Garrick v. Amnesty International Canada

Garrick v. Amnesty International Canada
Court (s) Database
Federal Court Decisions
Date
2011-09-29
Neutral citation
2011 FC 1099
File numbers
T-846-10
Notes
Reported Decision
Decision Content
Federal Court
Cour fédérale
Date: 20110929
Docket: T-846-10
Citation: 2011 FC 1099
Ottawa, Ontario, September 29, 2011
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
LIEUTENANT COLONEL (RET'D) W.H. GARRICK, MAJOR J.P.P. KIRSCHNER, MAJOR B. HUDSON, MAJOR J.T.M. ZYBALA, MAJOR R.R. GRIBBLE, CHIEF WARRANT OFFICER B. WATSON, MASTER WARRANT OFFICER (RET'D) J.Y. GIRARD, BRIGADIER-GENERAL J.A.V.R. BLANCHETTE AND THE ATTORNEY GENERAL OF CANADA
Applicants
and
AMNESTY INTERNATIONAL CANADA AND BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIATION
Respondents
and
THE MILITARY POLICE COMPLAINTS COMMISSION
Intervener
REASONS FOR JUDGMENT AND JUDGMENT
[1] The Applicants have filed three applications for judicial review that were consolidated into this proceeding, challenging interlocutory decisions of the Military Police Complaints Commission (the “Commission” or “MPCC”) made in the course of a public interest hearing held under Part IV of the National Defence Act, RSC 1985, c N-5 (the “Act”); partially reproduced in the Appendix to these Reasons. The hearing is to examine a complaint made by the Respondents on June 12, 2008, alleging that Military Police members had failed in their duty to investigate potential wrongdoing by Canadian Forces officers who directed the transfer of detainees to Afghan authorities.
[2] The application in file number T-846-10 challenges the summons issued proprio motu by the MPCC to Major Gagnon, subsequently replaced by Brigadier-General Blanchette, directing them to produce a number of documents. The second judicial review application, filed under Court file number T-1126-10, alleges a refusal by the Commission to hear a motion made by the Applicants at the early stage of the hearings seeking a ruling on the standard against which their professional conduct will be assessed. The third application, filed under Court file number T-2110-10, contests the ruling eventually made by the Commission on that standard.
[3] These applications raise important issues with respect to the jurisdiction of the MPCC and the role of this Court in overseeing investigative bodies, and commissions of inquiries in particular. For the reasons that follow, I find that these applications are premature and, for that reason, ought to be dismissed.
1. Background
[4] The MPCC is an investigative body established pursuant to Part IV of the Act to provide oversight and greater accountability on the part of the Canadian Forces’ Military Police. Parliament vested it with the power and responsibility to examine complaints about the conduct of Military Police members in the exercise of their policing duties and functions (s 250.18(1) of the Act). To carry out this mandate, the Chair of the Commission has the power to investigate complaints, convene public hearings, render findings and make recommendations based on those findings. The MPCC reports to Parliament through the Minister of National Defence, but in the discharge of its functions, the MPCC is independent from both the Department of National Defence (“DND”) and the Canadian Forces.
[5] There is no need to expand on Canada’s role in Afghanistan, or on the role of the Military Police both as custodian of Afghan prisoners and as an investigative unit. This has been covered extensively by Justices Mactavish and Harrington in previous Federal Court decisions, to which I shall refer below.
[6] Amnesty International and the British Columbia Civil Liberties Association (to whom I shall refer collectively as “Amnesty”) have, through various proceedings beginning in 2007, challenged matters affecting the issue of the transfer of detainees by Canada to Afghan authorities. Amnesty first called into question the legality of the policy of the Government of Canada to transfer to Afghan authorities, the detainees captured by the Canadian Forces operating in Afghanistan. Amnesty pursued this unsuccessful challenge all the way to the Supreme Court of Canada: see Amnesty International Canada v Canada (National Defence), 2007 FC 1147, [2007] FCJ no 1460 (QL) (FC); Amnesty International Canada v Canada (Canadian Forces), 2008 FC 162, [2008] FCJ no 198 (QL) (FC) [Amnesty – Canadian Forces]; Amnesty International Canada v Canada (Attorney General), 2008 FC 336, [2008] FCJ no 356 (QL) (FC), aff’d by 2008 FCA 401, [2008] FCJ no 1700 (QL) (FCA), leave to appeal refused, SCC no. 22029, 21 May 2009 [Canada – Amnesty International]. It is now settled law that the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 (the “Charter”), does not apply to the detention of non-Canadians by the Canadian Forces or to their transfer to the Afghan authorities.
