The National Energy Board Case and
The Concept of Attitudinal Bias
David Phillip Jones*
The Supreme Court of Canada in its somewhat unexpected
decision in Committee for Justice and Liberty v. The National
Energy Board’ has given prominence to a relatively little-used
maxim of administrative law, nemo judex in sua causa debet esse,2
otherwise known as the second principle of natural justice. Unlike
the first principle of natural justice, the audi alteram partem rule,3
the nemo judex rule has not been the object of close judicial
scrutiny and has not been developed by a large body of juris-
prudence. Consequently its boundaries and limits have not been
explored with the rigour which has characterized consideration of
the audi alteram partem rule. The policy, however, underlying both
rules is the same: justice must not only be done, but must mani-
festly be seen to be done.4 It is my submission, then, that the limits
placed upon the reach of the nemo judex rule, given its avowed
purpose, are artificial ones, and (as has already happened with the
audi alteram partem rule), these limits must be critically re-
examined.
The National Energy Board case provides one of the relatively
rare instances where the nemo judex rule has been successfully invok-
ed5 to control the procedure by which governmental decisions are
* Of the Bars of Alberta and the Northwest Territories; and of the Faculty
of Law, McGill University, Montreal.
per Hewart L.CJ.
1 (1976) 68 D.L.R. (3d) 716 (S.C.C.); rev. (1976) 65 D.L.R. (3d) 660 (Fed.C.A.)
sub nomine Re Canadian Arctic Gas Pipeline Ltd.
2No man should be a judge in his own cause.
3Hear the other side.
4 See The King v. Sussex Justices, ex p. McCarthy [1924] 1 K.B. 256, 259
5At least eight cases involving the nemo judex rule have come before the
Supreme Court of Canada in the last decade: Ghirardosi v. Minister of High-
ways (B.C.) [1966] S.C.R. 367, (1966) 56 D.L.R. (2d) 469, 55 W.W.R. 750; King
v. University of Saskatchewan (1969) 6 D.L.R. (3d) 120, 68 W.W.R. 745; Blan-
chette v. C.I.S. Ltd (1973) 36 D.L.R. (3d) 561; Law Society of Upper Canada
v. French [1975] 2 S.C.R. 767, (1975) 49 D.L.R. (3d) 1; P.P.G. Industries Cana-
da Ltd v. A.G. of Canada (1976) 65 D.L.R. (3d) 354; Ringrose v. College of
Physicians and Surgeons of Alberta [1976] 4 W.W.R. 712; The Committee for
Justice and Liberty v. The National Energy Board (1976) 68 D.L.R. (3d) 716;
1977]
ATTITUDINAL BIAS
taken. The Court held that Mr Marshall Crowe’s previous involve-
ment with one of the promoters of a northern pipeline, even in a
capacity representing the Government of Canada, was sufficient
to disqualify him from subsequently acting as Chairman of the
National Energy Board’s hearings of applications by a number of
competitors (including that promoter) for permission to build a
pipeline to transport natural gas from the Arctic to southern
markets. Chief Justice Laskin’s judgment for the majority6 of the
Court clearly articulates the policy underlying this second principle
of natural justice: that justice must not only be done, but must
manifestly and undoubtedly be seen to be done. Given this rationale,
the Chief Justice held that a breach of the rule occurs whenever
there is a reasonable apprehension of bias, and that it is unnecess-
ary to show any likelihood of bias.
In addition, the fact that both de Grandprd J. (writing for the
three dissenting members7 of the Court) and Thurlow J. (writing
for all five members8 of a specially constituted panel of the Federal
Court of Appeal) disagreed with Chief Justice Laskin’s reasoning
clearly indicates a certain amount of judicial division both as to
the kinds of functions to which the nemo judex rule applies as well
as to what actually constitutes bias. This in turn raises the question
whether a decision-maker can be disqualified – not because of his
previous words or actions as they relate directly to the facts of
the case before him – but rather because he might be perceived to
be “attitudinally biased”, that is, predisposed by reason of pre-
viously expressed views on a subject to decide consciously or un-
consciously, that matter in a certain way. The limits of the nemo
judex rule have usually been drawn here. The maxim has been
applied where issues of fact in a particular case may have been
prejudged, but not where an opinion on general issues of law or
policy has been expressedya Does the public policy underlying the
Morgentaler v. The Queen (1974, not reported on this point).
Of these cases, the invocation of the nemo judex rule was only success-
ful in The National Energy Board case, Ghirardosi and Blanchette (how-
ever, in the latter case the application of the nemo judex rule was only a
secondary issue, and only referred to by Pigeon J. at pp.578-79). In all of
the other cases cited above, the impugned decision was upheld.
6The majority was composed of LaskinC.J.C., Ritchie, Spence, Pigeon
7The dissenting minority was composed of de Grandprd, Martland and
and Dickson J3.
Judson 3J.
8The Court of Appeal was composed of Thurlow, Pratte, Urie, Ryan JJ. and
Kerr DJ.; judgment was rendered on 12 December 1975.
sa See text, infra, p.477.
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* existence of the rule dictate its extension to allow questions of
“attitudinal bias” (hitherto excluded from its operation)
to be
taken into consideration?
1) The Facts
In June 1972, a consortium was formed to study the feasibility
of building a pipeline to transport natural gas from the Arctic to
southern markets, to choose the most economical route, and then
to file applications for the requisite governmental permissions to
build the project. In November 1972, this consortium was trans-
muted into corporate form under the name of Canadian Arctic Gas
Pipeline Limited (“Arctic Gas”). In that same month, the Canada
Development Corporation, whose shares were wholly owned by the
Government of Canada, became a shareholder in the new corpora-
tion, and contributed some $1.2 million to the project. Mr Marshall
Crowe was’ President of the Canada Development Corporation from
the date of its entry into the project until October 1973, when he
was appointed Chairman of the National Energy Board. During
this period, he attended various meetings and took part in numer-
ous decisions made by several of the committees of the consortium.
In 1975, Arctic Gas and a number of competitors made applic-
ations to the Board for permission to construct pipelines to move
natural gas from the Arctic to southern markets. In April 1975,
the Board (which at that time had eight members) assigned
Crowe and two others to constitute the panel to hear these com-
peting applications, which were subsequently directed to be heard
together at public hearings commencing in October 1975.
