T-1671-97
2002 FCT 142
Brigadier-General Ernest B. Beno (Applicant)
v.
Attorney General of Canada (Respondent)
Indexed as: Beno v. Canada (Attorney General) (T.D.)
Trial Division, Heneghan J.--Ottawa, December 5, 2000; February 7, 2002.
Inquiries -- Commission of Inquiry Into Deployment of Canadian Forces to Somalia concluding applicant failed as commander -- Applicant attacking Commission's Report on basis Commissioners made damaging findings against him in absence of reliable evidence -- Applicant alleging evidence deficient as Commissioners deprived him of opportunity to call, or recall and cross-examine, certain witnesses -- Initially, Commission intending to consider evidence relating to three phases: Pre-Deployment, In-Theatre, Post-Deployment but having to alter procedure when Government deciding to limit time available for final report preparation, submission -- No explicit or implied undertaking that no findings of misconduct under Inquiries Act, s. 13 notices would be made against applicant until all evidence, in all three phases, had been heard -- Assurance related primarily to issue of how applicant's credibility to be assessed against backdrop of all evidence, and not single line of questioning -- Fact some evidence not tested by cross-examination going to probative value and matter falling clearly within jurisdiction of Commissioners -- Choice of procedure beyond review by Court, as long as applicant accorded procedural fairness, as herein -- Duty of fairness less exacting at inquiry than in court of law..
Armed Forces -- Commission of Inquiry Into Deployment of Canadian Forces to Somalia concluding applicant, Brigadier-General, failed as commander -- Applicant alleging evidence deficient as Commissioners deprived him of opportunity to call, or recall and cross-examine, certain witnesses -- Choice of procedure beyond review by Court, as long as applicant accorded procedural fairness, as herein.
Administrative Law -- Judicial Review -- Declarations -- Applicant seeking declaration procedural fairness, natural justice principles contravened by Inquiry Commissioners, order quashing part of Commission Report -- Commission of Inquiry Into Deployment of Canadian Forces to Somalia concluding applicant failed as commander -- Alleging evidence deficient as Commissioners deprived him of opportunity to call, or recall and cross-examine, certain witnesses -- Procedural fairness to which applicant entitled right to have full opportunity to respond to any allegation against him -- Such right, however, subject to authority of Commissioners to establish method of proceeding -- Choice of procedure beyond review by Court, as long as applicant accorded procedural fairness, as herein -- Duty of fairness less exacting at inquiry than in court of law..
The applicant served as Commander of the Special Service Force at Petawawa, Ontario where the Canadian Airborne Regiment (CAR) had been one of the units under his command before and after its deployment to Somalia. The Commission of Inquiry into the Deployment of Canadian Forces to Somalia was established to inquire and report on the chain of command system, leadership, discipline, operations, actions and decisions of the Canadian Forces and actions and decisions of the Department of National Defence in respect of the Canadian Forces deployment to Somalia. Specifically, the Commission was authorized to investigate the events in Somalia surrounding the torture and murder of Shidane Arone, and to investigate the institutional response to the events, which occurred in Somalia. The applicant received a notice under section 13 of the Inquiries Act advising him that the Commission would consider allegations that he had exercised poor and inappropriate leadership in the Pre-Deployment phase of the Somalia mission and that the Commissioners would hear and consider submissions that he or his counsel might wish to make in relation thereto. Under the rules, he had the right to examine and cross-examine witnesses, to apply to have witnesses called, and to make oral and written submissions.
At some point, the Government decided to shorten the time allowed to the Commission for the completion of its evidentiary hearings and report. Consequently, the Commission decided that it was not prepared to hear all of the 48 witnesses that the applicant wished to call or recall. The applicant then stated that he did not intend to participate in the section 13 evidentiary hearing and would seek relief in the Federal Court. He also decided that he would make no oral submissions to the Commission.
In its report, the Commission found that there was a serious and considerable failure on the applicant's part in declaring the CAR and the CAR Battle Group operationally ready when he knew or should have known that such was not the case. It also found that he had failed in his duty as a commander.
The applicant now seeks declaratory relief and relies on the jurisdiction of this Court to set aside a decision by a federal court, commission or tribunal or to grant declaratory relief, pursuant to section 18 of the Federal Court Act. The broad basis of his claim is that the Commissioners made damaging findings of credibility against him in the absence of reliable evidence. He argued that the evidence was deficient because the Commissioners deprived him of the opportunity to call, or recall and cross-examine, certain witnesses whom he deemed necessary to exercise his full opportunity to be heard.
Held, the application should be dismissed.
The applicant argued that the loss of opportunity to examine and cross-examine witnesses was a direct breach of an undertaking given by the Commissioners at the beginning of the inquiry when the method of proceeding was established.
A Commission's procedure is not bound by the evidentiary or procedural rules of a courtroom; it must nonetheless respect the rules of procedural fairness, including those set out in sections 12 and 13 of the Inquiries Act. The duty to be fair, in the circumstances of an inquiry, is not as exacting as in a court of law. The rule of fairness and the "full right to be heard" is not a rule of excess subject to every demand of the appellants, including the calling of 48 witnesses: Addy v. Canada (Commissioner and Chairperson, Commission of Inquiry into the Deployment of Canadian Forces in Somalia), [1997] 3 F.C. 784 (T.D.). Also in Addy, Teitelbaum J. concluded that there was no undertaking, implied or otherwise, given by the Commissioners respecting the evidence which the applicant could present and the manner in which he could do so.
The issue here is the appropriate standard of review once the final report has been delivered, particularly when judicial review is sought upon the basis of alleged breach of procedural fairness. It is clear that the procedural fairness to which the applicant is entitled is the right to have a "full opportunity" to respond to any allegation against him. That right, however, is subject to the authority of the Commissioners to establish their method of proceeding. The Commissioners had first segregated the evidence into compartments related to the Pre-Deployment, In-Theatre and Post-Deployment phases, but had to change that procedure when the Government decided to shorten the time allowed to the Commission to complete the hearings and submit the final report.
Here, the record shows that the Commissioners had some evidence before them to support the conclusion they arrived at regarding the applicant. The lack of an opportunity to cross-examine some witnesses was a matter falling within the procedure established by the Commission. That some evidence was not tested by cross-examination goes to its probative value and that is a matter clearly falling within the jurisdiction of the Commissioners. The choice of procedure is beyond review by this Court, as long as the applicant was accorded procedural fairness. The procedural fairness here included the basic rights to appear and testify, which the applicant exercised, and to make submissions, which he chose not to exercise.
