Date: 19980427
Docket: T-1645-97
BETWEEN:
LIEUTENANT-COLONEL PAUL R. MORNEAULT
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
REED, J.:
[1] The applicant seeks an order pursuant to section 18.1 of the Federal Court Act, quashing the findings made against him by the Commission of inquiry into the Deployment of Canadian Forces to Somalia ("the Commission"). The findings are contained in the Commission's Report, which carries the title "Dishonoured Legacy".
[2] The Order in Council under which the Commission was established had envisaged an investigation into events that occurred pre-deployment (i.e., prior to January 1993), in-theatre (January 10, 1993 to June 10, 1993), and post-deployment (June 11, 1993 to November 28, 1994). As is well known, the Commission only completed the first of the three stages of the planned inquiry. The Commission was part way through its investigation into the second stage, the in-theatre events, when the inquiry was terminated.
[3] The Commission's Report comprises fives volumes. It is the first four volumes that are particularly relevant for present purposes. Volumes 1 to 3 identify what can be called systemic or institutional faults in the pre-deployment stage. Those volumes contain much narrative material and the Commission makes recommendations as to how the faults that it identifies might be corrected. Volume 4 singles out eleven senior officers and makes findings of misconduct against them. The applicant is one of the individuals against whom such findings were made.
[4] Subsection 18.1(4) of the Federal Court Act provides for the setting aside of decisions by a federal board, commission or tribunal when that body in making a decision has:
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(b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe; |
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(d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it; |
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[5] It is pursuant to these provisions that the applicant seeks an order quashing or setting aside the Commission's decisions with respect to him. The applicant challenges the Commission's decisions on the following grounds: (1) the Commission was not able to complete the in-theatre stage of its inquiry and, therefore, it could not evaluate whether there was a significant causal link between the applicant's pre-deployment responsibilities and the events in Somalia; (2) the applicant was not given reasonable notice of the allegations of misconduct and an opportunity to respond thereto before findings were made against him; (3) perverse and capricious findings of fact were made by the Commission, without regard to the evidence before it. I will first set out some background facts and then consider the arguments with respect to each of the three grounds.
Background
[6] Lieutenant-Colonel Morneault was appointed commanding officer (CO) of the Canadian Airborne Regiment (the "Airborne" or the "Regiment") on June 24, 1992. During the preceding year, he had been the Regiment's deputy commanding officer. In addition to a headquarters unit and a services unit (both called commandos), the Airborne consisted of three company sized units: 1 Commando, 2 Commando and 3 Commando. These were under the command of Majors Pommet, Seward and Magee respectively. Those officers are referred to as officers commanding (OCs). Major Seward had been appointed to his post in July 1992. It was the members of 2 Commando who were found responsible for the murder of Shidane Arone in Somalia on March 16, 1993.
[7] Captain Walsh was the Regimental Training Officer for the Regiment; Captain Kyle was the Regimental Operations Officer; Chief Warrant Officer Jardine was the Regimental Sergeant-Major. Lieutenant-Colonel Morneault's immediate superior in the chain of command was Brigadier-General Beno, the commander of the Special Service Force (SSF), of which the Airborne was one component; Brigadier-General Beno was appointed to his position on August 7, 1992.
[8] The Airborne received formal notice on September 5, 1992, that it was to go to Somalia on a peacekeeping mission (Operation Cordon). There had been some anticipatory planning during the latter part of August and training for deployment to Somalia commenced on September 8, 1992. From the beginning the exact date of deployment was uncertain. It was continually being postponed; this is referred to as "slippage" in the evidence. On October 21, 1992, Lieutenant-Colonel Morneault ceased to be the commanding officer of the Airborne. He was removed at the request of Brigadier-General Beno; Lieutenant-Colonel Mathieu was appointed in his place. Lieutenant-Colonel Morneault considered his removal to be an abuse of authority by senior officers and filed a grievance under section 29 of the National Defence Act. This grievance is still awaiting adjudication.
[9] The Regiment under Lieutenant-Colonel Morneault was training for what is referred to as a Chapter VI United Nations peacekeeping mission. The Regiment was to go to Bossasso, in the north-eastern part of Somalia, to be responsible for the security of the delivery of humanitarian aid, for example, providing security for food distribution centres. The nature of the mission was changed before the Airborne left for Somalia. On December 2, 1992, the Bossasso deployment was suspended. The mission the Airborne subsequently undertook was a peace enforcement mission (Operation Deliverance), a Chapter VII United Nations mission. Deployment was to Belet Huen, a more troubled part of Somalia, near Mogadishu. A peace enforcement mission potentially requires and allows for a greater use of force than a peacekeeping mission. An advance party of the Regiment left for Somalia on December 13, 1992; the main body of the Regiment followed on December 27, 1992. A description of the new mission, as compared to that initially planned, is found in the Commission's Report, volume 1, page 263. The new mission is referred to as "an uncertain mission, in a different region of Somalia, under new command and arrangements and with a changed force structure and different rules of engagement".
Incompleteness of the Inquiry
[10] The applicant's argument that it was unfair for the Commission to have made findings of individual misconduct because of its inability to complete the in-theatre inquiry has two branches. The first is that the incomplete nature of the inquiry meant that the Commission could not determine whether the events in Somalia were, primarily or only incidentally, caused by one or more of: (1) the actions of a few renegade individuals, (2) a response to particular events that occurred in Somalia, or (3) actions taken by those who had responsibilities at the pre-deployment stage. The second is that the Commission's finding that he failed to 3adequately3 organize, direct and supervise the training preparations of the Regiment for Operation Cordon is similar to the allegations of misconduct struck out by Mr. Justice Teitelbaum in Addy v. Canada (Commissioner and Chairperson, Commission of Inquiry into the Deployment of Canadian Forces in Somalia) , [1997] 3 F.C. 784 (T.D.).
a) Lack of Causal Connection to Events in Somalia
[11] With respect to the first branch of the argument, the applicant notes that the findings against him created a false public perception that he was involved in and directly responsible for events that took place in Somalia. He states that the Commission's Report has unfairly exposed him to public disapprobation for events in which he had no involvement. He considers it to have been unfair for the Commission, after its mandate was shortened, to have made adverse findings against any person involved in the pre-deployment stage and, particularly, against someone who was not even present in Somalia when the events that gave rise to the inquiry occurred, and who had not been involved with the Airborne since mid-October, 1992.
[12] The argument that the Commission should not be allowed to make findings of misconduct with respect to actions taken during the pre-deployment stage was considered by Mr. Justice Teitelbaum in the Addy decision, at pages 816 - 822. Mr. Justice Teitelbaum had before him applications from six senior officers. They sought court orders to prevent the Commission making individual findings of misconduct against them. These were sought, in part, on the ground that the Commission had not been allowed to complete the in-theatre stage of its inquiry and thus could not, in fairness, assess the extent to which pre-deployment activities had contributed to the events that led to the inquiry.
[13] Mr. Justice Teitelbaum noted that the mandate given to the Commission under its constituent Order in Council was very broad; it was not limited to the in-theatre events. He noted that allegations of misconduct relating to the training and leadership of the Airborne prior to its deployment to Somalia was an autonomous area of inquiry with respect to which the Commission, under its mandate, could make misconduct findings. I think that decision is determinative of the applicant's argument that the Commission should not have made any findings against those involved in the pre-deployment stage. The terms of the Commission's mandate were indeed very broad.
b) Similarity to Other Allegations Struck Out
[14] I turn then to the second branch of the argument, that is, that the misconduct allegations made against the applicant were similar to those struck out by Mr. Justice Teitelbaum in the Addy decision. The test Mr. Justice Teitelbaum applied was to ask himself whether, in order to rebut the allegations set out in the notices, the recipients would need to refer to 3in-theatre3 witnesses and evidence; see page 838 of the decision. I have compared the text of the respective allegations and applied the test articulated by Mr. Justice Teitelbaum. The allegations made against this applicant are not of the same type as those struck out by Mr. Justice Teitelbaum decision in the Addy decision.
[15] While the findings against the applicant allege a lack of adequacy in training preparations, this is not directly linked to the events in Somalia. The standard against which the adequacy of the training is to be measured is presumably that to be expected of a commanding officer preparing troops for participation in a peace keeping mission. Counsel for the applicant argues that this is impossible to assess because Operation Cordon never occurred. The nature of the mission changed to a peace enforcement mission so there are no actual events by reference to which the adequacy of the training conducted under the applicant's direction can be assessed.
[16] While there is merit to that argument, if an identifiable standard exists, by reference to which the applicant's conduct can be judged without relying upon in-theatre experience as a referent, then failure to complete the in-theatre inquiry is not important. If unfairness occurred, and for reasons that will become apparent I have been persuaded that it did, this was not the result of the Commission's inability to complete its inquiry into the events that occurred in Somalia.
