"We are trying to get to the truth of this matter and every single document that exists and should exist, should be here that is what my point is." Selwyn A. Pieters
By Selwyn A. Pieters, B.A., LL.B., L.E.C.
Lawyer & Notary Public (Ontario, Canada)
Attorney-at-Law (Republic of Guyana, Island of Trinidad)
Posted on June 26, 2014
Updated on July 1, 2014
As a lawyer with significant experience in human rights, civil rights and non-adversarial matters, I was retained to represent its interest of the Guyana Trades Union Congress (GTUC) at the Walter Rodney Commission of Inquiry. I am currently co-counsel with Brian M. Clarke representing the Guyana Trades Union Congress in the Walter Anthony Rodney Commission of Inquiry in Georgetown, Guyana.
Gerald "Gerry" Gouveia provided evidence at the Commission of Inquiry on
June 26, 2014 and
June 27, 2014. He is one of the singularly most important witness in this inquiry (outside of Donald Rodney, who was present with Dr. Walter Rodney when he met his demise) as Gouveia is alleged to be the pilot who flew William Gregory Smith out of Georgetown after the "terrible accident" that
resulted in the death of Walter Anthony Rodney. And the evidence of his flight log and witness
statements appears to be powerful objective evidence that he flew an aircraft from Timerhi to Kwakwani.
The Commissioners are Sir. Richard L. Cheltenham, K.A., Q.C., Ph.D – Chairman (Barbados); Mrs. Jacqueline Samuels-Brown, Q.C. (Jamaica) and Mr. Seenath Jairam, S.C. (Trinidad). The Commission’s mandate established by its terms of reference includes the following:-
(i) To examine the facts and circumstances immediately prior, at the time of, and subsequent to, the death of Dr. Walter Rodney in order to determine, as far as possible, who or what was responsible for the explosion resulting in the death of Dr. Walter Rodney;
(ii) To inquire into the cause of the explosion in which Dr. Walter Rodney died, whether it was an act of terrorism, and if so, who were the perpetrators;
(iii) To specifically examine the role, if any, which the late Gregory Smith, Sergeant of the Guyana Defence Force, played in the death of Dr. Walter Rodney and if so, to inquire into who may have counselled, procured, aided and or abetted him to do so, including facilitating his departure from Guyana after Dr. Walter Rodney’s death...
Gerald "Gerry" Gouveia evidence goes primarily to i) to iii) of the
Terms of Reference.:
Gouveia testifed to the effect that "When I saw the picture of the person.. there was an anomoly in my mind....
"At that moment in time, and I remember this as an anomoly, I remember the picture of the man and I felt that the man that I am looking at in that picture.... looked like the man on my aircraft… but I never knew for sure…
"I really cannot say with 100 percent certainty but there was an anomaly in my mind.”
This testimony tiggered an aggressive cross-examination style intervention by Commission Chairman, Sir Richard Cheltenham of the witness even though his lawyer, Dave Kissoon, had not even completed his examination in chief.
Sir. Richard L. Cheltenham, was unrestrained in his aggressive cross-examination of the witness, even though the witness examination in Chief was not completed, nor was an opportunity provided to Commission Counsel or any other counsel for that matter to complete their cross-examinations before the Chairman conducted himself as he did.
I have listened to the evidence via livesteam on NCN and benefitted from Stabroek News posting the entirety of the video recordings online. The full transcripts of the evidence of Gerald Richard Gouveia is also available for
June 26, 2014 and
June 27, 2014. Here are some examples of what took place at the hearing:
Sir Richard Cheltenham "Whether given an anomoly was triggered ... did you take any steps to ascertain whether it was Gregory Smith"
Sir Richard Cheltenham "Did it appear to you that you may have provided for his escape... acting on the orders of superiors"
"Was it the duty of the military to provide escape for a killer" Commission Chairman, Sir Richard Cheltenham asked. "Absolutely not" Gerry Gouveia answered 54 minutes into the video recording
Walter Rodney COI, June 26, 2014 - Part 1, Stabroek News, June 26, 2014
"But that must have occurred to you given what you were hearing reported in the media" Commission Chairman, Sir Richard Cheltenham persisted.