The standard of procedural fairness comprised the applicant's right to be represented by counsel, to receive reasonable notice of the charge of misconduct alleged against him and to have the opportunity to be heard. This is the current state of the law and the standards were met here. The power to change this view of procedural fairness, in the context of a commission of inquiry, lies with Parliament, not with the courts.
statutes and regulations judicially
considered
Federal Court Act, R.S.C., 1985, c. F-7, ss. 18 (as am. by S.C. 1990, c. 8, s. 4), 18.1 (as enacted idem, s. 5).
| Federal Court Rules, 1998, SOR/98-106. |
| Inquiries Act, R.S.C., 1985, c. I-11, ss. 5, 12, 13. |
cases judicially considered
applied:
Addy v. Canada (Commissioner and Chairperson, Commission of Inquiry into the Deployment of Canadian Forces in Somalia), [1997] 3 F.C. 784; (1997), 149 D.L.R. (4th) 118; 50 Admin. L.R. (2d) 111; 133 F.T.R. 81 (T.D.); Canada (Attorney General) v. Canada (Commissioner of the Inquiry on the Blood System), [1997] 2 F.C. 36; (1997), 142 D.L.R. (4th) 237; 207 N.R. 1 (C.A.); Canada (Attorney General) v. Canada (Commission of Inquiry on the Blood System), [1997] 3 S.C.R. 440; (1997), 151 D.L.R. (4th) 1; 48 Admin. L.R. (2d) 1; 216 N.R. 321; Boyle v. Canada (Commission of Inquiry into the Deployment of Canadian Forces in Somalia -- Létourneau Commission), [1997] F.C.J. No. 942 (T.D.) (QL); Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), [1995] 2 S.C.R. 97; (1995), 141 N.S.R. (2d) 1; 124 D.L.R. (4th) 129; 403 A.P.R. 1; 98 C.C.C. (3d) 20; 39 C.R. (4th) 141; 28 C.R.R. (2d) 1; 180 N.R. 1; Morneault v. Canada (Attorney General), [2001] 1 F.C. 30; (2000), 189 D.L.R. (4th) 96; 32 Admin. L.R. (3d) 292; 256 N.R. 85 (C.A.); revg (1998), 10 Admin. L.R. (3d) 251; 150 F.T.R. 28 (F.C.T.D.); United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316; (1993), 102 D.L.R. (4th) 402; 153 N.R. 81.
referred to:
Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 S.C.R. 1170; (1990), 75 D.L.R. (4th) 385; [1991] 2 W.W.R. 145; 2 M.P.L.R. (2d) 217; 69 Man.R. (2d) 134; 46 Admin. L.R. 161; 116 N.R. 46; Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653; (1990), 69 D.L.R. (4th) 489; [1990] 3 W.W.R. 289; 83 Sask. R. 81; 43 Admin. L.R. 157; 30 C.C.E.L. 237; 90 CLLC 14,010; 106 N.R. 17.
authors cited
Commission of Inquiry into the Deployment of Canadian Forces to Somalia. Dishonoured Legacy: The Lessons of the Somalia Affair: Report of the Commission of Inquiry into the Deployment of Canadian Forces to Somalia. Ottawa: Minister of Public Works and Government Services Canada, 1997.
APPLICATION for judicial review seeking an order quashing chapter 32 of Report of the Commission of Inquiry into the Deployment of Canadian Forces to Somalia or those portions of the Report that make adverse findings against the applicant, either directly or indirectly. Application dismissed.
appearances:
J. Bruce Carr-Harris and T. Kirk Boyd for applicant.
James D. Bissell and Catharine J. Moore for respondent.
solicitors of record:
Borden Ladner Gervais LLP, Ottawa, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order and order rendered in English by
Heneghan J.:
INTRODUCTION
[1]Brigadier-General Ernest B. Beno (the applicant) seeks judicial review pursuant to sections 18 [as am. by S.C. 1990, c. 8, s. 4] and 18.1 [as enacted idem, s. 5] of the Federal Court Act, R.S.C., 1985, c. F-7 as amended, for a declaration that the Commissioners of the Inquiry into the Somalia affair acted contrary to the principles of natural justice and procedural fairness in relation to him. The applicant seeks an order quashing chapter 32 of the Report of the Commission of Inquiry into the Deployment of Canadian Forces to Somalia entitled Dishonoured Legacy: The Lessons of the Somalia Affair or, alternatively, an order quashing those portions of the Report which make adverse findings against him, either directly or indirectly.
FACTS
(i) The Applicant
[2]The applicant joined the Canadian Armed Forces in 1962 as a private soldier. He proceeded through the ranks to become a Brigadier-General. He is now retired. From August 7, 1992 until July 8, 1994, he served as the Commander of the Special Service Force at Petawawa, Ontario where the Canadian Airborne Regiment (CAR) had been one of the units under his command before and after its deployment to Somalia. Because the CAR had been one of the units under his command during the periods being investigated by the Commission of Inquiry, he applied for and received status before the Inquiry with full rights of participation on May 24, 1995.
[3]The applicant was issued a notice pursuant to section 13 of the Inquiries Act, R.S.C., 1985, c. I-11, as amended (the Act), on September 22, 1995.
(ii) The Commission of Inquiry
[4]The Commission of Inquiry was established by the Government of Canada under Part I of the Act as amended, by Order in Council P.C. 1995-442 dated March 20, 1995. The mandate of the Commission was broadly stated, as follows:
. . . to inquire into and report on the Chain of Command System, leadership within the chain of command, discipline, operations, actions and decisions of the Canadian Forces and the actions and decisions of the Department of National Defence in respect of the Canadian Forces deployment to Somalia. . . .
[5]Specifically, the Commission was authorized to investigate the events in Somalia surrounding the torture and murder of Shidane Arone, and to investigate the institutional response to the events which occurred in Somalia.
[6]Under its terms of reference, the Commission was specifically directed to inquire into matters relating to the Pre-Deployment, In-Theatre and Post-Deployment phases of the Somalia mission. The Commission was authorized to adopt procedures and methods as it considered expedient for the proper conduct of the Inquiry and to submit a final report in both official languages to the Governor in Council no later than December 22, 1995.
[7]By further Order in Council P.C. 1995-528 dated March 29, 1995, the Commission was entitled "Commission of Inquiry into the Deployment of Canadian Forces to Somalia".
[8]The deadline for reporting was extended to June 28, 1996 by Order in Council P.C. 1995-1273. A further extension was granted by P.C. 1996-959 dated June 20, 1996, extending the reporting date to March 31, 1997.
[9]On November 27, 1996, the Commissioners wrote to the Deputy Clerk of the Privy Council requesting a further extension of the reporting deadline. In this letter, the Commissioners outlined three scenarios for the completion of their evidentiary hearings and report; the three possibilities were as follows:
(1) a completion date of September to December 1998;
(2) a completion date of April to June 1998;
(3) a completion date of December 31, 1997.
[10]In their letter, the Commissioners identified planning considerations, matters covered and outstanding issues. At the same time, the Commissioners addressed the question of evidence relating to the recipients of section 13 notices which had been issued pursuant to the Act. The Commissioners advised that the minimum extension required was until the end of December 1997.
[11]The Deputy Clerk of the Privy Council replied to the Chairman of the Commission by letter dated January 10, 1997. The Government decided to grant a third and final extension until June 30, 1997 for the completion and delivery of the report. At the same time, the Government requested that the Commission complete its public hearings on or before March 31, 1997. This decision of the Government was confirmed and formalized by a further Order in Council P.C. 1997-174 dated February 4, 1997.
[12]A further amendment to the original Order in Council was issued on April 3, 1997, that is P.C. 1997-456, as follows:
z.1 to submit a final report in both official languages to the Governor in Council on or before June 30, 1997, addressing the issues referred to in paragraph (a) to (i), and notwithstanding any other provision of this commission, the Commissioners shall have the discretion to determine whether, and the extent to which, they will inquire and report on the issues referred to in paragraph (j) to (s) within the time frame provided. . . .
[13]The references to paragraphs (a) to (i) refer to the mandate of the Commission set out in Order in Council P.C. 1995-442 and relate specifically to the Pre-Deployment phase of the Canadian Forces deployment to Somalia, that is prior to January 10, 1993. The references to (j) to (r) refer to the In-Theatre phase, that is January 10, 1993 to June 10, 1993. Paragraph (s) relates solely to the Post-Deployment phase, that is from June 11, 1993 to November 28, 1994.
