Gordon v. Canada (Minister of National Defence), 2005 FC 335

Date: 20050308

Docket: T-1976-04

Citation: 2005 FC 335

BETWEEN:

                                               ROBERT GORDON, Journalist, and

                                   CANADIAN BROADCASTING CORPORATION

                                                                                                                                           Applicants

                                                                           and

                                            MINISTER OF NATIONAL DEFENCE

                                                                                                                                        Respondent

                                                        REASONS FOR ORDER

HARRINGTON J.

[1]                Robert Gordon, journalist, and his employer, the Canadian Broadcasting Corporation, were denied access to the hearings of the Board of Inquiry struck to investigate and report upon the fires in the HMCS Chicoutimi on 5 October 2004, the death of Lieutenant (N) Saunders and personal injury to other crew members. This is a judicial review of that decision.

[2]                The case turns on whether the Board has been charged with judicial or quasi-judicial duties. The applicants, whom I shall call the CBC, say that it has. The respondent Minister says it has not.

[3]                The CBC points out that the Board's mandate includes making findings of responsibility as to Lieut. Saunders' death and the personal injuries suffered by other crew members. This, it submits, at the very least is a quasi-judicial function. It invokes its right of freedom of the press, which is protected by the Charter and the centuries-old principle that the courts are open to the public. That principle has been extended to administrative tribunals which carry out quasi-judicial functions.

[4]                The Minister has no quarrel with the principle that an open-court system is fundamental to our way of life. However, he submits that the Board of Inquiry is not carrying out judicial or quasi-judicial functions. It is an internal inquiry which reports to him on what happened and what can be done to prevent its reoccurrence. It does not, and cannot, establish liability.

[5]                Furthermore, the Regulations call for such an inquiry to be conducted behind closed doors, unless the convening authority otherwise directs. In this case, the convening authority only authorized the President of the Board to permit the attendance of persons with a direct and substantial interest in Lieut. Saunders' death, or the personal injuries.    The CBC is not such a person.

[6]                The decision in question, that of Commodore R.D. Murphy, President of the Board of Inquiry, dated 4 November 2004, has to be assessed in light of the National Defence Act, the Queen's Regulations and Orders for the Canadian Forces and the Terms of Reference given the Board on 8 October 2004 by the Chief of the Maritime staff, the convening authority.

CREATION OF THE BOARD OF INQUIRY

[7]         Section 45(1) of the National Defence Act, 1985 R.S.C. c.-5, contemplates the convening of a board of inquiry as follows:

[8]                Section 45(2) goes on to provide that the Board has the power of subpoena, to administer oaths, to receive evidence, even if not admissible in a court of law, and to examine any record and make any inquiry it considers necessary.

[9]                Chapter 21 of the Regulations under the Act, the Queen's Regulations and Orders for the Canadian Forces, deals with summary investigations and boards of inquiry. Specific rules are set down for the investigation of different types of claims, such as ones by or against the Crown, missing or absent officers and non-commissioned members of the Forces, personal injuries and death and fire, explosion or similar occurrence. As in this case, one board of inquiry may be convened to investigate all matters arising out of the same occurrence.

[10]            The Board of Inquiry was convened on 8 October 2004 by Vice-Admiral M.B. MacLean, Chief of the Maritime Staff, "to investigate the fires that occurred in HMCS Chicoutimi ... and the casualties amongst her crew...". In addition to appointing five members, various advisers were designated, including two legal advisers.

[11]            The inquiry is to be conducted in accordance with the aforesaid section 45 of the National Defence Act and chapter 21 of the Queen's Regulations and Order for the Armed Forces. With respect to the fires, the Board is called upon to make findings as to the seaworthiness of the HMCS Chicoutimi, the cause of the fires including any operational, mechanical, construction, technical, procedural or human failures, crew training and response. With respect to the death, injury and medical care of Canadian Forces personnel during and following the fires, the Board is called upon to make findings as to whether Lieut. Saunders or any other person was responsible for his death and whether the injured or any other person was responsible for the injuries. Indeed, section 21.47 of the Queen's Regulations requires the Minutes of a board of inquiry to contain findings as to whether anyone "was to blame for the injury or death".

