[1993] 3 F.C 528
T-1482-93
R. James Travers and Southam Inc. (Applicants)
v.
Admiral J. R. Anderson, Chief of Defence Staff (Convening Authority of a Board of Inquiry on the Activities of the Canadian Airborne Regiment Battle Group in Somalia); Major-General T. F. deFaye (President of a Board of Inquiry on the Activities of the Canadian Airborne Regiment Battle Group in Somalia); and the Attorney General of Canada (Respondents)
Indexed as: Travers v. Canada (Chief of Defence Staff) (T.D.)
Trial Division, Joyal J.—Ottawa, July 6 and August 23, 1993.
Constitutional law — Charter of Rights — Fundamental freedoms — Board of Inquiry hearing to review principles, policies, practices of Canadian Airborne Regiment Battle Group closed to public — Not breach of Charter, s. 2(b) right to freedom of press because not judicial, quasi-judicial enquiry — Board’s function not meeting test set out in MNR v. Coopers and Lybrand — To require public hearing propounding right to information in absolute terms, effectively metamorphosing process of internal enquiry into adjudication function characteristic of judicial proceeding.
Armed forces — Board of Inquiry hearing to review principles, policies, practices of Canadian Airborne Regiment Battle Group closed to public — Board’s function not judicial, quasi-judicial — More in-house, routine procedure — Within Convening Authority’s decision to close enquiry to public.
This was an application to require the Chief of Defence Staff to direct that a Board of Inquiry into the Canadian Airborne Regiment Battle Group conduct its proceedings in public. The applicants contended that the decision that the proceedings not be open to the public breached their Charter, paragraph 2(b) right to freedom of the press. The Board’s Terms of Reference limit the hearings to a review of the principles, policies and practices of the Battle Group, which was recently assigned a peacekeeping role in Somalia, where certain incidents occurred which have received extensive media coverage, and which resulted in the laying of criminal charges against four members of the Regiment.
Held, the application should be dismissed.
There was no breach of Charter, paragraph 2(b) because the inquiry was not the kind to which the intended “right of access to information” can apply.
Since the adoption of the Charter, the open court doctrine has been applied to certain administrative tribunals exercising quasi-judicial functions, i.e. by statute they have the jurisdiction to determine the rights and duties of the parties, although certain circumstances may warrant holding some such proceedings in camera.
The Board of Inquiry is not a court of record. It has no power to summon witnesses, determine rights or impose obligations. Nothing it does is executory or enforceable. Its powers are determined by its Terms of Reference, and it can only issue recommendations. Pursuit of the Board’s mandate might involve disclosure of classified communications, information prejudicial to the accused, information which would not be in the public interest to disclose, or information harmful to the proper exercise of Canada’s international peacekeeping role, yet the mandate had to be exercised within a very short time. An open policy would have required a series of voir dire to determine what evidence was to be adduced, the purpose of which would require that they be conducted behind closed doors.
The National Defence Act and regulations indicated that a Board of Inquiry is more an in-house procedure than a public forum. Whether it is constituted under a particular provision of the National Defence Act and its constitution made public, or simply organized by ministerial directive, the Board’s function does not necessarily trigger a concomitant right to sit in on the collection or collation of the evidence or on the deliberations of the members of the enquiry. To suggest otherwise is to propound the right to information in absolute terms and to effectively metamorphose a process of an internal enquiry into an adjudication function characteristic of judicial proceedings.
It is the nature of the function of an enquiry which would either meet or not neet the test set out in Minister of National Revenue v. Coopers and Lybrand, [1979] 1 S.C.R. 495 for determining whether a proceeding is judicial. The enquiry was not judicial or quasi-judicial. No impropriety or wrongdoing was involved. Neither individual nor general rights or duties were subject to determination. It was more an internal affair to obtain findings and recommendations in respect of leadership, discipline, operations, actions and procedures of the Canadian Airborne Regiment Battle Group and the appropriateness of its particular training, conditioning and disciplinary methods, a routine enquiry at National Defence. That the constitution of the enquiry was made public did not change its nature. The decision to close the enquiry to the public was a policy decision which the Convening Authority was entitled to make.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 2(b).
Immigration Act, 1976, S.C. 1976-77, c. 52.
National Defence Act, R.S.C., 1985, c. N-5.
Police Act, R.S.O. 1980, c. 381.
CASES JUDICIALLY CONSIDERED
APPLIED:
Minister of National Revenue v. Coopers and Lybrand, [1979] 1 S.C.R. 495; (1978), 92 D.L.R. (3d) 1; [1978] CTC 829; 78 DTC 6258; Re Southam Inc. and the Queen (No. 1) (1983), 41 O.R. (2d) 113; 3 C.C.C. (3d) 515; 34 C.R. (3d) 27; 33 R.F.L. (2d) 279 (C.A.); Re Southam Inc. and The Queen (1986), 53 O.R. (2d) 663; 26 D.L.R. (4th) 479; 12 O.A.C. 395 (C.A.).
CONSIDERED:
Re Ottawa Police Force and Lalande (1986), 57 O.R. (2d) 509 (Dist. Ct.); Southam Inc. v. Canada (Minister of Employment and Immigration), [1987] 3 F.C. 329; (1987), 13 F.T.R. 138; 3 Imm. L.R. (2d) 226 (T.D.).
APPLICATION to require the Chief of Defence Staff to direct that a Board of Inquiry into the Canadian Airborne Regiment Battle Group conduct its hearing in public on the ground that the decision that proceedings not be open to the public breached the applicants’ Charter, paragraph 2(b) right to freedom of the press. Application dismissed.