[14]Pursuant to the original Order in Council P.C. 1995-442, the Commission established rules of practice and procedure to govern its conduct. Supplementary rules of practice were adopted to establish the procedures during the phase of the hearing directed at recipients of section 13 notices. Guidelines for written and oral submissions to be made by parties and the section 13 notice recipients were also published by the Commission.
[15]Under the rules, parties with full standing, including the section 13 notice recipients, had the right to examine and cross-examine witnesses, to apply to have witnesses called if not called by Commission counsel, and to make oral and written submissions. They also had the right to receive copies of all documents entered into evidence and to introduce their own documentary evidence.
[16]The applicant received a section 13 notice pursuant to the Act, on September 22, 1995. He testified before the Commission from January 29, 1996 through January 31, 1996, during the Pre-Deployment phase of the Inquiry. His evidence at that time was limited to matters relating to the Pre-Deployment phase, in accordance with the procedure adopted by the Commission to limit evidence to the specific phase being examined; witnesses called during the Pre-Deployment phase were not permitted to answer questions related to the In-Theatre or Post-Deployment phases and the evidence relating to those latter phases was to be reserved until such time as the Commission reached those stages. In light of this procedure adopted by the Commission, witnesses were not examined at the time of their initial testimony as to their knowledge of events relating to later phases.
[17]On January 17, 1997, counsel for the applicant wrote Commission counsel to express concern about the impact on the applicant of the decision by the Government to shorten the time available to the Commission for completion of its evidentiary hearings and report. This letter followed the announcement of the new reporting date of June 30, 1997.
[18]The letter outlined concerns about potential unfairness in relation to the applicant, in particular the loss of an opportunity to cross-examine a number of individuals about their motives and roles in the creation of certain documentation which focused on the applicant's role in the Pre-Deployment phase.
[19]Specifically, the letter of January 17, 1997 asked for the Commission's position with respect to the section 13 notice issued to the applicant. The letter stated, in part, as follows:
Accordingly, please advise immediately,
| (a) when you intend to review the issue of B.Gen. Beno's Section 13 notice, and whether you intend to engage us in those deliberations; |
| (b) what witnesses you intend to call and what issues you intend to address in the remaining hearing time; |
| (c) whether there will be an opportunity for parties with standing to call evidence on their own behalf. You will recall that I invited the Commission in February of 1996 to call Gen. Crabbe on pre-deployment issues and I did not receive any response; and, |
| (d) when you intend to provide us with details as to what, if any, specific adverse findings the Commissioners are considering with respect to our client. [Applicant's application record, p. 98.] |
[20]Counsel for the Commission replied to this letter by correspondence dated January 24, 1997. This letter said that the section 13 notices for the Pre-Deployment phase were under review and that the applicant remained subject to allegations concerning that phase.
[21]The response on behalf of the applicant is set out in a letter dated January 30, 1997. Again, counsel asked what the Commission intended to do with respect to the section 13 notice issued to his client. Counsel also specifically inquired about the identity of further witnesses to be called by the Commission including Lieutenant-Colonel Mathieu and Colonel Labbé. It is clear from this letter that counsel for the applicant wanted to know who was going to testify in the time remaining and that this information would influence the actions of his client.
[22]By letter dated January 31, 1997 Ms. Barbara McIsaac, Q.C., one of the lawyers appointed to assist the Commission, replied and advised that the section 13 notice issued to the applicant would not be withdrawn and that further correspondence would be forthcoming outlining the procedures which the Commission intended to follow in completing the Inquiry.
[23]On the same date, that is January 31, 1997, Mr. Ian Stouffer, another of the Commission counsel, wrote to counsel for the applicant providing further particulars with respect to the section 13 notice dated September 22, 1995. Eight different matters are addressed, as follows:
. . . consider allegations that you exercised poor and inappropriate leadership in the pre-deployment phase of the Somalia mission by failing:
| 1. in declaring the Canadian Airborne Regiment and the Canadian Airborne Regiment Battle Group operationally ready when you knew, or ought to have known, that such was not the case. |
| 2. to notify your superiors of the nature and extent of the leadership and discipline problems of which you were aware, or ought to have been aware, within the Canadian Airborne Regiment prior to its deployment. |
| 3. to make provisions for the troops to be trained or tested on the newly-developed Rules of Engagement. |
| 4. to provide adequate guidance to both Lieutenant-Colonel Morneault and Lieutenant-Colonel Mathieu as to how to prevent or resolve the discipline problems within the Regiment. |
| 5. to ensure that Lieutenant-Colonel Mathieu resolved the disciplinary and leadership problems within the Regiment prior to its deployment. |
| 6. to advise Major-General Mackenzie of the following: |
| a) your concerns about the state of discipline and the questionable attitudes of members of the Regiment as evidenced by: |
| i) the fact that weapons and ammunition had been seized during a search conducted under Lieutenant-Colonel Morneault's command; |
| ii) the fact that 32 Rebel flags had been seized and the flag was regularly displayed on Base Petawawa; |
| iii) the fact that there were alcohol problems in the Regiment in the weeks and months prior to deployment; |
| iv) the fact that some members of the Regiment wore racist and extremist tattoos; |
| v) the fact that you had a list of persons you thought should be left behind when the Regiment deployed; |
| b) the occurrence of the three October 1992 incidents. |
| 7. to ensure that all Special Service Force members of the Canadian Joint Forces Somalia were adequately trained and tested in the Law of War or the Law of Armed Conflict including the four 1949 Geneva Conventions on the protection of victims of armed conflict. |
| 8. in your duty as a Commander as defined in Queen's Regulations and Orders, s. 4.20 and in military custom. [Applicant's application record, pp. 562-563.] |
[24]The letter concluded with the advice that the applicant could make written submissions by February 17, 1997 and that a further opportunity to make a concluding oral statement would be provided at the conclusion of the Commission's hearings.
[25]Counsel for the applicant replied to this communication by letter dated February 4, 1997. Counsel sought further details of the allegations set out in the January 31st letter and advised of an inability to meet the February 17, 1997 deadline for submissions, pointing out that this deadline was apparently premature since the evidentiary portion of the hearings would not be completed by that date.
[26]Commission counsel responded by letter dated February 11, 1997. While that letter addressed certain procedural matters, including a proposed meeting with counsel for all parties on February 20 , 1997 to establish a plan for the conduct of the March hearings, it also purported to address the specific points raised in the February 4 letter written on behalf of the applicant. An extension of time for filing written submissions by the applicant was granted until April 4, 1997.
[27]On February 17, 1997, counsel for the applicant served upon the Commission of Inquiry a notice of motion to be heard by the Commission. The notice of motion sought an order in the following terms:
| a) that all further proceedings pursuant to Minute [sic] of the Committee of the Privy Council, dated March 20, 1995, being P.C. 1995-442, (the Somalia Inquiry), be immediately terminated without the completion and publication of any Reports; |
| b) or alternatively, that the section 13 Notice(s) issued to the Applicant be withdrawn and no adverse findings or findings of misconduct be made against the Applicant, directly or indirectly, by the Commissioners in any Report issued by them. [Applicant's application record, p. 33.] |
[28]The letter of February 17, 1997 also contained a list of witnesses and evidence sought to be called by the applicant. On February 25, 1997, counsel wrote to the Commission for the purpose of adding further witnesses to this list relative to the section 13 notice issued against the applicant.