[12]            Paragraph 12 of the Terms of Reference is crucial and must be set out in full:

12.    The President of the BOI shall ensure that the proceedings and activities of the BOI are conducted in such a manner as to strike the appropriate balance between the interest of the public in being informed of the BOI's progress, and the public's interest in ensuring that security, privacy, operational and international relations requirements, is achieved. This direction is to ensure that as much information as is appropriate and reasonable is publicly available and disclosed. In accordance with QR & O 21.12(c), the President may permit the attendance of persons with a direct and substantial interest in the BOI concerning death or injury.

[13]            Finally, the Board of Inquiry was called upon to deliver its Minutes of Proceedings to Vice-Admiral MacLean no later than 30 November 2004. If it should turn out that that deadline could not be met, a full written explanation had to be submitted prior thereto giving the reasons for the delay and the anticipated completion date.

[14]            The Board of Inquiry began its task in Scotland where it took evidence from a number of witnesses. It was only weeks later, just before it was to receive evidence in Halifax from crew members, that the CBC applied to attend.

[15]            The Board would not give the CBC the opportunity to present oral argument, but agreed to consider written submissions. In his decision, Commodore Murphy made the following points:

a)         The Board was convened as an internal administrative investigation;

b)          The inquiry is not a judicial or quasi-judicial proceeding, nor a public inquiry under the federal Inquiries Act:

This is an internal Canadian Forces investigation by military members with appropriate technical expertise, directed to gather facts that determine the cause of fires, the death of a sailor, and other casualties. Recommendations on how such incidents could be prevented in the future must also be made.

c)         The mandate must be exercised within a very short time, and public access would cause delays as he had to be mindful of the release of information that could compromise privacy, security, operational and international relations;

d)         Under paragraph 12 of the Terms of Reference he was directed to ensure that information be publicly available and disclosed, which he had done by posting information on a National Defence website, granting interviews with the media and the distribution of printed material;

e)         He also invited a Saunders family representative, who had "a direct and substantive interest"... because of the death of the Lieutenant, to attend.

[16]            The CBC immediately filed this application for judicial review and sought a stay of the Halifax proceedings. I refused to grant a stay as I was not satisfied that the tripartite test for interlocutory injunctions and stays of proceedings had been met (2004 FC 1566; [2004] F.C.J. No. 2124 (QL)).

[17]            That decision certainly did not seize me of the case. On the other hand, since I expressed views as to the law, regulations and case law, the CBC took the position that I was disqualified from hearing the application for judicial review itself. The refusal to grant an interlocutory stay of proceedings is not determinative of the issues in this judicial review and is not binding upon me or any other judge of this Court. I dismissed the application to recuse myself (2005 FC 223).

STATUTORY INTERPRETATION AND STANDARD OF REVIEW

[18]       Section 45 of the National Defence Act, and the Regulations and Terms of Reference flowing therefrom, are subject to modern standards of statutory interpretation. A recent example is Glykis v. Hydro-Québec, [2004] S.C.R. 285, where Deschamps J. said:

5. The approach to statutory interpretation is well-known (Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42">2002 SCC 42). A statutory provision must be read in its entire context, taking into consideration not only the ordinary and grammatical sense of the words, but also the scheme and object of the statute, and the intention of the legislature. This approach to statutory interpretation must also be followed, with necessary adaptations, in interpreting regulations.

[19]            When it comes to judicial review, under sections 18 and 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7, as amended, the judge must follow a functional and pragmatic approach, summarized by the Supreme Court in such cases as Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226 and Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247. There are three standards of review: patent unreasonableness, reasonableness simpliciter and correctness. The more the issue is one of law, the more likely the standard of review is correctness. The prime issue here is whether quasi-judicial functions are involved. If so, the presumption, which may be rebutted, is that proceedings are open to the public. Commodore Murphy said the inquiry was not a judicial or quasi-judicial proceeding. The Court is in a far better position to determine the legal nature of the Board. Interpreting the law is what courts do. The Board comprised military with appropriate technical expertise, not legal expertise. On this issue the standard is correctness.

