CONSTITUTIONAL LAW
Charter of Rights
Fundamental Freedoms
Judicial review of Minister’s decision denying CBC application (invoking freedom of press, principle courts open to public) for access to hearings of Board of Inquiry (Board) investigating fires aboard HMCS Chicoutimi, death of Lieut. Saunders, personal injury to other crew members on October 5, 2004—Application dismissed—Board’s inquiry to be conducted in accordance with National Defence Act, s. 45(1), Queen’s Regulations and Orders for the Canadian Forces, Board’s Terms of Reference—Board called upon to make all relevant findings concerning fires, death, injuries aboard HMCS Chicoutimi—Queen’s Regulations, s. 21.47 requiring Minutes of board of inquiry to contain findings as to whether anyone to blame for injury or death—Terms of Reference, para. 12 providing Board president shall ensure proceedings conducted in such manner as to strike appropriate balance between interest of public being informed of progress, and public’s interest in ensuring security, privacy, operational, international relations requirements, achieved (such direction to ensure as much information as appropriate, reasonable publicly available, disclosed); also providing Board president may permit attendance of persons with direct, substantial interest in Board concerning death, injury—Board denied CBC’s application to attend on basis Board convened as internal administrative investigation; inquiry not judicial or quasi-judicial proceeding, nor public inquiry under federal Inquiries Act; mandate to be exercised within very short time, but public access would cause delays as had to be mindful release of information could compromise privacy, security, operational, international relations; already complying with Terms of Reference, para. 12 by posting information on DND website, granting interviews with media, distributing printed material; also invited Saunders family representative, with direct, substantive interest, to attend—Act, Regulations, Terms of Reference subject to modern standards of statutory interpretation: Glykis v. Hydro-Québec, [2004] 3 S.C.R. 285 (statutory provision to be read in entire context, taking into consideration not only ordinary, grammatical sense of words, but also scheme, object of statute, intention of legislature; approach to be followed, with necessary adaptations, in interpreting regulations)—On issue of whether quasi-judicial functions involved, applicable standard that of correctness— On issue of whether Board president properly exercised discretion, applicable standard that of reasonableness simpliciter—Applying Minister of National Revenue v. Coopers and Lybrand, [1979] 1 S.C.R. 495, Board herein not carrying out judicial or quasi-judicial functions—Inquiry, in essence, private investigation—Board not conducting hearings in judicial sense; not adjudicating upon rights, obligations of individuals—Process not adversarial—Requirement herein to make findings as to responsibility, blame not adjudicative— Travers v. Canada (Chief of Defence Staff), [1993] 3 F.C. 528 (T.D.), affd sub nom. Travers v. Canada (Board of Inquiry on the Activities of the Canadian Airborne Regiment Battle Group in Somalia) (1994), 24 C.R.R. (2d) 186 (F.C.A.) (dismissing application for direction Board of Inquiry conduct proceedings in public) applied—For purposes of present application, CBC equated with public at large—Board president could have given press access, subject to exclusion depending on topic being discussed—All in all, Board president exercised discretion in reasonable manner—Finally, not unreasonable for Board president to refuse to listen to CBC’s oral arguments— National Defence Act, R.S.C., 1985, c. N-5, s. 45(1) (as am. by R.S.C., 1985 (1st Supp.), c. 31, Sch. 1, s. 24)—Queen’s Regulations and Orders for the Canadian Forces, c. 21, art. 21.47—Inquiries Act, R.S.C., 1985, c. I-11.
Gordon v. Canada (Minister of National Defence) (T-1976-04, 2005 FC 335, Harrington J., order dated 8/3/05, 18 pp.)