v. The Queen, [1985] 2 S.C.R. 673, should be applied to the particular circumstances of this case.
53 The Crown submitted that since Binnie J. had no recollection, he brought no knowledge of his prior participation by way of discussions about Campbell River’s claim. As a result, there was neither actual bias nor any reasonable apprehension of bias on his part. Relying on the English Court of Appeal’s decision in Locabail (U.K.) Ltd. v. Bayfield Properties Ltd., [2000] Q.B. 451, the Crown submitted that Binnie J.’s lack of recollection dispels any appearance of possible bias. According to the Crown, the fact that Binnie J.’s prior involvement occurred 17 years earlier reinforces the conclusion that there can be no reasonable apprehension of bias. On this point, the bands concede that the passage of time is a relevant factor. Finally, the Crown submitted that since the judgment of the Court was unanimous in dismissing the appeals, and since Binnie J. had no recollection of his earlier involvement, no reasonable person could conclude that he somehow influenced the minds of the other eight judges who heard the case.
54 The Attorney General of British Columbia also submitted that the Court’s judgment should not be disturbed. He submitted that the information disclosed by the Crown would not have necessitated Binnie J.’s recusal had an application been made before the hearing. A fortiori, the disclosed information does not establish a reasonable apprehension of bias nor require that the judgment be set aside. The Attorney General of British Columbia further submitted that although evidence of a judge’s subjective state of mind is not determinative as to the issue of whether a reasonable apprehension of bias arises, it remains relevant and of assistance to the reasonable and right-minded observer.
55 The Attorney General of British Columbia submitted that Binnie J. did not act as counsel for the Crown in this case. His involvement was in a general administrative and supervisory capacity which does not give rise to a reasonable apprehension of bias. It was submitted that a reasonable person would not consider that the tentative views on a general issue expressed by Binnie J. 15 years earlier, in his capacity as Associate Deputy Minister, would prevent him from deciding the case impartially.
56 The Attorney General of British Columbia further submitted that since the decision-maker was the Court as a whole, a reasonable apprehension of bias in respect of Binnie J. is not legally significant unless it also establishes a reasonable apprehension of bias in respect of the judgment of the Court as a whole. In this case, the judgment of the Court as a whole is not tainted by any apprehension of bias. Moreover, the presumption of impartiality has a practical force in respect of appellate tribunals. The fact that appellate courts normally evaluate a written record and the collegial nature of an appellate bench reduces the leeway within which the personal attributes, traits and dispositions of each judge can operate. Finally, the Attorney General submitted that if there was a disqualifying bias in respect of the Court as a whole, the remedy would be to vacate the judgment and for the Court to reconsider the appeals in the absence of Binnie J. under the doctrine of necessity.
IV. Analysis
A. The Importance of the Principle of Impartiality
57 The motions brought by the parties require that we examine the circumstances of this case in light of the well-settled, foundational principle of impartiality of courts of justice. There is no need to reaffirm here the importance of this principle, which has been a matter of renewed attention across the common law world over the past decade. Simply put, public confidence in our legal system is rooted in the fundamental belief that those who adjudicate in law must always do so without bias or prejudice and must be perceived to do so.
58 The essence of impartiality lies in the requirement of the judge to approach the case to be adjudicated with an open mind. Conversely, bias or prejudice has been defined as
a leaning, inclination, bent or predisposition towards one side or another or a particular result. In its application to legal proceedings, it represents a predisposition to decide an issue or cause in a certain way which does not leave the judicial mind perfectly open to conviction. Bias is a condition or state of mind which sways judgment and renders a judicial officer unable to exercise his or her functions impartially in a particular case.
(R. v. Bertram, [1989] O.J. No. 2123 (QL) (H.C.), quoted by Cory J. in R. v. S. (R.D.), [1997] 3 S.C.R. 484, at para. 106.)
59 Viewed in this light, “[i]mpartiality is the fundamental qualification of a judge and the core attribute of the judiciary” (Canadian Judicial Council, Ethical Principles for Judges (1998), at p. 30). It is the key to our judicial process, and must be presumed. As was noted by L’Heureux-Dubé J. and McLachlin J. (as she then was) in S. (R.D.), supra, at para. 32, the presumption of impartiality carries considerable weight, and the law should not carelessly evoke the possibility of bias in a judge, whose authority depends upon that presumption. Thus, while the requirement of judicial impartiality is a stringent one, the burden is on the party arguing for disqualification to establish that the circumstances justify a finding that the judge must be disqualified.
