A-282-97
(T-317-97)
CORAM: THE CHIEF JUSTICE
MARCEAU J.A.
McDONALD J.A.
BETWEEN:
THE GOVERNOR
IN COUNCIL
Appellant
(Respondent)
-
and -
JOHN
EDWARD DIXON
Respondent
(Applicant)
REASONS
FOR JUDGMENT
MARCEAU J.A.
The
Governor in Council is appealing before us the well-publicized decision of the
Trial Division that declared ultra vires his Order in Council P.C.
1997-174 relating to the Commission of Inquiry into the Deployment of Canadian
Forces to Somalia (hereinafter the Commission or the Somalia inquiry).
At
the outset of the hearing, the appellant acknowledged, through his counsel,
that there was an issue as to whether the Court should refuse to hear his
appeal on the ground of mootness. Indeed, on receiving the Trial Division
decision, the Governor in Council enacted a new order in council limiting the
Commission's terms of reference in a manner that satisfied the respondent and
followed the prescriptions of the Trial Division judge. The appellant, however,
asked the Court to hear and dispose of the appeal despite the apparent
dissolution of the tangible and concrete dispute. He emphasized the fact that
there was an important issue of public law involved and one that was not likely
to come before the Court in the near future.
We
agreed to hear the appeal. The trial decision, whether right or wrong, goes to
an issue which lies at the heart of the division of responsibilities between
the Judiciary and the Executive. Indeed, the case involves the extent to which
a court, exercising its proper adjudicative role, should be entitled to
interfere with discretionary decisions made by the Governor in Council. It is,
therefore, rather unique in the sense that the need for the Judiciary to appreciate
its proper adjudicative role in our political framework actually militated in
favour of hearing the appeal. Moreover, the respondent remained intent on
pursuing the appeal, which preserved the adversarial context and ensured that
the issues were well and fully argued before this Court. As is evident from the
litigation still pending in the Trial Division, notwithstanding the release of
the Commissioners' report on June 30, 1997 (after the oral hearing in this
appeal), there may be collateral consequences to the outcome which may have an
impact on the final form in which the Commissioners' report remains on public
record. Applying the criteria laid down by the Supreme Court in Borowski v.
Canada (A.G.), we were of the view that, on balance, it
was in the interest of justice for us to hear the appeal, and so we did.
* * *
The
factual context in which the case presents itself is so well known that a very
general review should suffice.
The
Commission was established under Part I of the Inquiries Act by Order in Council P.C.
1995-442, dated March 20, 1995, to investigate certain aspects of the
deployment of Canadian Forces to Somalia on a peace-keeping mission in 1993.
Its establishment was motivated in large part by two events which had attracted
national media attention: the suspicious death on March 16, 1993 of Shidane
Arone, a Somali youth, while in the custody of the Canadian Airborne Regiment
Battle Group; and the incidents of March 4, 1993, when one Somali was killed
and another wounded near the Canadian Forces base in Belet Uen. The
Commission's terms of reference were, however, broadly defined so as to make it
both investigative and advisory. The Commissioners were to:
... inquire into and report on the
chain of command system, leadership within the chain of command, discipline,
operations, actions and decisions of the Canadian Forces and the actions and
decisions of the Department of National Defence in respect of the Canadian
Forces deployment to Somalia ...
The
Commissioners were further directed, "without restricting the generality
of the foregoing", to inquire into and report on nineteen specific issues
organized into three temporal phases of the peace-keeping mission: the
pre-deployment phase (before January 10, 1993); the in-theatre phase (January
10, 1993 to June 10, 1993) and the post-deployment phase (June 11, 1993 to
November 28, 1994). The nineteen specific issues are reproduced in the trial
decision and repeating them here would serve no useful purpose.
In
order to accomplish their assignment, in addition to the basic powers given to
them by the Inquiries Act, the Commissioners were provided with
important related authorizations. They could establish their own procedures,
sit wherever and whenever in Canada they wished, rent whatever space and
facilities they required, hire experts and others as needed, and sit in
camera if they considered it necessary in the public interest.
Order
in Council P.C. 1995-442, on establishing the Commission, provided that its
report to the federal Cabinet (in both official languages) was to be made no
later than December 22, 1995. This deadline, however, was to be extended
at the request of the Commissioners, who said, on three subsequent occasions,
that they needed more time to complete their inquiry. On July 26, 1995, by
Order in Council P.C. 1995-1273, the reporting deadline was extended to June
28, 1996. On June 20, 1996, by Order in Council P.C. 1996-959, it was again
extended for another nine months, to March 31, 1997. And finally, on February
4, 1997, Order in Council P.C. 1997-174 was enacted, giving the Commissioners
until March 31, 1997 to complete public hearings and until June 30, 1997
to file their final report. The Commissioners' last request for an extension
had asked for, at the earliest, a September 30, 1997 reporting date. By letter
to the Commission dated January 10, 1997, an official of the Privy Council
Office explained why the Governor in Council had refused to push back the
deadline by as much as the Commissioners had requested. He stated:
Although all scenarios proposed in
your work‑plan were examined, given the Government's desire to pursue
solutions as quickly as possible, it was not regarded as being in the national
interest to have to wait another year to receive the Commission's input.
