Morneault v. Canada ( Attorney General )
T-1645-97
Reed J.
27/4/98
54 pp.
Application for judicial review to quash findings made against applicant, commanding officer of Canadian Airborne Regiment from June to October 1992, by Commission of Inquiry into Deployment of Canadian Forces to Somalia-Order in Council under which Commission established had envisaged investigation into events having occurred pre-deployment, intheatre, and post-deployment-Commission had completed first stage, and was part way through second stage when inquiry terminated-Applicant challenging Commission's decisions concerning him on following grounds: (1) as Commission not able to complete in-theatre stage of inquiry, it could not evaluate whether significant causal link existed between applicant's pre-deployment responsibilities and events in Somalia; (2) applicant not given reasonable notice of allegations of misconduct and opportunity to respond thereto before findings made against him; (3) perverse and capricious findings of fact made by Commission, without regard to evidence before it-Applicant trained troops for peacekeeping mission in northeastern part of Somalia-Nature of mission changed before Airborne left for Somalia: new mission peace enforcement (potentially requiring and allowing for greater use of force than peacekeeping mission), with deployment at Belet Huen, more troubled part of Somalia-New mission referred to in Commission report as uncertain mission, in different part of Somalia, under new command and arrangements and with changed force structure and different rules of engagement-Application allowed-Given Commission's mandate, allegations of misconduct relating to training and leadership of Airborne prior to deployment to Somalia autonomous area of inquiry with respect to which Commission could make misconduct findings-Allegations made against applicant not same type as those struck out in Addy v. Canada (Commissioner and Chairperson, Commission of Inquiry into Deployment of Canadian Forces in Somalia), [1997] 3 F.C. 784 (T.D.)-Applicant should have been given Inquiries Act, s. 13 notice with respect to blanket statement of condemnation found in Commission report, vol. 1 stating any of senior officers who testified before Commission exhibited pattern of evasion and deception, betrayed public trust, and if they remain in military, they should have their status reviewed and blanket statement characterizing individuals subsequently named in volume as individuals who blamed others for their actions, who failed to question appropriateness of commands received, and who failed in their duty to advise against improper actions-Those statements attribute behaviour both morally and legally wrong to specifically identified individuals-Type of finding for which s. 13 notice should have been given-Unfortunate that these broad statements found their way into Report-They can operate to tarnish reputations of innocent persons and do great damage to individuals who do not deserve such disapprobation-At very least, applicant entitled to declaration by Court that neither record before Commission, nor that filed for purposes of this judicial review application, supports finding that his conduct such as to bring him within scope of either of those general statements-Report did not find any misconduct by applicant because of discipline problems in Regiment-Main finding in Report, ch. 35 to effect applicant failed to meet important responsibilities with respect to training because failed to inculcate in commandos, through design of appropriate training plan and through adequate direct supervision, attitude suitable to peacekeeping mission-Finding that also failed to adequately instruct OCs on aim, scope and objectives of training-Commission therefore concluded not only that applicant had failed to adequately organize, direct and supervise training preparations, but also failed in duty as Commander as defined by analogy to Queen's Regulations and Orders at 4.20 and in military custom-Applicant had insufficient notice-Fact applicant had full status before Commission, access to all material filed, and right to cross-examine witnesses, not necessarily lessening duty to give specific notice of elements causing Commissioners to think his conduct may deserve label misconduct-Volume of material, length of proceedings increase rather than decrease necessity for sufficiently detailed notice-Criteria for reasonable notice: whether reasonable person would consider received enough information to know what aspects of conduct might be considered misconduct-Applicant could not be expected to refute every negative comment made about him, guessing which of these might be troubling Commissioners-Applicant did not receive reasonable notice of many of matters Commission eventually cited as grounds for its findings of misconduct against him-Report decision within Federal Court Act, s. 18.1(4)(d); fact outcome for individual either dismissal of charge or finding of misconduct making it quasi-judicial decision-making-In addition, finding of misconduct against named individual can have grave consequences for his reputation and career-Applicable test: whether finding patently unreasonable-Commission's finding of misconduct against applicant on ground failed to organize, direct and supervise training preparations from September 5 to September 21, 1992 deeply flawed: many primary findings of fact simply do not accord with evidence-Many conclusions with respect to training simply not supported by evidence-Therefore, decision patently unreasonable-Conclusion applicant failed in duty defined in QR & O, s. 4.20 and military custom also patently unreasonable as based on same facts-Appropriate remedy declaration of invalidity of Commission's findings of individual misconduct against applicant set out in Report, c. 35-Entitled to declaration record not supporting conclusion that two general statements of condemnation found in Report not applicable to him.