T-1042-91
Dermot Patrick Meade and Brian Leslie Booth
(Plaintiffs)
v.
Her Majesty the Queen in Right of Canada, The
Honourable William McKnight, Minister of Na
tional Defence and Colonel J. E. McGee
(Defendants)
INDEXED As: MEADE V. CANADA (T.D.)
Trial Division, Pinard J.—Courtenay, British
Columbia, May 8; Ottawa, May 24, 1991.
Constitutional law — Charter of Rights — Life, liberty and
security — Criminal investigation, military inquiry in progress
concerning misappropriation of public funds and inappropriate
employment of military personnel for personal use — Soldiers
compelled to testify before Board of Inquiry under National
Defence Act, s. 118(2) and Canada Evidence Act, s. 5(1) —
Refusing to testify as evidence could be incriminating —
Relying on Charter, s. 7 — Right to remain silent basic tenet
of legal system — Motion for order prohibiting compulsion to
appear before Board dismissed — Charter, s. 7 applicable only
in genuine criminal context — Applicant's rights balanced
against state's interests — Board not making final determina
tions affecting any member of Armed Forces and cannot
impose penal sanctions — Statements before Board cannot be
used at court martial or summary trial except upon perjury
charge — Testimony vital to fulfillment of Board's mandate,
location of missing public property and prevention of further
theft Use of compelled testimony protected in subsequent
criminal proceedings — Derivative evidence could be excluded
in subsequent criminal proceedings where appropriate —
Criminal charges not yet laid.
Criminal justice — Evidence — Criminal investigation,
military inquiry in progress concerning unlawful use of public
property and other wrongdoings at Canadian Forces Base
Soldiers refusing to testify before Board of Inquiry as evidence
could be incriminating — Compulsion to testify under Nation
al Defence Act, s. 118(2) and Canada Evidence Act, s. 5(1)
Charter, s. 7 protecting right to remain silent only in genuine
criminal context — Applicant's rights balanced against state's
interests — Testimony necessary for recovery of stolen prop
erty, prevention of further misappropriation — Motion to
prohibit compulsion to appear before Board dismissed.
Armed forces — Criminal investigation, military inquiry in
progress — Soldiers refusing to testify before Board of Inquiry
as evidence could be incriminating — Plaintiff Petty Officer
Meade, said to have information on theft, fraud and cheating
involving CFB Comox personnel at every level — Compulsion
to testify under National Defence Act, s. 118(2) and Canada
Evidence Act, s. 5(1) — Charter, s. 7 protecting right to remain
silent only in genuine criminal context — Applicants' rights
balanced against state's interests — Motion to prohibit com
pulsion to appear before Board dismissed.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canada Evidence Act, R.S.C., 1985, c. C-5, s. 5(1).
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix Il,
No. 44], ss. 7, 13.
Criminal Code, R.S.C., 1985, c. C-46.
National Defence Act, R.S.C., 1985, c. N-5, ss. 45 (as
am. by R.S.C., 1985 (1st Supp.), c. 31, s. 60), 118(2).
CASES JUDICIALLY CONSIDERED
APPLIED:
R. v. Chambers, [I990] 2 S.C.R. 1293; [1990] 6 W.W.R.
554; (1990), 119 N.R. 321.
REFERRED TO:
Wilson v. Minister of Justice, [1985] 1 F.C. 586; (1985),
13 Admin. L.R. 1; 20 C.C.C. (3d) 206; 6 C.P.R. (3d)
283; 46 C.R. (3d) 91; 16 C.R.R. 271; 60 N.R. 194
(C.A.); Morena v. Minister of National Revenue, [1991]
1 C.T.C. 78; (1990), 90 DTC 6685; 39 F.T.R. 81
(F.C.T.D.); Thomson Newspapers Ltd. v. Canada
(Director of Investigation and Research, Restrictive
Trade Practices Commission), [1990] 1 S.C.R. 425;
(1990), 54 C.C.C. (3d) 417; 76 C.R. (3d) 129; R. v.
Hebert, [1990] 2 S.C.R. 151; (1990), 47 B.C.L.R. (2d) 1;
49 C.R.R. 114.
COUNSEL:
Brian E. Hutcheson for plaintiff Dermot
Patrick Meade.
Chris L. Cameron for plaintiff Brian Leslie
Booth.
Paul F. Partridge for defendants.
SOLICITORS:
Swift, Datoo, Doherty, Courtenay, British
Columbia, for plaintiff Dermot Patrick
Meade.
Muir, Sinclare, Courtenay, British Columbia,
for plaintiff Brian Leslie Booth.
Deputy Attorney General of Canada for
defendants.
The following are the reasons for order ren
dered in English by
PINARD J.:
This motion is for:
a) an order prohibiting the defendants from com
pelling the plaintiffs to appear before a Board of
Inquiry;
b) an order prohibiting any charges from being
laid or alternatively directing a judicial stay of any
charges that have been laid against either or both
of the plaintiffs as a result of the plaintiffs or
either of them declining to answer any questions at
their appearance before the Board of Inquiry on
the 11th day of April, 1991;
c) costs; and
d) such further and other relief as this Honour
able Court may deem necessary.