60 In Canadian law, one standard has now emerged as the criterion for disqualification. The criterion, as expressed by de Grandpré J. in Committee for Justice and Liberty v. National Energy Board, supra, at p. 394, is the reasonable apprehension of bias:
. . . the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is “what would an informed person, viewing the matter realistically and practically — and having thought the matter through — conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.”
61 We will return shortly to this standard, as it applies to the circumstances outlined in the factual background. Before doing that, it is necessary to clarify the relationship of this objective standard to two other factors: the subjective consideration of actual bias; and the notion of automatic disqualification re-emerging in recent English decisions.
B. Reasonable Apprehension of Bias and Actual Bias
62 Determining whether the judge brought or would bring prejudice into consideration as a matter of fact is rarely an issue. Of course, where this can be established, it will inevitably lead to the disqualification of the judge. But this said, most arguments for disqualification typically begin with an acknowledgment by all parties that there was no actual bias, and move on to a consideration of the reasonable apprehension of bias. Here, as in many cases, it is conceded by the parties that there was no actual bias on Binnie J.’s part, and his statement that he had no recollection of involvement is similarly accepted by all concerned. As submitted by the parties, his personal integrity is not in doubt, either in these appeals or in any appeal in which he has sat as a member of this Court. Nevertheless, it is said, the circumstances of the present case are such as to create a reasonable apprehension of bias on his part. Since the two propositions go hand in hand, to understand what is meant by reasonable apprehension of bias, it is helpful to consider what it means to say that disqualification is not argued on the basis of actual bias.
63 Saying that there was “no actual bias” can mean one of three things: that actual bias need not be established because reasonable apprehension of bias can be viewed as a surrogate for it; that unconscious bias can exist, even where the judge is in good faith; or that the presence or absence of actual bias is not the relevant inquiry. We take each in turn.
64 First, when parties say that there was no actual bias on the part of the judge, they may mean that the current standard for disqualification does not require that they prove it. In that sense, the “reasonable apprehension of bias” can be seen as a surrogate for actual bias, on the assumption that it may be unwise or unrealistic to require that kind of evidence. It is obviously impossible to determine the precise state of mind of an adjudicator (Cory J. in Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623, at p. 636). As stated by the English Court of Appeal in Locabail (U.K.), supra, at p. 472:
The proof of actual bias is very difficult, because the law does not countenance the questioning of a judge about extraneous influences affecting his mind; and the policy of the common law is to protect litigants who can discharge the lesser burden of showing a real danger of bias without requiring them to show that such bias actually exists.
Again, in the present instance, no one suggests that Binnie J. was consciously allowing extraneous influences to affect his mind. Consequently, it would appear that reasonable apprehension of bias is not invoked here as a surrogate for actual bias.
65 Second, when parties say that there was no actual bias on the part of the judge, they may be conceding that the judge was acting in good faith, and was not consciously relying on inappropriate preconceptions, but was nevertheless unconsciously biased. In R. v. Gough, [1993] A.C. 646 (H.L.), at p. 665, quoting Devlin L.J. in The Queen v. Barnsley Licensing Justices, [1960] 2 Q.B. 167 (C.A.), Lord Goff reminded us that:
Bias is or may be an unconscious thing and a man may honestly say that he was not actually biased and did not allow his interest to affect his mind, although, nevertheless, he may have allowed it unconsciously to do so. The matter must be determined upon the probabilities to be inferred from the circumstances in which the justices sit.
As framed, some of the arguments presented by the parties suggest that they are preoccupied that Binnie J. may have been unconsciously biased despite his good faith.
