T-408-97
| IN THE MATTER OF an Inquiry Pursuant to Part 1 of the Inquiries Act, R.S.C. 1985, c. I-11 into 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 and a Report Thereon, pursuant to Order in Council, P.C. 1995-442. |
BETWEEN:
BRIGADIER-GENERAL ERNEST B. BENO,
Applicant,
- and -
THE HONOURABLE GILLES LETOURNEAU,
COMMISSIONER and CHAIRPERSON,
PETER DESBARATS, COMMISSIONER,
THE HONOURABLE ROBERT RUTHERFORD, COMMISSIONER,
and THE GOVERNOR IN COUNCIL,
Respondents.
REASONS FOR ORDER
DUBÉ J:
On June 26, 1997, I heard the application in the above matter and on June 27, 1997, I released an order denying the application with reasons to follow. These are the reasons.
This motion on behalf of the applicant ("BGen Beno") pursuant to Rule 1909 of the Federal Court Rules is for an order restraining the respondents ("the Commissioners") from transmitting to the Governor in Council ("the G.I.C.") a Report containing any adverse findings against him pursuant to notices issued to him under section 13 of the Inquiries Act1, and in the alternative an order restraining the G.I.C. from releasing any part of the Commissioners' Report containing adverse findings until the final disposition of BGen Beno's application for judicial review and appeal from the Order of this Court dated June 17, 1997.
As is well known by all interested parties, on March 20, 1995, the Government of Canada appointed a Commission to inquire into and report on the Chain of Command and leadership in respect of the Canadian Forces deployment to Somalia. At the very outset of the hearings of the Inquiry, the Commissioners served BGen Beno with the said section 13 notice providing inter alia that the Commissioners may investigate charges of misconduct that could reasonably be expected to bring discredit upon him.
The latter testified for three days before the Commission in the course of the pre-deployment phase, from January 29 through January 31, 1996. It is also common knowledge that in early January 1997 the Government of Canada denied the Commissioners' request for a further extension of time within which to submit a Final Report. Pursuant to Order in Council P.C. 1997-456 the Commissioners are required to submit a Final Report by June 30, 1997. As a result of the Government's decision, the Commissioners adapted their schedule of witnesses in accordance with the time left at their disposal.
Following the Commission's refusal to hear all his witnesses, BGen Beno (as well as five other parties before the Commission) decided to withdraw from the Inquiry process and filed an originating notice of motion before this Court. The application for judicial review was heard by my colleague Mr. Justice Teitelbaum from May 26 through June 4, 1997. On June 17, 1997, Teitelbaum J. dismissed the applications for judicial review of BGen Beno (T-408-97) and LCol. Mathieu (T-706-97). He stroke out several paragraphs of the section 13 notices addressed to the other four applicants.
It is common ground that the applicable criteria for an interlocutory injunction are those set out by the Supreme Court of Canada in Manitoba (A.G.) v. Metropolitan Stores2 and recently reiterated by that Court in RJR MacDonald Inc. v. Canada (A.G.)3. The threefold test is as follows: first, the applicant must establish that there is a serious issue to be tried; second, he must show that irreparable harm will be suffered if the stay of proceedings is not granted; and, third, he must prove that the balance of convenience favours him.
Generally, the threshold of the first criteria is a low one. The motion judge is not expected to go very deeply into the merits of the case. In accordance with the words of the Supreme Court in the MacDonald case (at p. 337) "The threshold is a low one. The judge on the application must make a preliminary assessment of the merits of the case". If it appears that the application is neither vexatious nor frivolous, the motion judge ought to move on to the next test.
My preliminary assessment of my colleague's judgment is that it is a sound one. There are no manifest errors that are clearly apparent. The same highly competent solicitors undoubtedly made the same arguments before him as they did before me. At first blush, I would agree with the conclusions that Teitelbaum J. reached after having addressed and analyzed the three main issues raised by BGen Beno.