Having read the media reports Commission Chairman, Sir Richard Cheltenham pressed on that this man Gregory Smith that was fingered in the media and Gouveia having seen the picture in the newspaper noted that "that is the very man I took. The implication of that is if that report is true that you would have provided escape, on instructions, for a killer."
Gouveia was asked by Sir Richard Cheltenham whether he reported the matter to a superior officer. He said no.
Commission Chairman, Sir Richard Cheltenham then asked 56 - 57 minutes into the recording:
Did it burden your conscience? NO
Did it troubled you at all? NO
Why not? In the context of a military officer over the years I have been involved in many operations...
Commission Chairman, Sir Richard Cheltenham in response to the above answers went on to ask "Were you involved in providing escape for a criminal or killers - were you involved in that kind of thing before" Absolutely not Gerry Gouveia answered.
Commission Chairman, Sir Richard Cheltenham asked "Were you indifferent to whether or not that you were involved in transporting the man that killed Rodney" Commission Chairman, Sir Richard Cheltenham "No Sir" Gerry Gouveia answered.
On June 27, 2014, Counsel to the Commission, Mr. Glenn Hanoman covered much the same terrain:
Mr. Hanoman: Mr. Gouveia, you are aware today that if for instance, you were to harbor or assist a murder accused to escape justice; that you can be charged as an accessory after the fact?
Mr. Gouveia: I imagine the Law would do that, yes.
Mr. Hanoman: As a matter of fact, you know that you could also be charged for murder?
Mr. Gouveia: No, I do not know that, Sir.
Mr. Hanoman: If you assist a murder accused to get away, you know that you could be charged for murder?
Mr. Gouveia: No, I do not know the Law like that, but I am sure my Lawyer would advise me.
Mr. Hanoman: Now, let me suggest to you that the reason you never shared this information with anybody about your held belief that you had transported this person who was accused of murder, the reason you never shared it with anybody is because you were afraid that you too would be charged for murder or for being an accessory after the fact?
Mr. Gouveia: No, Sir.....
Mr. Hanoman: Do you agree that someone trying to escape criminality would have a greater motivation to put a false entry into a logbook, than somebody who is just keeping a record of the aerodrome? Do you agree?
Captain Gouveia: Could you repeat the question, Sir.
Mr. Hanoman: A man who is accused of flying a murder accused away from a scene, has a greater motivation to put a false entry into a log than somebody who mundanely records aircrafts as they come and go?
Captain Gouveia: I have never altered the aircraft logbook, here, and my times and so. I would have to say to you that if your analogy is based on a fairy-tale, yes, but I flew this plane according to this logbook and the records were not altered. I know I am not permitted to ask a question, Sir. I came here, I said to you that I believe the man Gregory Smith was on the plane, I believe on the 14th. If I flew him on the 17th, I would be the first one to stand here and tell you that. You do not need to dig like this. I would tell you I did because if I flew him on the 14th and I flew him on the 17th, it is exactly the same thing. I did not fly him on the 17th. I would have been proud to tell you that, but I did not fly him on the 17th.
****
In correspondence to the Commission's Secretariat dated May 30, 2014, I requested the Commission ask the Guyana Defence Force to produced ducuments including the following:
9. In respect to the Guyana Defence Force plane that allegedly took Gregory Smith to Kwakwani and outside of Guyana, please ask the Guyana Defence Force to produce its records for its aircrafts and helicoptors for June 15 – 17, 1980.
10. Any official Immigration Records for Gregory Smith for June 17, 1980.
11. Any official records from the Civil Aviation Authorities in Guyana including record of departure and passport used, whether false or genuine.
Captain Gouveia's evidence concluded today without the benefit of any relevant documents from the Guyana Defence Force being produced to the Commission. This is the third such witness that appeared and documents that are relevant to the TORs, were not readily available by the record holder. See my discussion with the Commission on June 06, 2014 on this subject matter:
Walter Rodney Commission of Inquiry - The Battle for Contemporaneous Documents.
