| IN THE MATTER OF an Inquiry Pursuant to Part I 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. |
T-408-97
BETWEEN:
BRIGADIER-GENERAL ERNEST B. BENO
Applicant
- and -
THE HONOURABLE GILLES LETOURNEAU, COMMISSIONER
AND CHAIRPERSON, PETER DESBARATS, COMMISSIONER,
THE HONOURABLE ROBERT RUTHERFORD, COMMISSIONER
Respondents
T-433-97
AND BETWEEN:
LIEUTENANT-GENERAL (RETIRED) GORDON M. REAY
Applicant
- and -
THE HONOURABLE GILLES LETOURNEAU, COMMISSIONER
AND CHAIRPERSON, PETER DESBARATS, COMMISSIONER,
THE HONOURABLE ROBERT RUTHERFORD, COMMISSIONER
Respondents
T-459-97
AND BETWEEN:
LIEUTENANT-GENERAL (RET) JAMES C. GERVAIS
Applicant
- and -
THE HONOURABLE GILLES LETOURNEAU, COMMISSIONER
and CHAIRPERSON, PETER DESBARATS, COMMISSIONER,
THE HONOURABLE ROBERT RUTHERFORD, COMMISSIONER
Respondents
T-498-97
AND BETWEEN:
LIEUTENANT-GENERAL PAUL ADDY
Applicant
- and -
THE HONOURABLE GILLES LETOURNEAU, COMMISSIONER
AND CHAIRPERSON, PETER DESBARATS, COMMISSIONER,
THE HONOURABLE ROBERT RUTHERFORD, COMMISSIONER
Respondents
T-508-97
BETWEEN:
COLONEL J. SERGE LABBÉ
Applicant
- and -
THE HONOURABLE GILLES LETOURNEAU, COMMISSIONER
AND CHAIRPERSON, PETER DESBARATS, COMMISSIONER,
THE HONOURABLE ROBERT RUTHERFORD, COMMISSIONER
Respondents
REASONS FOR ORDERS
MacKAY J.:
These reasons concern disposition of objections by the respondent Commissioners to requests for production of documents by each of the applicants, documents sought in preparation for hearings of their respective applications for judicial review. Similar requests for documents were made in accord with Rule 1612 of the Federal Court Rules. Objection was made to the requests by the respondents. This Court, having heard submissions of the parties with respect to the respondent Commissioners' objections, acting pursuant to Rule 1613(4), now declines to order production as requested by the applicants and the respondents' objection to production is upheld.
The applications for judicial review, in Court files T-408-97, T-433-97, T-459-97, T-498-97 and T-508-97 raise similar issues and seek generally similar relief. They have been ordered to be heard, on an expedited schedule for hearing preparations, all together in late May 1997 and since the Order for a hearing was granted a sixth application for judicial review, by Lieutenant Colonel (Retired) Mathieu against the respondent Commissioners, in Court file T-706-97, has been ordered to be heard at the same time.
Each of the applicants received a notice pursuant to s. 13 of the Inquiries Act, R.S.C. 1985, c. I-11, which stated that adverse findings might be made against the applicant concerned in the report of the respondent Commissioners on the basis of evidence concerning the pre-deployment phase of the Commission's hearings. These notices, and the fact that they remain outstanding despite significant changes in the mandate and Commissioners' responsibilities from those originally assigned, underlie the applicants' concerns and the proceedings now underway in this Court.
The Commissioners have a broad mandate from the Governor General in Council to inquire into and report in respect to events involving the deployment of Canadian forces to Somalia, in particular the Canadian Airborne Regiment Battle Group. The terms of reference for the Commissioners, by P.C. 1955-442, of March 20, 1995, originally provided for them to inquire into and report in regard to matters related to "the pre-deployment, in-theatre and post-deployment phases of the Somalia deployment". That mandate was recently modified, limiting the Commissioners' responsibilities primarily but not exclusively to events prior to the deployment of forces to Somalia, the so-called pre-deployment phase, the first phase of the inquiry originally assigned to and undertaken by the Commissioners in their investigations and evidentiary hearings.