66 Finally, when parties concede that there was no actual bias, they may be suggesting that looking for real bias is simply not the relevant inquiry. In the present case, as is most common, parties have relied on Lord Hewart C.J.’s aphorism that “it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done” (The King v. Sussex Justices, Ex parte McCarthy, [1924] 1 K.B. 256, at p. 259). To put it differently, in cases where disqualification is argued, the relevant inquiry is not whether there was in fact either conscious or unconscious bias on the part of the judge, but whether a reasonable person properly informed would apprehend that there was. In that sense, the reasonable apprehension of bias is not just a surrogate for unavailable evidence, or an evidentiary device to establish the likelihood of unconscious bias, but the manifestation of a broader preoccupation about the image of justice. As was said by Lord Goff in Gough, supra, at p. 659, “there is an overriding public interest that there should be confidence in the integrity of the administration of justice”.
67 Of the three justifications for the objective standard of reasonable apprehension of bias, the last is the most demanding for the judicial system, because it countenances the possibility that justice might not be seen to be done, even where it is undoubtedly done – that is, it envisions the possibility that a decision-maker may be totally impartial in circumstances which nevertheless create a reasonable apprehension of bias, requiring his or her disqualification. But, even where the principle is understood in these terms, the criterion of disqualification still goes to the judge’s state of mind, albeit viewed from the objective perspective of the reasonable person. The reasonable person is asked to imagine the decision-maker’s state of mind, under the circumstances. In that sense, the oft-stated idea that “justice must be seen to be done”, which was invoked by counsel for the bands, cannot be severed from the standard of reasonable apprehension of bias.
68 We emphasize this aspect of the criterion of disqualification in Canadian law because another strand of this area of the law in the Commonwealth suggests that some circumstances of conflict of interest may be enough to justify disqualification, whether or not, from the perspective of the reasonable person, they could have any impact on the judge’s mind. As we conclude in the next section, this line of argument is not helpful to counsel for the bands in the present case.
C. Reasonable Apprehension of Bias and Automatic Disqualification
69 At the opposite end from claims of actual bias, it has been suggested that it is wrong to be a judge in one’s own cause, whether or not one knows this to be the case. The idea has been linked to the early decision of Dimes v. Proprietors of the Grand Junction Canal (1852), 3 H.L.C. 759, 10 E.R. 301. More recently, in Gough, supra, at p. 661, Lord Goff stated that
there are certain cases in which it has been considered that the circumstances are such that they must inevitably shake public confidence in the integrity of the administration of justice if the decision is to be allowed to stand. . . . These cases arise where a person sitting in a judicial capacity has a pecuniary interest in the outcome of the proceedings. . . . In such a case, . . . not only is it irrelevant that there was in fact no bias on the part of the tribunal, but there is no question of investigating, from an objective point of view, whether there was any real likelihood of bias, or any reasonable suspicion of bias, on the facts of the particular case. The nature of the interest is such that public confidence in the administration of justice requires that the decision should not stand.
70 This has been described as “automatic disqualification”, and was recently revisited by the House of Lords in R. v. Bow Street Metropolitan Stipendiary Magistrate, Ex parte Pinochet Ugarte (No. 2), [1999] 2 W.L.R. 272. There, the House of Lords dealt with a situation in which Lord Hoffmann had participated in a decision in which Amnesty International was an intervener, while sitting as a director and chairperson of a charity closely allied with Amnesty International and sharing its objects. In that context, it was found that the rule of “automatic disqualification” extended to a limited class of non-financial interests, where the judge has such a relevant interest in the subject matter of the case that he or she is effectively in the position of a party to the cause. As a result, Lord Hoffmann was disqualified, and the decision of the House of Lords was set aside, in a judgment that drew much attention around the world.
71 A more recent decision of the English Court of Appeal suggests that this extension of the rule of automatic disqualification, beyond cases of financial interests, is likely to remain exceptional (Locabail (U.K.), supra). Even so extended, the rule of automatic disqualification does not apply to the situation in which the decision-maker was somehow involved in the litigation or linked to counsel at an earlier stage, as is argued here.
72 Whatever the case in Britain, the idea of a rule of automatic disqualification takes a different shade in Canada, in light of our insistence that disqualification rest either on actual bias or on the reasonable apprehension of bias, both of which, as we have said, require a consideration of the judge’s state of mind, either as a matter of fact or as imagined by the reasonable person. In any event, even on the assumption that the line of reasoning developed in Pinochet, supra, is authoritative in Canada, it is of no relevance in the present case. On the facts before us, there is no suggestion that Binnie J. had any financial interest in the appeals, or had such an interest in the subject matter of the case that he was effectively in the position of a party to the cause.