The first issue was whether there was an obvious and inextricable linkage or interrelationship between the three phases of the Inquiry: pre-deployment, in-theatre and post-deployment. The argument was that the three phases are so linked in the minds of the public that the Commission cannot fairly divide its findings of misconduct into discrete and autonomous packages. Teitelbaum J. was satisfied, and rightly so in my view, that the Commission can make findings of misconduct for the pre-deployment events irrespective of what happened later in the in-theatre stage or the final post-deployment stage. The separate character of each phase was confirmed by the last amending Order in Council issued by the Government.
The second issue before Teitelbaum J. was whether the applicant had a full opportunity to be heard by the Commission. As mentioned earlier, BGen Beno testified over three days during the pre-deployment phase. After the Government decision not to further extend the time of the Commission's mandate, the Commissioners invited all the section 13 notice recipients to participate in their respective hearings. BGen Beno provided on February 17, 1997, a list of 48 prospective witnesses.
The Commission decided that most of those witnesses had no testimony to offer on matters related to section 13 notices and informed BGen Beno that he could only call eight of his proposed 48 witnesses. The Commission was also prepared to receive affidavit evidence from five other witnesses. In response, BGen Beno decided to withdraw entirely from the Inquiry and to go directly to Court with an application for judicial review.
Teitelbaum J. concluded that BGen Beno (and the other applicants) were not denied procedural fairness merely because they were not permitted to call every proposed witness on their list. He quoted Madame Justice L'Heureux-Dubé (at p. 685) of the Knight4 decision to the effect that "the aim is not to create procedural perfection, but to achieve a certain balance between the need for fairness, efficiency and predictability of outcome". Teitelbaum J. added that "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".
Thirdly, Teitelbaum J. held that the doctrine of legitimate expectations was not applicable to the instant case. The expectations advanced by BGen Beno were that he would have been entitled to call his witnesses had the Inquiry not be truncated by the Government. The judge held that (at p. 65):
| ...even if the doctrine of legitimate expectations could apply in principle, in practice, BGen Beno has failed to satisfy the legal criteria of the doctrine. Earlier, I outlined these criteria: (i) a binding undertaking and (ii) an undertaking not in violation of the Commission's statutory duty. |
I hasten to add that it is not for me within the parameters of the instant injunction application to review the Government's decision not to extend a further extension. An earlier decision on that score by my colleague Simpson J. is presently under appeal.
Returning now to the Supreme Court of Canada decision in MacDonald, I must abide by the guideline laid down by the Court (at pp. 337-338):
| Once satisfied that the application is neither vexatious nor frivolous, the motions judge should proceed to consider the second and third tests, even if of the opinion that the plaintiff is unlikely to succeed at trial. A prolonged examination of the merits is generally neither necessary nor desirable. |
Although generally in agreement with my colleague's judgment, I cannot find that BGen Beno's appeal is vexatious or frivolous. It is a serious and substantial application. I will therefore refrain from pursuing the examination of the merits of his decision and proceed to consider the second criteria, irreparable harm.
Irreparable harm according to the Court in MacDonald (at p. 341) "refers to the nature of the harm suffered rather than its magnitude". The Court goes on to describe the harm as follows: "It is harm which either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other".
The irreparable harm claimed by BGen Beno is that any adverse findings of misconduct against him in the course of the Report will cause irretrievable damage to both his reputation and career. Furthermore, because the findings of the Commissioners are not subject to appeal, BGen Beno will have no opportunity to clear his name. Findings of misconduct against him may be published, notwithstanding the fact that he was denied a full opportunity to be heard.
The applicant relies on a decision of the Ontario Court of Appeal Re Nelles et al. and Grange5 dealing with a Royal Commission of Inquiry into deaths of children at a public hospital. He quotes this passage (at pp. 88-89):
| Further, the fact that the findings or conclusions made by the commissioner are not binding or final in future proceedings is not determinative of what he will decide. What is important is that a finding or conclusion stated by the commissioner would be considered by the public as a determination and might well be seriously prejudicial if a person named by the commissioner as responsible for the deaths in the circumstances were to face such accusations in further proceedings. Of equal importance, if no charge is subsequently laid, a person found responsible by the commissioner would have no recourse to clear his or her name. |
On the other hand, the respondents submit that the applicant has not established that irreparable harm would result from the issuance and publication of a Report eventually containing adverse findings against him. Such harm, as claimed to be irreparable by the applicant, is a threat to his reputation. In addition to being speculative, such an eventuality ought not to deprive the Canadian people of the right to benefit from the Commissioners' Report. BGen Beno was not merely a bystander or a member of the general public drawn to a public inquiry process. He is a senior officer of general rank in the Canadian Armed Forces. He is therefore accountable for his actions, not only to the Government but to the people of Canada.