The five applications for judicial review, now before the Court for hearing on an expedited basis, question different but similar decisions of the Commissioners, or in the case of LGen. Addy no particular decision but, as do the other applications, requesting prohibitory orders. Particular additional orders are sought by LGen. Reay, LGen. Gervais and Colonel Labbé. All applicants seek certain basic relief in the form of permanent injunctive relief against the Commission from completing its task or, in the alternative, an order prohibiting any report or adverse finding against the applicants, pursuant to the s. 13 notices issued to them, that could reasonably be expected to bring discredit upon them. The issue before me, concerning the objection by the Commissioners to production of requested documents, arises in the preparations by the applicants for the hearing to review the decisions and process of the Commissioners.
Between March 17 and 27, 1997 each of the five applicants made similar requests for documents pursuant to Rule 1612 in preparation for hearing of his application for judicial review. By letter of April 10, 1997 the respondent Commissioners, through counsel, objected to production of documents in response to the requests, giving reasons for the objection. By letter of April 18, 1997 counsel for BGen. Beno, in Court file T-408-97, modified the original request for documents, a modification accepted by all other applicants except in the case of Colonel Labbé, Court file T-508-97, where two other added requests were maintained. Again, by letter of April 21, 1997, the respondent Commissioners, through counsel, maintained their objection to the outstanding requests for production of documents, essentially for the same reasons already given in the previous letter of objection written on April 10, 1997.
The requests and objections were referred to the Court by the Registry for directions, as Rule 1613(3) permits. Directions were issued on April 24, 1997, providing options to the parties for a process for considering submissions in regard to the respondents' objections. At their request arrangements were made for an oral hearing on May 1 of submissions, from counsel for the applicants who appeared in person in Ottawa and from counsel for the respondent Commissioners in attendance throughout by video conference link. I acknowledge the assistance of all counsel concerned in their helpful submissions intended to assist the Court in assessing the respondents' objections.
The process for requesting production of documents and for dealing with those requests, or objections to them, is set out by Rules 1612 and 1613, which provide as follows:
| 1612. (1) A party who wishes to rely on material that is in the possession of the federal board, commission or other tribunal and not in the party's possession shall file in the Registry and serve on the federal board, commission or other tribunal a written request for a certified copy of the material. |
| (2) An applicant's request may be included in the notice of motion. |
| (3) A copy of the request shall be served on the other parties. |
| (4) The request shall specify the particular material in the possession of the federal board, commission or other tribunal and the material must be relevant to the application for judicial review. |
| 1613. (1) Subject to paragraphs (2) to (4), a federal board, commission or other tribunal that is served with a request under rule 1612 shall, without delay, forward a certified copy of the material requested to the party making the request and to the Registry. |
| (2) Where the federal board, commission or other tribunal or a party objects to the request, the federal board, commission or other tribunal or the party, as the case may be, shall, in writing, inform all parties and the Registry of the reasons for the objection. |
| (3) A judge may give directions to the parties and the federal board, commission or other tribunal as to the procedure for making submissions with respect to the objection. |
| (4) A judge may, after hearing the submissions, order that a certified copy of all or part of the material requested be forwarded to the party making the request and to the Registry. |
Between April 9 and 11, 1997, pursuant to the Court's Rule 1603 the respondent Commissioners filed in each of the Court files herein an affidavit of Ms. Barbara McIsaac, senior Commission counsel, responding to facts alleged in the supporting affidavits of the applicants filed in regard to their applications for judicial review. The McIsaac affidavits describe the substantial arrangements for disclosure of documents by the Commission since the commencement of its deliberations and hearings, and they also provide, as exhibits in support of her affidavits Ms. McIsaac's tracing of the record of correspondence between counsel for the applicants and counsel for the respondents, particularly since the "truncation" of the Commission's proceedings as a result of government action in January 1997, which action ultimately led to modification of the Commissioners' mandate by Order in Council.