*****
Back to the bias issue, the question is whether or not the questions as they were asked by Commission Chairman, Sir Richard Cheltenham of the witness was to “clear up a point that has been overlooked or left obscure”
Jones v. National Coal Board, [1957] 2 All E.R. 155, [1957] 2 K.B. 55 (C.A.). Alternatively, can it be said that where a Commissioner interrupts during examination in chief and takes the lead in questioning the witnesses in an adversarial manner on matters that goes to the heart of its terms of reference, a reasonable person can be led to conclude a reasonable apprehension of bias? See,
Chrétien v. Canada (Commission of Inquiry into the Sponsorship Program and Advertising Activities, Gomery Commission) [2008] F.C.J. No. 973, 2008 FC 802, 168 A.C.W.S. (3d) 681. In the further alternative, given that there was no serious objections from counsel for Mr. Gouveia who was present at the hearing, can this be accepted as part of the special nature of a Commission of Inquiry?
At the end of the proceedings Commission Chairman, Sir Richard Cheltenham indicated that Gerald Gouveia is here "to talk about his role in transporting Gregory Smith the day after Rodney was assassinated." See, Walter Rodney COI, June 26, 2014 - Part 4 at 51:54 minutes. Again, this is an interesting comment in the context of how one assesses the role of the Commission and Chairperson and the permissible degree of pronouncements prior to hearing all of the evidence and completing its report.
THE CANADIAN EXPERIENCE WITH SUCH ISSUES - GOMERY COMMISSION
In
Chrétien v. Canada (Commission of Inquiry into the Sponsorship Program and Advertising Activities, Gomery Commission) [2008] F.C.J. No. 973, 2008 FC 802, 168 A.C.W.S. (3d) 681, Justice Teitelbaum considered the comments of Commissioner Gomery whist the Prime Minister was a witness before the Commission of Inquiry and ultimately concluded that a reasonable apprehension of bias exist. In coming to that conclusion he set out the law that guided him as follows:
Issue
3: Did the Commissioner breach the duty of procedural fairness?
A. Was there a reasonable apprehension
of bias on the Commissioner's part toward the Applicant?
67 Procedural fairness requires that decisions
be made free from a reasonable apprehension of bias by an impartial
decision-maker (Baker, supra, at para. 45). The standard of impartiality
expected of a decision-maker is variable depending on the role and function of
the decision-maker involved (Newfoundland Telephone Co. v. Newfoundland
(Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623 per
Cory J. [hereinafter Newfoundland Telephone]. In Newfoundland Telephone,
the Supreme Court established a spectrum for assessing allegations of bias
against members of commissions or administrative boards:
It can be seen that there is a great
diversity of administrative boards. Those that are primarily adjudicative in
their functions will be expected to comply with the standard applicable to
courts. That is to say that the conduct of the members of the Board should be
such that there could be no reasonable apprehension of bias with regard to
their decision. At the other end of the scale are boards with popularly elected
members such as those dealing with planning and development whose members are
municipal councillors. With those boards, the standard will be much more
lenient. In order to disqualify the members a challenging party must establish
that there has been a pre-judgment of the matter to such an extent that any
representations to the contrary would be futile. Administrative boards that
deal with matters of policy will be closely comparable to the boards composed
of municipal councillors. For those boards, a strict application of a reasonable
apprehension of bias as a test might undermine the very role which has been
entrusted to them by the legislature.
[...]
Further, a member of a board which
performs a policy formation function should not be susceptible to a charge of
bias simply because of the expression of strong opinions prior to the hearing.
This does not of course mean that there are no limits to the conduct of board
members. It is simply a confirmation of the principle that the courts must take
a flexible approach to the problem so that the standard which is applied varies
with the role and function of the Board which is being considered. In the end,
however, commissioners must base their decision on the evidence which is before
them. Although they may draw upon their relevant expertise and their background
of knowledge and understanding, this must be applied to the evidence which has
been adduced before the board: Newfoundland Telephone Co., supra, at pp.
638-639.
68 Justice Cory stressed in that case
"that the courts must take a flexible approach to the problem so that the
standard which is applied varies with the role and function of the Board which
is being considered" (Newfoundland Telephone, supra, at p. 639).
Applying this flexible approach, he then concluded that the applicable standard
for assessing the Board's impartiality during the investigative stage was the
closed-mind standard. He also found that when the matter reached the hearing
stage, the Board's role had changed and, as a result, the standard used to
assess the Board's conduct at that stage was the reasonable apprehension of
bias standard.