[29]Mr. Stouffer of Commission counsel, by letter dated February 28, 1997, responded to this information concerning the proposed evidence sought to be called by the applicant. He noted that the applicant wished to call 48 witnesses and advised that the Commission was not prepared to hear the evidence from 26 of these witnesses, including Major-General deFaye. He advised that eight other witnesses, including Major-General Reay, would not be recalled because these witnesses had previously been called to testify. He pointed out that the applicant had been represented by counsel during their evidence and had the right to cross-examine those witnesses at that time. Further, he said that insufficient justification had been provided for calling five other witnesses, that is Major-General Crabbe, Colonel Archibald, General Boyle, Colonel O'Brien and Admiral Anderson.
[30]Mr. Stouffer also advised that the supplementary rules for this phase of the hearings would be provided shortly and that the Commissioners were prepared to receive oral evidence from the applicant on matters relating to the section 13 notice and not merely a repetition of his previous evidence.
[31]By letter dated March 3, 1997, Ms. McIsaac, Q.C. provided a list of witnesses from whom the Commissioners were prepared to hear oral evidence, as well as a tentative schedule for delivery of that evidence. The letter also referred to supplementary rules of proceeding. According to the schedule forming part of this letter, the applicant was scheduled to testify on April 1.
[32]On March 3, 1997, counsel responded to Mr. Stouffer's letter of February 28 which set out the position of the Commission concerning the witnesses sought to be called by the applicant. Counsel advised that the position of the Commission was a breach of its obligation to provide fundamental justice to the applicant.
[33]On March 6, 1997, counsel for the applicant wrote again to Commission counsel, Ms. McIsaac, Q.C. and Mr. Stouffer. He advised that the applicant did not intend to participate in the section 13 evidentiary hearing and would seek relief in the Federal Court.
[34]On March 11, 1997 Ms. McIsaac, Q.C. wrote again to counsel for the applicant, acknowledging the letter of March 6 and inquiring whether any oral submissions would be made on behalf of the applicant during the week of April 7, 1997. Counsel replied on behalf of the applicant on March 17, confirming that no oral submissions would be made to the Commission.
[35]By further letter dated March 20, 1997, senior counsel Mr. Simon Noël, Q.C. wrote to counsel for the applicant, requesting any written submissions in support of the February 17, 1997 notice of motion, by March 24, 1997. Counsel for the applicant advised, by letter dated March 20, 1997 that no further submissions on the motion would be made to the Commission.
[36]The order of the Commission dated March 27, 1997, dismissed the motion. This order related to the decision of the Commission to limit the number of witnesses to be called in relation to the section 13 notices. The Commissioners relied on their reasons delivered in response to a similar motion brought by Lieutenant-General Reay.
[37]The applicant and others sought judicial review of this order in the Federal Court. That application was dismissed by Justice Teitelbaum who declined to order the withdrawal of the section 13 notice but decided to strike out objectionable portions, in some cases [Addy v. Canada (Commissioner and Chairperson, Commssion of Inquiry into the Deployment of Canadian Forces in Somalia), [1997] 3 F.C. 784 (T.D.)]. No portions of the section 13 notice in relation to the applicant were stricken out.
[38]As well, the application before Justice Teitelbaum sought an order of prohibition, to halt the Commissioners issuing their final report or to withdraw the section 13 notices. Justice Teitelbaum expressed the view that the Commissioners would not ignore the procedural rights of the affected parties, including the applicant, in making their findings of fact. He said as follows, at pages 886-887:
Thus, the Court cannot presume that the Commission will make findings of fact on the alleged inflammatory and reprehensible comments about "champagne" and "flipflops" without the Commission paying due heed to the effects of the truncation and the procedural rights of the applicants.
[39]Justice Teitelbaum delivered his order and reasons for order on June 17, 1997. Pursuant to the final amendment of Order in Council P.C. 1995-442, the Commissioners were required to complete their investigatory and reporting functions by June 30, 1997. On or about July 2, 1997, the Commissioners delivered the Somalia Report to the Governor in Council.
[40]The Report, and in particular chapter 32, made very damaging findings in relation to the applicant, including the finding that there was a serious and considerable failure on his part in declaring the CAR and the CAR Battle Group operationally ready when he knew or ought to have known that such was not the case. The Commissioners found that he failed to advise his superiors about the nature and extent of leadership and disciplinary problems of which he was aware, and that he failed to discharge his duty to ensure that the members of the CAR fully understood their rules of engagement and were adequately trained and practised in those rules before deployment.
[41]The Commissioners also concluded that the applicant had failed in his duty as a commander and made the following statements:
Given our findings above concerning the leadership failures of BGen Beno, and in view of the importance of control and supervision within the chain of command, we conclude that BGen Beno failed as a commander. [Applicant's application record, p. 417.]
[42]The present application was commenced as an originating notice of motion on August 5, 1997. Upon the introduction of the Federal Court Rules, 1998, SOR/98-106, the matter proceeded by way of application for judicial review. Pursuant to an order of the Court made on September 3, 1997, the record of the applicant's application for judicial review in file number T-408-97 forms part of the record in support of the present application. That record includes an affidavit of the applicant sworn on March 10, 1997, together with the exhibits referred to in that affidavit, the affidavit of Barbara McIsaac sworn on April 9, 1997 and attached exhibits. The transcripts from the cross-examination of Ms. McIsaac also formed part of that record.
[43]As noted above, Justice Teitelbaum dismissed that application on June 17, 1997. He concluded, among other things, at page 820, that the Commission did not breach its duty of fairness to the applicant, that the Commission's conduct did not give the applicant a legitimate expectation qualifying the duty of fairness, and that the Commission was free to "make findings of misconduct for `Pre-Deployment' events, irrespective of what happened `In-Theatre'".
[44]The Report issued by the Commissioners included testimony given by Lieutenant-General Reay against the applicant, despite the fact that the applicant did not receive the opportunity to cross-examine Lieutenant-General Reay on his evidence. That cross-examination was supposed to be deferred to the Post-Deployment phase. Due to the truncation of the Inquiry and the Commission's refusal to allow the applicant to recall this witness, Lieutenant-General Reay was never cross-examined.
[45]The applicant submits that in these circumstances, he was denied his fundamental right to be fully heard with respect to the allegations against him.
APPLICANT'S SUBMISSIONS
[46]The applicant now seeks declaratory relief and relies on the jurisdiction of this Court to set aside a decision by a federal board, commission or tribunal or to grant declaratory relief, pursuant to section 18 of the Federal Court Act.
[47]He distinguishes between "declaratory relief" and the "prohibitory relief" sought in earlier applications. In Canada (Attorney General) v. Canada (Commission of Inquiry on the Blood System), [1997] 3 S.C.R. 440 (Commission of Inquiry on the Blood System), at pages 471-472, the Supreme Court of Canada addressed the reluctance of the courts to intervene to prevent the making of potentially adverse findings.
[48]The applicant argues that since the Report, containing a number of damaging findings concerning his conduct, has been publicly released, the strict standards set out in Commission of Inquiry on the Blood System should no longer be followed and relief should be granted where it has been shown that the Commission breached its duty of fairness, in accordance with section 18.1 of the Federal Court Act. Such declaration would be extremely valuable to the applicant by indicating to the public at large and to his colleagues that in making their findings which were published in the final Report, that the Commissioners violated the principles of natural justice and fairness.
