The Bastarache commission
made sweeping recommendations to address “several weak-nesses” in the Quebec judicial
selection and appointment process “vulnerable to all manner of
interventions and influence” even
though it dismissed former Quebec justice minister Marc Bellemare’s allegations that he acted
under undue pressure by Liberal
Party fundraisers, with the consent of Premier Jean Charest, in
the appointment of judges.
In his long-awaited report into
Bellemare’s allegations that there
was alleged political interference
in the appointment of two judges
and the promotion of another,
former Supreme Court Justice
Michel Bastarache concluded that
the facts do not demonstrate that
the former minister acted under
pressure and that on the balance
of probabilities he was not forced
to act against his will.
In exonerating Charest, the 290-
page report flatly states that the
body of “documentary and testi-
monial evidence does not support”
Commission counsel Giuseppe Battista(l) and Eric Downs(r)
FRANCIS VACHON FOR THE LAWYERS WEEKLY
Bellemare’s allegations, and that his
conduct “in no way demonstrates
that he was acting under orders”
emanating from third parties.
Bastarache, who attached
“heavy evidentiary weight” to notes
taken by public servants, deputy
ministers and other departmental
employees, dismissed a key piece
of evidence filed by Bellemare
because the cryptic notes he
scrawled on a piece of cardboard
while watching a hockey game on
the day of his resignation did not
meet the reliability criteria estab-
lished by the general rules of evi-
dence. Bastarache also dismissed
evidence by the one person who
corroborated Bellemare’s version
of events. Former associate deputy-
minister Georges Lalande pro-
duced Post-it notes as evidence
that he said substantiated Belle-
mare’s story but Bastarache con-
cluded that it too did not satisfy
reliability criteria.
“Bellemare made very serious
allegations before the Commission
regarding the conduct of several
individuals, particularly the Pre-
mier of Québec,” said Bastarache.
“In fairness to these individuals,
and given the degrees of proof
available within the balance of
probabilities standard, I conclude
that in order to determine whether
the allegations are well founded,
the Commission must rely on clear
and convincing evidence.”
Stéphane Beaulac, a law profes-
sor at the Université de Montréal,
was surprised that Bastarache
applied such rigorous rules of evi-
dence in a commission of inquiry.
Inquiries, like the judiciary, are
independent, often endowed with
wide-ranging investigative pow-
ers, convened in the wake of public
shock, horror, disillusionment, or
skepticism to uncover the “truth,”
as Supreme Court of Canada Jus-
tice Peter Cory put it. Its rules and
procedures, however, are far more
supple than those governing the
courts, with rules of evidence, for
instance, allowing for hearsay to
be introduced.
“What strikes me as being
somewhat surprising, in contrast
with the recent history of inquiries,
is the standard of proof,” said
Beaulac, who teaches public inter-
national law and statutory inter-
pretation. “The evidence that was
required, according to Bastarache,
to substantiate the allegations
made by the former justice minis-
ter is akin to a judicial setting.
Inquiries are supposed to have,
generally speaking, more relaxed
rules of evidence, not to say that
you would give value to unreliable
evidence. But it’s not a court.”
But Doug Mitchell, a well-
known Montreal commercial liti-
gation lawyer, says that given the
serious nature of the allegations
made by Bellemare it was appro-
priate for Bastarache to apply
rules of evidence that he was
comfortable with before reaching
a determination.
‘Outraged. Deeply saddened. Disappointed. Appalled’: Former CCCA president
CCCA
Continued From Page 1
held, he affirmed. Other members
of the CCCA’s interim executive
committee include: vice-chair
Geoffrey Creighton of IGM Finan-
cial; Gord Currie of George Weston
Ltd; David O’Brien of McCain
Eurocenter NV;
Dean Scaletta,
Manitoba Public
Insurance; Fred
Headon of Air
Canada; Antoin-
ette Bozac of
Canada Lands
Company; and
Jack Innes of
McInnes Cooper.
Foy said the main complaint of
the CCCA’s former board is that
the CBA spends an unduly small
proportion of CCCA members’
fees on services for in-house counsel. She said this fails to adequately
support the CCCA’s efforts to
retain, and increase, membership
in the face of competition from the
fast-growing Canadian chapter of
the global Association of Corporate Counsel (ACC).
“If you present the numbers to
any corporate counsel—if you say
to a corporate counsel ‘Do you
know that less than 10 per cent of
what you pay to CBA is going into
the Corporate Counsel Association,
are you happy with that?’—I have
not heard one person say that that’s
acceptable to them,” she said.
But Patzelt stressed that the
Patzelt
interim board that will be in place
for the next four to six months
looks forward to receiving “
significantly” more resources from the
CBA to enhance educational programming and other services to
CCCA members.
The CBA declined to disclose
how much more than its present
annual allocation of $400,000 the
CCCA can expect in future from its
parent organization.
“I think the important thing
here is that we are now being provided a lot of resources in order to
service the members of CCCA
going forward in an extraordinarily
new and positive way,” said Patzelt,
who is vice-president risk management and general counsel at Scotia
Investments Ltd. in Halifax.
“What we will be offering is a
new structure that’s based on
greater resources, greater
cooperation [with the CBA] and
greater information to better
service our members.”
Foy told The Lawyers Weekly
the CBA has angered in-house
counsel, including some CCCA
members who are vowing to quit
the CBA.
“Outraged. Deeply saddened.
Disappointed. Appalled,” Foy said.
“These are words that have been
used. I think there is just a general
reaction to the fact that volunteers
would be treated in a heavy-handed fashion.
“This is a blow to the CCCA,”
she suggested. “To dismiss volun-
teers who have given hours of their
time for years to try to achieve the
mandate given to them by the
CBA, it sends out quite a negative
message to corporate counsel
about the CBA’s view of corporate
counsel within the CBA. I think
the decision by the CBA will
undermine the strength of the
CCCA in the market, and opens
the door to the ACC.”
David Allgood, the secretary of
the ACC’s Washington, D.C.-based
parent board, agreed that the
CCCA’s apparent problems could
spur some in-house counsel to join
the 750 Ontario and Quebec mem-
bers of the ACC—which is plan-
ning new chapters in Alberta and
British Columbia.
