Labbé v. Canada ( Commissioner, Commission of Inquiry into Deployment of Canadian Forces to Somalia )
T-133-97
MacKay J.
27/3/97
14 pp.
Application to expedite hearing of originating motion for judicial review and motion for prohibition to preclude Commission from calling applicant as witness until full disclosure and time to review matters disclosed given to applicant-Respondents applying to strike originating motion-Applicant commander of Canadian Joint Forces to Somalia from December 1992 until June 23, 1993-Because of incidents arising while forces in Somalia, respondent Commissioners appointed by Governor in Council to inquire into, report upon deployment, activities of Canadian Joint Forces-Applicant involved in choosing majority of staff officers assigned to Canadian Joint Forces to Somalia, later commander of those forces in Somalia-As early as May 1995 anticipated applicant would testify as witness before Commission-Throughout Commission's hearing entitled to representation, counsel having opportunity to cross-examine witnesses whose testimony related to his interests-Applicant receiving two notices pursuant to Inquiries Act, s. 13 putting him on notice adverse findings may be made against him in Commission's report when completed-Second notice, relating to in-theatre operations, withdrawn after Commission directed to terminate public hearings by March 31, 1997-Applicant will not have opportunity to call witnesses or to adduce evidence-Planning, preparations for applicant to testify before Commission underway year or more before counsel serving notice would not voluntarily appear as witness unless full, complete disclosure, opportunity to consider matters disclosed in advance of appearance-When summons to witness to appear served on superior officer, applicant confirming by message dated January 27, 1997 would testify-Application for interlocutory injunction to prevent Commission from calling applicant as witness until final determination of prohibition application refused-Applicant appearing voluntarily before Commission January 31, 1997 but testimony adjourned until February 4, 1997-Motion to strike allowed-Purpose of originating notice of motion moot when application to strike heard-Applicant already appearing before Commission, indicating readiness to testify-Prohibiting appearance, quashing summons would have no significance or utility-Court will not act to grant relief which could be of no effect, and where objectives of relief sought moot-Furthermore, no reasonable grounds established for relief claimed-Principle of fairness not supporting finding Commission owing applicant duty requiring more than reasonable disclosure of areas to be subject of testimony, documents to which may expect to be referred-Commission not adjudicative body-Engaged simply in investigating matters within terms of reference-Public inquiries neither criminal investigations nor criminal trials-Not establishing criminal or civil liability-Findings may or may not be acted upon by government-Witness appearing voluntarily or by summons at investigative hearings of inquiry not faced with "case to be met"-Cases concerning circumstances where specific determination to be made, one defined by criminal charges, statutory provision, with reference to individual whose liberty may be at issue, distinguished-So far as principle of fairness would dictate disclosure to prospective witness at this stage, efforts made to provide reasonable disclosure of areas of interest, documents, testimony of others, to applicant-Applicant, counsel must have good idea of any potential imputation of misconduct that might arise from documentary evidence, testimony already before Commission-Principle of fairness applicable to Commission's processes, particularly those affecting persons given notice under Inquiries Act, s. 13-But s. 13 relating to duty to provide notice of, opportunity to respond to findings Commission may make about misconduct-Steps taken by Commission to provide information to witnesses, relevant for, but in advance of their testifying, extensive, thorough-Processes followed meeting obligation of fairness-Opportunity must be provided for comment by persons about whom Commission may ultimately propose to make findings of misconduct-Perception of fault arising from testimony of others of which applicant aware, or from documents-Even if not having opportunity to call witnesses or adduce own evidence in course of public hearings, any person to whom Commission giving notice under Act, s. 13 can still respond in writing-Inquiries Act, R.S.C., 1985, c. I-11, ss. 12, 13.