[49]The applicant says that the conduct of this Inquiry assumed a judicial form, including the power to subpoena witnesses and documents under section 5 of the Act. Although he received a warning pursuant to section 13 of the Act that provided the Commission with the right to discredit him in its final Report, he was required to testify. He says that this coercive power, under the circumstances, imports a high standard of fairness since it affects individual rights.
[50]The third argument raised by the applicant is that since he was not provided the full opportunity to confront all the allegations contained in his section 13 notice, the findings of the Commission were based on only a partial or distorted picture of the events.
[51]Specifically, the applicant argues that the Commission refused to allow him to recall witnesses despite specific assurances to the effect that he would have such right. He says that he was denied this right on the ground that the desired witnesses had already testified before the Commission and that he had already received an opportunity to cross-examine. However, throughout the Inquiry, the Commissioners had limited the questioning of witnesses to the events which occurred during the phase in which they were testifying. The Commissioners expressly and impliedly undertook to recall these witnesses to permit the applicant to examine them on their involvement in the preparation of documents and reports which made findings that, in the applicant's opinion, were inaccurate and misleading. Following the truncation of the Inquiry, the Commissioners chose to abandon their undertakings and assurances made in the interest of fairness.
[52]Furthermore, the applicant argues that the Commissioners restricted his right to call certain witnesses to respond to the fresh allegations contained in the second.
[53]The applicant addresses his submissions to the following issues:
(1) Whether the Commission breached the duty of procedural fairness owed to him by denying him the opportunity to examine and cross-examine the 48 witnesses whom the applicant sought to call;
(2) Whether the applicant had a legitimate expectation that he would be able to cross-examine his witnesses in the second and third phases of the Inquiry;
(3) Whether chapter 32 of the Report was based on credible evidence.
[54]The applicant argues that the Commission refused him the opportunity to recall a number of witnesses on the basis that they had already testified and that the applicant had had an opportunity to cross-examine these witnesses, at that time.
[55]Furthermore, the Commissioners restricted the applicant's right to call certain witnesses to respond to the additional particulars added to his section 13 notice in January 1997, despite the fact that these so-called "particulars" were introduced nearly a full year after the evidence into the Pre-Deployment phase had ended. Consequently, not only did the Commissioners fail to provide the applicant with a full opportunity to be heard with respect to these new allegations, they failed to provide him with any opportunity to address them.
[56]Second, the applicant argues that he was denied a fundamental right to respond to the evidence against him presented by Lieutenant-General Reay, as a consequence of the denial by the Commission of his request to recall that witness. Because the Commissioners failed to honour their undertaking to recall Lieutenant-General Reay, the applicant was denied his opportunity to cross-examine that witness.
[57]The applicant says that during the Pre-Deployment phase, Lieutenant-General Reay testified about his failure to ensure the operational readiness of the unit. Because Lieutenant-General Reay conducted his examination of that question in the Post-Deployment period, he spoke only in general terms with respect to the applicant's alleged shortcomings in his Pre-Deployment testimony, stating that he would be better prepared to address that issue in the Post-Deployment phase. Lieutenant-General Reay was not recalled and there was no evidence taken concerning the Post-Deployment phase.
[58]The applicant argues that this evidence reflects a revisionist perspective, reached with the benefit of hindsight and that Lieutenant-General Reay was expressing an opinion formed in the Post-Deployment time frame of 1994 about events that occurred in the Pre-Deployment stage. As well, the applicant submits that this negative opinion and conclusion were influenced by the findings of an internal report, that is the deFaye report. That report made findings which led Lieutenant-General Reay to take corrective action, including a reprimand of the applicant. Subsequently, that reprimand was quashed by the Chief of the Defence Staff.
[59]In the final Report, the Commissioners quoted directly from the viva voce evidence given by Lieutenant-General Reay during the Pre-Deployment phase, to the effect that the applicant "ought to have done more" to ensure that the discipline and leadership problems within the unit were resolved prior to its deployment.
[60]This evidence was not tested by the applicant. It is clear that the Commissioners relied on this untested evidence in making their findings against the applicant. The applicant argues that such reliance constitutes a breach of the duty of procedural fairness owed to him.
[61]Finally, the applicant submits that the Commission's refusal to call select witnesses to testify concerning the events which took place in Somalia was based on their position that the evidence did not relate to the allegations contained in the section 13 notice issued to the applicant. The applicant argues that in refusing to hear witnesses on the In-Theatre events, the Commissioners were provided only with a partial or distorted picture of the events, upon which the findings of misconduct against him were made.
[62]Furthermore, the applicant argues that several reports which formed part of the Commission record and which were relied upon by the Commissioners as a basis for the findings contained in their final report, were prepared in the Post-Deployment phase. He says that certain reports, including the deFaye report, the after-action report and briefing notes prepared by Major-General Boyle, contain a number of findings which are inaccurate or misleading.
[63]The applicant argues that these reports show an attempt by senior military staff to deflect criticism for the events in Somalia to persons working at the operational level, including the applicant.
[64]The applicant argues that since he was denied the opportunity of cross-examining the witnesses who were involved in the preparation of these reports, or to introduce evidence to contradict the findings contained in these reports, that he was once again denied his fundamental right to be fully heard in response to the allegations against him.
[65]The final issue raised by the applicant relates to the doctrine of legitimate expectations.
[66]He argues that the Commission failed to honour his legitimate expectations by abandoning the several undertakings made to him during the course of the Inquiry, concerning the procedures to be followed, specifically the limitation of questions to the three specific phases outlined by the Commissioners upon the commencement of the public hearings. The applicant relied on the assurances that evidence would be called concerning the In-Theatre and Post-Deployment phases of the Inquiry, and that he would have a future opportunity to cross-examine witnesses about those events, in due course. As a result, counsel for the applicant chose to forego those areas of cross-examination until that evidence was called.
RESPONDENT'S SUBMISSIONS
[67]The respondent raises three issues:
(1) whether the applicant can allege that the Commission breached the duty of fairness owed to him in view of his own conduct in withdrawing from its hearing;
(2) whether, in light of all the circumstances, the Commission Report is valid because the duty of fairness owed to the applicant was met;
(3) whether the doctrine of legitimate expectation is applicable to the present case considering that the applicant has already received procedural fairness.
[68]The respondent argues that the applicant voluntarily withdrew from the proceedings before the Commission. He was entitled to file written submissions, to call additional witnesses although fewer than 48, to file affidavit evidence and to make oral submissions to address the specific matters raised in his section 13 notice. He chose not to avail himself of any of these processes.
[69]The respondent says if there is any omission in the evidentiary record of the Commission concerning the applicant, it is largely due to his failure to use the opportunity to lead evidence and to make final submissions. In this regard, the respondent relies on the comments of the Federal Court of Appeal in Canada (Attorney General) v. Canada (Commissioner of the Inquiry on the Blood System), [1997] 2 F.C. 36 (Krever) where the Court said at pages 74-75: "If the appellants chose not to respond, simply on the assumption that this Court would make a decision favourable to them, they have no one to blame but themselves."