73 To sum up, if disqualification is to be argued here, it can only be argued on the basis of a reasonable apprehension of bias. It can only succeed if it is established that reasonable, right-minded and properly informed persons would think that Binnie J. was consciously or unconsciously influenced in an inappropriate manner by his participation in this case over 15 years before he heard it here in the Supreme Court of Canada. We now move to this aspect of the matter.
D. Reasonable Apprehension of Bias and Its Application in This Case
74 The question, once more, is as follows: What would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude? Would this person think that it is more likely than not that Binnie J., whether consciously or unconsciously, did not decide fairly?
75 Three preliminary remarks are in order.
76 First, it is worth repeating that the standard refers to an apprehension of bias that rests on serious grounds, in light of the strong presumption of judicial impartiality. In this respect, de Grandpré J. added these words to the now classical expression of the reasonable apprehension standard:
The grounds for this apprehension must, however, be substantial, and I . . . refus[e] to accept the suggestion that the test be related to the “very sensitive or scrupulous conscience”.
(Committee for Justice and Liberty v. National Energy Board, supra, at p. 395)
77 Second, this is an inquiry that remains highly fact-specific. In Man O’War Station Ltd. v. Auckland City Council (Judgment No. 1), [2002] 3 N.Z.L.R. 577, [2002] UKPC 28, at par. 11, Lord Steyn stated that “This is a corner of the law in which the context, and the particular circumstances, are of supreme importance.” As a result, it cannot be addressed through peremptory rules, and contrary to what was submitted during oral argument, there are no “textbook” instances. Whether the facts, as established, point to financial or personal interest of the decision-maker; present or past link with a party, counsel or judge; earlier participation or knowledge of the litigation; or expression of views and activities, they must be addressed carefully in light of the entire context. There are no shortcuts.
78 Third, in circumstances such as the present one, where the issue of disqualification arises after judgment has been rendered, rather than at an earlier time in the proceedings, it is neither helpful nor necessary to determine whether the judge would have recused himself or herself if the matter had come to light earlier. There is no doubt that the standard remains the same, whenever the issue of disqualification is raised. But hypotheses about how judges react where the issue of recusal is raised early cannot be severed from the abundance of caution that guides many, if not most, judges at this early stage. This caution yields results that may or may not be dictated by the detached application of the standard of reasonable apprehension of bias. In this respect, it may well be that judges have recused themselves in cases where it was, strictly speaking, not legally necessary to do so. Put another way, the fact that a judge would have recused himself or herself ex ante cannot be taken to be determinative of a reasonable apprehension of bias ex post.
79 As the parties acknowledged, Binnie J.’s past status as Associate Deputy Minister is by itself insufficient to justify his disqualification. The same can be said of his long-standing interest in matters involving First Nations. The source of concern, for the bands in these motions to vacate the judgment, is Binnie J.’s involvement in this case, as opposed to his general duties as head of litigation for the Department of Justice in the mid-1980s.
80 In this respect, the bands relied, among other arguments, on the following statement of Laskin C.J., in Committee for Justice and Liberty v. National Energy Board, supra, at p. 388:
Lawyers who have been appointed to the Bench have been known to refrain from sitting on cases involving former clients, even where they have not had any part in the case, until a reasonable period of time has passed. A fortiori, they would not sit in any case in which they played any part at any stage of the case. This would apply, for example, even if they had drawn up or had a hand in the statement of claim or statement of defence and nothing else.
81 This dictum must be understood in the context of the principle of which it is but an illustration. It does not suggest that any degree of earlier participation in a case is cause for automatic disqualification. This statement provides sensible guidance for individuals to consider ex ante. It suggests that a reasonable and right-minded person would likely view unfavourably the fact that the judge acted as counsel in a case over which he or she is presiding, and could take this fact as the foundation of a reasonable apprehension of bias.