[20]            The secondary issue, irrespective of whether or not the Board of Inquiry exercises quasi-judicial functions, is whether Commodore Murphy properly exercised his discretion under paragraph 12 of the Terms of Reference in allowing a member of Lieut. Saunders' family to attend, but not the CBC. A discretionary decision, even within a legal context, is entitled to considerable deference. I adopt the reasonableness simpliciter standard which in this case means that the decision should not be interfered with unless clearly wrong in the sense of being based upon a wrong principle or a misapprehension of the facts.

THE TRAVERS CASE

[21]       Section 45(1) of the National Defence Act and the terms of reference of a board of inquiry convened thereunder were considered by Joyal J. in Travers v. Canada (Chief of Defence Staff), [1993] 3 F.C. 528, maintained in appeal in Travers v. Canada (Board of Inquiry on the Activities of the Canadian Airborn Regiment Battle Group in Somalia), [1994] F.C.J. No. 932 (QL). Joyal J. dismissed an application to require the Chief of Defence Staff to direct that the Board of Inquiry conduct its proceedings in public. The applicants in that case, as in this, contended that the decision breached their Charter section 2(b) right to freedom of the press. The application was dismissed. Although Joyal J. noted that the open court doctrine has in modern times been applied to certain administrative tribunals exercising quasi-judicial functions, he also stated that the board of inquiry is more of an in-house procedure than a public forum. [1979] 1 S.C.R. 495">Minister of National Revenue v. Coopers and Lybrand, [1979] 1 S.C.R. 495 was then, and still is, the leading authority for determining whether a proceeding is judicial.

[22]            The CBC is prepared to concede that Travers was correctly decided in light of the specific terms of reference given the Board by the convening authority. To elaborate:

a)         It had no power to summon witnesses by way of subpoena. The Chicoutimi Inquiry does.

b)         It did not determine rights or impose obligations. The Chicoutimi Inquiry is charged with finding responsibility for Lieut. Saunders' death and personal injuries to the other crew members.

c)         In the Somalia Inquiry no individual rights or duties were being made subject to scrutiny. In the Chicoutimi they may be.

[23]            Joyal J. concluded that the case did not deal so much with constitutional rights as with a public policy decision to exclude the public. That closed-door policy did not breach the Charter. The appropriateness of that policy may be a matter for political and media debate, but not for judicial comment.

[24]            The CBC submits that the distinctions it raises temper the more general remarks of Joyal J. at paragraphs 12 and 17 of his reasons:

12. An analysis of the statutory and regulatory framework under the National Defence Act [R.S.C., 1985, c. -5] indicates to me that a Board of Inquiry is far more an in-house procedure than a public forum which citizens may freely attend or on which the media may freely report. Whether or not it is constituted under a particular provision of the National Defence Act and its constitution made public, or simply organized by ministerial directive, the function of the Board, on a reading of its Terms of Reference, is such that, in my view, it does not necessarily or automatically trigger a concomitant right to sit in on the collection or collation of the evidence or on the deliberations of the members of the enquiry dealing with these Terms of Reference. To suggest otherwise is to propound the right to information in absolute terms and to effectively metamorphose a process of an internal enquiry into an adjudication function characteristic of judicial proceedings.

...

17. I should nevertheless seriously doubt that the right of access to information applies to hearings of committees, boards of inquiry, study groups, task forces or any similar group which might be entrusted to hear evidence and submissions, and make recommendations thereon to the authority which appointed them. If I should express this thought in doubtful terms, it is to eschew the temptation to make any kind of generalized statement on the issue. It is not the name given to an enquiry which determines its judicial or quasi-judicial characteristics; it is rather the nature of its function which would either meet or not meet the test set out by Mr. Justice Dickson in [1979] 1 S.C.R. 495">Coopers and Lybrand (supra).

[25]            In appeal, Hugessen J.A., delivering the judgment of the Court said:

We are in general agreement with the reasons given by Joyal J. for dismissing the appellants' application. In particular we think that the judge took the correct approach in looking at the function of the Board of Inquiry appointed under section 45 of the National Defence Act [See Note 1 below] in order to determine whether the rules relating to open court hearings should apply to it. Since the Board manifestly has no dispositive or decision-making role, the judge's conclusion that the decision whether to hold the inquiry in private or in public was purely a matter of policy was also clearly right.