In the meantime, counsel for Arctic Gas approached the Board’s
counsel and raised the question whether Crowe should participate
in the hearings, since a third party might reasonably apprehend
that Crowe was biased in favour of his client. Crowe therefore
prepared a statement which was sent to all of the applicants and
intervenors shortly before the hearings, setting out his involve-
ment with the Arctic Gas project. When this was read at the
opening of the hearings, five of the intervenors objected to Crowe’s
participation. The National Energy Board therefore decided to
state a case to the Federal Court of Appeal under subsection 28(4)
of the Federal Court Act9 in the following terms:
Would the Board err in rejecting the objections and in holding that Mr
Crowe was not disqualified from being a member of the panel on the
grounds of reasonable apprehension or reasonable likelihood of bias?9a
9R.S.C. 1970 (2d Supp.), c.10.
9a Re Canadian Artic Gas Pipeline Ltd, supra, note 1, 661.
19771
ATTITUDINAL BIAS
2) The Federal Court of Appeal
After first considering its own jurisdiction to decide the ques-
the five members of the Court of Appeal” un-
tion put to it’
animously held that the Board would not err in permitting Crowe
to participate in the hearings. In giving reasons for the Court’s
decision, Thurlow J. surveyed the wide range of factual circums-
tances in which bias may be alleged, and noted that there was no
suggestion here that Crowe was actually biased 2 or had a pecu-
niary interest in the outcome of the hearings. He then considered 3
the two submissions made by the intervenors: first, that a third
party could reasonably apprehend that Crowe’s previous involve-
ment with Arctic Gas would incline him to favour its application;
or, secondly, that Crowe was in favour of building a pipeline.
Thurlow J. only dealt with the second submission by recogniz-
ing that bias might be established in “predetermination cases, cases
where there has been some expression of views indicating … pre-
judgment”. But he said that
[e]ven in such cases it becomes necessary to consider whether there
is reason to apprehend that the person whose duty it is to decide will
not listen to the evidence and decide fairly on it.14
After noting that Crowe’s participation in the consortium “might
give rise in a very sensitive or scrupulous conscience to the uneasy
suspicion that he might be unconsciously biased…,15 the learned
judge rejected such a subjective test for bias. Rather, he said, the
nemo judex rule was cast in terms of:
[W]hat would an informed person, viewing the matter realistically and
conclude [?]
practically –
and having thought the matter through –
Would he think that it is more likely than not that Mr. Crowe, whether
consciously or unconsciously, would not decide fairly?’ 0
Applying this test, the Court of Appeal held that reasonable and
right-minded persons had no cause to apprehend bias in Crowe.
Therefore, the decisions of the National Energy Board over which
Crowe was scheduled to preside would be valid.
The Court of Appeal buttressed this conclusion by referring to
the fact that Crowe’s participation in the consortium was of a
10 (1976) 65 D.L.R. (3d) 660, 662-63 (Fed.C.A.).
“Supra, note 8.
12 Supra, note 10, 667.
13Ibid., 666. See point 3 on that page, dealing with the submission made
by the Committee for Justice and Liberty Foundation.
14Ibid., 667 (emphasis added).
IS Ibid.
16 Ibid.
McGILL LAW JOURNAL
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representative nature only.’7 While he was President of the Canada
Development Corporation, he had no financial interest either in
it or in the consortium; he “was essentially a person acting in the
interest of. the Government of Canada…”.’ He therefore had
nothing to gain or lose from any decision which might be reached
by the Board. Accordingly, Thurlow J. held that there was no
… reason for apprehension that he would be likely to be unable or
unwilling to disabuse his mind of preconceptions he may have in the
face of new material [coming before the Board] pointing to a different
view of matters considered in the course of his participation in activi-
ties of the study group, or that he would be unconsciously influenced by
decisions which he had supported as a participant in the study group.’ 0
Furthermore, the Court of Appeal noted that a two-year period
had elapsed between Crowe’s tenure as President of the Canada
Development Corporation and Arctic Gas’ application to the Board,
and it held that the issues now to be decided by the Board were
“widely different from those to which the study group devoted its
attention”.20 Thus
there appear [ed] to be no valid reason for apprehension that Mr. Crowe
… cannot approach these new issues with the equanimity and
im-
partiality to be expected of one in his position.21
This reinforced the Court’s rejection of the allegations of bias. In
summary, the ratio decidendi of the Court of Appeal’s judgment
centered on Crowe’s ability to keep an open mind, and not on
what a by-stander would reasonably perceive.
3) The Supreme Court of Canada
The Supreme Court of Canada reversed 22 the Court of Appeal
by a five-to-three decision. The analyses adopted by the majority
and minority in the Supreme Court were diametrically opposed.
On- the one hand, Chief Justice Laskin, writing for the majority,
concentrated almost exclusively on whether the particular facts
disclosed a reasonable apprehension of bias. Although he fleetingly
referred to the possibility that predetermination or preconception
could amount to bias, his judgment was not based on any extension
171Ibid., 668.
18 Ibid.
19 Ibid.
20 Ibid.
21 Ibid., 669.
22 Supra, note 1. Note that the Supreme Court did not award costs to
the appellants.
1977]
ATTITUDINAL BIAS
of the nemo judex rule to cover what might be called “attitudinal
bias”. On the other hand, de Grandpr6 J.’s dissenting judgment not
only denied the quasi-judicial nature of the National Energy Board,
and therefore even the applicability of the nemo judex rule to its
proceedings, but also was particularly hostile to the possibility that
personal attitudes or previous experiences might amount to a dis-
qualifying bias.
Because of the sharply differing perspectives adopted by the
majority and minority of the Supreme Court, their judgments can
usefully be compared on the following points. First, does the
National Energy Board exercise a quasi-judicial function when,
under section 44 of its Act,2z” it hears applications for a certificate
of convenience for the construction of a pipeline? If not, does the
nemo judex rule nevertheless apply, in some form or another, to
the proceedings in question? Secondly, were the issues to be decid-
ed by the Board essentially the same as those in which Crowe had
participated when he represented the Canada Development Cor-
poration in the consortium? Is such overlap a necessary condition
for the application of the nemo judex rule? Thirdly, did the Court
of Appeal apply the correct test for bias? Does one look to the
open-mindedness of the decision-maker, or rather to the perception
that third parties would have of his impartiality in light of all
the knowledge available to them? Fourthly, was Crowe’s repre-
sentative capacity in the consortium relevant to oust the application
of the nemo judex rule? Finally, may “attitudinal bias” in some
circumstances disqualify a decision-maker?
a) Was the Board Exercising a Quasi-Judicial Function?
Chief Justice Laskin specifically recognized13 that the National
Energy Board possessed certain expertise acquired through its
previous hearings, its own studies, and advice given to it by the
Governor-in-Council under the various provisions of its Act. Some
of these functions were investigative or only advisory in nature.