[70]The respondent further submits that the Court has a discretion whether to grant relief by way of judicial review and that courts have frequently exercised their discretion to refuse a prerogative remedy where an applicant's conduct disentitles him to such remedy. The respondent says that the applicant seeks a prerogative remedy after electing to forego his participatory rights. In these circumstances, he should not be allowed to claim that he was denied a fair opportunity to be heard before the Commission. This point was emphasized by Justice Teitelbaum in his reasons in Addy, supra, at page 872.
[71]Next, the respondent addresses the issue of whether the Commissioners discharged the duty of fairness owed to the applicant.
[72]The respondent argues that the function of the Commission is primarily one of fact-finding. In Commission of Inquiry on the Blood System the Supreme Court of Canada confirmed that a commission of inquiry is not appointed to adjudicate upon a dispute between parties or to determine rights and obligations but rather to investigate and to report to the government which appointed it. The Court clearly states that a commission of inquiry is neither a criminal trial nor a civil trial and that its findings are not findings of criminal nor civil liability. The inquisitorial nature of the Commission's mandate is not altered by the fact that public hearings were held and section 13 notices were issued.
[73]The mere issuance of section 13 notices did not convert the investigative process of the Commission into a dispute between parties and did not require the determination of rights and obligations. A section 13 notice cannot be equated with a formal charge in a disciplinary process nor does the holder of a section 13 notice stand in the same position as an accused in a criminal offence proceeding.
[74]The respondent argues that the Commission is the master of its own procedure. The respondent says that the Commission not only granted the applicant the rights to which he was legally entitled but also provided procedural safeguards well beyond those which the Commission was bound to observe by law. The respondent submits that this Court should not interfere with the choice of procedures the Commission adopted, in light of the high degree of deference owed to its choice of procedure.
[75]Again the respondent relies on the decision of the Supreme Court of Canada in Commission of Inquiry on the Blood System and submits that the Commission had a broad discretion to determine the manner in which the Inquiry was conducted. In addition to the common law principles, the terms of reference of this Commission granted it broad powers to control and direct its procedure including its choice to conduct the hearing in three separate stages.
[76]The respondent argues that the procedural rights accorded the applicant during the evidentiary phase of the Inquiry were granted in the exercise of the Commission's discretion over its procedure, including its discretion to limit the number of witnesses thought to be called by the applicant.
[77]The third point made by the respondent relative to its second issue is that procedural fairness is a flexible principle, the content of which is to be decided in the specific context of each case. In this regard, the respondent relies on the decision in Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, at pages 682-684.
[78]In the present case, the procedural rights of the participants in the Inquiry were subject to sections 12 and 13 of the Act. In Krever, the Federal Court of Appeal analysed the requirements of that Act relative to the principle of fairness and the responsibilities of a public inquiry to witnesses or other recipients of a section 13 notice. The Court said at page 72 as follows:
It is common ground that while a commissioner has all necessary latitude, the procedure he establishes must nonetheless respect the rules of procedural fairness, including those set out in sections 12 and 13 of the Act.
[79]The respondent submits that, on the basis of the analysis of the Federal Court of Appeal in Krever, the specific duties owed to the applicant were as follows:
(1) that no adverse findings will be made without reasonable notice with respect to content and time;
(2) that the applicant must have a good idea of the misconduct that could have been imputed to him;
(3) that the applicant be given an adequate opportunity to be heard.
[80]The respondent argues that each of these elements was properly observed by the Commission. The Court can conclude that the applicant had sufficient or reasonable notice in light of various factors, including the fact that he was provided with a section 13 notice prior to commencement of the hearings and that he had full rights of participation, in person or by counsel, throughout the hearing.
[81]Furthermore, the applicant testified at length before the Commission and had the opportunity to respond to questions from Commission counsel as well as others, including his own counsel. He was provided with further particulars at the potential findings of misconduct by letter from the Commission dated January 31, 1997 and Commission counsel responded to specific questions from the applicant's counsel in the letter dated February 11, 1997. Counsel for the applicant participated in the meeting on February 20, 1997 concerning the conduct of the section 13 hearing.
[82]The respondent, however, argues that the applicant failed to take the next step, that is to present his final submissions to the Commission concerning the allegations against him. That decision was taken by the applicant and he must live with its consequences.
[83]Concerning the third issue raised by the respondent, that is concerning the applicability of the doctrine of legitimate expectations, the respondent argues that this doctrine is limited to those situations where no procedural obligations otherwise exist. In this regard, the respondent relies on the decision on Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 S.C.R. 1170, at page 1204.
[84]The respondent further submits that this issue was considered by Justice Teitelbaum who concluded that the doctrine did not apply because section 13 of the Act provided the applicant with the right to make submissions. The respondent argues that Justice Teitelbaum considered whether the Commissioners had made an undertaking, implicit or explicit, that the applicant would have the right to further cross-examination of witnesses and concluded that such undertaking did not exist.
[85]In all these circumstances, the respondent argues that the applicant was granted procedural fairness by the Commission.
[86]In conclusion and in general, the respondent argues that all the issues raised by the applicant in the present application were considered by Justice Teitelbaum, and his decision should be determinative in the disposition of the present application.
ANALYSIS
[87]As noted above, the applicant seeks declaratory relief pursuant to sections 18 and 18.1 of the Federal Court Act. The broad basis for his claim is that the Commissioners made damaging findings of credibility against him in the absence of reliable evidence. The evidence was deficient because the Commissioners deprived him of the opportunity to call certain witnesses whom he deemed necessary to exercise his full opportunity to be heard. His right to procedural fairness was also negatively impacted by the refusal of the Commission to allow him to recall and cross-examine certain witnesses.
[88]The applicant says that the loss of opportunity to examine and cross-examine witnesses was a direct breach of an undertaking from the Commissioners at the beginning of the Inquiry when the method of proceeding was established. The Commissioners had initially decided to hear the evidence concerning the three phases under investigation, in separate components. Evidence was to be limited to specific time frames and forward-looking examination of witnesses who might be able to testify about later events was not allowed.
[89]The applicant says that by proceeding otherwise, that is after the Government shortened the time available for completion of the investigatory stage and submission of the Report, the Commissioners breached both the duty of procedural fairness owed to him and their own obligations to make findings which were reasonably based on the evidence.
[90]Essentially, the applicant is challenging the procedure adopted by the Commissioners. This challenge must be assessed in relation to the type of hearing in issue, that is the Commission of Inquiry.
[91]The Commission of Inquiry was constituted by the Government of Canada pursuant to the Act. The distinctive nature of a commission of inquiry was discussed by the Supreme Court of Canada in Commission of Inquiry on the Blood System where Justice Cory said at page 460 as follows:
A commission of inquiry is neither a criminal trial nor a civil action for the determination of liability. It cannot establish either criminal culpability or civil responsibility for damages. Rather, an inquiry is an investigation into an issue, event or series of events. The findings of a commissioner relating to that investigation are simply findings of fact and statements of opinion reached by the commissioner at the end of the inquiry. They are unconnected to normal legal criteria. They are based upon and flow from a procedure which is not bound by the evidentiary or procedural rules of a courtroom. There are no legal consequences attached to the determinations of a commissioner. They are not enforceable and do not bind courts considering the same subject matter.
[92]In Krever, at page 72, Justice Décary commented on the requirements of procedural fairness in the context of a commission of inquiry as follows:
The Inquiries Act does not impose any code of procedure. . . . It is common ground that while a commis-sioner has all necessary latitude, the procedure he establishes must nonetheless respect the rules of procedural fairness, including those set out in sections 12 and 13 of the Act. The concept of procedural fairness is a shifting one; it changes depending on the type of inquiry and varies with the mandate of the commissioner and the nature of the rights that the inquiry might affect.