[26]            According to the CBC, section 21.47 of the Regulations which requires the Minutes of a board of inquiry to contain findings as to whether anyone "was to blame for the injury or death" changes the very nature of the board of an inquiry. Does the nature of a board of inquiry, convened under section 45 of the Act, depend on whether there has been an injury or death?

WHAT IS A JUDICIAL FUNCTION?

[27]       In [1979] 1 S.C.R. 495">Canada (Minister of National Revenue - MNR) v. Coopers and Lybrand Ltd., [1979] 1 S.C.R. 495, the Court was concerned with a decision of the Department of National Revenue authorizing the entry and search of accountants' offices and the seizure of certain documents pertaining to the tax affairs of a client. Arguments turned on whether the decision was required to be made on a judicial or quasi-judicial basis and thus subject to the superintending power of the Federal Court of Appeal under section 28 of the Federal Court Act, as it then was. Dickson J., as he then was, differentiated purely administrative from judicial or quasi-judicial decisions as follows:

It is possible, I think, to formulate several criteria for determining whether a decision or order is one required by law to be made on a judicial or quasi-judicial basis. The list is not intended to be exhaustive.

                (1) Is there anything in the language in which the function is conferred or in the general context in which it is exercised which suggests that a hearing is contemplated before a decision is reached?

                (2) Does the decision or order directly or indirectly affect the rights and obligations of persons?

              (3) Is the adversary process involved?

                (4) Is there an obligation to apply substantive rules to many individual cases rather than, for example, the obligation to implement social and economic policy in a broad sense?

These are all factors to be weighed and evaluated, not one of which is necessarily determinative...

[28]            The Court held that the Minister was exercising a purely administrative function and so his decision was not subject to the Federal Court of Appeal's review. Dickson J. referred to a number of cases including [1965] S.C.R. 12">Guay v. Lafleur, [1965] S.C.R. 12, in which it was held that the income tax investigation in question was purely administrative. Nothing could be adjudicated upon. It was a private investigation at which the respondent was not entitled to be present or be represented by counsel. Abbott J. said:

The power given to the Minister under s. 126(4) to authorize an enquiry to be made on his behalf, is only one of a number of similar powers of enquiry granted to the Minister under the Act. These powers are granted to enable the Minister to obtain the facts which he considers necessary to enable him to discharge the duty imposed on him of assessing and collecting the taxes payable under the Act. The taxpayer's right is not affected until an assessment is made. Then all the appeal provisions mentioned in the Act are open to him.

[29]            Moreover, according to Professor David Mullan, speaking of public commissions of inquiry:

Their primary aim is to generate findings and recommendations in the public interest. Even in "who did what to whom?" inquiries,"the Commission is not engaging in an adjudicative task even though it may ultimately make findings of responsibility and make recommendations. It does not impose penalties or civil liability". [emphasis added]

(D.J. Mullan, Administrative Law, Irwin Law, Toronto, 2001, at page 394.)

[30]            Bolstered by [1979] 1 S.C.R. 495">Coopers and Lybrand, I am of the view that the HMCS Chicoutimi Board of Inquiry is not carrying out any judicial or quasi-judicial functions. It is, in essence, a private investigation. There is nothing to suggest that the Board conducts hearings in a judicial sense or adjudicates upon the rights and obligations of individuals. The Board has no such power. In fact, paragraph 14 of the Terms of Reference provides that if it receives evidence that it believes relates to an allegation of criminal conduct or breach of the Code of Service Discipline, it must adjourn. The process before the Board is not adversarial. The National Defence Act has mechanisms in place for prosecution under and enforcement of the Code of Service Discipline. There are also administrative disciplinary processes which may become the subject of grievance procedures as provided in section 29 of the Act.