It
is this last Order in Council, which, like the previous extensions granted by
the Governor in Council, pushed back the reporting date for only part of the
time suggested by the Commissioners, that was attacked before the Trial
Division and declared ultra vires. The attack was launched by the
respondent, a former special advisor to the Minister of National Defence at the
time of the Somalia incidents. Mr. Dixon had sought full standing before the
inquiry in order to make clear the knowledge that he and his Minister had of
the Arone death. The Commissioners, however, had refused his request for
standing. In their reasons for denial, the Commissioners explained that,
because their mandate had been "truncated" by Cabinet's decision to
require completion of the public hearings by March 31, 1997, they were unable
to investigate the involvement of high-ranking government officials in the
Somalia affair, including the possibility that there had been a cover-up of the
Arone death. On being advised of the refusal of the Commissioners, the
respondent decided to seek relief in the Trial Division of this Court.
The
Trial judge allowed the respondent's application for judicial review. She
provided three reasons for her conclusion that Order in Council P.C. 1997-174
was ultra vires:
1)It does not comply with section
31(4) of the Interpretation Act which requires an order in council which
reduces the Mandate in clear terms.
2)It breaches the rule of law by
requiring the impossible of the Commissioners and by placing them in a position
where they cannot obey the law.
3)It breaches the rule of law by
not respecting the Commissioners' independence. They are entitled to determine
how to investigate their Mandate and when their investigation is sufficient to
support findings in their report.
In
light of these findings, the Trial judge made, inter alia, the following
formal orders and declarations:
...
(4)That Order in Council P.C.
1997-174 is set aside for being ultra vires of the Governor in Council,
and that the target dates for the Commission of Inquiry's final report
contained in the earlier Orders in Council P.C. 1995-442, P.C. 1995-1273, and
P.C. 1996-959 have expired and are of no force and effect; and,
(5)That, to correct the problems
of lack of clarity and impossibility of performance identified in connection
with Order in Council P.C. 1997-174, the Governor in Council may:
a)issue an Order in Council which
imposes final deadlines which allow the Commission of Inquiry the time it
reasonably requires to complete its original mandate;
b)or issue an Order in Council
which eliminates specified matters from the Commission of Inquiry's mandate and
imposes final deadlines which allow the Commission of Inquiry the time it reasonably
requires to complete its reduced assignment,
c)or take such other steps as it
considers to be appropriate and consistent with the order and reasons herein.
* * *
The
learned Trial judge gave lengthy reasons in support of her conclusions. Her
reasons betray what appears to me, and I say it with respect, two
inconsistencies in her overall reasoning. One is regarding the status of a
commission of inquiry; the other, the reporting duty of commissioners. If I
take some time to develop these points up-front, my analysis of the grounds
upon which the learned judge founded her conclusion that P.C. 1997-174 was ultra
vires the Governor in Council will be simplified considerably.
Let
us consider first the attitude of the Trial judge in regard to the status of
commissions of inquiry. It is well-known that the present Inquiries Act
traces its origins to An Act to Empower Commissioners for Inquiring into
Matters Connected with the Public Business, to Take Evidence on Oath,
passed June 9, 1846, with a preamble that clearly articulated the purpose of
enquiries and the concern for the protection of individual reputations:
Whereas it frequently
becomes necessary for the Executive Government to institute inquiries on
certain matters connected with the good government of this Province; And
whereas the power of procuring evidence under oath in such cases would greatly
tend to the public advantage as well as to afford protection to Her Majesty's
subjects from false and malicious testimony or representations ...
That
Parliament enacted the present Inquiries Act with the same purpose and
the same concern for the protection of individual reputations is made clear by
the whole of the Act and especially by the wording of sections 2 and 3:
2. The Governor in Council may,
whenever the Governor in Council deems it expedient, cause inquiry to be made
into and concerning any matter connected with the good government of Canada or
the conduct of any part of the public business thereof.
3. Where an inquiry as described
in section 2 is not regulated by any special law, the Governor in Council may,
by a commission, appoint persons as commissioners by whom the inquiry shall be
conducted.