Nevertheless, he held that the Board was required to act in a
quasi-judicial manner when it considered an application to build
a pipeline under section 44 of the Act. Therefore, the principles of
natural justice applied, and the Chief Justice proceeded to deter-
mine whether, on the facts, the nemo judex rule would be breached
22aNational Energy Board Act, R.S.C. 1970, c.N-6.
23Supra, note 1, 727.
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if Mr Crowe continued to act as Chairman of the panel hearing
the applications.
Somewhat surprisingly, de Grandpr6 J. held 4 that “Itjhe Board
is not a court nor is it a quasi-judicial body”. He pointed out that
[t]he question of bias in a member of a Court of Justice cannot be
examined in the same light as that … of an administrative
tribunal
entrusted by statute with an administrative discretion exercised in the
light of its experience and that of its technical advisers.
The basic principle is of course the same, namely, that natural justice
be rendered. But its application must take into consideration the special
circumstances of the tribunal.25
The learned judge referred26 to cases where the members of certain
adjudicative agencies are appointed as representatives of the parties,
and noted that such a relationship does not necessarily breach the
nemo judex rule. While this composition is not true of the National
Energy Board, he nevertheless observed that
[i]n hearing the objections of interested parties and in performing its
statutory functions, the Board has the duty to establish a balance
between the administration of policies they are duty bound to apply and
the protection of the various interests spelled out in s.44 of the Act. The
decision to be made by the Board transcends the interest of the parties
and involves the public interest at large. In reaching its decision, the
Board draws upon its experience, upon the experience of its own experts,
upon the experience of all agencies of the Government of Canada and,
obviously, is not and cannot be limited to deciding the matter on the
sole basis of the representations made before it. It is not possible to
apply to such a body the rules of bias governing the conduct of a Court
of law.’
With respect, it is submitted that de Grandpr6 J.’s reasoning is
not persuasive. One can easily accept (as Chief Justice Laskin did 28 )
the need for the Board to rely upon its own expertise. One may
further accept that the decision to permit a pipeline to be built
necessarily raises broader questions of public policy. Yet neither
of these premises inexorably means that the Board is not exercis-
24 Ibid., 741.
25 Ibid., 736. Note that, the phrase “natural justice” in administrative law
generally is used to refer to procedural justice. It does not refer to the
justness of any particular outcome of a dispute. Nor should it be confused
with the concept of inalienable rights, which natural lawyers once thought
existed, and which were supposed not to be affected by contradictory
positive law enacted by earthly legislatures.
26Ibid., 737, referring to the decision of the Nova Scotia Court of Appeal
in Tomko v. N.S. Labour Relations Board (1975) 9 N.S.R. (2d) 277, 298 per
MacKeigan CJ.; aff’d (1977) 69 D.L.R. (3d) 250 (S.C.C.).
2 Supra, note 1, 741.
28 Ibid., 727.
19771
ATTITUDINAL BIAS
ing a judicial or quasi-judicial function. Nor does it mean that the
Board may ignore the principles of natural justice. On the contrary,
it would be difficult to contemplate not applying the audi alteram
partem rule to the Board’s proceedings. Surely de Grandpr6 J.
would agree that all of the parties (and the intervenors29 ) had a
right to be present during the Board’s hearing, to make represent-
ations, and to reply to the representations made by other parties,
as well as to comment upon the public policy considerations raised
by the Board. While such a “hearing” does not necessarily have to
mirror in all respects a trial in a court of law, no one30 would
suggest that the audi alteram partem rule (whatever its content in
the circumstances) does not apply at all. Why, therefore, should
the nemo judex rule not also apply to the Board’s proceedings?
Of course one might argue that the content of the nemo judex
rule, that is, what constitutes bias, may vary according to the cir-
cumstances. (Certainly the requirements of the audi alteram partem
rule31 vary from case to case.) Indeed, de Grandpr6J. when he
discussed what he conceived the test32 for bias to be, seemed to
suggest that such flexibility does apply to the nemo judex rule:
This [the test adopted by the Court of Appeal] is the proper approach
which, of course, must be adjusted to the facts of the case.33
But this approach would clearly accept the applicability of the
nemo judex rule. It would, of course, also require a clearly articul-
ated method for determining what amounts to bias in various cir-
cumstances, and this was not a task upon which de Grandpr6J.
embarked. On the contrary, he simply held that the nemo judex
rule did not apply at all to the proceedings in question because
29The intervenors (including the Committee for Justice and Liberty Found-
ation, which was one of the appellants to the Supreme Court) were given
standing in the pipeline hearings by -the Board. Note that (unlike in the
P.P.G. Industries Canada Ltd v. A.G. of Canada, supra, note 3,) no question
arose in this case as to the intervenors’ standing to seek judicial review
of the Board’s decision to permit Crowe to hear Arctic Gas application.
30 And particularly not the gas and pipeline companies, who certainly
would not lightly contemplate the prospect of their not being able
to
cross-examine witnesses
the Board. On another
aspect of the content of the audi alteram partem rule to the Board’s pro-
ceedings, see Re A.G. of Manitoba and National Energy Board (1975) 48
D.L.R. (3d) 73 (F.C.T.D.).
in proceedings before
3 See, e.g., Wiseman v. Borneman [1969] 3 All E.R. 275 (H.L.); Regina v.
Gaming Board for Great Britain, ex p. Benaim and Khaida [1970] 2 Q.B.
417 (C.A.).
32 Supra, note 1, 735.
33 Ibid., 736.
McGILL LAW JOURNAL
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they were not “quasi-judicial” (however that characterization
determined).
is
The fallacy in de Grandpr6 J.’s analysis may be demonstrated
by the following example. Suppose Crowe’s brother were president
of, or counsel to, Arctic Gas, or Crowe had been a shareholder in it.
One rather suspects that, under these circumstances, the learned
judge would have disqualified Crowe from taking part in the
Board’s hearings. But what would have been the basis for such a
decision? On the one hand, de Grandpr6 J. might have changed
his mind and held that the Board in fact did exercise a judicial or
quasi-judicial function. Admittedly, such an analysis would main-
tain the supposed identity between the application of the rules of
natural justice and the existence of a judicial or quasi-judicial
function. However, it also underscores the chameleon-like nature
of the adjective “quasi-judicial”. And it would confirm the frequent
suspicion that judges first decide whether or not to grant relief,
and only thereafter characterize the function accordingly, and not
vice versa.