[31]            In my view, the requirement to make findings as to responsibility or blame in this case is not adjudicative but rather like an income tax assessment, as noted by Abbott J. in [1965] S.C.R. 12">Guay v. Lafleur, supra. As stated in Wiseman v. Borneman, [1971] A.C. 297 (HL), by Lord Reid at page 308, as quoted in [1979] 1 S.C.R. 495">Coopers and Lybrand, supra:

It is, I think, not entirely irrelevant to have in mind that it is very unusual for there to be a judicial determination of the question whether there is a prima facie case.

[32]            Any "finding" as to responsibility is within an investigative report. It is not a court pronouncement.

[33]            The cases which have held that certain administrative tribunals should, in principle, be open to the public are quite different. For instance, disciplinary proceedings with binding effect came under consideration in Re: Ottawa Police Force and Lalonde, [1986] 57 O.R. (2d) 509 (Ont. Dist. Ct.) and Canadian Broadcasting Corp. v. Summerside (City), [1999] P.E.I.J. No.    3.

[34]            Although Travers, supra, may be distinguishable on its facts, it is not, in my view, distinguishable in law.

[35]            In my opinion, the judicial interpretation given the Somalia Inquiry by Joyal J. and the Court of Appeal is equally applicable to the HMCS Chicoutimi Inquiry. Neither board was charged with quasi-judicial functions as set out in [1979] 1 S.C.R. 495">Coopers and Lybrand, supra.

[36]            The Supreme Court decisions cited by the CBC have no application as they dealt with such matters as access to courts and publicity bans issued by courts. The Chicoutimi Board of Inquiry is nowhere near a court.

DO THE TERMS OF REFERENCE CALL FOR A PUBLIC HEARING?

[37]       The CBC acknowledged that the freedom of the press to attend judicial proceedings and to report to the public is not absolute. Although the exceptions to an open-court system must be narrowly construed, public access must be balanced taking into account such issues as privacy and the right to a fair trial. Just recently in Vancouver Sun (Re), [2004] 2 S.C.R. 332, Iacobucci and Arbour JJ. reiterated at paragraph 26:

The open court principle is inextricably linked to the freedom of expression protected by s. 2(b) of the Charter and advances the core values therein: Canadian Broadcasting Corp. v. New Brunswick (Attorney General),[[1996] 3 S.C.R. 480], at para. 17. The freedom of the press to report on judicial proceedings is a core value. Equally, the right of the public to receive information is also protected by the constitutional guarantee of freedom of expression: Ford v. Quebec (Attorney General) [1988] 2 S.C.R. 712; Edmonton Journal [v. Alberta (Attorney General, [1989] 2 S.C.R. 1326], at pp. 1339-40. The press plays a vital role in being the conduit through which the public receives that information regarding the operation of public institutions: Edmonton Journal, at pp. 1339-40. Consequently, the open court principle, to put it mildly, is not to be lightly interfered with.

[38]            The Supreme Court has held that a publication ban should only be ordered if necessary to prevent a serious risk to the proper administration of justice and if the benefits of the ban outweigh the downside effects on the rights and interests of the parties and the public (Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835 and R. v. Mentuck, [2001] 3 S.C.R. 442.)

[39]            The powerful, ringing words found in those cases do not assist the CBC in this case because the Board of Inquiry is not a court and is not carrying out judicial or quasi-judicial functions. Nevertheless, the convening authority in paragraph 12 of the Terms of Reference called upon Commodore Murphy as the President of the BOI to strike:

[T]he appropriate balance between the interest of the public in being informed of the BOI's progress, and the public's interest in ensuring that security, privacy, operational and international relations requirements, is achieved. This direction is to ensure that as much information as is appropriate and reasonable is publicly available and disclosed.

[40]            Unlike the version of section 28 of the Federal Courts Act which the Supreme Court considered in [1979] 1 S.C.R. 495">Coopers and Lybrand, supra, the Federal Court, under section 18 of the Act, has jurisdiction to give the CBC a right of attendance before the Board of Inquiry even though it is not carrying out a judicial function.

[41]            In rejecting the CBC's request, Commodore Murphy stated that he struck a balance by using a number of mechanisms including the posting of information on a National Defence website, interviews with the press, and press releases. He attended a news conference at which a number of news organizations were present and personally met with journalists from a number of organizations including the CBC.

