15 minutes of fame for the country lawyer

In 1975 after having successfully completed the Bar Admission at Osgoode Hall in Toronto I practiced law at Macdonald, Affleck on Sparks Street in Ottawa. The following year I moved to Almonte where I practiced law for the duration of my career. I am extremely proud to have been a country lawyer and have never considered it a diminishing label (though my urban colleagues routinely taunted me by calling me a “rural conveyancer”). However looking back upon my entire law career I have to say that Macdonald, Affleck at least afforded me my “fifteen minutes of fame”:

15 minutes of fame is short-lived media publicity or celebrity of an individual or phenomenon. The expression is credited to Andy Warhol, who included the words “In the future, everyone will be world-famous for 15 minutes” in the program for a 1968 exhibition of his work at the Moderna Museet in Stockholm, Sweden. Photographer Nat Finkelstein claims credit for the expression, stating that he was photographing Warhol in 1966 for a proposed book. A crowd gathered trying to get into the pictures and Warhol supposedly remarked that everyone wants to be famous, to which Finkelstein replied, “Yeah, for about fifteen minutes, Andy.”

That ephemeral fame came to me in the form of an appearance before the Federal Court of Appeal and the Supreme Court of Canada.

To set the stage, in the court of first instance (the Federal Court of Appeal) there were twenty-five lawyers, all of whom (except me) wore a silk gown. Mine was a “stuff” gown. The reason I did not sport a silk gown was that only those who had been appointed One of Her Majesty’s Counsel Learned-in-the-Law (aka “Queen’s Counsel”) were entitled to “take silk”; and, only those who had practised law for no less than ten years were even qualified for consideration. I on the other hand was in my first year of practice. Allow me if you will the questionable privilege of dodging the honour on that basis. Anyway, to return to the Court room, the reason there were so many distinguished lawyers gathered together, many of whom were from the Western provinces, was to determine whether Marshall Crowe, who was then the Chairman of the National Energy Board, was biased in the performance of his duties in view of the fact that he had formerly been employed by the very oil and gas companies which were now appearing before him to obtain approval for the establishment of the McKenzie Valley Pipeline.

The proposed gas pipeline from the Beaufort Sea to markets in southern Canada and the United States was billed in the 1970s as “the biggest project in the history of free enterprise.”

To illustrate the shrewdness of these lawyers, it was the very oil and gas companies in whose favour Marshall Crowe might have decided who were mounting the challenge against him on the basis of bias. They were, as I am sure you understand, raising the challenge at the outset to have the matter determined before any public interest groups or environmentalists were able to upset the entire process at an advanced stage. Largely carriage of the case was handled by Mr. Hyman Soloway of the Soloway, Wright firm in Ottawa. Mr. Ian Binnie of the National Energy Board also contributed to a lesser (though very significant) degree. But apart from them most of the other twenty-five lawyers when given the opportunity to address the Court simply rose elegantly to their feet (with the skirts of their silk gowns swishing against the red leather seat cushions), bowed to the Justices and pronounced in a most audible and dignified manner that they respectfully agreed with and concurred in the submissions of their learned friend and colleague, Mr. Soloway; then bowed once again to the bench and returned to their seat, mute.

Well, upon seeing this I can tell you that I decided right then and there that I was having nothing to do with such pusillanimous capitulation. In anticipation of my kick at the cat I began making plans for what I rightly guessed would be my Swan Song in one of the highest courts of the land. Upon my return to the office, I conducted targeted research into the narrow jurisdictional issue which had arisen before the Court since the novelty and gravity of the matter demanded its particular attention. The Federal Court of Appeal had not addressed similar challenges (at least not on all points) and the Justices understandably wanted to avoid making a decision if they did not have the right to do so. My goal was to address that focal issue head-on.

When it came my turn to speak, I found that standing up from one’s chair in such an august environment, with its very high ceilings and judges elevated quite a distance from and above one, was not as easy as it had appeared when the other silken solicitors had done so. In fact if I had not taken the precaution of writing my own name at the top of my memorandum I might well have forgotten how to introduce myself. Reading the material which I had for presentation meant as little to me as reading the Koran backwards. It was nothing but words! Thankfully when preparing for this I had not the arrogance to presume that I could make the presentation “off the cuff”. Within what appeared to be mere seconds I had completed my address and the Chief Justice, practising no doubt that talent to which the judiciary aspire of avoiding any appearance of prejudice upon any point of law or manner of submission by Counsel, simply thanked me and moved on to the next barrister. The wave of anxiety which followed my little production prevented me from any consciousness whatsoever of what  transpired for the remainder of the day I am sure.

The point however of my tale is that years later, one miserable and drizzling Saturday morning in the friendly and warmer ambiance of the County Law Library of Lanark County at Perth (our County seat) with Judge Ian Matheson, I discovered that all had not been for naught. Judge Matheson, I and some other young lawyer whose name I cannot recall had gathered to reorganize the books of our law library. Among the books I was shifting about was a volume of the Federal Court of Appeal cases in which I discovered the Marshall Crowe matter. Recited below the headnote was a lengthy list of lawyers appearing in the matter. To my entire delight and immeasurable pride there was my name “L. G. William Chapman, appearing for West Coast Transmission Co. Ltd.” Considering the historical importance of the case in Canadian history, not to mention the luck of being involved at such a young age with so many distinguished lawyers, I felt this expiated any guilt I might ever have for an otherwise lame professional performance.

Though the Federal Court found in favour of Marshall Crowe, the case ended up being referred to the Supreme Court of Canada in which I also appeared and where I had the singular experience of seeing and hearing the Chief Justice of Canada ask in a rather perturbed tone of voice no less than the Attorney General for Canada whether he was actually serious when asserting that Marshall Crowe was not biased.

A reasonable apprehension of bias arises where there exists a reasonable probability that the judge might not act in an entirely impartial manner. The issue in this situation was not one of actual bias. Thus the facts that Mr. Crowe had nothing to gain or lose either through his participation in the Study Group or in making decisions as chairman of the National Energy Board and that his participation in the Study Group was in a representative capacity became irrelevant. The participation of Mr. Crowe in the discussions and decisions leading to the application by Canadian Arctic Gas Pipeline Limited for a certificate did however give rise to a reasonable apprehension, which reasonably well-informed persons could properly have, of a biased appraisal and judgment of the issues to be determined. The test of probability or reasoned suspicion of bias, unintended though the bias may be, is grounded in the concern that there be no lack of public confidence in the impartiality of adjudicative agencies, and emphasis is added to this concern in this case by the fact that the Board is to have regard for the public interest.

The Attorney General was not surprisingly on side with the big money but the Chief Justice would have nothing to do with it and he said so in the plainest of terms which amounted almost to a dressing down. Actually he really did little more than reiterate what anyone in the street knows and that is, “Justice must not only be done, it must be seen to be done”. Case closed. The swift and practical decision of the Supreme Court of Canada left a lasting impression upon me both as to its insightfulness and its division from power politics.

By the way – and this is something I should perhaps have mentioned earlier – the only reason I appeared on behalf of West Coast Transmission Co. Ltd. in the first place was because the senior lawyers at MacDonald, Affleck were too fat to fit into their robes. Small point I know and one which I trust will not detract from the spirit of this trifling account, but full disclosure demands it especially in light of all that humdrum business about reasonable probability.