On the other hand, de Grandprd J. might have persisted in
classifying the National Energy Board as a merely administrative
board, but held that the nemo judex rule nevertheless applied in
these hypothetical circumstances. This approach would frankly
admit that the principles of natural justice are not restricted only
to the exercise of judicial or quasi-judicial functions. It would
extend the application of the nemo judex rule, much as the English
courts’ adoption of the “duty to be fair”34 has extended the audi
alteram partem rule. And it would focus attention on whether a
reasonable person would perceive bias in such circumstances. In
other words, this approach would concentrate on whether the
nemo judex rule has been breached, and not whether it applies at
all. Since the public’s confidence in impartiality is as important
34 See, e.g., Fairmont Investment Ltd v. Secretary of State for the En-
vironment [1976] 2 All E.R. 865 (H.L.); In re H.K. (An Infant) [1967] 2 Q.B.
617 (C.A.); Regina v. Gaming Board for Great Britain ex p. Benaim and
Khaida, supra, note 31; Re Pergamon Press Ltd [1971] Ch.388 (C.A.); Pearl-
berg v. Varty [1972] 1 W.L.R. 534, 547 (H.L.) per Lord Pearson; Bates v.
Lord Hailsham of St Marylebone [1972] 1 W.L.R. 1373, 1378 (Ch.D.); Regina
v. Liverpool Corp., ex p. Liverpool Taxi Fleet Operators’ Association [1972]
2 Q.B. 299, 307-308 per Lord Denning M.R., 310 per Roskill L.J. For Canadian
cases dealing with the duty to be fair, see Lazarov v. Secretary of State of
Canada (1974) 39 D.L.R. (3d) 738 (Fed.C.A.); Blais v. Basford [1972] F.C.
151 (CA.); and Blais v. Andras [1973] F.C. 182 (CA.).
19771
ATTITUDINAL BIAS
in “merely administrative” matters as in quasi-judicial ones, it is
submitted that this analysis is the better view.
Therefore, with respect, it is submitted that de Grandprd J.’s
attempt to avoid applying the nemo judex rule by denying the
quasi-judicial nature of the Board is wrong, both because it restricts
the concept of a quasi-judicial function and also because it ignores
the policy underlying the rule against bias.
b) Did the Study Group and the Board Decide the Same Issues?
Since Chief Justice Laskin recognized that the Board was exer-
cising a quasi-judicial function, he then proceeded to determine
whether the nemo judex rule in fact would be breached by
Crowe’s continued participation in the Board’s hearing. It was
argued that this depended upon Crowe’s involvement with the
consortium concerning precisely the same issues which were now
coming before the Board. Chief Justice Laskin pointed out, 5 how-
ever, that this was not a case where Crowe’s alleged disqualification
could be said to relate to matters which were undertaken by the
consortium after his involvement with it had terminated. Rather,
the Chief Justice found that Crowe had had a direct hand
in developing and approving important underpinnings of the very ap-
plication which eventually was brought before the panel [of the National
Energy Board].36
This view of the facts differed significantly from that adopted by
the Court of Appeal, which held 7 that Crowe’s involvement with
the consortium had involved different issues. It also did not
coincide with the facts accepted by de GrandprdJ., who said38
that the major decisions had already been taken before Crowe
became a member of the Study Group, and they had evolved a great
deal in the interim before the application was made to the Board.
But does the nemo judex rule require an exact identity of the
issues involved? The Chief Justice recognized the untenability of
such a view, pressed upon the Court by the Board:
This submission either begs the question of reasonable apprehension of
bias or makes it depend on whether the Study Group can be said to
have made the very decision which the Board has been called upon to
make … . The vice of reasonable apprehension of bias lies … rather in
the fact that he [Crowe] participated in working out some at least of
35 Supra, note 1, 730.
36 Ibid., 731.
37 Supra, note 10, 668.
8 Supra, note 1, 74243.
McGILL LAW JOURNAL
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the terms on which the application was later made and supported the de-
cision to make it.39
One might, however, query whether the ratio decidendi of the
Supreme Court’s decision should depend upon the existence of any
actual overlap between the issues decided by Crowe when in-
volved with the Study Group and those later coming before the
Board. Obviously, such overlap or previous involvement may well
provide the factual basis which generates the reasonable apprehen-
sion of bias. But this does not necessarily mean that a reasonable
apprehension of bias could not arise in other circumstances. For
example, even if the Court of Appeal’s appreciation of the facts
were correct (that the issues to be decided by the Board differed
from those in which Crowe participated in the consortium), the
Court would still have had to ask whether Crowe’s participation
in the Study Group nevertheless raised a reasonable apprehension
that he would be biased when sitting on the Board. Similarly, de
Grandpr6 J.’s finding that the Study Group’s application had evolv-
ed considerably since Crowe ceased to be associated with the consor-
tium is not a complete answer to the allegation that his association
with it did raise a reasonable apprehension that he would be
biased as a member of the Board.
It is submitted, therefore, that whether the nemo judex rule is
breached is a question of fact, which is not necessarily answered
negatively merely by noting the absence of any previous involve-
ment with the precise matter now being decided. Rather, the real
question is: Do the facts disclose a reasonable apprehension that
the decision-maker will, for whatever reason, be biased in dealing
with the matter at hand?
c) The Test for Bias: A Reasonable Apprehension
Indeed, it was this broader view of the purpose of the nemo
judex rule which led the majority of the Supreme Court to reverse
the Court of Appeal. It will be remembered that the lower Court
emphasized Crowe’s ability to “listen to the evidence and decide
fairly on it”.40 This led it to hold that there was neither a reason-
able apprehension nor a real likelihood of Crowe’s being biased.
According to Chief Justice Laskin, however, the Federal Court of
Appeal
… introduced considerations into its test of reasonable apprehension
of bias which should not be part of its measure. When the concern is,
39Ibid., 732 (emphasis added).
4 oSupra, note 10, 667.
1977]
ATTITUDINAL BIAS
473
as here, that there be no prejudgment of issues (and certainly no prede-
termination) relating not only to whether a particular application for a
pipeline will succeed but also to whether any pipeline will be approved,
the participation of Mr. Crowe in the discussions and decisions leading
to the application made by Canadian Arctic Gas Pipeline Limited for a
certificate of public convenience and necessity, in my opinion, cannot
but give rise to a reasonable apprehension, which reasonably well-
informed persons could properly have, of a biased appraisal and judg-
ment of the issues to be determined on a sA4 application. 41
After referring to three previous decisions of the Supreme Court of
Canada,4′ the Chief Justice clearly stated the rationale of the test
as follows:
This test is grounded in a firm concern that there be no lack of
public confidence in the impartiality of adjudicative agencies….4
But does this rationale place a duty on a member of the public
to confirm his apprehension by investigating whether there actually
is bias? Thurlow J. in the Court of Appeal indicated that there was:
It is true that all of the circumstances of the case, including the decisions
in which Mr. Crowe participated as a member of the study group, might
give rise in a very sensitive or scrupulous conscience to the uneasy
suspicion that he might be unconsciously biased, and therefore should
not serve. But that is not, we think, the test -to apply in this case. It
is, rather, what would an informed person, viewing the matter realis-
tically and practically –
conclude.44
and having thought the matter through –
Accepting the Court of Appeal’s (wrong) test, de Grandpr6 J. de-
voted a substantial part of his dissenting judgment to considering
exactly what a well-informed person would have discovered about
Crowe and his previous involvement with the Arctic Gas consor-
tium. 43 Nevertheless, the policy behind the nemo judex rule only
requires there to be a reasonable apprehension of bias for the
court to strike down the decision. As the Chief Justice says, the
purpose of the rule is to maintain public confidence in the im-
partiality of adjudicative agencies. Many people may quite reason-
ably doubt the impartiality of a decision-maker without feeling
the necessity of verifying their suspicions beyond reasonable doubt.