Inadequate Notice
[17] The applicant's arguments with respect to the failure to give him reasonable notice of the findings the Commission made against him relate to two different types of findings. One relates to blanket statements of condemnation found in the Report. These apply to all or almost all of the senior officers who appeared before the Commission. The other relates to the findings of misconduct specifically attributed to the applicant in chapter 35 of volume 4, pages 1029 - 1032.
[18] Counsel for the respondent raises, as a preliminary matter for consideration, the argument that there was really only one finding of misconduct made against the applicant, that is, that he exercised poor and inappropriate leadership in the pre-deployment stage, particularly as it related to training. He argues that the adequacy of the notice, and whether or not the general statements of condemnation are findings requiring notice, should be assessed in that context. I have chosen to deal with this argument in the context of the assessment of the evidentiary basis of the Commission's decision because I think it more logically pertains thereto.
a) Blanket Statements of Condemnation
[19] Volumes 1 to 3, as noted, contain general comments and observations on pre-deployment activities. In the preface to volume 1, page xxxiii, and in the introductory chapter to volume 4, page 953, general statements of condemnation are made with respect to the conduct of senior officers who appeared before the Commission as witnesses. The applicant considers these to be findings of misconduct against him as well as against the other officers. He asserts that, as such, those statements should not have been made without a section 13 notice having been given.
[20] Section 13 of the Inquiries Act, R.S.C. 1985, c. C-11, requires that notice and an opportunity to respond be given before a commission of inquiry makes a finding of misconduct against any individual in a report:
| 13. No report shall be made against any person until reasonable notice has been given to the person of the charge of misconduct alleged against him and the person has been allowed full opportunity to be heard in person or by counsel. |
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[21] The blanket statement found in the opening comments of volume 4 characterizes the individuals who are subsequently named in that volume as individuals who blamed others for their actions, who failed to question the appropriateness of the commands they received, and who failed in their duty to advise against improper actions. A reader would conclude that the Commission had decided that the individuals who are specifically singled out for mention in the pages that follow had failed in their duty as military officers to advise against improper actions. This is a very serious conclusion to draw with respect to the conduct of a senior military officer.
[22] The blanket statement of condemnation found in volume 1 states that many of the senior officers who testified before the Commission exhibited a pattern of evasion and deception, betrayed the public trust, and that, if they still remain in the military, they should have their status reviewed. The applicant characterizes this as a sweeping judgment that those individuals lacked credibility, personal and moral integrity, and were liars. Yet, he asserts, the Commission chose not to specifically identify any witness or witnesses who lied or were deceptive, nor did it refer to any evidence or argument for the condemnation. In the applicant's view, if the Commission was not prepared to identify specific individuals to whom it considered these statements applied, it should have refrained from making them at all. The general terms in which they are expressed blacken everybody's reputation without regard to whether or not the statements are accurate descriptions of each individual's conduct.
[23] The applicant does not take much comfort from the respondent's argument that he is not included in the terms of the blanket condemnation found in volume 1 because the statement only refers to "some" and not all of the senior officers who appeared as witnesses. The applicant notes that the Commission, in volume 4, page 988, states that Major-General MacKenzie was unique among the senior officers who appeared before the Commission in evincing a proper understanding of the inquiry, that he testified in an honest and straightforward manner, and that he alone seemed to understand the necessity to acknowledge error. If the Commission found that Major-General MacKenzie was unique in this regard, the clear implication is that the Commission meant the general statement to apply to the applicant.
[24] I did not understand it to be seriously contested that the statements of general condemnation do not apply to Lieutenant-Colonel Morneault. They are not accurate descriptions of either his actions as a senior officer or of his behaviour before the Commission. I was not referred to any part of the record as support for a conclusion that Lieutenant-Colonel Morneault failed in his duty to advise against improper actions.
[25] Lieutenant-Colonel Morneault appeared before the Commission from January 22 to January 25, 1995. This was before the allegations arose with respect to document destruction and cover-up. He was respectful to the Commission; he provided documents from his own files; he suggested witnesses that the Commission might find it useful to call; he accepted responsibility for his actions. No affidavit evidence was filed to rebut his description of how he conducted himself. A reading of the transcript of his evidence supports his description of his conduct before the Commission. He was thanked by the Chairman of the Commission for his cooperation and for the assistance he had provided, (7698 - 9).1
[26] Counsel for the respondent argues that the general statements are not findings of misconduct; that they are part of the general narrative of the Report and as such section 13 notices with respect to them were not required. He argues that the Commission is not required to give section 13 notices for every adverse comment that may affect an individual that is made in its Report - this would place an unduly onerous standard of fairness upon the Commission and impede its ability to carry out its functions. He refers to Mr. Justice Teitelbaum's comments in the Addy decision where he approved the making of general statements of credibility. In addition, counsel argues that the second above-noted general condemnation is a credibility finding, not a finding of misconduct. As such there is no requirement for a section 13 notice; see Richards v. Miller, J. (1996), 180 N.B.R. (2d), at 24 (Q.B.T.D.).
[27] What is meant by a "charge of misconduct" in section 13 of the Inquiries Act has recently been the subject of comment in the decisions relating to the Krever inquiry: Canada (Attorney General) v. Canada (Commissioner of the Inquiry on the Blood System), [1996] 3 F.C. 259 (T.D.), substantially affirmed [1997] 2 F.C. 36 (F.C.A.), affirmed [1997] 3 S.C.R. 440 (sometimes referred to herein as "Krever"). In the Supreme Court decision, at page 471, Mr. Justice Cory referred to a "charge" of misconduct as a "potential finding" of misconduct and, at page 463 to misconduct as "improper or unprofessional behaviour" or "bad management". In the Federal Court of Appeal decision, at page 60, Mr. Justice Décary described misconduct, stating:
| When we say "misconduct", we are necessarily saying breach of a standard of conduct. That standard may be moral, legal, scientific, social, political and so on ... |
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This jurisprudence also makes it clear that the reporting and advising functions of a commission of inquiry can make it necessary to comment adversely on the conduct of persons and such comments will not necessarily become the subject of a section 13 notice requirement. With respect to Mr. Justice Teitelbaum's statements, I have no doubt that they were premised on the assumption that all the members of the group, with respect to whom a general finding of credibility or lack thereof might be made, had exhibited conduct that justified the general statement being applied to them.
[28] The two general statements that the applicant finds repugnant attribute behaviour that is both morally and legally wrong to specifically identified individuals. In my view, they are a type of finding for which a section 13 notice should have been given unless they fall within the category of comment that the jurisprudence describes as being necessary to the Commission's advising and reporting functions; see the Supreme Court decision in Krever (supra) at 462 - 3. I cannot conclude that the statements fall within that description; they are not findings necessary to explain and support the Commission's recommendations. Also, the second statement cannot be characterized as merely a finding of credibility; it goes beyond that. It characterizes the conduct of the individuals as being such as to raise serious doubts about whether they are qualified in a moral and professional sense to hold the career positions they presently hold. I am of the view that the statements should not have been made without the conduct referred to therein having been properly particularized and made the subject of section 13 notices.
[29] It is unfortunate that these broad statements of condemnation found their way into the Report. They can operate, as the applicant states, to tarnish the reputations of innocent persons and do great damage to individuals who do not deserve such disapprobation. At the very least, the applicant is entitled to a declaration by the Court that neither the record before the Commission, nor that filed for the purposes of this judicial review application, supports a finding that his conduct was such as to bring him within the scope of either of those general statements.
b) Specific Chapter 35 Misconduct Findings
[30] The applicant argues that he was not given reasonable notice of many of the findings found in chapter 35 of volume 4 of the Report, pages 1029 - 1032. In order to assess this argument it is necessary to describe the notice he was given together with the particulars relating thereto, and then to compare it with the findings made in the Report. I will consider the argument under the following headings: (i) notice given, (ii) matters dropped as allegations that might support misconduct, (iii) summary of chapter 35 findings, and (iv) adequacy of notice given.
(i) Notice Given
[31] The Commission, at a very early stage, issued section 13 notices to those it thought might possibly be the subject of misconduct findings. The applicant received one of these, dated September 22, 1995. By this time he was already a full participant in the Commission proceedings. As commanding officer of the Airborne from June 24 to October 21, 1992, he had applied for and been granted that status. Indeed, in his view, his removal from the position of commanding officer had contributed to, rather than ameliorated the Regiment's problems.
[32] The notices of September 22, 1995 were of a "boiler plate" nature; that issued to the applicant, for example, listed matters with respect to which the applicant had never had any responsibility. The notices served the useful purpose, however, of giving individuals general notice that the result of the inquiry might lead to adverse findings being made against them. Those who were not already doing so were put on notice that they should monitor the proceedings if they wished and apply to participate therein as they saw fit. The notices were in no way sufficiently detailed to be adequate for section 13 purposes. The Commission undoubtedly knew this was the case and was only trying to make sure than no one, at the end of the day, was taken by surprise.