82 However, contrary to what has been argued, it cannot realistically be held that Binnie J. acted as counsel in the present case, and the limited extent of his participation does not support a reasonable apprehension of bias. To repeat, what is germane is the nature and extent of Binnie J.’s role. The details of Binnie J.’s involvement in this case, as outlined in the earlier part of these reasons and which should be viewed in the context of his broad duties in the Department of Justice, would convince a reasonable person that his role was of a limited supervisory and administrative nature.
83 Admittedly, Binnie J.’s link to this litigation exceeded pro forma management of the files. On the other hand, it should be noted that he was never counsel of record, and played no active role in the dispute after the claim was filed. Memorandum No. 4, dated December 12, 1985, shows that the case was referred to the Vancouver Regional Office within a few days after filing of the Campbell River claim. Although subsequent memoranda indicate that Binnie was kept informed of some developments in relation to this claim, carriage of the action was in the hands of Mr. Bill Scarth in Vancouver. The facts do not support the proposition that Binnie planned litigation strategy for this case, as is suggested by the bands. For example, in their submissions, the Cape Mudge Band seemed to imply that the handwritten note in the margin of Memorandum No. 3 was written by Binnie in that “[he] was part of the Crown’s early tactical considerations in this case; considering which approach would create the lowest risk for the Crown; which approach would constitute the ‘least damaging way to go’” (see Cape Mudge’s factum, at para. 12). However, upon examination of this note it would appear that it is addressed to “Ian [Binnie]” and signed “Bob [Green]”. Furthermore, and as indicated above, Memos 8, 9 and 10, in particular, establish that any views attributed to Binnie earlier on were offered in the context of wider implications of the negotiation process, and not in the context of litigation.
84 Furthermore, in assessing the potential for bias arising from a judge’s earlier activities as counsel, the reasonable person would have to take into account the characteristics of legal practice within the Department of Justice, as compared to private practice in a law firm. See the Canadian Judicial Council’s Ethical Principles for Judges, supra, at p. 47. In this respect, it bears repeating that all parties accepted that a reasonable apprehension of bias could not rest simply on Binnie J.’s years of service in the Department of Justice. In his capacity as Associate Deputy Minister, Binnie had responsibility for thousands of files at the relevant time. While his views were sought in the negotiations stage of the present dispute, it is relevant that he was consulted on strategic orientations in dozens of cases or classes of cases. In this regard, the matter on which he was involved in this file, principally the effect of the McKenna McBride Report, was not an issue unique to this case, but was an issue of general application to existing reserves in British Columbia. This was presumably the reason why he was approached in the first place.
85 To us, one significant factor stands out, and must inform the perspective of the reasonable person assessing the impact of this involvement on Binnie J.’s impartiality in the appeals. That factor is the passage of time. Most arguments for disqualification rest on circumstances that are either contemporaneous to the decision-making, or that occurred within a short time prior to the decision-making.
86 In Locabail (U.K.), supra, at p. 480, the English Court of Appeal stated:
. . . every application must be decided on the facts and circumstances of the individual case. The greater the passage of time between the event relied on as showing a danger of bias and the case in which the objection is raised, the weaker (other things being equal) the objection will be.
87 Similarly, in Panton v. Minister of Finance, [2001] 5 L.R.C. 132, [2001] UKPC 33, at para. 15, the Privy Council said:
Another consideration which weighs against any idea of apparent or potential bias in the present case is the length of time which intervened between Rattray P.’s conduct in connection with the Act or indeed his holding of the office of Attorney General and the time when he sat as President in the Court of Appeal to hear the present case. . . . It appears that Rattray P. retired as Attorney General in 1993. The hearing of the appeal was in 1998. While that interval of time is not so great as to make the former connection with the Act one of remote history, it is nevertheless of some significance in diminishing to some degree the strength of any objection which could be made to his qualification to hear the case.
88 In the present instance, Binnie J.’s limited supervisory role in relation to this case dates back over 15 years. This lengthy period is obviously significant in relation to Binnie J.’s statement that when the appeals were heard and decided, he had no recollection of his involvement in this file from the 1980s. The lack of knowledge or recollection of the relevant facts was addressed by the English Court of Appeal in Locabail (U.K.), supra. There, at p. 487, the Court of Appeal asked:
How can there be any real danger of bias, or any real apprehension or likelihood of bias, if the judge does not know of the facts that, in argument, are relied on as giving rise to the conflict of interest?