Therefore, the courts should not impose the same investigative duty
41 Supra, note 1, 732-33 (emphasis added).
4 2 Ghirardosi v. Minister of Highways (B.C.), supra, note 3; Blanchette v.
C.LS. Ltd, supra, note 3, 842-43 per Pigeon J.; and Szilard v. Szasz [1955]
S.C.R. 3, 6-7 per Rand J.
43 Supra, note 1, 733.
44 Supra, note 8, 667 (emphasis added).
4 Indeed, this occupies all of the second. part of his judgment: supra,
note 1, 74145.
McGILL LAW JOURNAL
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on the person who alleges a breach of the nemo judex rule as it
would on a prudent man who considers making a potentially de-
famatory statement. Of course, the nemo judex rule requires such
suspicions to be reasonable, that is, not totally unfounded. But it
is the perception of bias that counts, not its existence.
Similarly, therefore, objection should have been made to the
exact wording of the reference to the Court of Appeal. It will be
remembered that the question asked by the Board referred not
only to the possibility of a reasonable apprehension of Crowe’s bias,
but also to a reasonable likelihood of it. If the policy underlying
the nemo judex rule is indeed the preservation of the public’s
confidence in the impartiality of adjudicative agencies, the like-
lihood of actual bias is irrelevant. If this were not so, it is difficult
to see how the intervenors could ever have sustained their objec-
tion to Crowe’s participation on the Board, since they specifically
disclaimed any suggestion that he actually was biased. And if a
person is admitted actually not to be biased, how can there be any
likelihood of such bias?
Nevertheless, de Grandpr6 J. asserted that he saw no difference
between these two tests. With respect, there is a great difference
between them, and the policy underlying the nemo judex rule
clearly indicates that only the reasonable apprehension
test is
correct.
d) Did Crowe’s Representative Capacity Oust the Nemo Judex Rule?
It is important to note that Chief Justice Laskin rejected” the
submission that Crowe’s previous representation of the Govern-
ment of Canada in the Arctic Gas consortium necessarily implied
that there could be no reasonable apprehension that he would
subsequently be biased as a member of the National Energy Board.
As the Chief Justice pointed out, Mr Crowe was not a mere cipher,
carrying messages from the board of directors of the Canada
Development Corporation and having no initiative or flexibility
in the manner and degree of his participation in the work of the
Study Group. However, this submission was accepted by de Grand-
pr6 J.:
The Governement of Canada as well as the Governments of British
Columbia, Saskatchewan, Manitoba, Ontario and Quebec have expressly
recognized that they cannot entertain any reasonable apprehension of
bias on the part of Mr. Crowe. Nothing has been heard from the Province
of Alberta but considering its vital interest in the subject matter, it is
46 Ibid., 728-29.
19771
ATTITUDINAL BIAS
reasonable to infer that its silence is a complete acceptance of Mr.
is not unreasonable to assume that
Crowe’s ability to render justice. It
these seven Governments together would look after the public interest
and would be the first to raise the question of bias if any reasonable
apprehension existed that the basic principles would be offended by the
presence of Mr. Crowe.47
This reasoning presumes that there is one, abstract and ascer-
tainable “public interest”, which is invariably represented by one
or more Governments. How can this assumption possibly stand
the light of day in view of the quite common spectacle of various
levels of government hotly contesting the optimal policy for Canada
to follow in countless areas? Further, the mere fact that the
Government of Alberta (or any government, for that matter) did
not challenge Mr Crowe’s impartiality does not of itself necessarily
mean that another person (whether a party or an intervenor in
the proceedings, an independent observer, or even another govern-
ment) could not have a reasonable apprehension that Mr Crowe
was biased. It is simply not an answer to the five intervenors who
raised the question of bias to reply that the 83 other parties or
intervenors to the proceedings had no objection. What special
weight, therefore, should be given to the acquiescence of the govern-
ments? The mere fact that Crowe’s participation had been questioned
by someone (and not a mere busybody, at that48) of itself requires
the court to listen seriously to the allegations. And, in doing so, the
court’s job is not to consider whether any pipeline should be built
(or which one), nor whether Crowe was the most qualified person
to chair the Board on this occasion. Rather, the only public interest
which should occupy the court is whether, on the facts, the public’s
confidence in the impartial administration of the affairs of state
has been betrayed.
Of course, if the courts have discretion 9 not to quash a decision
which breached the nemo judex rule, an exercise of that discretion
implies that the public’s interest in impartiality may be offset by
other policy considerations. Indeed, in this particular case, such con-
siderations might have included Crowe’s extraordinary qualifications
to sit on the Board, or the delay that would be occasioned by starting
the hearing over again before a new panel. But recognizing the
possible need to weigh such conflicting aspects of public policy does
471Ibid., 744 (emphasis added).
4 8 See, e.g., the dicta of Lord Denning M.R. in R. v. Greater London Council,
ex p. Blackburn [1976] 3 All E.R. 184, 192c (C.A.) referring to R. v. Padding-
ton Valuation Officer, ex p. Peachey Property Corp Ltd [1965] 2 All E.R.
836, 841, [1966] Q.B. 380, 401 (C.A.).
49 See R. v. Greater London Council, ex p. Blackburn, supra, note 48.
McGILL LAW JOURNAL
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not excuse the court from first determining whether the public’s
perception of impartiality has been betrayed. Only after the nemo
judex rule has been explicitly considered should the court contem-
plate whether to exercise its discretion to decline to issue a remedy.