[33] On January 31, 1997, a letter that modified the content of the early section 13 notice was issued to the applicant. It contained four headings. Two did not become the subject of any finding against the applicant. The two allegations that became the subject of findings against the applicant were: (1) that he had failed to adequately organize, direct and supervise the training preparations for Operation Cordon; (2) that he had failed in his duty as a commanding officer as defined in the Queen's Regulations and Orders, s. 4.20 and in military custom. The notice that was sent to him with respect to these two allegations reads:
| The Commissioners have instructed me to advise you that, pursuant to the section 13 Notice already delivered to you and based upon the evidence adduced before the Inquiry, the Commissioners will, in their Final Report, consider allegations that you exercised poor and inappropriate leadership in the pre-deployment phase of the Somalia mission by failing: |
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. . . .
| 2. to adequately organize, direct and supervise the training preparations of the Canadian Airborne Regiment during the period from receipt of the Warning Order for Operation Cordon until you were relieved of command. |
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. . . .
| 4. in your duty as a Commanding Officer as defined in Queen's Regulations and Orders, s. 4.20 and in military custom. |
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| This letter is designed to provide greater specification and particularization of the matters previously conveyed to you in your section 13 Notice. |
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| The Commissioners, in writing their Final Report, will limit their comments regarding your possible misconduct to these matters. |
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[34] In response to the January 31, 1997 letter, counsel for the applicant asked the Commission to indicate what acts or omissions by the applicant were alleged to constitute poor and inappropriate leadership in adequately organizing, directing and supervising the training preparations. Similarly counsel asked in what respect it was alleged the applicant had failed to perform his duty as defined in Q.R. & O. 4.20.
[35] The Commission responded:
| a. With respect to para. 2 of the Notice: |
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| He spent insufficient time observing and supervising training and providing direction with respect to training, especially as it related to the tone of the training [see the testimony of BGen Beno, p. 7795 and 8115; Maj Turner, pp. 3547-48, 3446, 3449, 3527, 3674 and 3728; Maj Kyle, pp. 3845, 3808 and 3855-57. LCol Morneault said in his own evidence that he spent 15 to 20 per cent of his time supervising training. See also his testimony at p. 7321] |
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| He did not set out a statement of concepts, objectives, standards and priorities in the training plan [see the testimony of BGen Beno, p. 7753; Maj Turner, pp. 3724, 3435-38 and 3619-20; Maj Seward, p. 5760 and Maj MacKay, p. 6485] |
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| He did not provide uniform training for the various sub-units [see testimony of Maj Turner, pp. 3449 and 3528 and MWO Murphy, p. 6646]. In this context the Commissioners will take into account the performance of the CAR during Exercise Stalwart Providence] |
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| Please note: these references are not exhaustive. |
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| c. With respect to para. 4 of the notice: |
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| The Commissioners will consider whether LCol Morneault retained for himself "important matters requiring the commander's personal attention and decision", in accordance with s. 4.20 of the Q.R. & O. In particular, the Commissioners will consider whether he supervised the training of his commandos, supervised specific training in 2 Commando even though problems had been brought to his attention concerning the status of readiness of the sub-units, redressed problems of command within the CAR, adequately assessed the operational readiness of the CAR and properly informed his superiors of the state of readiness, discipline and training of the CAR. |
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| A further question which will be addressed is whether LCol Morneault maintained adequate "general control and supervision of the various duties" that he allocated to others. In particular, did he supervise adequately the training plans and activities of the OCs, review properly the orders and directives that his subordinate commanders were issuing and ensure that his orders and directives were being followed as intended. |
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| d. With respect to para. 4 of the notice: |
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| The Commissioners will consider whether LCol Morneault maintained good order and discipline in the unit under his command. |
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| Did he lead by example in the field? |
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| A further reference for you with respect to "military custom" is found in s. 1.13 of the Q.R. & O and s. 49 of the National Defence Act. |
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(ii) Matters Dropped as Allegations that Might Support a Finding of Misconduct
[36] As noted above, two of the allegations that were contained in the original section 13 notice (paragraphs 1 and 3) did not become grounds for findings of misconduct against the applicant. The two allegations that were dropped were: Lieutenant-Colonel Morneault had advised Brigadier-General Beno that the Regiment was operationally ready when he knew or ought to have known that it was experiencing problems with discipline, cohesiveness, training at the regimental level and informal leadership; he had failed to ensure that members of the Airborne were adequately trained and tested in the Law of War, or the Law of Armed Conflict including the four 1949 Geneva Conventions on the protection of victims of armed conflict.
[37] Insofar as the particulars with respect to the remaining allegations are concerned, which particulars are set out above, no finding of fault was made against the applicant that he had not provided uniform training for the various sub-units. There was no finding that he had inappropriately delegated responsibility. There was no finding that he had not adequately addressed the operational readiness of the Regiment or that he had failed to properly inform his superiors with respect thereto. There was no finding that he had failed to maintain good order and discipline. There was no finding that he had failed to lead by example.
[38] The failure to find any misconduct by the applicant because of the discipline problems in the Regiment is significant. The Report describes very serious discipline problems within the Airborne, which problems antedated the applicant's command. The Report acknowledges that Lieutenant-Colonel Morneault was trying to cope with those problems.2 Indeed the Commission faults Brigadier-General Beno for failing to support Lieutenant-Colonel Morneault's efforts in this regard:
| With regard to LCol Morneault, BGen Beno ought to have supported his attempts to sort out discipline problems, and, in particular, ought to have either supported the plan to threaten to leave 2 Cdo behind or offered an alternative. ... It was incumbent upon BGen Beno to assume supervisory responsibility for these disciplinary problems and to involve himself in some perceptible manner in aiding LCol Morneault to resolve them. He did not. [footnotes omitted]. |
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Volume 4, pages 1000 - 1
[39] There was also no independent finding of fault made against the applicant with respect to his alleged failure in his duty as a commanding officer as defined in Q.R. & O 4.20 and in military custom, except to the extent that such might be said to have arisen as a result of the alleged failure to adequately organize, direct and supervise training preparations.
(iii) Summary of Chapter 35 Findings
[40] I turn then to a summary of the findings against Lieutenant-Colonel Morneault set out in chapter 35 of the Commission's Report. The relevant portion of the text starts with the statement that Lieutenant-Colonel Morneault failed to meet his important responsibilities with respect to training because he failed to inculcate in his commandos, through the design of an appropriate training plan and through adequate direct supervision, an attitude suitable to a peacekeeping mission. The Report then states that: he spent insufficient time directly supervising the troops; the content of the training plan was too focussed on general purpose combat skills with an inappropriate level of aggression; he ought to have known that a broad knowledge base was required; he had been warned several times about the inappropriate level of aggression in the training but had not corrected this; he had not removed Major Seward as officer commanding of 2 Commando when he had been told that that officer was not fit to command the unit; he had prevented immediate action being taken against that officer.
[41] The second basis for the Commission's finding of misconduct with respect to training set out in the Report is that Lieutenant-Colonel Morneault failed to adequately instruct his OCs on the aim, scope, and objectives of the training they were to conduct, and failed to include a proper statement of these in the training plan he designed; he should have known that a written statement clearly establishing priorities within an overall training concept is an important feature of training direction; the cohesiveness within the Regiment suffered as a result of this absence; he failed to make every effort to draw his unit together as a cohesive whole.
[42] On the basis of those finding the Commission concluded not only that the applicant had failed to adequately organize, direct and supervise training preparations, but also that he had failed in his duty as Commander as defined by analogy to Queen's Regulations and Orders at 4.20 and in military custom.
(iv) Adequacy of the Notice Given
[43] The applicant states that he understood from the notice he had received that the Commission's concerns related to: the amount of time he spent supervising and directing training; the tone of the training within 2 Commando; the content of his training plan; whether uniform training to sub-units had been provided. He did not understand that the Commission was considering: whether or not he failed to inculcate in his Commandos an attitude suitable to a peacekeeping mission; that he knew or ought to have known that a broader knowledge base was required than general purpose combat training permits; that he failed in his duty as a commander by failing to make personnel changes prior to October 21, 1992; that he was accountable for preventing immediate action being taken against Major Seward in October 1992; that he failed to make every effort to draw his unit together as a cohesive whole. He states that, had he known that the Commission intended to consider these matters as grounds that he failed in his duties and exercised poor and inappropriate leadership, he would have tailored his submissions to the Commission to address those concerns.
[44] Comments on what constitutes reasonable notice for section 13 purposes are found in the Krever litigation (supra). Mr. Justice Décary for the Court of Appeal noted, at page 72, that "reasonable notice" ("préavis suffisant" in the French version) must give the recipient "a good idea of the misconduct that is imputed to him ..."; Mr. Justice Cory for the Supreme Court of Canada stated, at page 472, that "in fairness to witnesses or parties who may be the subject of findings of misconduct, the notices should be as detailed as possible".