69 In Beno (FCA), supra, the Federal
Court of Appeal considered the nature, mandate and function of the Commission
of Inquiry into the Deployment of Canadian Forces to Somalia and determined
that the Commission was situated somewhere between the legislative and
adjudicative extremes on the spectrum, stating the following at paragraphs
26-27:
It is not necessary, for the purposes of
this appeal, to determine with precision the test of impartiality that is
applicable to members of commissions of inquiry. Depending on its nature,
mandate and function, the Somalia Inquiry must be situated along the
Newfoundland Telephone spectrum somewhere between its legislative and
adjudicative extremes. Because of the significant differences between this
Inquiry and a civil or criminal proceeding, the adjudicative extreme would be
inappropriate in this case. On the other hand, in view of the serious
consequences that the report of a commission may have for those who have been
served with a section 13 notice, the permissive "closed mind"
standard at the legislative extreme would also be inappropriate. We are of the
opinion that the Commissioners of the Somalia Inquiry must perform their duties
in a way which, having regard to the special nature of their functions, does
not give rise to a reasonable apprehension of bias. As in Newfoundland
Telephone, the reasonable apprehension of bias standard must be applied
flexibly. Cory J. held (supra, at pages 644-645):
Once matters proceeded to a hearing, a
higher standard had to be applied. Procedural fairness then required the board
members to conduct themselves so that there could be no reasonable apprehension
of bias. The application of that test must be flexible. It need not be as
strict for this Board dealing with policy matters as it would be for a board
acting solely in an adjudicative capacity. This standard of conduct will not of
course inhibit the most vigorous questioning of witnesses and counsel by board
members.
Applying that test, we cannot but disagree
with the findings of the Judge of first instance. A commissioner should be
disqualified for bias only if the challenger establishes a reasonable
apprehension that the commissioner would reach a conclusion on a basis other
than the evidence. In this case, a flexible application of the reasonable
apprehension of bias test requires that the reviewing court take into
consideration the fact that the commissioners were acting as investigators in
the context of a long, arduous and complex inquiry. The Judge failed to appreciate
this context in applying the test.
70 Relying on the Federal Court of Appeal's
decision in Beno, the Attorney General submits that the Commission falls
in the middle of the Newfoundland Telephone spectrum and argues that the
applicable test is whether there is a reasonable apprehension that the
Commissioner would reach a conclusion on a basis other than the evidence. In
the alternative, the Attorney General submits that the applicable test is the
reasonable apprehension of bias test established in Committee for Justice
and Liberty v. National Energy Board, [1978] 1 S.C.R. 369 [hereinafter Committee
for Justice and Liberty].
71 The Applicant submits that the test for
assessing Commissioner Gomery's impartiality is the reasonable apprehension of
bias test or reasonable person test as enunciated in the dissenting judgment of
Justice de Grandpré in Committee for Justice and Liberty and
subsequently adopted by the Supreme Court of Canada. The Applicant argues that
since the Commissioner is a judge and was appointed as Commissioner because of
his judicial skills, the applicable test for determining whether or not there
is a reasonable apprehension of bias on the part of the Commissioner is the
same as that which is applied when assessing the impartiality of a judge
presiding over a trial. Put simply, the Applicant argues that because the
Commissioner in this case was selected because of his skills as a judge,
although he was sitting as a Commissioner in the hearings, he should be held to
the same standard of judicial neutrality expected of a judge presiding over a
trial.
72 Although the Commissioner's experience as a
judge may have assisted him in his role as Commissioner, he was not sitting as
a judge while performing his duties as a Commissioner. Thus, it does not
necessarily follow that his impartiality is to be assessed using a strict
application of the reasonable apprehension of bias test.
73 After considering the jurisprudence cited
by the parties, I conclude that the Commission falls somewhere between the
middle and high end of the Newfoundland Telephone spectrum. Thus, using
a flexible application of the reasonable apprehension of bias test, I adopt the
test enunciated by Justice de Grandpré in Committee for Justice and Liberty.
That test is:
[T]he 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...[T]hat 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 Mr.
Crowe [the Chairman of the Board], whether consciously or unconsciously, would
not decide fairly": Committee for Justice and Liberty, supra, at p.
394.
