CONRAD BLACK Appellant v. THE ADVISORY COUNCIL FOR THE ORDER OF CANADA, 2013 FCA 267

Date: 20131118 Docket: A-462-12 Citation: 2013 FCA 267 CORAM: EVANS J.A. TRUDEL J.A. WEBB J.A. BETWEEN: CONRAD BLACK Appellant and THE ADVISORY COUNCIL FOR THE ORDER OF CANADA Respondent Heard at Toronto, Ontario, on November 18, 2013. Judgment delivered from the Bench at Toronto, Ontario, on November 18, 2013. REASONS FOR JUDGMENT OF THE COURT BY: EVANS J.A. Date: 20131118 Docket: A-462-12 Citation: 2013 FCA 267 CORAM: EVANS J.A. TRUDEL J.A. WEBB J.A. BETWEEN: CONRAD BLACK Appellant and THE ADVISORY COUNCIL FOR THE ORDER OF CANADA Respondent

REASONS FOR JUDGMENT OF THE COURT (Delivered from the Bench at Toronto, Ontario on November 18, 2013) EVANS J.A. [1] In a letter dated July 20, 2011, the Secretary to the Governor General informed Conrad Black that the Advisory Council forthe Order of Canada proposed to review his appointment to the Order in light of his criminal conviction in the United States for fraudand obstruction of justice. [2] Mr.

Black requested an in-person oral hearing before the Council to enable him to demonstrate that the prosecutors in theUnited States had not acted appropriately towards him and that a court in Canada would not have found him guilty of the offences. [3] The Council refused his request, stating that he could make written representations, supported by documentation, on why hisconviction did not warrant the termination of his appointment to the Order of Canada. Mr. Black asked the Council to reconsider itsdecision, but it maintained its initial position. [4] Mr.

Black rejected the offer to make written representations and made an application for judicial review to set aside theCouncil’s decision, on the ground that the duty of fairness required that he be afforded an opportunity for an oral hearing. In a decisionreported as Black v. Advisory Council for the Order of Canada, 2012 FC 1234, the Federal Court dismissed Mr. Black’s application. [5] In full and careful reasons, Justice de Montigny (Judge) agreed with Mr. Black that the exceptional circumstances of thiscase justified a challenge to an interlocutory decision of the Council.

He also held that, while the exercise of the prerogative powerrespecting the award and termination of an honour (including an appointment to the Order of Canada) was not justiciable, the Policy andProcedure for Termination of Appointment to the Order of Canada (Policy) created a legitimate expectation that the procedures that itoutlined would be followed.

However, the Judge held, the Policy did not give rise to a legitimate expectation that an oral hearing wouldbe held prior to a recommendation to the Governor General that an individual’s appointment should be revoked. [6] Moreover, on the basis of the factors set out in Baker v. Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817 (Baker) for calibrating the content of the duty of fairness in a given case, Mr.

Black’s proceduralentitlements fell towards the low end of the scale, because: the Council’s process does not resemble judicial decision-making and is non-adversarial; the Council’s function is recommendatory and the Governor General’s decision is discretionary; Mr. Black had no legal rightto an appointment, nor a legitimate expectation that it would not be terminated, and any damage to his reputation flowed from hisconviction; and the Council was entitled to deference in the exercise of its discretion as to whether Mr.

Black should be given anopportunity to make representations orally or in writing. [7] Without expressing an opinion on the Judge’s determination of the issues of justiciability and legitimate expectation, we areall of the view that, substantially for the reasons given by the Judge, the Baker factors do not require the Council to give Mr. Black anoral hearing in order to ensure that he is afforded procedural fairness in all the circumstances of the case. [8] In particular, since it is not the Council’s function to determine if Mr.

Black’s conviction in the United States was proper, weare not persuaded that the Council’s recommendation will turn primarily on an assessment of Mr. Black’s credibility. Further, to theextent that credibility may be an issue, we are also of the view that no single Baker factor necessarily trumps all the others. [9] For these reasons, the appeal will be dismissed with costs. "John M. Evans" J.A. FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD Docket: A-462-12 APPEAL FROM A JUDGMENT OF THE HONOURABLE MR. JUSTICE de MONTIGNY OF THE FEDERAL COURT, DATED OCTOBER 23, 2012, IN DOCKET NO. T-1348-12. STYLE OF CAUSE: CONRAD BLACK v. THE ADVISORY COUNCIL FOR THE ORDER OF CANADA PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: November 18, 2013 REASONS FOR JUDGMENT OF THE COURT BY: EVANS J.A. TRUDEL J.A. WEBB J.A. DELIVERED FROM THE BENCH BY: EVANS J.A.

APPEARANCES : Peter Howard Aaron Kreadon For The APPELLANT Christine Mohr Andrea Bourke For The Respondent SOLICITORS OF RECORD : STIKEMAN ELLIOTT LLP Barristers & Solicitors Toronto, Ontario For The APPELLANT William F. Pentney Deputy Attorney General of Canada For The Respondent