4) Attitudinal Bias and Conflicts of Interest
Chief Justice Laskin’s judgment for the majority is based square-
ly on Crowe’s previous involvement with the very application which
now came before him as Chairman of the National Energy Board. On
the other hand, de Grandpr6 J.’s dissent is directed principally
against the appellants’ alternative argument that Crowe should be
disqualified for his “attitudinal bias”, that he was in favour of a
pipeline, whoever was to build it. In this section, therefore, we
shall first examine de Grandpr6 J.’s reasons for rejecting the con-
cept of attitudinal bias. We shall then compare his judgment with
the treatment of this line of argument in two previous cases:
Franklin v. Minister of Town and Country Planning0 and Regina
v. Pickersgill, ex p. Smith.51 However, the rational for the nemo
judex rule applies to many other public decisions, and not only to
judicial or quasi-judicial ones. Therefore, in the next section we
shall also consider a number of instances where Parliament has
specifically forbidden certain persons to perform certain func-
tions, as well as the proposed federal guidelines against conflicts
of interest in members of the public service and Parliament. In
addition, we shall look at the problem of regulatory agencies which
have been “captured” by the industries they were established to
regulate.
a) De Grandprd J.’s Rejection of Attitudinal Bias
De Grandpr6 J.’s dissenting judgment in the National Energy
Board case squarely rejected the concept of attitudinal bias. After
pointing out that “… the National Energy Board is a tribunal that
must be staffed with persons of experience and expertise”, 2 he
quoted the following passage from the judgment rendered by Hyde
J.A. of the Quebec Court of Appeal in Regina v. Picard et al., ex p.
Int’l Longshoremen’s Association, Local 375:53
Professional persons are called upon to serve in judicial, quasi-judicial
and administrative posts in many fields and if Governments were to
50 [1948] A.C. 87 (H.L.).
651 (1971)
52 Ibid., 737.
53 [1968] Que.Q.B. 301, 312, (1968) 65 D.L.R. (2d) 658, 661.
14 D.L.R. (3d) 717 (Man.Q.B.).
1977]
ATTITUDINAL BIAS
exclude candidates on such ground, they would find themselves de-
prived of the services of most professionals with any experience in the
matters in respect of which their services are sought. Accordingly, I
agree with the Court below that this ground was properly rejected.54
De Grandpr6 J. referred to the decisions of both the Nova Scotia
Court of Appeal and of the Supreme Court itself in Tomko v. N.S.
Labour Relations Board et al.55 to emphasize that “mere prior
knowledge of the particular case or preconceptions or even pre-
judgments cannot be held per se to disqualify a Panel member”.5
The learned judge then proceeded to buttress his rejection of
attitudinal bias by referring to the Ontario High Court’s judgment
in Re Schabas et al. and Caput of the University of Toronto et al.,57
Supreme Court Justice Frankfurter’s judgment on behalf of the
Supreme Court of the United States in U.S. et al. v. Morgan et al.,58
Halsbury’s Laws of England,5″ and the Australian High Court’s
judgment in The Queen v. The Commonwealth Conciliation and
Arbitration Commission et al., ex p. The Angliss Group.0 De Grand-
pr6 accepted the distinction made in the American decision of
New Hampshire Milk Dealers’ Association v. New Hampshire Milk
Control Board0 1 between a “predisposed view about… public or
economic policies” (attitudinal bias) and “a prejudgment concern-
ing issues of fact in a particular case” (bias-in-law):
It is a well-established legal principle that a distinction must be made
between a preconceived point of view about certain principles of law
or a predisposed view about the public or economic policies which should
be controlling and a prejudgment concerning issues of fact in a particu-
lar case. 2 Davis, Administrative Law Treatise, s.12.01, p.131. There is
no doubt that the latter would constitute a cause for disqualification.
However, “Bias in the sense of a crystallized point of view about issues
of law or policy is almost universally deemed no ground for disqualific-
ation.” … If this were not the law, Justices Holmes and Brandeis would
have been disqualified as would be others from sitting on cases in-
volving issue of law or policy on which they had previously manifested
strong diverging views from the holdings of a majority of the members
of their respective courts.0 2
note 26, 298.
54 Supra, note 1, 737.
55Supra, note 26.
50Supra, note 1, 738 per de Grandpr6J. quoting MacKeiganC.J., supra,
57 (1975) 6 O.R. (2d) 271 (H.C.), (1974) 52 D.L.R. (3d) 495, 506.
58313 U.S. 409, 421 (1940).
5OHalsbury’s Laws 4th ed. (1973) vol.1 by Lord Hailsham, 83, para.69.
60 (1969) 122 C.L.R. 546 (Austl.H.C.), 43 A.L.J.R. 150 (H.C.).
61222 A. 2d 194 (1966).
02Supra, note 1, 739-40 per de Grandpr6 J. quoting Lampron J., supra,
note 63, 198.
McGILL LAW JOURNAL
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Thus the learned judge rejected the appellants’ second submission
that Crowe should be disqualified because his background would
naturally incline him to favour the building of a pipeline, and
turnedca to consider whether any particular incident or action on his
part would impair his impartial consideration of the merits of the
particular applications before the Board.
I submit that this distinction should be reconsidered. Perhaps
it is not a question of arbitrarily drawing a line between “attitudinal
bias” and “bias-in-law”, automatically discounting the former and ex-
amining only the latter. Rather, the matter is really a question of
degree. If the policy underlying both principles of natural justice
is accepted (that justice must not only be done but must manifestly
be seen to be done), then there would seem to be no logical impedi-
ment to extending the limits of the nemo judex rule in order to
include “attitudinal bias”. The jurisprudence supporting such an
extension, it is admitted, is scarce; but the issues at stake are im-
portant.
b) Previous Cases on Attitudinal Bias
It is clear that the courts have not enthusiastically embraced the
concept of attitudinal bias as a ground for judicial review of ad-
one Canadian, the
ministrative action. Reference to two cases –
illustrates this reticence, even where quite strong
other English –
personal preferences are evident.
In Regina v. Pickersgill, ex p. Smith,64 the Canadian Transport
Commission was conducting public hearings in Winnipeg to deter-
mine whether the Canadian Pacific Railway should be permitted
to discontinue its prestigious transcontinental train, The Canadian.
The Chairman of the Commission was Mr J.W. Pickersgill, the former
federal Minister of Transport who had been actively involved in the
formulation of the controversial National Transportation Act,6″
which permitted the discontinuance- of rail services under certain
conditions. Two months prior to the Winnipeg hearings, he made a
speech to the Canadian Manufacturers’ Association in Montreal,
entitled “Charting the Course of Canada’s New Transportation
Policy” 6 6 Although the speech did not mention The Canadian by
name, the audience clearly would have understood it to refer to the
6
note 1, 741.