It
had to be clear to the Trial judge, therefore, that a commission of inquiry
issued pursuant to the Inquiries Act depends for its existence entirely
on the Governor in Council — i.e., the body in which the Executive power
of the Canadian government is vested (by constitutional convention, the
Cabinet). The Governor in Council, in other words,
had the full discretionary authority to establish the Somalia inquiry as a
source of information and advice in relation to an important aspect of the
governance of this country: our military. How then can the Trial judge arrive
at the conclusion that, once created, the Commission somehow acquired
independent status, not only with respect to the manner in which it exercised
its powers within its terms of reference, but also with respect to its very
existence and its institutional structures. Indeed, the Trial judge's
decision, in effect, means that the Governor in Council cannot determine the
duration (nor, by necessary implication, the cost) of a commission of inquiry
by imposing reporting deadlines: the most that he can do, says the Trial
judge, is to set "target dates". His power to impose a final and
imperative reporting date is subject to either acquiescence by the
commissioners that they will be ready to report on all the terms of reference
by the date chosen, or else a formal restriction of the terms of reference
according to what the commissioners determine to be reasonable in view of the
state of their inquiry. I fail to understand how, in the context of our public
law, such a situation could possibly be allowed to exist. By what principle of
public law can a commission of inquiry acquire, once created, the independence
and autonomy necessary to allow it to prevail over the will of the Governor in
Council as to its structure and its existence? How can the Inquiries Act
be interpreted as granting to commissions of inquiry such legal status?
It
has often been suggested, expressly or impliedly, especially in the media but
also elsewhere, that commissions of inquiry were meant to operate and act as
fully independent adjudicative bodies, akin to the Judiciary and completely
separate and apart from the Executive by whom they were created. This is a
completely misleading suggestion, in my view. The idea of an investigative
body, entirely autonomous, armed with all of the powers and authority necessary
to uncover the truth and answerable to no one, may well be contemplated, if one
is prepared to disregard the risks to individuals and the particularities of
the Canadian context. But a commission under section 1 of the Inquiries Act
is simply not such a body. It is easy to realize nowadays the tremendous
impact that commissions of inquiry, as they now exist, may have on Canadian
society, but, in my view, their public importance is not and cannot be the
source of a special legal status. No one disputes the necessity of preserving
the independence of commissions of inquiry as to the manner in which they may
exercise their powers, conduct their investigations, organize their
deliberations and prepare their reports. The role they play in our democracy
has become much too vital to accept that the manner in which they investigate
matters and formulate the conclusions and recommendations that they arrive at,
can be freely tampered with or influenced by anyone within or outside the
government of the day, and that applies to any commission, whether or not its
investigations relate to the conduct of government officials. And the fact is,
in any event, that the Act itself provides for such investigative and
advisory independence by explicitly setting out the nature, the general role
and the basic powers of commissions of inquiry, even if it does so rather
succinctly. All this, however, does not alter, in any way, the basic truth
that commissions of inquiry owe their existence to the Executive. As agencies
of the Executive, I do not see how they can operate otherwise than within the
parameters established by the Governor in Council.
With
respect to the role and responsibilities of the commissioners, the Trial
judge's inconsistency is even more striking. The Trial judge repeatedly
acknowledges that commissions of inquiry are not courts of law; that their true
nature and purpose completely differ from those of courts of law. She had
before her two recent judgments of this Court that reaffirmed the long-standing warning
against assimilating or equating the two public institutions. And yet, in her reasoning,
the Trial judge appears to have failed to recognize, or simply ignored, what
may be the main difference between the two. Courts of law are designed, if
civil, to settle disputes between opposing parties and, if criminal, to
establish guilt or innocence. They must arrive at definitive conclusions; they
cannot leave a problem aside for lack of evidence or absence of a clear
solution. Briefly put, it is their duty to dispose of the issues brought
before them, to judge. Procedural rules regarding such matters as the onus and
burden of proof have been developed precisely to allow courts to discharge this
duty. Commissions of inquiry, be they investigative or merely advisory, are
not, in any way, under the same duty. As investigative bodies, they, of
course, are called upon to seek the truth, and no doubt they are ideally suited
for uncovering facts that could not be discovered otherwise (precisely because
they have broad investigative powers, they are inquisitorial, and they are not
subject to the strict rules of evidence that apply to a court of law). Hence,
their prestige. But, nowhere do we find the imposition upon them of a duty to
conclude. On the contrary, their purpose, which is primarily to advise and to
help the government in the proper execution of its duties, is not conducive to
settling issues and drawing definitive conclusions. It is the legal duty of
the commissioners to report, but that report is limited to explaining what they
have done, what they were able to draw from their investigations (in terms of
findings of fact) and what advice they are in a position to give to the
Executive in light of those findings. It may be unusual for an Order in
Council setting up a commission of inquiry to be as detailed as was P.C. 1995‑442.
But, the designated issues were simply meant to establish the terms of
reference and to delimit the Commission's range of investigative powers in
view, I suppose, of the extremely sensitive field of activity involved. The
Governor in Council obviously could not require the Commissioners to determine,
as a court of law, all of the issues mentioned in their terms of reference.