[7] Amnesty also disputed the legality of the implementation of this policy by filing two conduct complaints with the Commission. The first complaint (“the detainee complaint”) related to the involvement of the Military Police in the actual transfer of detainees to Afghan authorities and was filed on February 21, 2007. On February 26, 2007, the Commission decided to initiate an investigation of that complaint in the public interest, and on March 12, 2008, the Commission announced its intention to hold a public interest hearing into that complaint.
[8] On June 12, 2008, the Respondents filed a second conduct complaint (“the failure to investigate complaint”), seeking an extension of the timeframe of its first complaint and, as a distinct issue, alleging that Military Police members had failed in their duty to investigate potential wrongdoing by Canadian Forces officers who directed the transfer of detainees to Afghan authorities. The complaint was based on information obtained in the previous Court application to halt the transfers on Charter grounds, to which Madam Justice Mactavish refers in her decision to dismiss an application for an interlocutory injunction filed by Amnesty: see Amnesty – Canadian Forces, above, at paras 85-87. The substance of this complaint reads as follows:
Amnesty International Canada and the B.C. Civil Liberties Association hereby file a new, discrete conduct complaint pursuant to section 250.18 of the National Defence Act, concerning the failure of certain members of the Military Police to investigate crimes or potential crimes committed by senior officers in command of Task Force Afghanistan, from May 3, 2007 to the present [which is when Canada signed a new detainee agreement with Afghanistan that permitted Canadian officials to visit and inspect detainees in Afghan custody].
Specifically, members of the National Investigation Service (NIS) in Kandahar and the Task Force Provost Marshall (TFPM) have been aware that former Canadian Forces (CF) detainees were likely tortured by Afghan authorities, yet they failed to investigate whether any members of the CF should be charged for their role in facilitating these crimes. In particular, senior officers occupying the position of Commander of Task Force Afghanistan ordered the transfer of detainees to the custody of the Afghan secret police during the relevant period, despite compelling first-hand reports that previous CF detainees were tortured by those authorities.
In our submission, when officers in the chain of command order a detainee to be transferred to the custody of Afghan authorities, in full knowledge that the Afghan authorities are predisposed to torture these persons, a number of possible criminal offences warrant investigation…
June 12, 2008 Complaint, Respondents’ Record, vol. II, pp. 245-251.
[9] It is worth noting that on or about November 6, 2007 the acting Commander of Task Force Afghanistan issued a temporary moratorium on detainee transfers. This followed a report by a Canadian official who interviewed a detainee held by the Afghan secret police on November 5, 2007, in which the detainee alleged that he was knocked unconscious during a first interrogation and was then beaten with electrical wires and rubber hose during a second one.
[10] Given the seriousness of the subject matter, the complexity of the legal and factual issues involved, and the public interest in the issues, the MPCC decided on September 30, 2008 to conduct a public interest hearing into the failure to investigate complaints under Part IV of the Act.
[11] Lieutenant Colonel (ret’d) W.H. Garrick, Major J.P.P. Kirschner, Major B. Hudson, Major J.T.M. Zybala, Major R.R. Gribble, Chief Warrant Officer B. Watson and Master Warrant Officer (ret’d) J.Y. Girard are seven of the eight subjects later named by the Commission for the failure to investigate complaint. Brigadier-General Blanchette is a witness summonsed by the Commission, ex proprio motu, to produce documents in the control of DND and the Canadian Forces.