3Supra,
4 Supra, note 51, 717.
6
65 S.C. 1966-67, c.69.
66 See Regina v. Pickersgill, ex p. Smith, supra, note 51, 754.
1977]
ATTITUDINAL BIAS
operations of the C.P.R. When the Manitoba Queen’s Bench Division
was asked to rule whether Pickersgill would thereby be disqualified
from presiding over the Commission’s hearings, Wilson 1. held that
the speech would not lead reasonable people to
… conclude that Mr Pickersgill must be taken to harbour prejudice,
or bias, such as would predispose him to allow the application now
pending touching “The Canadian”.67
The learned judge also rejected the applicants’ submission that
Pickersgill should be disqualified because he
… declared’ himself in favour of a policy which would equate the rail-
ways with other industries generally.68
Wilson J. said that, taking the speech as a whole, he was
unable to conclude that reasonable people would decide that, cons-
–
ciously or unconsciously, the speaker is seized with an attitude, a pre-
dilection, or bias, wh&reby he must be taken to have prejudged the fate
of “The Canadian”.69
This judgment does, however, clearly leave the door open to the
possibility that, in other circumstances, “an attitude” or “a pre-
dilection” or “a prejudgment” might raise a reasonable apprehension
of bias, which might disqualify a person from making this type of
decision.”0
An even more striking fact pattern occurred in the English
case of Franklin v. Minister of Town and Country Planning.71 There
the Minister, Mr Lewis Silkin, 2 had appointed a committee 3 to
advise the British government on the future development of me-
tropolitan London. Its report in 1946 recommended the establish-
ment of new towns separated from London by a green belt. Four
months later, the Minister introduced legislation in the House of
Commons to implement the report, and, in particular, to grant him
power to expropriate the land required for the new towns. In May,
6 7Supra, note 51, 725.
68 Ibid., 728.
19 Ibid., (emphasis added).
70 Ibid., 729, where Wilson J. clearly contemplated that other facts might
is needed than was here
have amounted to disqualifying bias: “[M]ore
shown before the Court will restrain another tribunal from the exercise of
its jurisdiction.”
71 [1948] A.C. 87 (H.L.).
72The father of Mr Samuel Silkin, the present British Attorney-General
who refused to permit his name to be used in relator proceedings for an
injunction against post office workers threatening an illegal boycott of
mail and telegrams destined for South Africa. See “quis custodiet?”, The
Economist, San. 22, 1977, 11.
73 The Reith Committee (to advise the U.K. government on future develop-
ment of London), whose Interim Report was dated 21 Jan. 1946.
McGILL LAW JOURNAL
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two days before second reading of the Bill, he attended a public
meeting at Stevenage, where the following exchange took place:
I think you will agree that if we are to carry out our policy of creating
a number of new towns to relieve congestion in London we could
hardly have chosen for the site of one of them a better place than
Stevenage. Now I know that many objections have been raised by the
inhabitants of Stevenage, perhaps not unnaturally.
I want to carry out a daring exercise in town planning –
(Jeers). It
is no good your jeering: it is going to be done –
(Applause and boos.)
[Cries of ‘Dictator’]. After all this new town is to be built in order to
provide for the happiness and welfare of some sixty thousand men,
women and children …
. The project will go forward. It will do so
more smoothly and more successfully with your help and co-operation.
Stevenage will in a short time become world famous –
(Laughter).
People from all over the world will come to Stevenage to see how we
here in this country are building for the new way of life 4
The Bill received Royal Assent on 1 August 1946. A draft expropria-
tion notice concerning the Stevenage property was published (as
required by the Act 74a) on 6 August 1946. Formal objections to the
expropriation were lodged and a public hearing was conducted in
October by an inspector. The Minister considered this report, wrote
a letter to the objectors stating why he did not accept their views,
and on 11 November 1946 confirmed the expropriation order. There-
upon, the plaintiffs successfully applied to the High Court to quash
the Minister’s order. Henn Collins J. held 75 that the Minister was
bound to consider the inspector’s report in a judicial or quasi-
judicial manner. Referring to the Minister’s speech in May 1946,
the learned Judge said:
If I am to judge by what he said at the public meeting which was held
very shortly before the Bill, then published, became an Act of Parlia-
ment, I could have no doubt but that any issue raised by objectors was
forejudged. The Minister’s language leaves no doubt about that. He
was not saying there must be and shall be satellite towns, but he was
saying that Stevenage was to be the first of them. But, when he made
that speech, and gave his answers to questions which were asked, he
had no administrative functions in relation to the Act in question, for
the Act had not then been passed. Though that was his attitude two
days before the Bill received its second reading, it is upon the objectors
to prove that the Minister was in a like mind, or at least had not an
open mind, from and after, at latest, the inception of the public inquiry,
which was held in October, 1946.76
74Supra, note 71, 90. This account of the Minister’s speech differs slightly
from that contained in the statement of facts and argument at p.104 of
the reported case.
74aNew Towns Act, 1946, 9-10 Geo.VI, c.68 (U.K.).
75 Not reported.
76 Quoted by Lord Thankerton in the House of Lords, supra, note 71, 100.
1977]
ATTITUDINAL BIAS
Disqualifying bias, therefore, had not been proved by the plaintiffs
on the facts of this case, although its arguability was clearly re-
cognized by the Judge. For other reasons, he struck down the
Minister’s order but was reversed by the Court of Appeal.7
Lord Thankerton in a unanimous decision of the House of Lords,
like de Grandpr6 J. in the National Energy Board case, first held
that the impugned decision was not required to be made quasi-
judicially and only then did he justify not applying the nemo judex
rule. Such reasoning is clearly not compelling where the impugned
decision definitely is quasi-judicial. It might be noted that Wilson J.
implicity realized this in Pickersgill, for he held that the speech in
question there did not create a reasonable apprehension of bias;
he did not hold that the nemo judex rule did not apply. Similarly,
in the National Energy Board case, the majority of the Supreme
Court held that the section 44 proceedings were quasi-judicial and
that Crowe’s previous involvement with Arctic Gas did, as a matter
of fact, raise a reasonable apprehension of his bias. Unfortunately,
Chief Justice Laskin only fleetingly referred78 to Crowe’s alleged
prejudgment in favour of a pipeline (which would constitute “at-
titudinal bias”). The Chief Justice did not indicate whether such
an attitude, if proved, would have disqualified Crowe. Instead, the
majority’s ratio decidendi rests squarely on Crowe’s previous in-
volvement with the consortium.
Although it appears, therefore, that there has been no clear
case where the courts have specifically struck down even a quasi-
judicial decision on the grounds of attitudinal bias, it is submitted
that this may nevertheless be an effective ground for judicial review
if the alleged prejudgment or preference does in fact raise a serious
doubt as to the impartial judgment of the decision-maker.7 Although
77(1947) 176 L.T. 200.