[45] I agree with counsel for the respondent that notice can be constructive as well as express. However, the fact that the applicant had full status before the Commission, access to all the material filed, and the right to cross-examine witnesses, does not necessarily lessen the duty to give specific notice of what it is that is causing the Commissioners to think that his conduct may deserve the label misconduct. The very volume of the material that was before the Commission, and the length of time during which proceedings continued (a year elapsed between the time the applicant gave his evidence and the particularized section 13 notice issued) increase rather than decrease the necessity for a sufficiently detailed notice.
[46] In my view, whether reasonable notice has been given can be assessed by asking whether a reasonable person, who thinks he or she has acted without fault, has been given enough information to know what aspects of his or her conduct the decision-maker is considering might ripen into, or support, a finding of misconduct. What will be reasonable notice will vary with the circumstances of the case. In the case of a very narrow inquiry, limited to examining the conduct of one or two individuals with respect to a discrete event, a generally worded notice may be sufficient. In a case such as the present, however, as both the Commission and counsel for the applicant realized, a considerable amount of detail was required. This was so for the reasons noted above and because, in the case of Lieutenant-Colonel Morneault, most of the negative comments concerning his conduct originated with one person, a person whose version of events conflicted with his own. These negative comments were repeated by others who did not have personal knowledge of the matters in question. In those circumstances, the applicant would have great difficulty knowing, in the absence of specific notice, which of the statements concerning his conduct the Commission was treating seriously. The applicant could not be expected to refute every negative comment that was made about him, guessing that one or more of these might be troubling the Commissioners. This would unduly burden not only the applicant but the Commission as well.
[47] When one compares the notice given, including the transcript references cited therein, and the findings of misconduct that were made, it is clear that there is merit to the applicant's position that he did not receive reasonable notice of many of the matters the Commission eventually cited as grounds for its findings of misconduct against him. This is particularly obvious with respect to the Commission's finding that he failed in his duty by not removing Major Seward at an early stage and that he prevented action being taken against Major Seward.
Findings of Fact Not Supported by the Evidence - Applicable Law
[48] I turn then to consider the applicant's argument that the Report's conclusions with respect to his conduct are based on perverse or capricious findings of fact made without regard for the material before the Commission. Counsel for the respondent argues that it is not necessary to consider this argument because the chapter 35 findings are not "decisions" reviewable by the Court under paragraph 18.1(4)(d) of the Federal Court Act. Secondly, he argues that if they are reviewable, the applicable test is the "no evidence" rule and thus, as long as there is a scintilla of evidence to support the findings, the decisions should not be set aside. In this regard, he argues that there is only one finding of misconduct and it is that the applicant "exercised poor and inappropriate leadership in the pre-deployment phase".
a) Reviewable Decisions
[49] Paragraph 18.1(4)(d) of the Federal Court Act provides that a decision is to be set aside when the federal board, commission or tribunal
| based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it. [underlining added] |
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[50] It is argued that the report of a commission of inquiry is not a decision for the purposes of that paragraph because there are no legal consequences to the findings that are made. The mandate of a commission of inquiry is to inquire and report. The descriptions of commissions of inquiry found in a number of decisions were cited.3 Thus, it is argued that while the proceedings of a commission may be subject to judicial review for jurisdictional error or failing to comply with the procedural requirements of the principles of fairness, the decisions that are eventually made by the Commission are not subject to review on the ground that they are based on perverse or capricious findings of fact. Counsel refers to statements made in the Krever decision (supra) by the Federal Court of Appeal, at 59 - 60, and by the Supreme Court, at 460 - 461, and in [1965] S.C.R. 12">Guay v. Lafleur, [1965] S.C.R. 12; but see [1976] 1 S.C.R. 572">Saulnier v. Quebec Police Commission, [1976] 1 S.C.R. 572. Counsel refers particularly to the comments of Mr. Justice Cory, at page 460, in the Krever decision:
| A commission of inquiry is neither a criminal trial nor a civil action for the determination of liability. It cannot establish either criminal culpability or civil responsibility for damages. Rather, an inquiry is an investigation into an issue, event or series of events. The findings of a commissioner relating to that investigation are simply findings of fact and statements of opinion reached by the commissioner at the end of the inquiry. They are unconnected to normal legal criteria ... There are no legal consequences attached to the determinations of a commissioner. They are not enforceable and do not bind courts considering the same subject matter ... |
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[51] I do not find counsel for the respondent's argument persuasive. In the first place, it seems illogical to say that an individual can challenge a decision-maker's prospective decision by, for example, having a section 13 notice set aside, but cannot challenge a decision once made when the ground of challenge is that the decision is not supportable on the evidence. An underlying theme to the decisions relating to the Krever inquiry and that in the Addy decision (supra) is that courts are reluctant to restrain a commission of inquiry at an early stage because the unfairness that the applicant apprehends may never occur. This judicial restraint is premised on the understanding that if such does occur an individual has a remedy.
[52] A commission of inquiry can under its mandate undertake two roles: systemic and institutional investigations, findings and recommendations; specific findings of misconduct against named individuals. Different procedures apply in each case. That used by the Commission for its findings and recommendations in volumes 1 to 3 is described in volume 1, pages 7 - 9. The procedure followed by the Commission for the purposes of its volume 4 findings has many similarities to that followed in a court: the proceedings are all held in public; the individuals are answering "charges of misconduct"; the individuals are allowed to call at least some witnesses; they are given an opportunity to make written submissions; the outcome is either a dismissal of the "charge" or a finding of misconduct against the individual. This is a quasi-judicial decision-making process. In addition, the Commission's findings of individual misconduct against named individuals can have grave consequences for the reputations and careers of those individuals. To hold that decisions arising out of such a process are not reviewable under paragraph 18.1(4)(d) would be completely contrary to the whole purpose of judicial review and its development as a remedy in the law.
[53] Counsel for the applicant referred to a number of descriptions that have been written about the irreparable harm to reputations and careers that can occur. I will set out some of those descriptions below:
| These inquiries, operating under the full glare of media attention, have all the appearance of trials without the safeguards for individual rights which trial practice affords. The public is fully justified in asking whether these inquiries are not in fact trials under another name. |
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| In Sopinka J., The Role of Commission Counsel, in Commissions of Inquiry (Carswell, 1990, Pross, Christie, Yogis eds.) 75 at 76. |
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| That the primary purpose of public inquiries is not to assign responsibility or blame is not always recognized by the public. In the eyes of most citizens, a public inquiry has many of the characteristics of a criminal trial. |
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| A person whose reputation has been ruined by a commission of inquiry's accusatory report that was released to the public, gains little consolation from the knowledge that a court has ruled that the commission disregarded the individual's rights when it initially published its findings. It is important, therefore, that just as an individual compelled to appear before a Royal Commission must respect the Commission's legal exercise of the powers granted to it, so must the Commission of Inquiry be acutely aware and respectful of the rights of those persons appearing before it or subject to its investigation. |
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| In E. Greenspan, The Royal Commission: History, Powers and Functions, and the Role of Counsel, Administrative Tribunals (Canada Law Book Inc., 1989, F. Moskoff Q.C. ed.) 327 at 341. |
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b) Applicable Test
[54] There is always a discussion, when a Court is asked to review the factual findings of a board, commission or tribunal, as to the appropriate test to be applied by the Court.
[55] In this case the respondent argues that a "no evidence" test should be applied; that is, that the Court should only interfere when there is a complete absence of evidence to support a decision: Sarco Canada Limited v. Anti-Dumping Tribunal, [1979] 1 F.C. 247 (F.C.A.) at 254; in Re Rohm & Haas Canada Ltd. and Anti-Dumping Tribunal (1978), 91 D.L.R. (3d) 212 (F.C.A.) at 215. Counsel for the respondent also refers to the principle of deference to tribunals of first instance set out in [1976] 2 S.C.R. 802">Stein v. The Ship "Kathy K", [1976] 2 S.C.R. 802 and Dickason v. University of Alberta, [1992] 2 S.C.R. 1103 at 1125 and 1148 - 1152.
[56] Counsel for the applicant argues that paragraph 18.1(4)(d) of the Federal Court Act allows for a broader right of review than the "no evidence" test, and that the proper test is to ask whether the decision is "unreasonable on the basis of all the evidence"; see Singh v. Canada (Minister of Employment and Immigration) (1993), 69 F.T.R. 142, and Hristova v. Minister of Employment and Immigration (1994), 75 F.T.R. 18 at 23. He also notes that in Canadian Imperial Bank of Commerce v. Refer, [1986] 3 F.C. 486 (F.C.A.) at 497, the Court of Appeal did not follow its decision in Re Rohm & Haas and overturned a decision where the tribunal had "overlooked" evidence. He cites Frimpong v. Canada (1989), 8 Imm L.R. (2d) 183 (F.C.A.) and Boucher v. Commission d'appel de l'Immigration (1989), 105 N.R. 66 (F.C.A.), for the principle that negative findings based on inferences for which there is no evidentiary support will be overturned as erroneous. He cites Giron v. Minister of Employment and Immigration (1992), 143 N.R. 238 (F.C.A.), for the principle that when a tribunal draws unreasonable inferences from the evidence its decision should be set aside.