[93]The procedural rights accorded to the holder of a section 13 notice are grounded in sections 12 and 13 of the Act. These sections provide as follows:
12. The commissioners may allow any person whose conduct is being investigated under this Act, and shall allow any person against whom any charge is made in the course of an investigation, to be represented by counsel.
13. No report shall be made against any person until reasonable notice has been given to the person of the charge of misconduct alleged against him and the person has been allowed full opportunity to be heard in person or by counsel.
[94]The applicant had received a section 13 notice on September 22, 1995. Further particulars in respect of that notice were provided in January 1997. He was aware, from an early date, that his actions in relation to the Somalia mission were open to review and criticism. He testified in January 1996 and his evidence was limited to the Pre-Deployment phase. In accordance with the procedure adopted by the Commissioners at the commencement of the Inquiry, his evidence was limited to that phase and he was not permitted to testify concerning later phases.
[95]The duty of procedural fairness arising from sections 12 and 13 of the Act was considered by Justice Dubé, in the context of the Somalia Inquiry, in Boyle v. Canada (Commission of Inquiry into the Deployment of Canadian Forces in Somalia--Létourneau Commission), [1997] F.C.J. No. 942 (T.D.) (QL), at paragraph 21 where he said as follows:
Thus, the duty to be fair, in the circumstances of an inquiry, is not as exacting as in a court of law. The procedural rights to which an individual is entitled in an inquiry are to be found under sections 12 and 13 of the Inquiries Act. On that score, Mr. Justice Décary of the Court of Appeal, said as follows in the above Krever decision, at p. 263:
| Section 13 requires "reasonable notice" ("préavis suffisant" in the French version). The words "reasonable" and "suffisant" include a content element and a time element. A person who receives a notice must have a good idea of the misconduct that is imputed to him or her and must have sufficient time, before the report is made, to prepare and present an adequate response. |
| The content of the notice may vary depending on when it is given: a notice given before the hearings commence will likely be less detailed than one given after the hearings have concluded. |
[96]It appears that the extent of the duty of procedural fairness owed to the applicant, as the recipient of a section 13 notice, was the "full opportunity" to respond to the allegations set out in that notice, as particularized in January 1997. His ability to make his case was subject, however, to the procedure adopted by the Commissioners. That issue was addressed by Justice Teitelbaum in Addy, supra, where he said at pages 869-870 as follows:
Another element dictating restraint is the right and ability of the Commission to serve as "master of its own procedure" (Knight, supra, at page 685). As long as the Commission respected the rules of fairness, it could devise as it saw fit, the hearing schedule and the relevancy criteria for the anticipated witnesses. The rule of fairness and the "full right to be heard" is not a rule of excess subject to every demand of the applicants, including in the case of BGen Beno, the calling of 48 witnesses. As the Commission's decision dated March 27, 1996 notes rather perceptively:
| Taken cumulatively, the total number of witness requests was approximately one hundred and four (104) witnesses. (There were some overlapping requests, making the actual number of individuals named somewhat smaller than the number of requests). This number compares with the one hundred and twenty six (126) witnesses heard over the entire life of the Commission of Inquiry. It was therefore obvious to the Commissioners, without a more persuasive justification, that a great many of these requests could not be accommodated. Beyond this, however, the Commissioners had requested that the parties and affected individuals justify their requests in terms of necessity of calling the prospective witnesses. Many of the requests were accompanied by little or no justification, or by an insufficient rationale. These unjustified requests were refused. |
[97]The facts upon which the applicant relies in making his submissions on the breach of procedural fairness have been reviewed and established by Justice Teitelbaum in Addy, supra. In particular, I note that Justice Teitelbaum concluded that there was no undertaking, implied or otherwise, given by the Commissioners respecting the evidence which the applicant could present and the manner in which he could do so. In this regard, Justice Teitelbaum reviewed the evidence and concluded, at page 827:
There was in fact no explicit or implied binding undertaking that no findings of misconduct under section 13 notices would be made against BGen Beno until all of the evidence, in all three phases, had been heard. The assurance, such as it was, related primarily to the issue of how BGen Beno's credibility was to be assessed against the backdrop of all of the evidence, and not a single line of questioning.
[98]The issue of reliance upon the doctrine of legitimate expectations was also addressed and rejected by Justice Teitelbaum in Addy, supra, page 828. It is neither necessary nor appropriate for this Court to revisit that issue.
[99]The sole difference between the matters addressed in Addy, supra and the present case is that the former dealt with an attempt to prohibit the continued proceedings of the Commission, including the release of the final Report, and the present seeks to quash the portion of the Report which affects the applicant.
[100]The issue here is the appropriate standard of review once the final Report has been delivered, particularly when judicial review is sought upon the basis of alleged breach of procedural fairness.
[101]It is clear that the procedural fairness to which the applicant is entitled is the right to have a "full opportunity" to respond to any allegation against him. That right, however, is subject to the authority of the Commissioners to establish their method of proceeding.
[102]In this case, the Commissioners adopted one means of proceeding, that is by segregating the evidence into compartments related to each of the phases of activity under investigation, that is the Pre-Deployment, In-theatre and Post-Deployment phases. They changed that procedure, following the decision by the Government on January 10, 1997, that the investigatory and hearing stages be completed by the end of March 1997 and the final Report be submitted by June 30, 1997.
[103]The Commissioners altered their course in response to the decision of the Government.
[104]While Justice Teitelbaum referred to this decision as "unprecedented" on the part of the Government, the fact remains that it is the procedure of the Commissioners, and not the decision of the Government, which is the subject of this application. The decision of the Government is beyond review except in the court of public opinion.
[105]A commission of inquiry is a tool available to a government for the conduct of investigation into a matter of public importance. This role of a commission of inquiry was reviewed by the Supreme Court of Canada in Phillips v. Nova Scotia (Commission of Inquiry Into the Westray Mines Tragedy), [1995] 2 S.C.R. 97 where Mr. Justice Cory wrote at pages 137-138:
Commissions of inquiry have a long history in Canada. This Court has already noted (Starr v. Houlden, supra, at pp. 1410-11) the significant role that they have played in our country, and the diverse functions which they serve. As ad hoc bodies, commissions of inquiry are free of many of the institutional impediments which at times constrain the operation of the various branches of government. They are created as needed, although it is an unfortunate reality that their establishment is often prompted by tragedies such as industrial disasters, plane crashes, unexplained infant deaths, allegations of widespread child sexual abuse, or grave miscarriages of justice.
At least three major studies on the topic have stressed the utility of public inquiries and recommended their retention: Law Reform Commission of Canada, Working Paper 17, Administrative Law: Commissions of Inquiry (1977); Ontario Law Reform Commission, Report on Public Inquiries (1992); and Alberta Law Reform Institute, Report No. 62, Proposals for the Reform of the Public Inquiries Act (1992). They have identified many benefits flowing from commissions of inquiry. Although the particular advantages of any given inquiry will depend upon the circumstances in which it is created and the powers it is given, it may be helpful to review some of the most common functions of commissions of inquiry.