[12] The Attorney General challenged the MPCC’s jurisdiction to inquire into the Respondents’ 2007 and 2008 complaints. The applications for judicial review were heard together and, on September 16, 2009, the Court issued a judgment quashing the Respondents’ first complaint: see Canada (Attorney General) v Amnesty International Canada, 2009 FC 918, [2010] 4 FCR 182. According to Justice Harrington, the handling of detainees was not a policing function per se, and therefore the MPCC could not examine the duties of the Military Police in that regard. However, he upheld the jurisdiction of the MPCC to inquire into the failure to investigate complaint. The gist of his decision is captured in the following two paragraphs:
[12] Although the Attorney General’s position may be somewhat overstated, and although the detention of insurgents in Afghanistan and their subsequent release to the Afghan authorities may possibly be described as policing duties or functions which were performed by members of the Military Police in Afghanistan as pertaining to the arrest or custody of persons, those duties or functions, policing or not, relate to military operations that resulted from established military custom or practice and, therefore, are beyond the jurisdiction of the Commission.
[13] With respect to the second complaint, the failure to investigate complaint, I am satisfied that this is a policing duty or function in that the conduct of an investigation within the meaning of the Regulations includes a failure to investigate. However, as the National Defence Act makes clear, the Commission is limited to considering the conduct of members of the Military Police in the performance of their policing duties or functions. It has no jurisdiction to inquire into the conduct of the military at large, much less the conduct of persons who are not members of the military. Thus, while the Commission may legitimately inquire as to what any member of the Military Police knew, or had the means of knowing, it would be an excess of jurisdiction to investigate government policy and to inquire as to the state of knowledge of the Government of Canada at large, and more particularly the Department of Foreign Affairs and International Trade (DFAIT), and to the extent, if any, it had relevant information to question why that information was not shared with the Military Police.
[13] While acknowledging the jurisdiction of the Commission with respect to the second complaint, the Court cautioned that it could not use this complaint as a “springboard” into investigating government policies or practices:
[62] On this second complaint, I reemphasize that the jurisdiction of the Commission is to investigate complaints about members of the Military Police in carrying out their policing functions. The Commission does not have jurisdiction to investigate complaints about government officials whether or not they are carrying out policing functions. If one were to take the Commission’s approach to the extreme, there would be no question of Military Police misconduct in Afghanistan if Canadian Forces were not there. The whys and wherefores of that policy decision are beyond the reach of the Commission and of this Court…
[14] As a result, the Court quashed the decisions of the MPCC to investigate the detainee transfer complaint. With respect to the failure to investigate complaint, the Court declared that “…the Military Police Complaints Commission may only investigate what the Military Police subjects of the complaint knew, or had the means of knowing”. It is in the context of the hearing of this failure to investigate complaint that the impugned decisions were made by the MPCC.
2. The impugned decisions
a) The summons (Application T-846-10)
[15] Throughout the public interest hearings before the MPCC, it is fair to say that many issues and concerns have arisen in connection with the scope, pace and completeness of document production by the government in response to Commission summons, and in response to requests for documents identified by witnesses during their testimony. These issues of document production have caused significant delays to the MPCC hearing of the complaint, and have raised concerns as to how documents were being vetted and selected by the government for disclosure to the Commission.
[16] As previously mentioned, the Commission began to conduct a public interest investigation into the initial complaint in February 2007, and until March 2008, DND apparently provided documents without censoring or redacting them for national security purposes. However, the production of documents stopped when the Commission announced that it would hold a public interest hearing in March 2008. When the hearings commenced on the two complaints in the spring of 2009, an adjournment had to be called after two weeks because the Commission had yet to receive any disclosure from the subjects or the Attorney General. The government took the position that the Commission was not allowed to receive un-redacted documents once it decided to convene public hearings, by virtue of section 38 of the Canada Evidence Act, RSC 1985, c C-5. It explained the delay in providing documents on the grounds that those documents needed to be reviewed and redacted in accordance with that legislative provision. It appears that the government took the position that no disclosure would be made until all documents requested by the Commission had been reviewed and redacted.