[57] Recent jurisprudence4 indicates that the applicable standard is found on a sliding scale (spectrum) running from correctness to patently unreasonable. Where on that spectrum the standard for any given decision will be found depends on a number of factors. Among these is whether the challenge to the decision is based on an allegation that the decision-maker misinterpreted the law or on an allegation that the decision-maker made findings not supported by the evidence. With respect to the former, the applicable standard on the sliding scales may depend upon whether the question of law is one that involves the special expertise of the tribunal (decision-maker), or whether it is a question of interpretation of law that a court is as well-placed to make as the tribunal.
[58] When the question is one of the correctness of a finding of fact, deference is paid to the decision-maker who hears the evidence first hand. This is so even when there is a full right of appeal from the decision. Also relevant in determining the applicable standard is the statutory context within which the decision-making authority is found; that is, whether there is a privative clause, an absence of legislative direction with respect to a right of review or appeal, a statutory right of judicial review, or a full right of appeal.
[59] In this context, the Federal Court of Appeal has recently indicated in Canada Pasta Manufacturers' Association v. Aurora Importing & Distributing Ltd. (A-473-96, January 31, 1997) that the description found in paragraph 18.1(4)(d) of the Federal Court Act equates to the patently unreasonable test. I am of the view that that is the test to be applied in the present circumstances.
c) Findings
[60] I turn then to counsel for the respondent's argument that there is really only one "finding of misconduct" against the applicant, that is, that he exercised poor and inappropriate leadership in the pre-deployment stage, particularly as it relates to training, and that he failed in his duties as a commander.
[61] I agree with counsel for the respondent that the word "finding" is used somewhat loosely to describe different levels of decision-making. First, there are primary findings of fact, for example, the amount of time actually spent by Lieutenant-Colonel Morneault in supervising training and at what level that training was being conducted. Second, there are the conclusions drawn from those primary factual findings, for example, that the amount of time spent was inadequate. Third, there is a still higher level of finding or conclusion, for example, that spending an inadequate amount of time supervising the training is conduct that merits, either alone or when combined with other aspects of the applicant's conduct, a decision that the applicant had exercised poor judgment and inappropriate leadership as it relates to training. I will refer to this third level of decision-making as the culminating decision.
[62] I do not think the "loose use" of the word "finding", however, confuses the arguments or the issues. If there are defects at the initial level (in the determination of primary findings of fact) then those defects will vitiate the second level findings based thereon. If there are second level findings (conclusions) that are not grounded in a factual base then those second level findings will be invalid. The validity of a third level or culminating decision will depend upon the number of erroneous findings of primary fact or invalid conclusions at the second level that exist, and the importance of such to the third level (culminating) decision. When any decision is based on a number of findings of fact or conclusions therefrom, correctness with respect to a minor matter or a number of minor matters will not support the decision. In my view, this is why the "no evidence" rule has essentially been supplanted by the "patently unreasonable" test.
Findings of Fact Not Supported by the Evidence - Assessment of Evidentiary Basis
[63] I will set out some general comments regarding the evidence relied upon to support the findings in chapter 35 and then consider the specific findings in the order in which they occur. Particular attention will be paid to the parts of the record identified by the Commission as having been relied upon by it for its findings. At the same time, a wider review of the evidence of course is required, and has been undertaken for the purpose of assessing the evidentiary basis of the Commission's decisions.
(a) General Comments
[64] In considering the evidence a feature that strikes one's attention, immediately, is that the transcript references given in the particulars to the section 13 notice and the transcript references cited by the Commission in chapter 35 in support of its conclusions are completely different except for one page. The transcript references given pursuant to the section 13 notice were to assist the applicant in identifying the allegations of misconduct being made against him. The Commission specifically stated that the references given were not exhaustive. Nevertheless, the abandonment of virtually all the original references except for one page does seem unusual.
[65] In addition, the transcript references cited as support for the Commission's findings against the applicant are meagre. There are 15 references, two of which are references to documents. Of the remaining 13, six are to Lieutenant-Colonel Morneault's own evidence; three are to two pages of Captain Kyle's evidence (3808 - 9); two are to two pages of Chief Warrant Officer Jardine's evidence (4775, 4823); one is to Lieutenant-Colonel MacDonald's evidence (4985 - 4986); one is to one page of Major Seward's evidence (5757). Significantly, there is no reference to any of Brigadier-General Beno's evidence other than to a document he wrote.
[66] Brigadier-General Beno's evidence is replete with criticism of Lieutenant-Colonel Morneault, particularly his conduct of training. He was especially critical of what he considered to be the applicant's failure to keep to a schedule, to be mission specific, and his failure to articulate in written form objectives and priorities. The Commission refers in volume 2, at page 581, to the differences between the two men as being a difference of perspective:
| Not only did changing deployment dates make planning difficult, it also seems to have contributed to disharmony between BGen Beno and LCol Morneault concerning the underlying approach to the training plan and the schedule for its implementation. From the start, LCol Morneault was very aware of the slippage, and appears to have embarked upon his pre-deployment preparations with these changing dates in mind. "[W]e already knew right at the start that things were starting to slip and we would have more training time." BGen Beno, on the other hand, appears to have continued to emphasize the original dates set out in the warning order: "[N]o matter what the rumours were, it was abundantly clear that our superiors still envisioned...the earlier time lines". This difference in perspective may have contributed to later disagreements between BGen Beno and LCol Morneault regarding their assessments of the progress of training, and the scheduling and purpose of Exercise Stalwart Providence. [footnotes omitted] |
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Also, it is a matter of public knowledge that the Commission was not confident about the content of some of Brigadier-General Beno's evidence: Beno v. Canada (Commission of Inquiry into the Deployment of Canadian Forces in Somalia - Létourneau Commission), [1997] 1 F.C. 911 (T.D.); [1997] 2 F.C. 527 (F.C.A.); application for leave to appeal to the Supreme Court of Canada dismissed, [1997] S.C.C.A. No. 322.
(b) Findings of Fact
[67] The Commission's findings in chapter 35 will be considered under the following headings: (i) attitude suitable to a peace keeping mission, (ii) time spent directly supervising training, (iii) request for additional time, (iv) broader knowledge base than general purpose combat training required, (v) over-aggressiveness of 2 Commando, (vi) warnings given, (vii) non-removal of Major Seward, (viii) inadequate instruction of OCs, (ix) lack of cohesiveness, and (x) concluding comments with respect to training.
(i) Attitude Suitable to a Peacekeeping Mission
[68] The Commission's analysis in chapter 35 begins by emphasizing the importance of training in pre-deployment preparations. It states that training is the principal activity through which leadership is exercised, attitudes conveyed and operational readiness ascertained. The Commission then states that Lieutenant-Colonel Morneault failed to meet his responsibilities in this regard:
| First, he failed to inculcate in his commandos, through the design of an appropriate training plan, an attitude suitable to a peacekeeping mission [underlining added] |
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[69] The Commission cites no reference to any part of the record before it as support for this conclusion. The applicant states that he had no notice that the Commission was considering whether or not his training plan had been designed "to inculcate an attitude suitable to a peacekeeping mission" as a possible basis, among others, on which misconduct might be found against him. The applicant also contends that a judgment with respect to whether a "suitable attitude" for a peacekeeping mission had been inculcated could only be made after hearing in-theatre witnesses. He notes that the Commission itself indicated that it was at that stage of the inquiry that it would examine the professional values and attitude of all rank levels to the lawful conduct of operations in Somalia; see volume 5, pages 1634 - 5.
[70] I agree that the Commission failed to give the applicant specific notice that it would address whether he had failed, through the design of the training plan, to inculcate a "suitable attitude for a peacekeeping mission". The Commission does not identify in chapter 35 the standard to which it is referring. I interpret the statement as being a conclusion drawn from the other findings in chapter 35. As such its validity depends upon those other findings.
(ii) Time Spent Directly Supervising Training
[71] The first of the findings that follows is that Lieutenant-Colonel Morneault spent insufficient time directly supervising training:
| As a first point, and by his own admission, L.-Col. Morneault dedicated only 15 to 20% of his time supervising the training of his troops. This is, simply stated, an insufficient amount of time spent in direct supervision. [underlining added] |
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[72] The Commission's conclusion is based on Lieutenant-Colonel Morneault's own evidence (7068). His evidence was that he spent 15 - 20% of the time that he was available in Petawa, when training was going on, supervising training (7068) (7306). The type of training to which this time estimate referred was section level training. The applicant notes that this is a very basic level of individual soldier training, it is conducted by senior NCOs, and that the direct supervision by the commanding officer is not usual. His response to the suggestion that he should have been more actively involved in supervising this training was "I can't command 750 men. I must rely on my subordinates to give me a clear picture of what is happening at the level they are responsible for" (7306).