89 The parties have not challenged Binnie J.’s statement, and we are of the view that they are not required to do so. The question is whether the reasonable person’s assessment is affected by his statement, in light of the context – that is, in light of the amount of time that has passed, coupled with the limited administrative and supervisory role Binnie played in this file. In our view, it is a factor that the reasonable person would properly consider, and it makes bias or its apprehension improbable in the circumstances.
90 Binnie J.’s lack of recollection is thus relevant. Yet it is not decisive of the issue. This is not a case in which the judge never knew about the relevant conflict of interest, which would be much easier, but a case in which the judge no longer recalls it. Without questioning his recollection, the argument can be made that his earlier involvement in the file affected his perspective unconsciously. Nevertheless, we are convinced that the reasonable person, viewing the matter realistically, would not come to the conclusion that the limited administrative and supervisory role played by Binnie J. in this file, over 15 years ago, affected his ability, even unconsciously, to remain impartial in these appeals. This is true, quite apart from the multitude of events and experiences that have shaped him as a lawyer and judge in the interim and the significant transformations of the law as it relates to aboriginal issues, that we have all witnessed since 1985.
91 We thus conclude that no reasonable apprehension of bias is established and that Binnie J. was not disqualified in these appeals. The judgment of the Court and the reasons delivered by Binnie J. on December 6, 2002, must stand. It is unnecessary to examine the question whether, in the event that the Court had found that Binnie J. was disqualified, the judgment of the Court in these appeals would have been undermined. Nevertheless, because of the importance of the issue, we offer a few comments in this respect.
92 The decision-making process within the Supreme Court of Canada, while not widely known, is a matter of public record. Many Justices of the Court have spoken publicly on this matter, and a rather complete description of it can be found in an essay published in 1986 by Justice Bertha Wilson (“Decision-making in the Supreme Court” (1986), 36 U.T.L.J. 227). For present purposes, it is enough to say the following. Each member of the Supreme Court prepares independently for the hearing of appeals. All judges are fully prepared, and no member of the Court is assigned the task to go through the case so as to “brief” the rest of the panel* before the hearing. After the case is heard, each judge on the panel** expresses his or her opinion independently. Discussions take place on who will prepare draft reasons, and whether for the majority or the minority. Draft reasons are then prepared and circulated by one or more judges. These reasons are the fruit of a truly collegial process of revision of successive drafts. In that sense, it can be said that reasons express the individual views of each and every judge who signs them, and the collective effort and opinion of them all.
93 Here, the nine judges who sat on these appeals shared the same view as to the disposition of the appeals and the reasons for judgment. Cases where the tainted judge casts the deciding vote in a split decision are inapposite in this respect. In the circumstances of the present case, even if it were found that the involvement of a single judge gave rise to a reasonable apprehension of bias, no reasonable person informed of the decision-making process of the Court, and viewing it realistically, could conclude that it was likely that the eight other judges were biased, or somehow tainted, by the apprehended bias affecting the ninth judge.
V. Conclusion
94 We conclude that no reasonable apprehension of bias is established. Binnie J. was not disqualified to hear these appeals and to participate in the judgment. As a result, the motions to vacate the judgment rendered by this Court on December 6, 2002, are dismissed. The Crown’s motion for directions is also dismissed. Although the bands requested costs, the Crown did not. Under the circumstances, each party will bear its own costs.
APPENDIX
Documents produced by the Crown and referred to in the reasons:
Motions dismissed.
Solicitors for the appellants Roy Anthony Roberts et al.: Davis & Company, Vancouver.
Solicitors for the respondents/appellants Ralph Dick et al.: McAlpine & Associates, Vancouver.
Solicitors for the respondent Her Majesty the Queen: Lavery de Billy, Montréal.
Solicitors for the intervener the Attorney General of British Columbia: Borden Ladner Gervais, Vancouver.
Solicitors for the interveners the Gitanmaax Indian Band, the Kispiox Indian Band and the Glen Vowell Indian Band: Hutchins, Soroka & Grant, Vancouver.