[17] Concerned that the requested documents would not be produced voluntarily, the MPCC sought to compel production through the issuance of summons in July 2009 to senior officials in the Canadian Forces (Brigadier-General Blanchette) and the Department of Foreign Affairs and International Trade Canada (“DFAIT”) (Deputy Minister Edwards). Despite government counsel’s written assurances that outstanding document requests would be provided shortly, no further documents had been produced when the Commission reconvened shortly after the issuance of the judgment of Justice Harrington in October 2009. Counsel for the Commission also explained that some government officials were prevented from producing documents by the Attorney General. Captain Moore, the former Canadian Forces Provost Marshal, was provided with documents to assist him in preparing for his case. He was however required to sign an undertaking that specifically prohibited him from providing them to the Commission. Similarly, Mr. Colvin, a DFAIT official, indicated that he would attend a pre-hearing interview and would provide the Commission with documents pursuant to the summons served on him. However, he was prevented from doing so because he was issued a notice under section 38 of the Canada Evidence Act over the entirety of the information that he may have to provide: see MPCC transcripts, October 7, 2009, in Respondents’ Record, vol. II, at pp 263-264 and 266-268.
[18] A five-month adjournment ensued to give the government more time to produce documents. To push the process along, the MPCC issued new summons on October 26, 2009 to Deputy Minister Edwards and on October 21, 2009 to Brigadier-General Blanchette (Applicants’ Record, vol. I, pp 38 and 46). In keeping with the guidance of Justice Harrington, the summons often referred to categories of documents either directly communicated to Military Police members “or that were otherwise available to the military police chain of command and/or technical chain”. The MPCC also issued a direction on December 10, 2009 that required parties to produce all other relevant and necessary documents by February 19, 2010 (Respondents’ Record, vol. II, p. 402).
[19] When the hearings resumed on March 22, 2010 many documents had been disclosed but many more remained outstanding. The hearings proceeded on the basis that the Attorney General would produce documents as quickly as possible. On April 1, 2010 the Respondents obtained documents through a request under the Access to Information Act, RSC. 1985, c A-1 consisting largely of communications between Canadian Forces officers in Kandahar and civilian officials in Ottawa concerning the decision to suspend transfers on November 6, 2007.
[20] The Commission counsel reviewed the documents and wrote to counsel for the Attorney General on April 8, 2010. Commission counsel was of the view that the documents collected in response to the Access to Information request would also be relevant to the subject matter of the Commission’s inquiries, and found it “inconceivable” that these documents, many of which were addressed or copied to individuals who are summonsed as witnesses, could have been considered irrelevant to the matters under inquiry.
[21] The Department of Justice and the MPCC exchanged further letters on this issue. In a letter dated April 9, 2010, counsel for the Attorney General indicated that the documents were not produced “because they were not communicated to any military police members, including the subjects of the complaint and there is no evidence that they were otherwise available to them” (Applicants’ Record, vol. I, p. 73). In other words, the Attorney General takes the position that it is the government’s prerogative to determine whether the documents were shared with Military Police members or were “within their means of knowing”. In response, MPCC counsel strongly disagreed with that position and wrote: “We believe it is the Commission’s mandate to determine whether or not there is evidence that documents were communicated to, or available to, Military Police members. This cannot be determined by government officials looking at the face of the documents and deciding not to produce them” (Applicants’ Record, vol. I, p. 82). This is clearly the nub of the dispute between the Attorney General and the Commission.
[22] There were further tense exchanges of oral and written communication between counsel on this issue. Deputy Minister Edwards and Brigadier-General Blanchette were then ordered to appear before the Commission to explain how they were determining which documents should or should not be produced to the Commission (MPCC Transcripts, April 21, 2010, Respondents’ Record, vol. II, pp. 788-790).