At the hearing before me, counsel for the plain
tiffs indicated clearly that although they have also
filed a statement of claim seeking the same relief
plus a declaratory judgment, this motion ought not
to be dealt with as a proceeding seeking interlocu
tory relief only, but rather as one seeking final and
permanent relief. They were then made aware that
no declaratory judgment could be obtained by
motion, which they accepted (see Wilson v. Minis
ter of Justice, [1985] 1 F.C. 586 (C.A.)).
The following relevant facts are established by
affidavit evidence:
1. The plaintiffs, Brian Leslie Booth and Dermot
Patrick Meade (hereinafter referred to as "Booth"
and "Meade" respectively), are both members of
the Canadian Forces holding the rank of Chief
Petty Officer and Petty Officer respectively and at
all material times stationed at the Canadian
Forces Base located at Comox, British Columbia
(hereinafter referred to as "CFB Comox").
2. Since his posting to CFB Comox, Booth has
been in charge of the Marine Section responsible
for the management of personnel, overseeing the
acquiring of inventory and the keeping of records
for use of stores.
3. Since his posting to CFB Comox, Meade has
been the second in command of the Marine Sec
tion responsible for acquiring public stores and
keeping records for the purchase and use thereof,
in particular, the distribution account (inventory
listing) for the ordering and accounting of all
public property.
4. The activities of CFB Comox include maritime
patrol and search and rescue. The primary mission
of the Marine Section is to assist military aircraft
downed in water. The secondary duty of the
Marine Section is the utilization of the vessels
based there in the search and rescue role (civilian
as well as military emergencies).
5. On March 26, 1991 the Commander of CFB
Comox convened an inquiry pursuant to section 45
of the National Defence Act, R.S.C., 1985, c. N-5
[as am. by R.S.C., 1985 (1st Supp.), c. 31, s. 60]
and chapter 21 of Queen's Regulations and Orders
for the purpose of investigating the following:
(a) irregularities in local purchase activities and
procedures at the Marine Section CFB Comox;
(b) inappropriate work performed for the per
sonal benefit of private individuals and the inap
propriate employment of Marine Section Per
sonnel;
(c) the acquisition of items through the DND
supply system for an inappropriate or improper
purpose and, generally, DA accountability at the
Marine Section;
(d) management practices and personnel policies
at the Marine Section; and
(e) improper disposal of public property includ
ing gifts thereof to private individuals.
The Board of Inquiry is to report by way of
recommendations on the following:
(a) the action to be taken to control/improve
local purchasing activities;
(b) how the activities of the Marine Section can
be better controlled/monitored/managed;
(c) how better accountability of public stores
issued to the Marine Section can be achieved;
(d) the administrative or disciplinary action to
be taken, if any; and
(e) such other recommendations which, in the
opinion of the President are relevant.
6. Since late January, 1991, the military police at
CFB Comox have been carrying on a criminal
investigation concerning individual incidents of
personal use of government property that could
form the basis of breaches of the Code of Service
Discipline or the Criminal Code [R.S.C., 1985, c.
C-46] by Meade; the latter also has information,
as represented by his counsel, of major and petty
theft, fraud and cheating involving personnel at
every level and trade. Booth, on the other hand,
raises no more than a mere suspicion of participa
tion in some illegal activities. None of the plain
tiffs has ever been accused of or arrested for any
criminal offence in this matter.
7. In light of all the information received in late
1990 and in early 1991, and apart from the above-
mentioned military police investigation, the Com
mander of CFB Comox concluded that he needed
an inquiry to investigate and report on the allega-
tions involving: substantial misappropriation of
public property that is historic in origin involving
many personnel and that appears to involve sys
temic deficiencies in the purchase and control of
public stores and accountability thereof, the alle
gations of improper/unauthorized work being
undertaken by members of the Marine Section and
concerns with respect to the management and
personnel policies in relation to these matters, and
with respect to the treatment of personnel general
ly in relation to morale within, and the leadership
of, the Marine Section.
8. Meade and Booth were required to appear
before the Board of Inquiry initially on April 10,
1991; their appearance was then adjourned to
April 11, 1991, at the request of their counsel.
Both Meade and Booth refused to testify at all
during their appearance before the Board of Inqui
ry on April 11, 1991.
9. On further appearances before the Board, the
plaintiffs may appear with legal counsel, be given
the opportunity to examine all evidence previously
taken by the Board, to be present during the
remainder of the inquiry, to have any previously
heard witnesses recalled in order to have questions
put to them, to call any further witnesses and to
make a statement.
The thrust of the plaintiffs' motion is that they
are suspects in a criminal investigation by military
police and that by being ordered to appear before
the Board of Inquiry to answer questions under
oath, they would be required to give evidence
which may be incriminating or evidence which
may provide incriminating derivative evidence
which could be used against them.