[73] The responsibilities for training are described elsewhere in the Report. In volume 2, at pages 574 - 5, they are described as following the chain of command: commanding officers give overall guidance to their company commanders who have some flexibility with respect to how they train their companies; the company commanders entrust responsibility for carrying out the next level of training to platoon commanders; platoon commanders entrust responsibility for carrying out lower level training to section commanders. A description of the progressive nature of training from the individual to the regimental level is found at page 575. A description of the pre-deployment training plan being used by the Regiment, calling first for individual soldier training, then collective training at the section, platoon and company levels, followed by training at the regimental level, is found at pages 580 and 587.
[74] It appears as though the Commission thought that the applicant's evidence was that he had agreed that he had spent insufficient time training the troops. This does not accord with the applicant's evidence.
[75] The Commission then concluded that spending 15 to 20% of his time directly supervising training was an insufficient amount of time. No reference is made to any part of the record to support this conclusion. The applicant states in his affidavit that of the more than 100 military witnesses who testified before the inquiry, not one was asked by the Commission whether the applicant's explanation of his responsibilities, his daily schedule, and the amount of time he spent supervising training, was unreasonable or constituted an insufficient amount of time for a commanding officer to spend in direct supervision of section level training. He states that no witness testified that it was.
[76] Counsel for the respondent referred me to Colonel Joly's evidence (2966) as support for the Commission's decision. That evidence however is speculation as to what he thought was a concern of Brigadier-General Beno. Colonel Joly's evidence was that he "didn't really have any personal concern that the training was not going well".
(iii) Request for Additional Time
[77] The Report then addresses the applicant's explanation that, in any event, he had had limited time to directly supervise training because of the many demands that were being made of him. The Report states that at a minimum he should have requested changes to allow him full hands on involvement in the in-field training. The Commission concludes that he did not do so until it was too late:
| At a minimum, then, he should have requested, at the appropriate time and with the proper urgency, changes to the sequence of events and circumstances he faced to allow a full, hands-on involvement in the in-field training experience. He did not do this. Though he sent a letter to B.G. Beno expressing some concern on this matter, the letter was sent far too late, when realistic remedial opportunities were limited and when the chance to impress upon his troops his own personal standards had been largely spent. [underlining added] |
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[78] The evidence cited for this conclusion is a letter sent by the applicant to Brigadier-General Beno on October 9, 1992. As the applicant notes, as of October 9, 1992 the training was only partially complete; exercise Stalwart Providence, the Regiment's most important training activity, had not yet occurred. It was conducted from October 14, 1992 to October 18, 1992. Also, further training activities after that exercise, including a second regimental exercise, had been planned by Lieutenant-Colonel Morneault, and the Regiment did not begin to deploy to Somalia until mid-December. I agree with the applicant's assertion that it is unreasonable and contrary to the evidence to have concluded that as of October 9, 1992, the applicant's opportunities to influence training were "largely spent".
(iv) Broader Knowledge Base Than General Purpose Combat Training Required
[79] The Commission then makes a finding that the applicant should have known that broader training than that provided by general purpose combat training was required:
| ... LCol Morneault knew his troops were training for a Chapter Six United Nations Peacekeeping Mission, and he knew or ought to have known that such missions require a broader knowledge base than normal general purpose combat training permits. [underlining added] |
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[80] Not only was the applicant not given notice that this was an area of concern to the Commission but no reference to the record before it is given by the Commission as support for this conclusion. Also, the conclusion does not mesh with what is said elsewhere in the Report. The efforts made by Lieutenant-Colonel Morneault and his staff to find information and documentation appropriate to a peacekeeping training plan are described in volume 2, at pages 576 - 7:
| CAR staff immediately [after September 1, 1992] initiated work on developing a training plan for Operation Cordon. LCol Morneault provided direction to his training officer, Capt Walsh, based on the oral information he had received, the results of an earlier reconnaissance to Somalia, training plans and after action reports from Operation Python, and their own collective expertise. To LCol Morneault's knowledge, there were no written guidelines governing the development of training plans for UN missions, and, indeed, our Inquiry has confirmed this rather startling state of affairs. |
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| While working on the training plan during the first few days of September, the regimental staff operated on a "very short fuse". In an attempt to find information to assist with the development of a training plan, the staff did extensive research, going through the files for documents from earlier missions, including those for Cyprus, the Western Sahara, and other operations on the African continent. In Capt Walsh's words: |
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| We looked at experiences and training plans of soldiers and units who had deployed for the Gulf War. We then interviewed people who had deployed on these missions for lessons learned. |
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| We went to the brigade headquarters, the area headquarters and the Army level headquarters, again, looking for lessons learned type document assistance with identifying the key areas that we had to focus on. |
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| We contacted the J3 Peacekeeping cell here in Ottawa in NDHQ. We spoke with both staff colleges in Kingston and Toronto. |
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| Senior staff who had contacts with their parent regiments also contributed to the development of the training plan. |
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| Despite these intensive efforts, CAR staff discovered that the available written material was "very limited". Aside from some training direction from SSF Headquarters and some references to documents concerning general purpose skills, Capt Walsh received no information packages on training from NDHQ, LFCA or SSF Headquarters. |
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. . . .
| ... CAR went to great lengths to attempt to compensate for this lack of doctrine, guidelines and material. [underlining added, footnotes omitted] |
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[81] Counsel for the respondent referred to the evidence of Captain Walsh (2409) and Captain Kyle (3792 et seq.) as support for the Commission's finding. Captain Walsh's evidence related to the difference that exists between the general combat training provided for in the training plan they were using and the mission specific, general peacekeeping training also provided for therein. Captain Kyle's evidence relates to the difficulties the Regiment had organizing vehicle training because of the late delivery of the required vehicles and their deplorable mechanical condition when they arrived.
[82] The training plan that was eventually developed did include broader knowledge based training than that provided by general purpose combat training. It included training in activities such as the establishment and protection of distribution centres, rules of engagement, crowd and refugee control, arrest and detention, incident resolution including negotiation, escalation and reporting procedures.
[83] The Commission in volume 2, pages 627 - 9, concluded that insufficient peacekeeping training was part of a soldier's training both in this particular instance of pre-deployment training and generally. Indeed, the Commission recommended that peacekeeping training should be part of a soldier's on-going regular training. But it does not accord with the evidence to conclude that Lieutenant-Colonel Morneault lacked knowledge or chose to ignore the fact that a broader type of training than general purpose combat training was needed.5
(v) Over-aggressiveness of 2 Commando
[84] The Commission's next finding is that Lieutenant-Colonel Morneault allowed 2 Commando to train too aggressively:
| ... he allowed 2 Commando (2 Cdo) to train in a manner far too focussed on general purpose combat skills, and with a level of aggression not in keeping with a peacekeeping mission. LCol Morneault himself admitted 2 Cdo spent too much time on general purpose combat training, and did not complete the tasks it was assigned. LCol Morneault also knew of 2 Cdo's aggressiveness. |
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[85] The evidence cited by the Commission as the source for its conclusion that Lieutenant-Colonel Morneault allowed 2 Commando to train in a manner too focused on general purpose combat training is Lieutenant-Colonel Morneault's own evidence (7107). This evidence was that in retrospect he agreed that Major Seward had made a misallocation of time in the last week of training before exercise Stalwart Providence and he, Lieutenant-Colonel Morneault, had let him get away with it. He also agreed that all the tasks in the training plan had not been completed by 2 Commando prior to exercise Stalwart Providence. Lieutenant-Colonel Morneault expressed the view that during the last week of training before exercise Stalwart Providence "the focus may have been lost" by 2 Commando because of disciplinary problems (the exploding of military pyrotechnics illegally and the burning of Sergeant Wyszynski's car). There is no reference to too much time being spent on general purpose combat training.
[86] On the page of the transcript preceding that cited by the Commission for its conclusion, Lieutenant-Colonel Morneault is reported as having said that he did not have concerns about Major Seward's approach to training. The applicant's evidence was that he had authorized general purpose combat training for 2 Commando because that commando had not had such training for some time prior to September 1992, and needed to catch up in that regard to the other two commandos.