74 As Justice Cory stated in R. v.
S.(R.D.), [1997] 3 S.C.R. 484 [hereinafter R.D.S.], the test for a
reasonable apprehension of bias "contains a two-fold objective element:
the person considering the alleged bias must be reasonable, and the
apprehension of bias itself must also be reasonable in the circumstances of the
case" (R.D.S. at para. 111). He further noted that "the
reasonable person must be an informed person, with knowledge of all the
relevant circumstances, including 'the traditions of integrity and impartiality
that form a part of the background and apprised also of the fact that impartiality
is one of the duties the judges swear to uphold'" (ibid.) [emphasis
in original]. He added "the threshold for a finding of real or perceived
bias is high" and "a real likelihood or probability of bias must be
demonstrated...a mere suspicion is not enough" (R.D.S. at para.
112-113).
75 I harken back to the words of Lord Denning
in Metropolitan Properties Co. (F.G.C.), Ltd.. v. Lannon, [1968]
3 All E.R. 304 (C.A.) at p. 310, 1 Q.B. 577 (C.A.) at p. 599, wherein he
stated:
[I]n considering whether there was a
real likelihood of bias, the court does not look at the mind of the justice
himself or at the mind of the chairman of the tribunal, or whoever it may be,
who sits in a judicial capacity. It does not look to see if there was a real
likelihood that he would, or did, in fact favour one side at the expense of the
other. The court looks at the impression which would be given to other people.
Even if he was as impartial as could be, nevertheless, if right-minded persons
would think that, in the circumstances, there was a real likelihood of bias on
his part, then he should not sit. And if he does sit, his decision cannot stand
[cited cases omitted]. Nevertheless, there must appear to be a real likelihood
of bias. Surmise or conjecture is not enough [cited cases omitted]. There must
be circumstances from which a reasonable man would think it likely or probable
that the justice, or chairman, as the case may be, would, or did, favour one
side unfairly. Suffice it that reasonable people might think he did. The reason
is plain enough. Justice must be rooted in confidence: and confidence is
destroyed when right-minded people go away thinking: "The judge was
biased."
76 There exists a presumption that a
decision-maker will act impartially, and "[m]ore than a mere suspicion, or
the reservations of a 'very sensitive or scrupulous conscience,' is required to
displace that presumption" (Beno (FCA), supra, at para. 29). The
onus of demonstrating bias lies with the person who is alleging its existence
and the threshold for finding a reasonable apprehension of bias is high. But,
where a reasonable apprehension of bias is found, the hearing and any decision
resulting from it will be void, since the damage created by such an
apprehension of bias cannot be remedied. This is consistent with Justice Le
Dain's decision, speaking for the Court in Cardinal v. Director of Kent
Institution, supra, at p. 661, wherein he stated:
[...] I find it necessary to affirm that
the denial of a right to a fair hearing must always render a decision invalid,
whether or not it may appear to a reviewing court that the hearing would likely
have resulted in a different decision. The right to a fair hearing must be
regarded as an independent, unqualified right which finds its essential
justification in the sense of procedural justice which any person affected by an
administrative decision is entitled to have. It is not for a court to deny that
right and sense of justice on the basis of speculation as to what the result
might have been had there been a hearing.
97 The Attorney General relies heavily on
these assurances by the Commissioner in support of the argument that the
Commissioner had not formed premature conclusions. That the Commissioner made
assurances that he had not prejudged any issue is irrelevant, as one may be
unaware of their own biases. In R v. Gough, [1993] A.C. 646 (H.L.) at p.
655 (quoted by the Supreme Court of Canada in Wewaykum Indian Band v. Canada,
[2003] 2 S.C.R. 259), Lord Goff, quoting Devlin L.J. in The Queen v.
Barnsley Licensing Justices, [1960] 2 Q.B. 167 (C.A.), stated:
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.
98 The determinative test, as stated above, is
whether a reasonably well-informed person, viewing the matter realistically and
practically, would conclude that there is a reasonable apprehension of bias. As
I have already stated, I am satisfied that the test for a reasonable
apprehension of bias has been met in this case.