The compulsion to testify arises by virtue of
paragraph 118(2)(d) of the National Defence Act
in conjunction with subsection 5(1) of the Canada
Evidence Act, R.S.C., 1985, c. C-5, which read as
follows:
National Defence Act
118....
(2) Every person who
(d) refuses when a witness to answer any question to which a
service tribunal may lawfully require an answer,
is guilty of an offence and on conviction is liable to imprison
ment for less than two years or to less punishment.
Canada Evidence Act
5. (1) No witness shall be excused from answering any
question on the ground that the answer to the question may
tend to criminate him, or may tend to establish his liability to a
civil proceeding at the instance of the Crown or of any person.
In these circumstances, the plaintiffs invoke
section 7 of the Canadian Charter of Rights and
Freedoms [being Part I of the Constitution Act,
1982, Schedule B, Canada Act 1982, 1982, c. 11
(U.K.) [R.S.C., 1985, Appendix II, No. 44]]
which provides:
7. Everyone has the right to life, liberty and security of the
person and the right not to be deprived thereof except in
accordance with the principles of fundamental justice.
I have expressed the opinion before' that the
right to remain silent is a basic tenet of our legal
system which is protected, inter alia, by section 7
of the Canadian Charter of Rights and Freedoms.
In R. v. Chambers, 2 Mr. Justice Cory, at pages
1315 et seg. laid down the modern view of the rule:
It is now well recognized that there is a right to silence which
can properly be exercised by an accused person in the investiga
tive stages of the proceedings. The basis of the right was
enunciated by Lamer J., as he then was, in his dissenting
reasons in Rothman v. The Queen, [1981] 1 S.C.R. 640, at p.
683, in these words:
In Canada the right of a suspect not to say anything to the
police is not the result of a right of no self-crimination but is
merely the exercise by him of the general right enjoyed in
this country by anyone to do whatever one pleases, saying
what one pleases or choosing not to say certain things, unless
obliged to do otherwise by law. It is because no law says that
a suspect, save in certain circumstances, must say anything
to the police that we say that he has the right to remain
silent, which is a positive way of explaining that there is on
his part no legal obligation to do otherwise.
The importance of the principle was emphasized by Martin
J.A. in R. v. Symonds (1983), 9 C.C.C. (3d) 225 (Ont. C.A.),
at p. 227:
It is fundamental that a person charged with a criminal
offence has the right to remain silent and a jury is not
entitled to draw any inference against an accused because he
chooses to exercise that right.
' Morena v. Minister of National Revenue, [1991] 1
C.T.C. 78 (F.C.T.D.).
2 [1990] 2 S.C.R. 1293.
Further the right to silence has now been recognized as a
basic tenet of our legal system and as such is a right protected
by the Canadian Charter of Rights and Freedoms. As a basic
tenet of our law it falls within the ambit of s. 7 of the Charter.
See R. v. Woolley (1988), 40 C.C.C. (3d) 531 (Ont. C.A.), and
particularly R. v. Hebert, [1990] 2 S.C.R. 151. It follows that
an accused person has the right to remain silent at the investi
gation stage as well as at the trial.
It is clear, however, from that judgment and the
rest of the relevant jurisprudence, that absent a
genuine criminal context, the right to remain silent
provided by section 7 of the Charter cannot be
infringed or violated.
Applying this rule to the present case, keeping
also in mind that a critical balance between the
applicant's rights and the state's interests must be
achieved, I conclude that the plaintiffs' motion
ought to be dismissed for the following reasons
taken together:
a) Under the Board's terms of reference, it is not
constituted to make any final determinations
affecting any member. Specifically, it does not
make any determinations on any liability, criminal
or otherwise, against any member of the Canadian
Forces and cannot impose any penal sanctions.
Any statements made at the Board of Inquiry by
Meade and Booth cannot be used at any court
martial or summary trial except where the charge
concerns perjury referred to in subsection 40(2) of
the Military Rules of Evidence.
b) The testimony of Booth and Meade appears to
be essential to the work of the Board of Inquiry in
fulfilling its mandate. Meade's testimony is cer
tainly necessary to elaborate upon the serious alle
gations touching upon historic and widespread
fraud and corruption said to involve Canadian
Forces personnel at every level and rank.
c) Should Meade and Booth not testify at the
Board of Inquiry, missing public property may not
be found and other public property may continue
to go missing in the future.
d) The use of compelled testimony from Meade
and Booth is protected in subsequent criminal
proceedings (see section 13 of the Charter).
e) The judge in any subsequent criminal proceed
ings could exclude derivative evidence where
appropriate (see Thomson Newspapers Ltd. v.
Canada (Director of Investigation and Research,
Restrictive Trade Practices Commission), [ 1990]
1 S.C.R. 425, per La Forest J. and L'Heureux-
Dubé J., and also R. v. Hebert, [1990] 2 S.C.R.
151, per McLachlin J.).
f) No criminal charge has been laid against the
plaintiffs and none may be laid.
It will be ordered accordingly, costs against the
plaintiffs.
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