Oct 23, 2020

Some appearances of bias can be caused by the structure of the legislation. For example, where a complaint is made about a member of the complaints committee, it is awkward for the other members of the complaints committee to consider the matter. In such situations, a regulator will attempt to reduce the concerns as much as possible, perhaps by appointing additional, short-term, members to the committee to consider the matter. In addition, the doctrine of necessity can apply. The doctrine of necessity refers to when an adjudicator who would otherwise be disqualified is permitted to hear a case (usually because no one else is available to hear the case).

The limits to the doctrine of necessity were illustrated in the case of Canada (Director of Military Prosecutions) v Canada (Office of the Chief Military Judge), 2020 FC 330, http://canlii.ca/t/j5p93. In that matter, the Chief Military Judge was the subject of allegations of making a false travel expense claim and having an inappropriate personal relationship with a person under his command (a court reporter). The Deputy Chief refused to hear the case because of an appearance of bias and refused to appoint any of the other military judges because everyone in that small pool would also be biased or unable to conduct the hearing in French.

Prosecutors sought judicial review for an order compelling the Deputy Chief to appoint an eligible military judge relying, in part, on the doctrine of necessity. The Court refused to make such an order, finding that the appearance of bias concerns were, on the facts of this case, quite strong. For example, in addition to adjudicating a well-publicized case involving a close colleague, many of the witnesses would be colleagues as well. The Court indicated that the doctrine of necessity:

will not apply in circumstances where its application would involve positive and substantial injustice since it cannot be presumed that the policy of either the legislature or the law is that the rule of necessity should represent an instrument of such injustice. Secondly, when the rule does apply, it applies only to the extent that necessity justifies. These two limitations make clear that the doctrine should not be applied mechanically. To do so would gravely undermine the guarantee of an impartial and independent tribunal provided by section 11(d) of the Charter [of Rights and Freedoms]. In this case, the doctrine of necessity would not apply in a context of criminal or military justice where the fundamental rights of the accused may be irreparably compromised by the absence of an impartial and independent tribunal or by the language deficiency of the trial judge.

The Court noted that this situation was caused by the structure of the legislative scheme which had not contemplated this rather unique set of events. The Court identified some less than ideal options for proceeding with the hearing including amending the legislation or asking a superior court to appoint one of its Judges to hear the matter.

While military discipline matters are quasi-criminal in nature and have some differences from most other professional discipline matters, this case illustrates that the doctrine of necessity may have some limits.