[87] The Commission refers to two pages of the transcript (7106) (4823) as support for the conclusion that Lieutenant-Colonel Morneault knew of 2 Commando's aggressiveness. The first reference is to Lieutenant-Colonel Morneault's own evidence. This evidence was that on one occasion, when he was discussing Standard Operational Procedures with his OCs, Major Pommet had told Major Seward he was too intense. The second reference is to the evidence of Chief Warrant Officer Jardine that on one occasion he had observed some attack-type training by 2 Commando, and that he had reported to Lieutenant-Colonel Morneault that he thought that type of training was outside the guidelines for UN operations. Chief Warrant Officer Jardine described it as "a general observation of training". Chief Warrant Officer Jardine does express elsewhere in his evidence that he had a "gut feeling" about 2 Commando, and that in his view all commandos appeared to be adopting too aggressive a bearing although the aggressiveness slowed down somewhat at the end (4805).
[88] Counsel for the respondent indicated that support for the Commission's finding could be found in the evidence of Major Seward (6007 - 8) and Master Warrant Officer Mills (4336 - 4337). Major Seward specifically denied that he had been training his troops too aggressively. He stated that he had focussed on general purpose combat capability training. Master Warrant Officer Mills' evidence was that they had been "getting their basic skills down" and that he did not agree with the criticism that they were training too aggressively.
(vi) Warnings given
[89] The Commission, in support of its conclusion that Lieutenant-Colonel Morneault knew 2 Commando was training too aggressively states that he was warned about this fact:
| He was furthermore warned several times by a number of officers that 2 Cdo was too aggressive. |
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[90] The evidence cited for this conclusion is identified as coming from Major Pommet (7106) Captain Kyle (3808), Regimented Sergeant Major Jardine (4775) and Lieutenant-Colonel MacDonald (4985 - 4986). The "warning" from Major Pommet is Lieutenant-Colonel Morneault's evidence, referred to above, that on one occasion he had heard Major Pommet tell Major Seward he was "too intense". Captain Kyle's "warning" of over aggressiveness was that he had reported, to Lieutenant-Colonel Morneault, comments made by Captain Walsh that a field firing range training exercise that 2 Commando had engaged in was not the type of training that it should have been doing at that time. Captain Kyle also gave evidence that he had not seen the training and did not know whether Lieutenant-Colonel Morneault had taken any action in response to this reporting of Captain Walsh's comments. The transcript reference given for Chief Warrant Officer Jardine's "warning" is evidence relating to the discipline problems of the Regiment. Lieutenant-Colonel MacDonald's evidence will be described below because it also relates to the Commission's finding that the applicant prevented Major Seward from being removed.
(vii) Non-Removal of Major Seward
[91] The Commission faults Lieutenant-Colonel Morneault for not having removed Major Seward from his position as OC of 2 Commando. The evidence with respect to the Commission's finding will be assessed, first, by reference to the pre-October 9, 1992 period, and then to post-October 19, 1992.
Prior to October 9, 1992
[92] The Commission concluded that Lieutenant-Colonel Morneault knew early in the training period that there were leadership and aggressiveness problems with 2 Commando and therefore he should have removed Major Seward.
| ... If any of the OCs were found lacking, it was incumbent upon LCol Morneault to make the required changes. But LCol Morneault did not make these changes. |
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[93] The evidence referred to by the Commission for this conclusion was primarily the evidence of Captain Kyle concerning his report of Captain Walsh's comments about the field firing exercise, described above. Strangely, the Commission quotes the speculations of Captain Kyle, that he thought Lieutenant-Colonel Morneault "was not interested to sort that issue out at that point", and that he thought Lieutenant-Colonel Morneault "didn't want to interfere with the commandos ..." even though, as noted above, Captain Kyle's evidence was that he had not seen the training in question and he did not know what Lieutenant-Colonel Morneault had done.
[94] Lieutenant-Colonel Morneault's evidence was that he had approved the field firing range exercise because it related to situations that the troops might have to face in Somalia. Also, the applicant states in his affidavit that after Captain Kyle expressed his concerns, he reviewed 2 Commando's training with Major Seward and directed him to discontinue at least one exercise that the applicant did not think was appropriate. Major Seward's evidence was that the applicant had reviewed Major Seward's training plan with him on at least two occasions, that the applicant placed restrictions on both the type of training and the tone of the training he was to conduct. Major Seward testified that he and the applicant discussed the level of aggressiveness of the training in the context of a United Nations mission.
After October 19, 1992
[95] Lieutenant-Colonel MacDonald supervised the running of the regimental training exercise Stalwart Providence from October 14 to October 18, 1992. Lieutenant-Colonel Morneault was on an administrative reconnaissance mission in Somalia from October 9 to October 19. He had no control over the dates set for that mission, nor could he arrange to have the dates that had been set for the regimental training exercise Stalwart Providence changed. On October 19, 1992, Lieutenant-Colonel MacDonald reported to Lieutenant-Colonel Morneault on the outcome of exercise Stalwart Providence. The transcript shows that in reporting on that exercise, he told the applicant that all commandos were too aggressive on the first day of the exercise, improved as the exercise progressed, and by the end of the exercise all commandos "were more or less at the right level". He expressed the opinion that 2 Commando had been slower than the others at adjusting. He prepared a written report on the results of that exercise, describing where remedial training was required. Over-aggressiveness is not identified as a problem area.
[96] Lieutenant-Colonel MacDonald also reported that he thought Major Seward was incompetent and he, Lieutenant-Colonel MacDonald, would remove him. Lieutenant-Colonel Morneault responded by saying that he thought Seward was a good soldier and could do the job, and that Seward may have been having a bad day. Lieutenant-Colonel Morneault's evidence was that if anyone was going to fire Seward he should be the one to do it since he was Major Seward's commanding officer. Since he had not been present at exercise Stalwart Providence he asked Lieutenant-Colonel MacDonald not to include the negative evaluation of Major Seward in the reporting letter he was writing so as to allow Lieutenant-Colonel Morneault to evaluate the situation himself. Lieutenant-Colonel MacDonald agreed with Lieutenant-Colonel Morneault's position.
[97] The Commission describes these events as:
| ... LCol MacDonald deleted the reference as LCol Morneault requested, and no subsequent action was taken to correct the serious deficiency in 2 Cdo's leadership as noted by LCol MacDonald. Though LCol Morneault was relieved of command almost immediately after this incident, and cannot be held responsible for others' inactions, his direction to LCol MacDonald prevented immediate action form being taken against Maj Seward, and for this he is accountable. [underlining added] |
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[98] The Commission does not identify any transcript or documentary reference as support for its conclusion that the applicant's "direction" to Lieutenant-Colonel MacDonald prevented immediate action being taken against Major Seward. Lieutenant-Colonel Morneault notes, he did not "direct" Lieutenant-Colonel MacDonald to remove the negative evaluation of Major Seward from his Report. He could not direct Lieutenant-Colonel MacDonald to do anything because they were of equal rank. Also, despite the lack of a reference in the written report, Brigadier-General Beno knew from Lieutenant-Colonel MacDonald what his opinion of Major Seward's performance had been. Since Lieutenant-Colonel Morneault was removed from his command on October 21, 1992, he was not in a position, after that date, to be able to take any action against Major Seward. The Commission, in making its findings with respect to Brigadier-General Beno in volume 4, page 996, faults him for not having removed Major Seward. The Report notes that Brigadier-General Beno knew that Major Seward was not "at a proper standard" and that he had advised Lieutenant-Colonel Mathieu, (Lieutenant-Colonel Morneault's replacement) to leave Seward behind but failed to determine whether this advice had been heeded, which it had not.
(viii) Inadequate Instruction to OC's
[99] The Commission then states that not only did Lieutenant-Colonel Morneault fail to include a written statement of objectives and priorities in the training plan but also that he failed to adequately instruct his OCs:
| LCol Morneault also failed to adequately instruct his OCs in the aim, scope, and objectives of the training they were to conduct, and failed to include a proper statement of these in the training plan he designed. From his own personal experience, and from training he received at staff college, LCol Morneault should have known such a statement to be beneficial. [underlining added] |
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[100] No specific reference to the record before the Commission is given for this assertion. The transcript evidence shows that all of the OCs stated that they had been adequately instructed: Major Pommet (37530); Major Seward (6165, 6179) although he expressed some dissatisfaction with aspects of the training that were the responsibility of Captain Kyle (5759); Major Magee (37590, 37597 - 9). All had been on peacekeeping missions before; none said that they lacked an awareness of the aims and objectives of that type of mission. Captain Walsh, the Regimental Training Officer, gave evidence that he had been given sufficient direction (2300, 2454 - 55); Major MacKay, the deputy commander of the Regiment, was also of the view that adequate direction had been given (6249 - 50).