[23] Brigadier-General Blanchette appeared before the MPCC with Major Denis Gagnon on April 27, 2010. The military officers testified jointly about the Canadian Forces’ work in gathering and disclosing documents. They were questioned at length about the following issues:
a) The means by which the government made determinations regarding the responsiveness of documents to the Commission’s summons;
b) Whether written or oral guidelines had been provided to the departments as to a document’s responsiveness to a summons;
c) Staffing issues;
d) The structure of the teams dealing with matters related to detainee hearings and information;
e) The preparation of witnesses for testimony before the Commission;
f) The procedure for producing documents subject to a notice under section 38 of the Canada Evidence Act;
g) Whether instructions had been given to witnesses to deliberately slow the production of documents to the Commission;
h) The storage of documents in Afghanistan and their repatriation;
i) Whether DFAIT site visit reports would have been publicly released if not summonsed by the Commission; and
j) Whether the subject of the reappointment of the former Chair of the Commission had been discussed at the Deputy Ministerial meetings on Afghanistan.
[24] Brigadier-General Blanchette and Major Gagnon testified that documents were first screened out when they were deemed not to be responsive to the summons. This was determined by examining who it was addressed to, the content of the document, and whether the MPs knew or should have known about the content of those documents (MPCC Transcripts, April 27, 2010, pp. 46-47 and 52; Applicants’ Record, vol. I, pp. 244-245 and 250). Once a document has been deemed relevant and responsive to the summons, it is then reviewed for any potential section 38 claims.
[25] On April 29, 2010, the MPCC served a new summons upon Major Gagnon, requiring him to produce several new categories of documents. On August 25, 2010, the Commission released Major Gagnon from his summons and issued an identical summons to Brigadier-General Blanchette. These summons were not requested by the Respondents. Rather, they were issued by the MPCC ex proprio motu, pursuant to the granting of authority under section 250.41(1)(a) of the Act, apparently because it considered it necessary for its full investigation and consideration of the matters before it.
[26] These summons required the production of 16 categories of documents, which can be grouped into five different classes:
a) Documents related to the response of DND and of the Canadian Forces to a previous summons (items 1 to 6 and 8);
b) Documents not produced to the Commission as being non-responsive to the summons (items 7 and 9);
c) Documents recording the factors considered by the Commander of the Joint Task Force Afghanistan (“JTFA”) in deciding to transfer a detainee to Afghan authorities (items 10-12);
d) A list of any witness met by DND officials in connection with the hearing (item 13); and
e) Three uncontroversial items, since produced.
[27] The Attorney General of Canada challenged these summons by way of judicial review. On May 28, 2010, the application bearing file number T-846-10 was issued. The Applicants seek to have the summons set aside and other declaratory relief on the basis that the Commission has exceeded its jurisdiction.
b) The “means of knowing” (Application T-1126-10)
[28] Shortly after the Federal Court’s ruling on September 16, 2009, the Applicants brought two motions to the Commission for a determination on how the Commission would interpret the Court’s expression, “means of knowing”. Relying on the right to make full answer and defence to the allegations of misconduct brought against them, as guaranteed by section 250.44(a) of the Act, they essentially argued that they were entitled to know the standard by which their actions would be assessed, in advance of evidence being called. Delaying this determination to a later point, they submitted, effectively brings to naught the right of the subjects to understand the case that they have to meet of any meaning or substance, to decide what evidence they need to lead, to determine which testimony they should challenge by cross-examination, and why.
[29] The MPCC adjourned the motion, along with other procedural issues, until the hearing reconvened. The Applicants filed written submissions with the Commission on March 22, 2010, and the “means of knowing” motion was argued on March 24, 2010. It is interesting to note that in his written submissions, counsel for the Applicants took the position (relying on Justice Harrington’s decision on the legal environment of investigations and on previous judicial consideration of “means of knowing”) that this concept is “…limited to that information which might have been gleaned by any inquiries made by a reasonable Military Police officer in like circumstances, without recourse to the investigative and enforcement powers bestowed by law on peace officers”: Respondents’ Record, vol. II, p. 404 at para 2.