The outstanding requests
The requests for documents, on behalf of all applicants, outstanding after modification of the applicants' original requests, are for:
| "All documentation regarding the re-examination of the issuance of Section 13 Notices following the announcement by the Government of the truncation of the Inquiry, including all correspondence, notes, memoranda, notes of minutes of meetings or discussions that the Commissioners and their staff, including counsel, have reviewed or prepared with respect to the question of whether, and the extent to which, section 13 Notices should or should not be withdrawn." |
| "All documentation, including all correspondence, notes, memoranda, minutes of meetings and discussions that the Commissioners, their staff, including counsel, have prepared or reviewed regarding the interrelationship between the phases of the Somalia Inquiry." |
In addition, Colonel Labbé in Court file T-508-96 had two further requests for documents as follows:
| "All correspondence, notes, memoranda, minutes of meetings and discussions relating to the phasing of the Somalia Inquiry and the interrelationship between the phases and the impact thereof on the evidentiary phase of the Somalia Inquiry." |
| "All correspondence, notes, memoranda, notes of minutes, of meetings or discussions between Commission counsel and/or between Commission staff relating to the requests for extensions of time from the government." |
The objections raised on behalf of the Commissioners, the assessment of which is the concern of the Court in these reasons, may be summarized as follows, and on these grounds it is urged the requests for production of documents should be dismissed. It is said that
| the requests for documents are not within Rule 1612 since the requests are too broad, read without reference to any specific documents known to exist and are not part of the record to be considered in judicial review as sought by the originating notices of motion; |
| the requests infringe the privilege of deliberative secrecy, the solicitor-client privilege, and the principle of public interest immunity (except with respect to the last of the outstanding requests raised by the applicant Colonel Labbé in T-508-97); and |
| all relevant evidentiary material has already been disclosed to the parties and any undisclosed document is irrelevant. |
After further brief references to the context in which the applicants' requests are made I deal with these various objections in reverse order.
The background context in which the requests for documents arise includes the very substantial efforts of the Commissioners, in advance of and throughout their hearings to provide access for counsel of parties with standing, as the applicants here are, to a vast collection of documents considered relevant by counsel for the Commission, efforts described in the affidavits of Ms. McIsaac. The context includes as well the process originally adopted by the Commissioners to consider their mandate as a whole while examining in turn matters in regard to the three phases originally assigned, a process modified as a result of the decisions of government to terminate the inquiry before its task as originally assigned is completed and to limit the time for hearings and submission of the Commissioners' report. One difficult aspect resulting from that change is that the original expectations, of Commissioners and parties, about opportunity for parties to present evidence and argument, have had to be significantly modified and those opportunities reduced.
As the applicants here see the proceedings, what was once considered by the Commission as a whole task, with interrelated phases, is now one with a single phase, the pre-deployment phase, clearly identified. Though some evidence was heard in relation to certain events in the in-theatre phase, the Commissioners have concluded that all evidence in regard to that second phase cannot be heard in the time available, that it cannot report on most matters in the in-theatre phase, and that most s. 13 notices previously issued, in relation to matters expected to be considered in that phase, should be withdrawn. It has not withdrawn similar notices issued to some, like the applicants here, who were engaged in the pre-deployment phase. That phase the Commissioners are said to now consider completed in their review, a view not shared by the applicants who have not had opportunity to present evidence to the extent and through witnesses of their choice. The changes give rise to a perception of unfairness in the process which the applicants here raise in their respective applications for judicial review.
Relevance
While those concerns are not for resolution until the applications for judicial review are heard, the requests for documents at issue in these Reasons, seek to obtain documents that would shed light on the Commissioners' deliberations and decisions. Those documents, it is urged, are relevant to the applications for judicial review since they may affect the decision the hearing judge will make in regard to those applications. That is the test for relevance as expressed in part by Mr. Justice Pratte in Canada (Human Rights Commission v. Pathak, [1995] 2 F.C. 455 at 460 (C.A.) but he also notes that relevance, in the context of judicial review proceedings, is to be determined in relation to the grounds of review set forth in the originating notice of motion and the affidavit filed by the party seeking disclosure.