* * *
I
now come to the reasons upon which the learned Trial judge based her conclusion
that Order in Council P.C. 1997-174 was ultra vires.
The
first ground — namely, that it had not been passed in the manner required by
subsection 31(4) of the Interpretation Act — is premised on what is,
in my respectful opinion, a misapprehension of the source of the power of the
Governor in Council to revoke, amend or vary the appointment or the terms of
appointment of a commission of inquiry. That power comes from the Inquiries
Act itself, not the Interpretation Act, as it flows by necessary
implication from the broad and unconditional power to appoint commissions
conferred upon the Governor in Council by the Inquiries Act. The Interpretation
Act contains rules of interpretation; it does not confer powers. It is
true that subsection 31(4) speaks of manner and form, but this is simply meant
to underscore that the implicit power to repeal, amend or vary an existing
order must be exercised by means of an order enacted pursuant to the same act
of Parliament and under the same consent requirement or conditions, if any,
imposed by that act. Subsection 31(4) is merely an interpretive provision. It
does not go to the substance of the regulation-making power, and it certainly
does not provide a court with the jurisdictional basis to review the
reasonableness of a validly enacted exercise of discretion.
It
may well be that the refusal of the Governor in Council to extend the life of
the Commission for the entire period requested by the Commissioners was
motivated by political expediency, but that is simply not the business of the
Court. It is a well-established principle of law and a fundamental tenet of
our system of government, in which Parliament and not the Judiciary is supreme,
that the courts have no power to review the policy considerations which
motivate Cabinet decisions. Absent a jurisdictional error or a challenge under
the Canadian Charter of Rights and Freedoms, where Cabinet acts
pursuant to a valid delegation of authority from Parliament, it is accountable
only to Parliament and, through Parliament, to the Canadian public, for its
decisions. In other words, the validity of an Order in Council is measured
against the statutory conditions precedent to its issuance, and not by its content.
Dickson J. (as he then was) made this point clear in Thorne's Hardware v.
The Queen, when he stated:
Decisions made by the Governor in
Council in matters of public convenience and general policy are final and not
reviewable in legal proceedings. Although, as I have indicated, the
possibility of striking down an Order in Council on jurisdictional or other
compelling grounds remains open, it would take an egregious case to warrant
such action. This is not such a case.
The
two other grounds invoked by the Trial judge to declare Order in Council P.C.
1997-174 to be ultra vires — namely, the incompatibility of its
requirement with the independence of the Commission and the impossibility for
the Commissioners to discharge their duty within the time frame imposed on them
— are directly related to the inaccurate views that the Trial judge held
regarding the role of the Commissioners and the nature of their report, which I
have already criticized. It is obvious that these grounds have no substance whatever
if, as I think it is, the role of the Commissioners is not to decide issues
definitively and their report is not intended to pronounce judgment, but merely
to explain the results of their work and the opinions (in terms of conclusions
and recommendations) which they were able to form given the time and resources
available to them; no more, no less. The independence of the Commissioners as
to the evaluation of the evidence and the possibility for them to express a
view is in no way affected, and their ability to provide a complete and
adequate report, in this sense, is indisputable. Again, the right of the
Commissioners to decide when they have sufficient evidence to make a particular
conclusion or recommendation is certainly not jeopardized by the Governor in
Council exercising the right he alone has to decide when it is time to
call for the Commission's report and advice. Likewise, the definition of terms
of reference establishing the scope of the Commission's powers to investigate
will, I suppose, suggest the framework of its report, but it cannot detract,
when it comes to the content of such report, from the Commissioners' duty to
remain within the limits of their findings and the conclusions they could have
reached.
In
my judgment, therefore, the Trial judge could not hold, as she did, that the
impugned Order in Council P.C. 1997-174 was ultra vires. The Order in
Council was properly enacted pursuant to Part I of the Inquiries Act.
It was valid on its face. Only an improper view as to the powers of the
Governor in Council conferred upon him by Parliament and a misconception
regarding the legal status of commissions of inquiry could permit her to
conclude that the Governor in Council acted in a manner contrary to law.
It
is even my opinion finally that, once the Trial judge ascertained that the
impugned order was validly enacted pursuant to Part I of the Inquiries Act,
she ought to have dismissed the application for judicial review on the basis
that there were no other justiciable issues raised by the application. As I
have said, the policy considerations which motivated the Governor in Council's
decision to put an end to the life of the Somalia inquiry by June 30, 1997 may
have been debatable or perhaps even suspect. But, it is a debate that a court
of law, properly confined to its adjudicative role, ought not to have
considered.
I
would, therefore, allow the appeal, quash the orders and declarations made by
the Trial judge, and declare that the impugned Order P.C. 1997-174 was intra
vires the Governor in Council.
"Louis Marceau"
J.A.
"I agree.
Julius A. Isaac, C.J."
"I agree.
F.J. McDonald, J.A."
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