[30] In oral submissions, the Applicants’ counsel expanded on this interpretation and further clarified his clients’ understanding about the “means of knowing” concept in the following terms:
The only thing that is relevant to the review of the conduct of the subjects is what these other actors shared with them by way of information, or the information that they would have shared if they had been asked. I think that’s a fair construction of the word “means of knowing”.
Respondents’ Record, vol. II, p. 492-493.
[31] The Respondents largely agreed with the Applicants’ definition of the “means of knowing”, although they would have expanded it to encompass information in the public domain, information available to the subjects by virtue of their station and rank, and information that the subjects should have known by virtue of their duties. Instead they took the position that it was premature for the Commission to rule on that matter. They suggested that the Commission may, at times, hear evidence that did not necessarily fall within the strict definition of “means of knowing”, as this may sometimes be necessary to understand the context of the interactions between certain actors. Finally, the Respondents submitted that there are other means at the disposal of the Commission to provide procedural fairness to the subjects as the case goes on; for example issuing updated notices of adverse findings as the hearings progress.
[32] The Commission issued two separate decisions on the Applicants’ motion on April 1, 2010. The Commission concluded in its “means of knowing” decision that it was not advisable to issue a ruling at that early stage, stating that such determinations would be “inherently factual and contextual, and must not be ruled on in a factual vacuum” (Applicants’ Record, vol. I, p. 61 at para 12), particularly in light of submissions that factors such as security clearances and need to know principles might affect what Military Police had the means of knowing (Ibid at para 15). The Commission similarly found in its “standard of conduct” ruling that it would be inadvisable to try to set out a conclusive standard by which the subject Military Police members’ conduct will ultimately be judged (Respondents’ Record, vol. I, pp. 123-130). The MPCC did reiterate the significance of the “reasonable police officer” standard, as found in Hill v Hamilton-Wentworth Regional Police, 2007 SCC 41, [2007] 3 SCR 129, and affirmed that it would be relevant to whether the Military Police had the means of knowing certain information (Applicants’ Record, vol. I, p. 61 at para 14).
[33] The Applicants did not seek judicial review of either of the MPCC’s April 1, 2010 decisions, and the MPCC thereafter proceeded to receive the testimony of 20 non-subject witnesses. During the course of their examination, the Commission explored wide ranging issues to which counsel for the Applicants objected, on the basis that they relate to government policy and the state of knowledge of the government at large. To provide some context relevant to the case at bar, counsel for the Applicants drew the attention of the Court to some of the lines of examination permitted by the Commission (Memorandum of Argument, Applicants’ Record, vol. IV at paras 17-18; all references to the transcript are found in these paragraphs):
An employee of the Department of Foreign Affairs and International Trade (DFAIT) who conducted prison visits and interviewed detainees transferred by the Canadian Forces to ascertain their post-transfer treatment, was asked about the following: the training he received on detecting signs of torture; the procedure followed on prison visits; the purpose and distribution of site visit reports; and specific allegations of mistreatment which were included in the site visit reports which evidence indicates were not provided to members of the Military Police;
Another employee of DFAIT, acting as the Political Advisor to the Commander of the JTFA, was questioned on the following: the reporting structure within DFAIT; the procedure for distributing site visit reports within JTFA and the determination of who should receive them; whether medically unfit detainees had ever been transferred; allegations by a former translator regarding threats made by a senior official of the National Directorate of Security; legal obligations on public servants to make and keep records of their actions, his knowledge of allegations made to UK forces; and whether his advice to the Commander was informed by allegations of mistreatment contained in newspaper articles;
The Commander himself of the JTFA was asked about specific human rights reports he might have read or which individuals were tasked with briefing him on their contents, whether information regarding detainees was shared with or received from Canada’s allies in Afghanistan, the factors he took into account when deciding whether to authorize the transfer of detainees to Afghan authorities, whether DFAIT or DND was the cause of difficulties in conducting prison visits, and his personal view on the possibility of having a full-time Canadian presence in Afghan prisons.