It is clear as Pratte J.A. points out, if documents are to be produced, in response to a request made under Rule 1612, by the tribunal concerned or ordered by the Court, they must be relevant. Whether, there may be documents in existence that may be relevant but not yet disclosed, which is denied by the respondents, is a matter I decline to determine. The fact that the Commissioners have provided access to a vast array of documents, some 300 volumes in all, is not, in itself, a basis for concluding all relevant documents have been produced. Nevertheless, I am not persuaded that any document, relevant to the issues raised by the applications and supporting affidavits initiating judicial review proceedings, is here identified and not disclosed. While the applicants protest rightly that of course they do not know the documents of the Commission, particularly the documents here described in their requests, which ought to exist, nevertheless I believe the Court ought not to intervene to order production of documents of which there is no clear evidence of existence.
Moreover, I am not persuaded that documents as described in the applicants' requests are relevant to the applications for judicial review. If there are such documents within the descriptions provided by the applicants' requests, they may relate to policy deliberations of the Commissioners. It would be the application of policy decisions to the applicants' respective situations, not the advice or documents leading to policy decisions that, in my opinion, could be considered relevant here. The applicants' requests, it seems to me, relate principally to documents underlying the Commission's policy determinations, and in that sense the request is not for documents relevant to the applications for judicial review. In the words of Mr. Justice Richard in Canada (Attorney General) v. Canada Royal Commission of Inquiry on the Blood System in Canada, (1996), 133 D.L.R. (4th) 565, at 579 (the "Krever Inquiry Case"): "The analysis and opinion in staff memoranda are irrelevant to the ascertainment of the tribunal's reasons for decision because they cannot be assumed to have been adopted by it as its reasons".
Alleged infringements of deliberate secrecy,
solicitor-client privilege and public interest immunity
Each of these grounds for the Commissioners' objections is put forth with substantial argument. The decision in Tremblay v. Quebec (C.A.S.), [1992] 1 S.C.R. 952, as referred to in the Krever Inquiry Case, supra, at 579, in regard to deliberative secrecy, makes clear that the principle of deliberative secrecy may be relied upon by administrative tribunals, though to a lesser extent than in the case of a judicial tribunal, because of the process of judicial review. It may be appropriate for a reviewing court to consider that natural justice requires review of internal processes of, for example, a commission of inquiry and it may examine documents essential for the record on which judicial review is based. I am not persuaded that in the circumstances of these applications documents pertinent to the records for judicial review, that is concerning any decision specifically referable to the respective applicants, is not already produced so that review of internal Commissioners' documents would be warranted.
The difficulty I have with all these grounds for objection by the respondents is that they are set out in the abstract, without reference to particular documents. It could not be otherwise in the circumstances here in light of the requests as set out by the applicants. Yet, while there may be documents that would fall within the general descriptions of those requested by the applicants, each of these three grounds of objection can only be considered in relation to particular documents the production of which is resisted. Clearly that is so for a claim of solicitor-client privilege (see Solosky v. The Queen, [1980] 1 S.C.R. 811 at 837) even if the privilege be recognized as a rule of law, as established by Descôteaux v. Mierzwinski, [1982] 1 S.C.R. 860. In my view, it is equally so for a claim of public interest immunity, for a particular public interest must be identified that would warrant consideration of immunity, and then the particular document in question must be examined in light of the claimed public interest. And it is equally so in the case of a claim for objecting to disclosure on grounds of deliberative secrecy.
Each of these may be a ground to be argued in relation to a particular document. With no document identified at this stage, none is a valid ground for refusal to disclose, in my opinion.
It was argued that the claim for solicitor client privilege was effectively waived in this case by early assurance of counsel to the Commissioners that their communications to the Commissioners would be publicly available, and further that by the affidavit of senior counsel filed and subject to cross-examination the privilege was also waived. In my opinion, just as a claim for the privilege can be considered only with reference to a particular document, so a claim that the privilege was waived can only be considered where the privilege is established, with reference to a particular document.
