JUDGE TEITELBAUM: GOMERY WAS BIASED

Judge Max Teitelbaum was appointed a Judge of the Federal Court of Canada, Trial Division on October 29, 1985.
http://cas-ncr-nter03.cas-satj.gc.ca/portal/page/portal/fc_cf_en/Teitelbaum

It can be assumed that the Prime Minister of the day, one Brian Mulroney, had the last word in the approval of the appointment. See http://darrylraymaker.blogspot.com/2008/06/oliphant-should-get-out-while-going-is.html After a long judicial career, Teitelbaum retired on January 2007. Two days later, he was appointed as Deputy Judge of the Federal Court. It can be assumed that the Prime Minister of that day, one Stephen Harper, had the last word in the approval of that appointment.

It was Judge Teitelbaum, a Judge appointed by a Progressive Conservative and Conservative government, who heard an application by ex-prime Minister Jean Chretien. Chretien had applied to have the Court review the Gomery Commission report on the grounds that Gomery showed a 'reasonable apprehension of bias' and that some conclusions made by Gomery, did not have an 'evidentiary' basis. Chretien was particularly interested in having the Gomery finding set aside that stated that he and Jean Pelletier had erred in the oversight of the sponsorship program.

Judge Teitelbaum, a Judge appointed by Chretien's political foes, today came down with his decision. The decision was extraordinary in his condemnation of Gomery's inappropriate statements, behaviour, partiality, and preoccupation with the media. He struck down Gomery's finding of Chretien and Pelletier's oversight errors. See http://www.cbc.ca/canada/story/2008/06/26/gomery-chretien.html?ref=rss.


Chretien and Pelletier are very happy men today.

Gomery, who can't seem to pass an open mike without saying a few words, has of course, already said a few words, some among them being, "It is particularly disappointing that I am held to be, appear to be, a biased judge." Amen to that. And shameful too.

Our hats go off to Teitelbaum for his courageous and correct decision.

Justice Jeffrey Oliphant, who is to preside over the Mulroney-Schreiber catfight, should consider
this case and Teitelbaum's role therein very carefully. Teitelbaum owed nothing to Chretien and Pelletier. He owed nothing to Gomery. But had the decision gone the other way, there would have been many who would conclude that he had struck a blow for the Conservative Party who appointed him.

In Oliphant's case, many would reasonably believe that he owed Mulroney for his appointment. Mulroney is one of the main players whose actions are to be judged by Oliphant. Oliphant is in a far more sensitive position in the proceedings before him than Teitelbaum was in the Gomery proceedings. If his decision favours Mulroney, it will be a black mark on his career. Justice Oliphant, recuse yourself. If not for others, for yourself!

JUSTICE JEFFREY OLIPHANT: RECUSE YOURSELF!

In brief, the process of appointing Judges to provincial superior courts such as the Court of Queen's Bench goes like this. Following a vetting process within the province in respect of which the appointment is to be made, recommendations go to the Federal Minister of Justice. The Minister of Justice then presents the Cabinet with his recommendation of the appointee. Cabinet then approves the appointment (only in remote instances do they not approve), and that decision is sent to the Governor General for her formal approval. The big sticks involved in appointing a Judge at this level, make no mistake, are the Minister of Justice and the most important member of the cabinet - the big enchilada - the Prime Minister of Canada. That is the process now, and that was the process in 1985.
http://en.wikipedia.org/wiki/Judicial_appointments_in_Canada

Justice Jeffrey Oliphant, presently the Associate Chief Justice of the Manitoba Court of Queen's Bench was appointed in 1985. The Prime Minister at the time was the Right Honorable Brian Mulroney. Prime Minister Mulroney was still in power when Oliphant received a promotion from the federal cabinet in 1990 to become the Associate Chief Justice.

By all reports Justice Oliphant has been a good judge.

Being a judge is also a good job. The pay is in the 250,000 range. Pensions are generous and indexed. While at work, all of your needs are taken care of by orderlies, drivers, and other minions. There is plenty of time off. The public caters to you as do, of course, lawyers. Its nice to be a judge.

One would expect that Justice Oliphant would be grateful to the Rt. Hon. Brian Mulroney, for having been a major influence in his judicial appointment. Normal people would be very grateful indeed in those circumstances.

The current Prime Minister Stephen Harper has seen fit to appoint Justice Oliphant to the role of Commissioner in the forthcoming public inquiry respecting the dealings between Karl-Heinz Schreiber and Mr. Mulroney. The subject matter of the inquiry includes allegations of nefarious business dealings between the two. Those dealings at this stage appear to border on criminality or at least impropriety on the part of the principal players and perhaps others. It is already a national scandal. Oliphant will be called upon to report his findings to Parliament. Legal repurcussions from such findings are very likely to ensue.

Justice Oliphant is in a conflict of interest. At the very least he is in a perceived conflict of interest. He is called upon to make findings in respect to the actions of a man he owes - perhaps not in a legal sense, but certainly in a human sense - much. The inclination to white-wash, at least Mulroney's role in the affair, may be present.

Harper, again being too politically cute by half, should never have approved the appointment. Oliphant should never have accepted it. Oliphant should recuse himself. Harper should appoint someone who is untainted by any previous relationship to one of the principal parties.

This is not to disparage Justice Oliphant. It is to do the right thing.