[34] On June 7, 2010, counsel for the Applicants brought a second motion to the Commission seeking a ruling on the “means of knowing” standard. At this time, the MPCC was well into hearing the testimony of the non-subject witnesses, but a number of non-subject witnesses remained to be heard. In its Notice of Motion, counsel for the Applicants stated that since the Commission had declined to rule on the Applicants’ first “means of knowing” motion, it sought production of information relating to the risk of mistreatment of a detainee transferred to Afghan authorities might face, regardless of whether the information was known to the subjects or whether they reasonably had the means of knowing it. Counsel also reproached Commission counsel to have explored not only the recollection of witnesses concerning information which Military Police knew or had the means of knowing, but also the witnesses’ recollection about the risk of mistreatment a detainee transferred to Afghan authorities might face – thus addressing matters that are beyond the Commission’s jurisdiction.
[35] By letter dated June 10, 2010, Commission counsel advised the parties that the Commission would schedule the Applicants’ second “means of knowing” motion after the remaining non-subject witnesses had testified, consistent with its Ruling on April 1, 2010 in the original “means of knowing” motion. The Panel was then asked by counsel for the Applicants to confirm this orally during the hearings on June 15, 2010, which they did. This led to the second judicial review application filed by the Applicants under Court file number T-1126-10, alleging a refusal by the Commission to hear their motion.
[36] The hearings continued and several more witnesses were heard. As the Commission had indicated, it set down the Applicants’ second “means of knowing” motion after all the non-subject witnesses were heard, but before any evidence was heard from the subjects. The last non-subject witness testified on October 13, 2010, and the next day, the Commission heard the motion.
[37] In their written submissions filed on September 29, 2010, counsel for the Applicants repeated that the Applicants were entitled to know the case they had to meet, and ought to know how the Commission would interpret the concept of “means of knowing”. In the Applicants’ view, the “means of knowing” is a legal standard that can be established by a declarative ruling in advance, without reference to facts or context, and is part and parcel of the standard of conduct. As for the proper interpretation of “means of knowing”, counsel apparently departed from the representations he had made on the first motion and adopted a more restrictive definition of that concept, which is captured in the overview of his submissions at paragraph 2:
The subjects’ conduct can only legitimately be assessed on the basis of what they knew, or information over which they had effective control. In the absence of actual knowledge by the Military Police subjects, the “means of knowing” is not whether queries were made or could have been made but rather whether Military Police exercised effective control of information sufficient to warrant a police investigation or other appropriate action.
Respondents’ Record, vol. I, p. 14.
[38] Fearing that the Commission intended to impute the subjects with knowledge of all information available to the Government of Canada or publicly available, and also with the knowledge of all information which might have been shared with Military Police if they had requested it, regardless of whether the subjects would have had any reason or duty to seek out that information, counsel further elaborated as to what he saw as the proper mandate of the Commission, in the following terms:
The subjects’ conduct must not be assessed as if the subjects knew or had the means of knowing the vast array of documents and testimony the Commission has heard. Rather the assessment must be much more precise. In the absence of actual knowledge on the part of the Military Police subjects, the “means of knowing” test is defined by an examination of whether the subjects exercised effective control over the requisite information. Effective control means the physical custody or possession of the information whether or not that information was actively accessed within their control. It would be sufficient to establish effective control if it is demonstrated that access to the requisite information was the exclusive province of the subjects.
Respondents’ Record, vol. I, p. 20 at para 20.
[39] In response, counsel for the Respondents reiterated much of the position he had taken in the context of the first “means of knowing” motion. He emphasized once again that the conduct of Military Police subjects should be assessed “based on what they could have learned through making simple inquiries”, and repeated that whether the subjects should have made those inquiries are matters better left for final submissions on a full evidentiary record. The following paragraphs capture the essence of the parties’ disagreement as to the proper standard to be applied:
The Complainants allow and agree that the Military Police subjects cannot be imputed with all the knowledge of different actors across the Government of Canada. But they should be held responsible for information they could have reasonably obtained through simple inquiries. Practically all witnesses who have testified before the Commission have had direct contact with one or more of the Military Police subjects. Many of those witnesses – including and most recently Lt. General Gauthier – gave evidence that they would have shared information about detainee transfers with the Military Police had they been asked.