The purpose of Rules 1612 and 1613
I turn to the main reason for my finding that the objections of the respondent Commissioners, to production of the documents as here requested, are warranted. I note for the record that the Commissioners' objections expressed in relation to the original requests for documents by the applicants included this ground, in relation to questions subsequently modified for the first of the now outstanding questions. It was then said, and maintained in their objection to the modified questions:
| ...the request for documents is too vague and ambiguous and constitutes a fishing expedition into the Commissioner's file. The request for documents pursuant to Rule 1612 of the Federal Court Rules of Practice is not a discovery nor can it support a fishing expedition. |
It is long settled that judicial review proceedings are summary in nature, with no discovery or written pleadings, and the rules relating to those proceedings, including Rules 1612 and 1613, are not intended to prolong summary proceedings or to permit a "fishing expedition" for information. (See: Trans Quebec & Maritimes Pipeline Inc. v. National Energy Board, [1984] 2 F.C. 432; Canada (Attorney General) v. Canada (Commission of Inquiry on the Blood System in Canada - Krever Commission), supra). The comments of Mr. Justice Décary for the Federal Court of Appeal in Quebec Ports Terminals Inc. v. Canada (Labour Relations Board), (1993), 17 Admin. L.R. (2d) 16 at 20 (F.C.A.) are instructive, though I acknowledge that he was there concerned with an objection to a request for production of a report based upon, but not then within, records of the tribunal in question. Inter alia, he said:
| ...R. 1612 and 1613 must be read as an extension of R. 1606 to 1610, which relate to the preparation of the application record. (...) It therefore seems to me that when R. 1612 permits a party to obtain "material" in the possession of a federal board, commission or other tribunal, it does so in order to permit a party which is preparing its record under R. 1606 to include in that record material in the nature of the material listed in R. 1606, which is in the possession of the tribunal, which that party should have in its possession and which, for some reason, it has not had, does not yet have or no longer has in its possession.". |
Rule 1612(4) provides that a request (for documents) shall specify the particular material in the possession of the federal board, commission or other tribunal. Here there is no request that qualifies within that rule for the applicants simply set out a general description for all documents of a described sort. They do not know whether any such documents exist though it is urged it is reasonable to expect that there are some such documents. It is my opinion that in each case the requests for documents are requests in the nature of discovery. If this were an action the respondent Commissioners would have the obligation to produce a list of all relevant documents and to indicate which among those, if any, are claimed as privileged. But this is not an action, and the applicants are not entitled to discovery. The requests in connection with these applications for judicial review, in my opinion, are a "fishing expedition" to find whether there are any documents which might assist in support of the applicants' case for judicial review, about which documents they have no knowledge at this stage.
I conclude that the purposes of Rule 1612 and 1613, concerning requests for production of documents in connection with judicial review proceedings do not provide for requests of the sort here made by the applicants. There is no obligation on the respondent Commissioners to produce documents of the sort requested, if such exist, and their objection, in my opinion, is warranted, in light of the Rules.
Conclusion
In my opinion, the objections of the respondent Commissioners to production of documents, as described in the applicants' outstanding requests, are warranted. The requests need not be met. These Reasons are filed, and an order will issue in each Court file identified in the styles of cause at the commencement of these Reasons, directing that, after consideration of submissions on behalf of the parties, the Court determines that it should not exercise its authority pursuant to Rule 1613(4) to order production of the materials as described in the outstanding requests of the applicants made under Rule 1612. Any motions for production of documents included in any of the applicants' submissions will be specifically dismissed.
For the record I note that at the conclusion of the hearing counsel raised the difficulty of compliance with terms of the Order of Mr. Justice Teitelbaum for an expedited schedule, only in regard to the direction that the applicants' records in their judicial review applications be filed on May 2, 1997, the day following the hearing. It was agreed by all counsel that date should be postponed until Monday, May 5, 1997 at 12:00 noon, if the objections of the respondents were to be upheld. As I so find, I direct that the applicants' application records be served and filed by May 5, 1997 at 12:00 noon.
________________________________
JUDGE
OTTAWA, Ontario
May 2, 1997.