78Supra, note 1, 732-33, where he said: “When the concern is, as here,
that there be no prejudgment of issues (and certainly no predetermination)
relating not only to whether a particular application for a pipeline will
succeed but also to whether any pipeline will be approved, the participation
leading to the application
of Mr Crowe in the discussions and decisions
made by Canadian Arctic Gas … cannot but give rise to a reasonable
apprehension, which reasonably well-informed persons could properly have,
of a biased appraisal and judgment of the issues to be determined
(emphasis added).
70An interesting example was the unsuccessful attempt by counsel to
have de Grandpr6J. recuse himself from hearing Dr Morgentaler’s appeal
on the ground that, before being appointed to the Supreme Court of Canada,
Mr de Grandpr6 had made widely reported remarks strongly condemning
abortion. See Le Devoir, Oct. 3, 1974, 1; The Montreal Star, Oct. 3, 1974, D-1;
..
McGILL LAW JOURNAL
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both bias and the reasonable apprehension of it are questions of fact,
in some circumstances at least, attitudinal preferences may well
amount to disqualifying bias in the eyes of the court. After all, justice
must be seen to be done.
c) Other Examples of Recognition of Attitudinal Bias
Despite the courts’ reluctance to concede the existence of attitu-
dinal bias, the National Energy Board case nevertheless pinpoints one
of the weaknesses of our present regulatory system: the interchange
of personnel between the bodies regulated and the regulatory agen-
cies. As de Grandprd J. noted in the National Energy Board case, this
interchange provides the regulatory agencies with the expertise which
they require in order to understand and regulate their respective in-
dustries.8 0 Unfortunately, however, the learned judge made no men-
tion of the concomitant disadvantages of this convenient arrange-
ment: the tendency of these “expert” members of the regulatory
agencies to view the matters before them from the narrow pers-
pective of their experience of the regulated industry, without taking
into account the broader public interest which de Grandpr6 J. also
recognized to be part of the task of regulatory agencies. And, perhaps
too frequently, persons appointed to regulatory agencies use their
position and experience as a springboard back into the industry at a
very high level. However much this flow increases the agencies’
expertise, it does not always foster the public’s perception of im-
partiality on their part. It is interesting, therefore, to note President
Carter’s stated policy of prohibiting former members of such agencies
from taking employment in the regulated industry for a period of
two years after their retirement.8′ This, of course, will only stop the
flow of personnel in one direction but it does acknowledge the exis-
The Globe and Mail (Toronto), Oct. 3, 1974, 2; The Gazette (Montreal),
Oct. 3, 1974, 1.
0 Supra, note 1, 738.
81 See “Carter expects…”, The Economist, Jan. 8, 1977, 41, where the U.S.
President’s policy is described as follows: “Mr Carter has spoken out
against the ‘revolving door’ through which outgoing members of regulator
agencies pass to join up as lobbyists with the firms they have supervised.
The new rules extend to two years the period poachers must wait before
handling matters they touched as keepers. Retiring officials will also be
barred for a year from formal or informal contact with former colleagues
for financial gain. The occasional drink, it seems, is still permitted.
The stricter rules apply only to cabinet members and the most senior
officials. Unless written
into law they are not easily enforceable. But
exacting penalties is hardly the point. Mr Carter’s ‘code’ was felt necessary
to dispel public mistrust and has its symbolic side.”
19771
ATTITUDINAL BIAS
tence of the problem of maintaining public confidence in quasi-
judicial agencies.
Nor is the problem of attittidinal bias restricted to the exercise
of judicial or quasi-judicial functions. Similar flows of personnel
take place between the public service proper (as opposed to quasi-
independent adjudicative or regulatory agencies) and the private
sector. How often does a senior civil servant:8 quit his public position
only to become, immediately thereafter, a consultant advising private
interests on how best to deal with that very part of the government?
Perhaps not much can effectively be done to prevent such flows
of personnel, given the wide variety of positions in the public service
and the differing saleability of any expertise gained by the public’s
servants. Even President Carter’s proposed limitations on members
of regulatory agencies could not be generalized to apply to people
still in the public service whose predispositions to certain courses
of action arise from previous experience or hopes for future career
openings. Certainly, the conflict of interest guidelines now being
proposed for federal public servants and members of Parliament8 3
are aimed at preventing conflicts which arise while the person is
acting in a governmental capacity.
d) Other statutory prohibitions
Similarly, Parliament may explicitly consider whether particular
persons should be excluded from exercising the powers which it
delegates. A good example of such a prohibition is contained in
subsection 251(4) of the Criminal Code which prevents a doctor
who is a member of a hospital’s abortion committee from performing
any abortions in that hospital. The purpose of this provision is clear.
However, it does not prevent a doctor from resigning from the
committee and immediately thereafter performing an abortion in the
same hospital. Indeed, it is understood that, in certain hospitals
where abortions are readily available, the membership of the abortion
82Or a Cabinet member?
83 See the Green Paper, Members of Parliament and Conflict of Interest,
July 1973 issued on behalf of the Government by the Hon. Allan J. Mac-
Eachen, then President of the Privy Council. See also Report of the Senate’s
Standing Committee on Legal and Constitutional Affairs (the Hon. H. Carl
Goldenberg, Chairman), June 29, 1976 (Issue No.42). On the law relating
to conflicts of interest in municipal politicians
in Ontario, see Rogers,
Conflicts of Interest – A Trap for Unwary Politicians (1973)
11 Osgoode
Hall L.S. 537.
84R.S.C. 1970, c.C-34.
McGILL LAW JOURNAL
[Vol. 23
committees rotates very rapidly among the doctors performing the
abortions at that hospital. Although this device may well fulfill the
technical requirements of the Criminal Code, it frankly defeats the
purpose for which Parliament enacted the provision. In the end,
perhaps the only solution to such subterfuge lies in greater sensitivity
to the policy underlying subsection 251(4) of the Criminal Code.
Greater awareness by the Government of possible or perceived
conflicts of interest would cause it to exercise greater care in ap-
pointing its various officers, particularly to quasi-judicial bodies.
For example, in the National Energy Board case, there were eight
members of the Board, all of whom were presumably competent to
hear the applications in question. Why, therefore, was Crowe so
insistent on acting as Chairman of these hearings with the apparent
support of the incumbent government? At any rate, if neither Parlia-
ment nor the government exhibits much sensitivity to the appearance
of justice in appointing high officers of state, the courts should not
quail at applying the nemo judex rule. The first principle of natural
justice, the audi alteram partem rule, was the object of judicial
scrutiny for many years. Perhaps the courts should now turn their
attention to the second and, to date, seemingly neglected principle.