Respondents’ Record, vol. I, p. 30-31 at para 11.
[40] The Commission rendered its ruling on the second “means of knowing” motion on November 3, 2010, prior to any of the subjects appearing as witnesses. The Commission rejected the notion that the subjects should only be responsible for information over which they had “effective control”. The Commission agreed that the standard “captures information which a reasonable Military Police officer would have obtained by making reasonable enquiries”. This, in the Commission’s view, entails a subjective element based on what the Military Police officer knew, and an objective element as to what a reasonable Military Police officer would have done in the circumstances to seek out more information “to fill the gaps”.
[41] The Commission considered that it would be inadvisable to make pronouncements as to whether a duty to investigate was triggered in this case, or whether and to what extent the subjects were under some duty to seek out information that would be relevant to any decision to initiate a formal investigation. As the Commission stated:
Whether viewed as part of the consideration of the duty to investigate, or as a distinct analytical step preliminary to considering the duty to investigate, the scope of what the subjects had a duty to know may only be fairly established on a full evidentiary record.
Applicants’ Record, vol. III, p. 1371.
[42] Responding to the argument that it was straying beyond the confines of their jurisdiction by enquiring into government policy and the state of knowledge of the Government of Canada at large, the Commission emphasized that the “means of knowing” test does not exist in a factual vacuum and that to determine whether a person had the means of knowing something, one has to know whether that something existed to be known. That being said, the Commission conceded that some information that is relevant to the subject matter of the complaint might ultimately be found to fall outside of this perimeter. It went on:
The mere fact that information relating to the subject matter of the complaint has been adduced at these proceedings does not mean that the Commission is going to impute knowledge of all this information to any or all of the subjects. The breadth of the inquiry to date has been a function of the need to gather evidence that is considered pertinent to the grounds set out in the complaint. It does not reflect an assumption or a pre-determination by the Commission that the individual subjects knew, or could have or should have accessed such information.
Applicants’ Record, vol. III, p. 1372.
[43] Contending that they were no further ahead in knowing the case they have to meet as a result of that decision, the Applicants brought a third judicial review application under Court file number T-2110-10. Eventually, the three applications for judicial review were consolidated by Orders of Prothonotary Aronovitch dated August 31, 2010 and December 22, 2010, and were heard together by this Court on March 28 and 29, 2011.
3. Issues
[44] The parties have raised a number of issues in the course of their written and oral arguments. These issues, as I see them, may be stated as follows:
a) Should the Court exercise its discretion to consider these applications, or should they all be dismissed as premature?
b) To the extent the Court were to intervene, can it be said that the Commission erred in law by failing to articulate the standard by which it will assess the Applicants’ conduct before calling witnesses?
4. Analysis
a) Should the Court rule on interlocutory decisions?
[45] The first question to be determined in the context of these three applications for judicial review is whether the Court should intervene and rule on what are essentially interlocutory decisions made by the MPCC in the course of its investigation. Counsel for the Respondents and for the Intervener have strenuously argued that it would be improper and at variance with the prevailing case law, for the Court to entertain the challenges brought by the Attorney General. Conversely, counsel for the Applicants acknowledged that, as a general rule, interlocutory decisions made during the course of a tribunal proceeding do not usually warrant the intervention of courts, but submitted that the decisions now being disputed fall under the exception to the rule, as they would clearly bring the MPCC outside of its jurisdiction.
i) General principles
[46] It is trite law that interlocutory decisions of administrative bodies are not subject to judicial review until a final decision is issued. For a variety of reasons, this rule has been upheld both by this Court and the Federal Court of Appeal on numerous occasions. Firstly, the application may well be rendered moot and unnecessary by th