99 Lastly, I note that Commissioner made other
inappropriate comments that seemingly tainted the purpose and focus of the
Inquiry. On a number of occasions, the Commissioner referred to the proceedings
as a "show" or "spectacle" and even declared: "I have
the best seat in the house for the best show in town." Upon his
retirement, the Commissioner further commented: "I was criticized for
saying it but I stand by what I said -- I had the best seat in the house for
the best show in town." "It was an amazing spectacle. It was a drama
with surprise discoveries almost every day, with eminently competent lawyers.
It was an ideal situation for the person running the show." "It
wasn't a rehearsed spectacle, but to see witnesses, one after the other, making
startling revelations after being confronted with documents they couldn't
explain was exciting and engrossing." Although these statements do not
indicate a reasonable apprehension of bias toward the Applicant per se,
they had the effect of transforming the nature of the inquiry from one that was
a fact-finding mission with the hallmarks of fairness into an
"exhibition" of misconduct on the part of senior government
officials.
100 The Applicant has also raised concerns
about the Commissioner's preoccupation with the media. He argues that
Commissioner Gomery was seduced by the media and the limelight to such an
extent that the judicial instinct for fairness, objectivity and restraint which
the Applicant was entitled to expect of him gave way to a preoccupation on his
part with focussing media (and public) attention upon himself, a course of
conduct which preordained unfavourable findings about the Applicant in the
Report.
101 I agree with the Applicant that the
Commissioner became preoccupied with ensuring that the spotlight of the media
remained on the Commission's inquiry, and he went to great lengths to ensure
that the public's interest in the Commission did not wane. This preoccupation
with the media outside the hearing room had a detrimental impact on the
fairness of the proceedings.
102 I note that although the Commissioner, in
his ruling on the Motion for Recusal, acknowledged that some of the statements
he had made during the interviews were, in his words, "ill-advised"
and "inappropriate." He further acknowledged that his statements
detracted attention from "the real objective of the Inquiry, which [was]
to get at the truth of the matters which were subject of Chapters 3 and 4 of
the Report of the Auditor General" and expressed his regret for this
distraction. However, this acknowledgement and expression of regret, in my
view, were incapable of repairing the harm that the Commissioner caused to the
Applicant's reputation and the irreparable harm caused to the fairness or
apparent fairness of the proceedings.
103 Considering again the basic principles
applicable to commissions of inquiries so succinctly set down by Justice Cory
in Krever, above, I do not read that it is a function of a Commissioner
to grant press interviews nor to express, during such an interview or interviews,
an opinion as to what the evidence showed, and more particularly, to express
that opinion before all of the evidence had been heard from the witnesses who
were called to testify or were to be called to testify. Although I do not
necessarily agree with the Applicant that the Commissioner's preoccupation with
the media "preordained unfavourable findings about the Applicant in the
Report," I find that the Commissioner's conduct outside the hearing room
had a detrimental effect on the fairness of the proceedings in that the
Applicant was put in a position in which he was caused to appear before a
Commission that had publicly questioned his conduct and integrity before he had
even appeared before the Commission.
104 The media is not an appropriate forum in
which a decision-maker is to become engaged while presiding over a commission
of inquiry, a trial, or any other type of hearing or proceeding. Indeed, the
only appropriate forum in which a decision-maker is to become engaged is within
the hearing room of the very proceeding over which he or she is presiding.
Comments revealing impressions and conclusions related to the proceedings
should not be made extraneous to the proceedings either prior, concurrently or
even after the proceedings have concluded.
105 I stress that even in public inquiries
where the purpose of the proceedings is to educate and inform the public, it is
not the role of decision-makers to become active participants in the media.
First and foremost, a decision-maker's primary duty is to remain impartial,
with an open mind that is amenable to persuasion. It is only when all the
evidence is heard and after deliberating on that evidence that a decision-maker
is to form conclusions and, finally, to issue a judgment or report on the basis
of these conclusions. It follows that a decision-maker speaks by way of his or
her decision. This is the only appropriate forum in which a decision-maker
should state his or her conclusions. As my colleague, mentor and friend, the
late Justice Frank Collier once said to me when I was first appointed as a
judge, "Let the decision speak for itself."