[101] At volume 2, page 582, the Commission describes the oral instructions given by Lieutenant-Colonel Morneault and acknowledges that the OCs were satisfied with the direction and guidance that they had received from him:
| All three rifle commando OCs testified that they were satisfied with the direction and guidance received from LCol Morneault in terms of training. Unit orders groups were held weekly, as well as daily co-ordination conferences to which the sub-units sent their seconds in command. During these meetings, the training requirements of each sub-unit were reviewed. Oral direction was given weekly by LCol Morneault on training items to be covered by the commandos, and training priorities were established. These tasks were then incorporated by the OCs into their commando training plans, which were subsequently submitted to the CAR Headquarters for approval. According to LCol Morneault, he gave clear direction as to what he wanted OCs to accomplish, and then gave them latitude as to how to go about doing their jobs. [footnotes omitted] |
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[102] The Commission concluded in volume 2, at page 582, as it did in chapter 35, that the oral briefings were not a valid substitute for written direction establishing an overall training concept and a clear statement of priorities.
| (ix) Lack of Cohesiveness |
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[103] The Commission's Report continues, after noting the absence of written objectives in the training plan:
| ... it is not surprising, therefore, that cohesiveness within the CAR's sub-units suffered as a result. On this point, one of the more serious criticisms arising from Stalwart Providence was the three commandos operated independently without the cohesion required of a regimental unit. |
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. . . .
| [Lieutenant-Colonel Morneault] failed to make every effort to draw his unit together as a cohesive whole. [underlining added] |
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[104] It is contrary to the evidence to state that "cohesiveness within the CAR's sub-units suffered" (underlining added). It may be that this portion of the text is an inaccurate translation of a text that was originally written in French. I notice that the French version of the Report uses the words "un manque de cohésion entre les sous-unités du RAC" (underlining added).
[105] There is no doubt that the three commandos operated independently. The Commission identifies this repeatedly in its Report. It was the result of ingrained structural defects. Each commando had a different regimental affiliation and there was competition among them. The Commission noted, at page 477, that there was "compelling evidence that the CAR was not a properly formed unit" and that it lacked cohesion "at a basic level".
[106] The evidence cited as support for the lack of cohesion during exercise Stalwart Providence is Document Book 15, Tab 27. That document was prepared by Brigadier-General Beno on October 22, 1992, to support his request of October 19, 1992, that Lieutenant-Colonel Morneault be removed. It contains a litany of complaints against Lieutenant-Colonel Morneault, some appearing to be quite trivial. Given the reluctance of the Commission to rely on Brigadier-General Beno's oral evidence as support for allegations of inadequate performance of duty by Lieutenant-Colonel Morneault, it is strange to find reliance being placed on this document. It is certainly not an objective document. For example, I note that while Brigadier-General Beno states in this document that after exercise Stalwart Providence the Regiment was "not trained sufficiently to deal with task specific missions" and that it was "marginally prepared for its operational task", in his evidence before the DeFaye Inquiry he said:
| Fundamentally, the training they [the Regiment] had done up to an including STALWART PROVIDENCE at CDO level was way beyond what I had been asked to do. |
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| (DeFaye Inquiry, Transcript, Beno, page 3R - 13, lines 40 - 45). |
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Before the Commission his evidence was that the Regiment was well trained by the end of Stalwart Providence, and that it was trained to a standard beyond what he had been asked to accomplish.
[107] The Report concludes with respect to the lack of cohesiveness within the Regiment that Lieutenant Colonel Morneault failed to make every effort to draw his unit together as a cohesive whole. Lieutenant-Colonel Morneault states that he did not receive reasonable notice that his efforts to create cohesiveness was a matter that the Commission was considering. He considers the Commission findings to be unfair because he views them as finding fault with him for not having accomplished in four months, what others had not been able to accomplish in years. I am persuaded that he did not receive adequate notice that "his efforts" to create cohesion were being considered as a possible component of a misconduct finding. Also, the Commission cites no reference to the record before it for its conclusion. And, in volume 2, page 604, the Commission states that because Lieutenant-Colonel Morneault was required to go on reconnaissance during the time exercise Stalwart Providence was being run, he was deprived of the best opportunity that existed for him to create cohesion in the Regiment.
[108] I must also include some reference to the evidence concerning post-October 21, 1992 events even though they are not directly relevant. As noted, when Lieutenant-Colonel Morneault was removed the training he had planned for the Regiment was incomplete. There remained approximately two months before deployment and he had further training, including regimental level training, planned. After Lieutenant-Colonel Morneault was relieved of his command, such training was not pursued in any serious or systematic fashion.
(x) Concluding Comments With Respect to Training
[109] It is clear, on the basis of the above, that the Commission's finding of misconduct against the applicant on the ground that he failed to adequately organize, direct, and supervise training preparations from September 5, 1992 to September 21, 1992 is deeply flawed. Many of the primary findings of fact simply do not accord with the evidence. Many conclusions are simply not supported by the evidence. I do not think it is possible to reach any other conclusions than that the decision was patently unreasonable.
c) Failure of Duty as Defined in Q.R. & O. s. 4.20 and Military Custom
[110] The reasons given for the finding that Lieutenant-Colonel Morneault was in breach of his duty as defined by analogy to Q.R. & O. s. 4.20 and military custom are the findings made under the heading "failure to adequately organize, direct and supervise the training preparations ...". The Report reads:
| Given our findings above concerning the leadership failures of LCol Morneault and in view of the importance of control and supervision of training for overseas missions, we conclude that LCol Morneault failed as a commander. |
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[111] Since it is clear that the findings with respect to Lieutenant-Colonel Morneault's conduct of the training were patently unreasonable and deeply flawed, this equally pertains to the Commission's conclusion that he failed in his duty as defined by analogy to Q.R. & O. s. 4.20 and military custom.
[112] I note also that there is an error in the Report with respect to the description that it provides of the notice that was sent to the applicant respecting this allegation of misconduct. It describes paragraph 4 of that notice as having alleged that the applicant failed:
| in his duty as a Commanding Officer as defined by analogy to Queen's Regulations and Orders, art. 4.20 and in military custom. [underlining added] |
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The notice that was sent alleged that the applicant failed:
| |
in your duty as a Commanding Officer as defined in Queen's Regulations and Orders, s. 4.20 and in military custom. [underlining added] |
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[113] Counsel for the applicant argues that this was an intentional misstatement by the Commission, that it was a change made in response to comments made by the Supreme Court in the Krever decision. In that decision, at page 470, Mr. Justice Cory stated that commissioners in making findings of misconduct should avoid language that is so equivocal that it appears that they are making findings of civil or criminal liability. Counsel for the applicant argues that the Commission, in its Report, purposely misstated the terms of the notice that had been sent, to avoid criticism that it had intended to transgress those boundaries. I make no finding in that regard but merely note the argument.
Conclusion
[114] For the reasons given above, it is clear that the Commission's findings of misconduct with respect to the applicant fall within the descriptions set out in paragraphs (b) and (d) of subsection 18.1(4) of the Federal Court Act. What then is the appropriate disposition of his application? The Report has had wide public dissemination. The Commission no longer exists. I have concluded that the appropriate remedy is a declaration by the Court that the Commission's findings of individual misconduct against the applicant set out in chapter 35 of its Report are invalid. Also, as noted, he is entitled to a declaration that the record does not support a conclusion that the two general statements of condemnation found in the Report, identified above, apply to him. Declarations of invalidity will issue accordingly.
Judge
OTTAWA, ONTARIO
April 27, 1998
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1 References to the transcript of the proceedings before the Commission will be given in these reasons by placing the page numbers within brackets.
2 See volume 2, pp. 445 - 6 for a description.
3 Landreville v. The Queen, [1973] F.C. 1223 at 1227 (T.D.); Canada (Attorney General) v. Canada (Commissioner of the Inquiry on the Blood System), [1997] 2 F.C. 36 (F.C.A.) at 52 and 59 - 60.; Re Schutz and Ontario Municipal Board (1978), 20 O.R. (2d) 104 (Div. Ct.); Beno v. Canada (Commissioner and Chairperson, Commission of Inquiry into the Deployment of Canadian Forces to Somalia), [1997] 2 F.C. 527 (F.C.A.) at 539; Governor in Council v. Dixon (1997), 149 D.L.R. (4th) 269 (F.C.A.), at 278, application for leave to appeal to the S.C.C. dismissed [1997] S.C.C.A. No. 505.
4[1979] 2 S.C.R. 227"> C.U.P.E. v. N.B. Liquor Corporation, [1979] 2 S.C.R. 227; Zurich Insurance Co. v. Ontario (H.R.C.), [1992] 2 S.C.R. 321; Canada (A.G.) v. Mossop, [1993] 1 S.C.R. 554; Canada (A.G.) v. PSAC, [1993] 1 S.C.R. 941; Pezim v. B.C. (Superintendent of Brokers, [1994] 2 S.C.R. 557; Dir. Inv. & Res. v. Southam Inc., [1997] 1 S.C.R. 748.
5 An event that may have had a minor impact on training generally, but which demonstrates the applicant's awareness of the need for a broader knowledge base, is the fact that he arranged, through contacts his wife had, for a Somalie, resident in Canada but originally from Bossasso, to come and brief some of his senior officers.
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