One of the primary functions of public inquiries is fact-finding. They are often convened, in the wake of public shock, horror, disillusionment, or scepticism, in order to uncover "the truth". Inquiries are, like the judiciary, independent; unlike the judiciary, they are often endowed with wide-ranging investigative powers. In following their mandates, commissions of inquiry are, ideally, free from partisan loyalties and better able than Parliament or the legislatures to take a long-term view of the problem presented. Cynics decry public inquiries as a means used by the government to postpone acting in circumstances which often call for speedy action. Yet, these inquiries can and do fulfil an important function in Canadian society. In times of public questioning, stress and concern they provide the means for Canadians to be apprised of the conditions pertaining to a worrisome community problem and to be a part of the recommendations that are aimed at resolving the problem. Both the status and high public respect for the commissioner and the open and public nature of the hearing help to restore public confidence not only in the institution or situation investigated but also in the process of government as a whole. They are an excellent means of informing and educating concerned members of the public.
[106]The purpose of the Inquiry in issue here is to conduct an investigation and find facts. At the same time, however, it is recognized that the fact-finding function is unlike that conducted by a court. The availability of subpoena powers does not change the process into a trial and the rules concerning the introduction of evidence which characterize trial proceedings do not apply in this context.
[107]The authorities are clear that a duty owed to a person affected by the conduct of an inquiry is the opportunity to respond to allegations against him. As noted by Justice Cory in Commission of Inquiry on the Blood System, at page 471, procedural fairness must be granted because the reputation of a witness is at stake: "For most, a good reputation is their most highly prized attribute."
[108]In Morneault v. Canada (Attorney General), [2001] 1 F.C. 30 (C.A.), the Federal Court of Appeal considered a challenge to the sufficiency of the evidence upon which the Commissioners made factual findings against Lieutenant-Colonel Morneault who, like the applicant, had received a section 13 notice. Lieutenant-Colonel Morneault sought a declaration to quash a section of the final Report which had made negative findings against him. The application initially succeeded before the Trial Division [(1998), 10 Admin. L.R. (3d) 251] on the basis that the Commissioners lacked evidence to support their findings. That decision was reversed by the Federal Court of Appeal who considered those findings in the specific context of a commission of inquiry. The Court said at pages 64-65:
While natural justice and procedural fairness are usually associated with the quality of a hearing that ends with a decision or order, it has not been so confined by the case law. Thus, natural justice will be denied if the findings of the tribunal, including those of a commission of inquiry, are not supported by some evidence: Mahon v. Air New Zealand Ltd., [1984] 1 A.C. 809 (P.C.), per Lord Diplock, at page 820:
| The rules of natural justice that are germane to this appeal can, in their Lordships' view, be reduced to those two that were referred to by the Court of Appeal of England in Reg. v. Deputy Industrial Injuries Commissioner, Ex parte Moore [1965] 1 Q.B. 456, 488, 490, which was dealing with the exercise of an investigative jurisdiction, though one of a different kind from that which was being undertaken by the judge inquiring into the Mt. Erebus disaster. The first rule is that the person making a finding in the exercise of such a jurisdiction must base his decision upon evidence that has some probative value in the sense described below. The second rule is that they must listen fairly to any relevant evidence conflicting with the finding and any rational argument against the finding that a person represented at the inquiry, whose interests (including in that term career or reputation) may be adversely affected by it, may wish to place before him or would have so wished if he had been aware of the risk of the finding being made. |
[109]The Federal Court of Appeal proceeded to consider the findings made by the Commissioners against the standard of patent unreasonableness which was relied on by the Motions Judge. It referred to the decision of the Supreme Court of Canada in United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316 where that Court said at pages 340-341, as follows:
Once it has been determined that curial deference to a particular decision of a tribunal is appropriate, the tribunal has the right to be wrong, regardless of how many reviewing judges disagree with its decision. A patently unreasonable error is more easily defined by what it is not than by what it is. This Court has said that a finding or decision of a tribunal is not patently unreasonable if there is any evidence capable of supporting the decision even though the reviewing court may not have reached the same conclusion . . . . [Emphasis in original.]
[110]In Morneault, supra, the Court found that the appropriate standard for review of the findings of a commission of inquiry is whether these findings are supported by some evidence in the evidentiary record. Justice Stone J.A., writing for the Court, said at page 66:
In Mahon, supra, at page 814, Lord Diplock remarked on differences between an investigative inquiry and ordinary civil litigation and went on, at page 820, to lay down the two rules of natural justice in the passage quoted above. He then added, at page 821:
| The technical rules of evidence applicable to civil or criminal litigation form no part of the rules of natural justice. What is required by the first rule is that the decision to make the finding must be based on some material that tends logically to show the existence of facts consistent with the finding and that the reasoning supportive of the finding, if it be disclosed, is not logically self-contradictory. |
[111]In Morneault, supra, the Federal Court of Appeal looked at the record before the Commissioners and concluded that there was evidence to support its findings. It did not examine the sufficiency or quality of that evidence. It looked at the evidence in the context of the special circumstances of a commission of inquiry, and concluded that there was some evidence to support the Commission's findings. Justice Stone J.A. said at pages 66-67:
I am satisfied from my own examination of the Inquiry's record that it contains some evidence to support each of the findings which the Motions Judge found to be unsupported. I say this even if the evidence may not appear to be wholly consistent for, in the final analysis, it was for the Commission to weigh and assess the evidence of the various witnesses in coming to its findings of fact. It scarcely requires mention that such is not an easy task in the best of circumstances, and certainly not here where the sense of frustration with some of the testimony is made readily apparent in the Report. In my view, therefore, it is surely not the proper function of a reviewing Court to assume the role of the Commissioners by reweighing and reassessing the evidence that is here in dispute.
[112]Likewise, in the present case, the Commissioners referred to testimony given by Lieutenant-General Reay in reaching their conclusion about the applicant. The extracts from the cross-examination of this witness on January 15, 1996, filed at the hearing of the present application, demonstrate that Lieutenant-General Reay was speaking from hindsight. Regardless of this perspective, the record shows that the Commissioners had some evidence before them.
[113]It is undisputed that Lieutenant- General Reay was not cross-examined by the applicant. The lack of an opportunity to cross-examine this witness and others was a matter falling within the procedure established by the Commission. The fact that some of the evidence was not tested by cross-examination goes to its probative value and that is a matter clearly falling within the jurisdiction of the Commissioners. The choice of procedure is beyond review by the Court, as long as the applicant was accorded procedural fairness.
[114]The procedural fairness, in this case, includes the basic rights to appear and testify, and to make submissions. The applicant exercised his rights to appear and testify. He chose not to make closing submissions, apparently as a result of his loss of confidence and frustration with the procedures adopted by the Commission. However, the applicant's understandable frustration does not change the fact that he had a right to make closing arguments and he did not do so.
[115]In deciding this application, I am obliged to follow the Federal Court of Appeal which has spoken upon the standard of review relative to findings made by a commission of inquiry, having regard to the requirements of procedural fairness provided by sections 12 and 13 of the Act.
[116]The standards of procedural fairness comprised the applicant's right to be represented by counsel, to receive reasonable notice of the charge of misconduct alleged against him and to have the opportunity to be heard. This is the current state of the law and the standards were met in this case. The power to change this view of procedural fairness, in the context of a commission of inquiry, lies with Parliament and not with the courts.
[117]The application is dismissed. Although the respondent requested costs upon the hearing of this application, in the exercise of my discretion I decline to award costs.
ORDER
[118]The application is dismissed, no order as to costs.