106 I am convinced that an informed person,
viewing the matter realistically and practically and having thought the matter
through would find that the Commissioner's statements to the media during the
Phase I hearings, after the release of the Report and upon his retirement,
viewed cumulatively, indicate that the Commissioner prejudged issues under
investigation and that he was not impartial toward the Applicant. The nature of
the comments made to the media are such that no reasonable person, looking
realistically and practically at the issue, and thinking the matter through,
could possibly conclude that the Commissioner would decide the issues fairly.
107 I do note, however, that with respect to
the other statements raised by the Applicant in support of his argument on this
point and which I have not dealt with directly in my reasons, I do not find
these remarks establish a reasonable apprehension of bias. For example,
Commissioner Gomery's comments that his findings could prove "very
harmful" to then Prime Minister Paul Martin's career and that the Report
"might have more consequences for a minority government than for a majority
government" are simply indicative of Commissioner Gomery's awareness of
the public interest in the inquiry and the possible ramifications the Report
could have in the political sphere. Such awareness does not amount to a
reasonable apprehension of bias in my view.
108 Given that I have already found a
reasonable apprehension of bias on the part of the Commissioner toward the
Applicant, I need not address the remaining issues in this application. At the
hearing, the parties made submissions regarding the effect of a finding of a
reasonable apprehension of bias on the Commissioner's Report if one were to be
found. I conclude that, as a result of my finding that there existed a
reasonable apprehension of bias on the part of the Commissioner toward the
Applicant, the findings in the Report, as they relate to the Applicant, must be
set aside. This is consistent with the decision of the Supreme Court of Canada
in Newfoundland Telephone, supra, wherein Justice Cory, writing for the
Court, held that where a reasonable apprehension of bias is found to exist on
the part of a tribunal, its decision must be treated as void.
Resources
Walter Rodney COI, June 26, 2014 - Part 1, Stabroek News, June 26, 2014
Walter Rodney COI, June 26, 2014 - Part 2, Stabroek News, June 26, 2014
Walter Rodney COI, June 26, 2014 - Part 3, Stabroek News, June 26, 2014
Walter Rodney COI, June 26, 2014 - Part 4, Stabroek News, June 26, 2014
Capitol News, June 26, 2014
GINA, June 26, 2014
Demerara Waves,
Rodney Inquiry: Gerry Gouveia believes he transported Gregory Smith to Kwakwani, June 26, 2014
Gouveia flew plane that spirited Smith away — Guyana Times, June 26, 2014
Kaieteurnewsonline,
Chairman has shown his bias – Harmon, June 27, 2014
********
Selwyn A. Pieters, B.A. (Toronto), LL.B. (Osgoode), L.E.C. (U.W.I). Lawyer & Notary Public (Ontario). Attorney-at-Law (Republic of Guyana and Republic of Trinidad and Tobago).
Selwyn has appeared at all levels of courts, including the Supreme Court of Canada in
Attorney General of Ontario v. Michael J. Fraser, et al., 2011 SCC 20, Ontario Court of Appeal in
Freeman-Maloy v. Marsden 267 D.L.R. (4th) 37, 208 O.A.C. 307 (C.A.);
Bangoura v. Washington Post (2005) 202 O.A.C. 76, (2005) 17 C.P.C. (6th) 30 (Ont.C.A.), the Federal Court of Appeal in The
Honourable Sinclair Stevens v. The Conservative Party of Canada, [2005] F.C.J. No. 1890, 2005 FCA 383. He represented Correctional Manager Mariann Taylor-Baptiste in the ground-breaking competing rights case of Taylor-Baptiste v. Ontario Public Service Employees Union,
2012 CarswellOnt 8965, 2012 HRTO 1393, 2012 C.L.L.C. 230-022 reconsideration denied in 2013 CarswellOnt 1033,
2013 HRTO 180, 2013 C.L.L.C. 230-019 at the HRTO; Civil Rights lawyer Charles Roach in the Oath cases of
McAteer, Topey, Dror-Natan v. Canada (Attorney General) 2013 CarswellOnt 13165, 2013 ONSC 5895 (ON S.C.) and
Roach et al. v. Canada 2012 CarswellOnt 7799, 2012 ONSC 352 (ON S.C.) which is a constitutional challenge to the oath in the Citizenship Act.
