Is the pot calling the kettle black?
If the average citizen criticized the conduct of a Superior Court judge by saying that the judge drew conclusions before hearing all the evidence, prejudged the outcome of his investigation, trivialized the proceedings and tainted the purpose and focus of an inquiry, they would probably be chastised by conventional society as slandering the integrity of the judiciary.
The comments made by Gomery, which are referenced by the Federal Court, are rather innocuous.
But when these criticisms are made by a judge of the Federal Court of Appeal, they are extolled and lauded by those in whose interest it is to belittle the findings of an inquiry conducted by the judge under attack.
Federal Court Judge Max Teitelbaum set aside all findings made by Judge John Gomery relating to former prime minister Jean Chr ©tien and his former chief of staff, Jean Pelletier. Gomery did not make any findings of personal involvement on the part of Chr ©tien in any of the actual misuse of funds but did find that Chr ©tien should bear some responsibility for what happened because the program was conducted out of his office.
The Gomery inquiry made numerous findings about what went on in the sponsorship scandal. None of these findings are challenged or questioned by the Federal Court decision. It is only the findings concerning Chr ©tien and others acting under his authority that are declared to be null and void. The court decision has no practical effect. The only effect of the federal court ruling is political. This raises the question as to why the court considered the matter in the first place.
Mr. Justice Teitlebaum accuses Judge Gomery of playing to the media. In agreeing to hear the Chr ©tien application, it would appear that Judge Teitlebaum knew that his decision would receive considerable media attention. The usual positions of courts when asked to use their authority to interfere with or review public inquiries is to decline to do so.
To quote a typical judicial ruling, "A commissioner appointed... to inquire into... was held not to be subject to control by way of prohibition. He was not acting in a judicial capacity and had no power to impose any legal duty or obligation on any person."
The courts in the past have been reluctant to become involved in the proceedings of a judicial inquiry. The findings of such a body are not by themselves legally binding. If findings of a judicial inquiry suggest wrongdoing, either civil or criminal, no consequences follow unless the alleged wrongdoings are established by normal civil or criminal court proceedings.
The government can, of course, use its legislative and administrative power to deal with the findings of the inquiry, but specifically with regard to the matters dealt with by the federal fudge, no legal consequences flow. The willingness of Judge Teitlebaum to deal with a purely political matter itself raises questions. Is it possible that such willingness, plus the unseemly attacks on Gomery, would invite another court to say that the determination of the judge to hear and decide a point which had no legal consequences demonstrates that he had "prejudged the outcome of the hearing" and "tainted the purpose and focus" of the court proceedings and was preoccupied with the media effect of his decision.
The comments made by Judge Gomery, which are referenced by the Federal Court, are rather innocuous, especially since they were made during an inquiry and not a trial. Many of the allegations concerning the sponsorship scandal were already public knowledge when the Gomery inquiry was taking place because of the revelations of the auditor general.
Courts in the past have ignored more pertinent observations made by judges in situations where much more was at stake.
In the Sacco and Vanzetti case, the courts had pretty serious evidence that Judge Thayer, who tried the case, had referred to the defendants as "those bastards" who were "trying to intimidate him" and "that he would get them good and proper."
His conduct of the trial fully reflected this attitude but this had no effect on the Superior Courts which considered the case and Sacco and Vanzetti were executed in what has been described as a judicial murder. They subsequently received a formal pardon former Massachusetts Gov. Michael Dukakis many years later, when it could do them little good.
The Liberal friends of Chr ©tien are jubilant about the decision. They claim that it totally vindicates Chr ©tien. It does no such thing. The judgment on Chr ©tien is a political one and will be definitive only when it is made by the people of Canada. This is the second decision within a week in which judges appointed by the Liberal government have made political decisions that have been welcomed by their friends.
The first political decision related to the Canadian Wheat Board and held that the board was entitled to use the treasury of that body to propagandize in favour of its own perpetuation. Now we have a federal judge, in effect, amending the report of a judicial inquiry.
These decisions do not prove that what they say is right. They merely prove that different judges can make decisions directly opposite to one another. They also prove that judges should not be making political decisions and that a government in appointing judges should be careful to avoid appointing those who would want to embarrass them.
Sidney Green is a Winnipeg lawyer and former NDP cabinet minister.
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