The very public nature of such an inquiry entails, as a clear possibility, that a public official will be involved in the Report and not necessarily under a favourable light. Cory J., of the Supreme Court of Canada, described the functions of public inquiries and the open and public nature of the hearings in Phillips v. N.S. (Westray Mine Inquiry)6 (at pp. 137-138):
| 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 partisans 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 situations 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. |
Décary J.A. of the Federal Court of Appeal with reference to the Krever inquiry pointed out that it was almost inevitable that reputations would be tarnished in the final report of a public inquiry (see Canada (A.G.) v. Canada (Comm'r of Inquiry on Blood System)7 (at p. 252):
| At the outset, I would note that a public inquiry into a tragedy would be quite pointless if it did not lead to identification of the causes and players for fear of harming reputations and because of the danger that certain findings of fact might be invoked in civil or criminal proceedings. It is almost inevitable that somewhere along the way, or in a final report, such an inquiry will tarnish reputations and raise questions in the public's mind concerning the responsibility borne by certain individuals. I doubt that it would be possible to meet the need for public inquiries whose aim is to shed light on a particular incident without in some way interfering with the reputations of the individuals involved. And this is precisely why Parliament and the courts have imposed strict limits on such use as anyone might be tempted to make in a civil or criminal trial of evidence obtained or testimony given during an inquiry and of the findings set out in the reports of commissions of inquiry. The system that has been instituted is certainly not perfect, but it is the role of the courts to ensure that it is as perfect as possible. |
At this stage of the proceedings, BGen Beno does not know what the Commissioners will report on his conduct. Thus, it cannot be said that the Report will in fact damage his reputation. BGen Beno and many other witnesses have already testified under the glare of the media. If the Report is unfair he can certainly create the opportunity to respond and to provide his own version of the events. Again, he was offered that very opportunity under the section 13 hearing phase but decided not to do so on the ground that the Commissioners had refused to hear his 48 witnesses.
Consequently, I cannot find that BGen Beno has established that he would suffer irreparable harm if his application for an interlocutory injunction is not granted.
Since the applicant has not established that he would suffer irreparable harm, it is not technically necessary to deal with the third criteria, balance of convenience, but, in any event, the balance of convenience does not favour the applicant. The burden is on him to show that his private interest outweighs the public interest in having the full inquiry report transmitted to the G.I.C. so that the G.I.C. may release it to the public. Given the completion of the inquiry and the vital importance of the subject-matter, the public interest ought to guide this Court in the determination of the issue. On this score, the Supreme Court of Canada in the above mentioned MacDonald case, said as follows with reference to the balance of convenience as between a private applicant and the public interest (at p. 346):
| In our view, the concept of inconvenience should be widely construed in Charter cases. In the case of a public authority, the onus of demonstrating irreparable harm to the public interest is less than that of a private applicant. This is partly a function of the nature of the public authority and partly a function of the action sought to be enjoined. The test will nearly always be satisfied simply upon proof that the authority is charged with the duty of promoting or protecting the public interest and upon some indication that the impugned legislation, regulation, or activity was undertaken pursuant to the responsibility. Once these minimal requirements have been met, the court should in most cases assume that irreparable harm to the public interest would result from the restraint of that action. |
Thus, the balance of convenience clearly favours the release of the Report to the public.
These are the reasons why the application was dismissed.
O T T A W A
July 3, 1997
Judge
__________________1 R.S.C. 1985, c. I-11.
2 [1987] 1 S.C.R. 110.
3 [1994] 1 S.C.R. 311.
4 Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653 at 682 to 684.
5 9 D.L.R. (4th) 79.
6 [1995] 2 S.C.R. 97.
7 (1997), 142 D.L.R. (4th) 237 (F.C.A.) (on appeal before the Supreme Court of Canada).