Selwyn has provided representation to persons charged with various criminal offenses including Drugs: Selling and Possessing, Shoplifting, Serious Offences of Violence: Aggravated Assault, Assault with a Weapon and Robbery, Gun Offences, sexual assault, robbery, theft, extortion, HIV/AIDS litigation; fraud, break & enter, attempted murder, murder, regulatory offences under the Occupational Health and Safety Act, professional disciplinary offences, and conspiracy offences.
Selwyn has also been involved in drugs, guns and gang trials including "Project Green Apple", "Project XXX" and "Project Kryptic", "Project Corral" which are some of Canada's largest Criminal Organization prosecutions. Selwyn is currently counsel for an accused in "Project Feline" and Project Revival" drug sting operations. In Project Corral, Selwyn's advocacy resulted in the "gang expert" evidence being discredited and the Criminal Organization charges against his client and others being tossed out by the Court:
R. v. Agil, Chambers, Fullerton, Jimale and Brown 2011 CarswellOnt 18099 (Ont. CJ. July 14, 2011, Khawley J.)
Selwyn recently obtained an extraordinary remedy of costs agains the Crown for failure to provide disclosure of police officer memo book notes in
R. v. W.(J.), [2013] O.J. No. 2284, 2013 CarswellOnt 6322, 2013 ONCJ 270 (Ont. CJ.).
Selwyn is the successful litigant in the recent racial profiling case involving carding of three Black men:
Peel Law Association v. Pieters, 2013 CarswellOnt 7881, 2013 ONCA 396, 228 A.C.W.S. (3d) 204, 116 O.R. (3d) 81, 306 O.A.C. 314, 9 C.C.E.L. (4th) 233, [2013] O.J. No. 2695.
Selwyn has provided crucial legal advise to clients duringhigh risk situations such as gun calls, hostage taking, barricaded persons, mentally disturbed persons, high risk arrests and public order control in situations where there is significant public disorder, lawlessness, personal injury and property damage. Charges of cause disturbance and assault police can be pretextual racial profiling charges:
R. v. Roach, 2005 O.J. No. 5278 (Ont. C.J.) (Criminal Law - Causing a Disturbance);
R. v. Ramsaroop, 2009 CarswellOnt 5281, 2009 ONCJ 406 (Ont. CJ.);
R. v. Taylor, 2010 CarswellOnt 6584, 2010 ONCJ 396, [2010] O.J. No. 3794 (Ont. CJ.)
Selwyn was co-counsel in the world's first-ever sexual HIV transmission murder trial of Johnson Aziga in Hamilton, Ontario. See, for example,
R. v. Aziga, 2008 CanLII 39222 (ON S.C.);
R. v. Aziga; 2008 CarswellOnt 4300 (ON S.C.) and
R. v. Aziga, 2008 CanLII 29780 (ON S.C.)
Selwyn argued on racial profiling includes:
R. v. Steele, 2010 ONSC 233 (ON S.C.) and
R. v. Egonu, 2007 CanLII 30475 (ON SC) - Driving while black and
R. v. Bramwell-Cole [2010] O.J. No. 5838 (ON S.C.) - walking while black.
Selwyn has acted in exclusion cases at the Immigration and Refugee Board of Canada: See, Song Dae Ri (Re) 2003 CarswellNat 4527; (2004) 36 Imm. L.R. (3d) 203; Liang (Re) 2002 CarswellNat 4719; 33 Imm. L.R. (3d) 251.
Selwyn has appeared in Coroners' Inquest including: Coroner's Inquest into the Death of Negus Topey (May 02, 2005, Coroners' Court, Dr. K.A. Acheson) Ruling on Application for Standing; Coroner's Inquest into the Death of Dwight Haughton (Coroners' Court, Dr. Evans) Ruling on Application for Standing; Coroner's Inquest into the Death of Jeffrey Reodica(May 04, 2006, Coroners' Court, Dr. B. Porter) Ruling on Application for Standing
Selwyn also acted as co-counsel with C. Nigel Hughes for the families of three deceased persons killed during a civil demonstration in Linden, Guyana, at the Linden Commission of Inquiry. Selwyn is currently co-counsel with Brian M. Clarke representing the Guyana Trades Union Congress in the Walter Anthony Rodney Commission of Inquiry in Georgetown, Guyana.