[42]            I pause to note that this Board, unlike the Board in Travers, supra, has a protected classification. Yet, even in Travers Joyal J. noted that the proceedings might be plagued with voir dires in order to determine what information could be heard by the public.

[43]            Finally, Commodore Murphy permitted a member of Lieut. Saunders' family to attend because paragraph 12 of the Terms of Reference concluded:

... the President may permit the attendance of persons with a direct and substantial interest in the BOI concerning death or injury.

[44]            Although the Minister agrees with Commodore Murphy's refusal to give the CBC access to the Board's proceedings, he says the Commodore did so for the wrong reasons. The general rule under Regulation 21.12 , supra, is that a board of inquiry shall meet behind closed doors "unless the convening authority otherwise directs". In this case, the convening authority, Vice-Admiral MacLean, only authorized Commodore Murphy to "permit the attendance of persons with a direct and substantial interest in the BOI concerning death or injury".

[45]            I cannot agree with this interpretation. For the purposes of this application, I equate the CBC with the public at large, an equation which is not always à propos. While I agree it was open to Commodore Murphy to refuse the CBC on the basis that it had no "direct and substantial interest ... concerning death or injury", in striking a balance between the interests of the public in being informed of the Board's progress and the interest in maintaining national security, privacy and other issues, he could have given the press access, subject to exclusion depending on the topic being discussed. As Commodore Murphy noted in his decision:

Public access would cause delays as it would require me to take additional steps to ascertain when witnesses and information could be heard in the presence of the public.

[46]            All in all, Commodore Murphy exercised his discretion in a reasonable manner. There may have been other ways to strike a balance. Indeed, it is inherent in the reasonableness simpliciter review standard that there may be more than one way to proceed and more than one decision which could have been made.

RIGHT TO MAKE ORAL REPRESENTATIONS

[47]       The CBC also chastises Commodore Murphy for not giving it the opportunity to plead its case orally.

[48]            In his affidavit, Mr. Gordon states that on 2 November he attempted to attend the Board's meeting in Halifax. He was informed that the hearings were closed to the public. However, later that day the Board stated it was willing to accept written representations, as no witnesses would be called prior to Saturday, 6 November 2004. Written representations were delivered 3 November and the negative decision was rendered on 4 November.

[49]            The right to an oral hearing is hardly absolute, particularly in an administrative matter. Commodore Murphy was very occupied with the duties inherent to the Inquiry itself. The issues raised by the CBC were ones of legal argument and an analysis of the proper interpretation of the Terms of Reference, particularly paragraph 12. No issues of credibility were involved.

[50]            Leaving aside the time restraints, it was not unreasonable for Commodore Murphy, who is not a lawyer, to refuse to listen to oral argument. Even in applications for leave to appeal to the Supreme Court of Canada, litigants have no general right of audience.

[51]            In the circumstances, it is not necessary to deal with the Minister's objection to the CBC amending the conclusions of its application for judicial review after its application to stay the Board of Inquiry's meetings was turned down.

[52]            For these reasons, the application for judicial review shall be dismissed.

"Sean Harrington"

                                                                                                   Judge                    

Ottawa, Ontario

March 8, 2005

                                     FEDERAL COURT

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                        T-1976-04

STYLE OF CAUSE:                                       ROBERT GORDON, Journalist, and

CANADIAN BROADCASTING CORPORATION

AND

MINISTER OF NATIONAL DEFENCE

PLACE OF HEARING:                                             HALIFAX, NOVA SCOTIA

DATE OF HEARING:                                               FEBRUARY 9, 2005

REASONS FOR ORDER :                                      HARRINGTON J.

DATED:                                                           MARCH 8, 2005

APPEARANCES:

David Coles                                                      FOR APPLICANTS

David Doyle

Martin Ward                                                     FOR RESPONDENT

SOLICITORS OF RECORD:

Boyne Clarke

Dartmouth, Nova Scotia                                                FOR APPLICANTS

John H. Sims, Q.C.

Deputy Attorney General of Canada                  FOR RESPONDENT