COUNSEL:
Richard G. Dearden for applicant.
Graham R. Garton and Pamela Owen-Going for respondent.
SOLICITORS:
Gowling, Strathy & Henderson, Ottawa, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order rendered in English by
Joyal J.: This application is in respect of a challenge launched by the applicants under paragraph 2(b) of the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]]. It came on for hearing on an expeditious basis on July 6, 1993. The next morning, July 7, 1993, I ruled that the application be dismissed and delivered brief oral reasons therefor. These reasons have now been reduced to writing.
The challenge concerns a decision by the respondent Chief of Defence Staff that the proceedings of a Board of Inquiry on the subject of the Canadian Airborne Regiment Battle Group not be open to the public. The appellants contend that this decision is a breach of the rights conferred under paragraph 2(b) of the Charter and request that the public, which of course includes the media, be given access to the proceedings.
It seems to me, as a preamble, that the freedom set out in section 2 of the Canadian Charter of Rights and Freedoms, particularly in regard to freedom of the press, has most often been analyzed in the context of a system of justice being conducted in an open court.
Long before the Charter, the doctrine of open court had been well established at common law. Before English as well as Canadian courts, numerous are the reiterations of that doctrine. Although variously expressed from time to time, the essence of that doctrine is that the better, if not the only, way to assure the proper exercise of judicial functions is to have court proceedings open to the public. The public, in such fashion, is a permanent or standing jury whose role is to ensure that the integrity of the judicial system is maintained.
Yet the open court doctrine is not absolute. In many instances, the doctrine comes into conflict with competing rights where a balance must often be struck. It is thus that courts have often resorted to in camera proceedings or have restricted their publication. Whether an open policy might be prejudicial to a particular litigant or accused, or whether the identity of a complainant in sexual assault cases would inhibit any complainant from coming forward, or whether by reason of the age of young offenders and the stigma which might be forever attached to them, the legislature on the one hand by statutory enactment or courts on the other in the exercise of their inherent jurisdiction to determine the conduct of their proceedings, both authorities have from time to time departed from the well-established norm and have ruled that certain proceedings be conducted behind closed doors or that various restrictions be placed on the publication of certain elements or parts of the proceedings.
Since the adoption of the Charter, it is true that the open door doctrine has been applied to certain administrative tribunals. While the bulk of precedents have been in the context of court proceedings, there has been an extension in the application of the doctrine to those proceedings where tribunals exercise quasi-judicial functions, which is to say that, by statute, they have the jurisdiction to determine the rights and duties of the parties before them.
This more extensive doctrine would appear to be entirely consistent with its original purpose. If justice is to be patently and evidently done in the courts, there is no reason why it should not also be done when a tribunal exercises substantially the same judicial functions. Again, however, by way of exception, proceedings before administrative tribunals may in certain circumstances be permitted behind closed doors.
Is the enquiry currently conducted by the respondents of a nature to have the doctrine applied to it? This requires some analysis. It is not a court of record, it has no power to summon witnesses by way of subpoena or otherwise, nor does it determine rights or impose obligations. Further, nothing it does is executory or enforceable. Its powers are determined by its Terms of Reference and in that regard, it can only issue recommendations which in due course are submitted to the Chief of Defence Staff who may adopt or reject all or any part of them. Herewith is the text of the Terms of Reference dated April 28, 1993:
1. An investigation shall be conducted pursuant to subsection 45(1) of the National Defence Act and in accordance with the provisions of Queen’s Regulations and Orders for the Canadian Forces Chapter 21 and Canadian Forces Administrative Order 21-9.
2. The Board of Inquiry is composed of:
President—Major-General T.F. de Faye, OMM, CD
Member—Brigadier-General C.J. Addy, CD
Member—Brigadier-General J.C.A. Emond, CD
Member—Professor Harriet Critchley
Member—Mr. Stephen Owen
Adviser—Lieutenant-Colonel K.W. Watkin, CD
Adviser—Chief Warrant Officer J. Marr, OMM, CD
3. The Board of Inquiry shall assemble to investigate the leadership, discipline, operations, actions and procedures of the Canadian Airborne Regiment Battle Group. To the extent relevant to a determination of those issues, the Board of Inquiry shall investigate the Battle Group’s antecedants in Canada and higher headquarters in Somalia prior to and during its employment in Somalia. No inquiry shall be made into any allegation of conduct that would be a service offence under the National Defence Act, and in particular any Criminal Code offence, that has resulted in the laying of a charge, the arrest of a person or the ordering of a military police investigation.
4. Should the Board of Inquiry receive evidence it reasonably believes relates to an allegation of a service offence, including a Criminal Code offence, for which an election to be tried by court martial must be given pursuant to article 108.31(1)(a) of Queen’s Regulations and Orders for the Canadian Forces, or that can only be tried by court martial, the Board of Inquiry shall cease the inquiry into that allegation and report the matter to the Convening Authority.
5. In conducting the investigation, the Board shall gather information and provide findings and recommendations in respect of the matters referred to in paragraph 3 , but not limited to, the following:
a. the state of discipline during training leading up to the deployment to Somalia and while in theatre;
b. the training objectives and standards which were used to prepare for deployment;
c. the selection and screening of personnel for employment in Somalia;
d. the effectiveness of leadership at all levels during training leading up to the deployment and while in theatre;
e. the adequacy of the promulgation and understanding of the Rules of Engagement within the Airborne Regiment Battle Group;
f. the Airborne Regiment Battle Group’s composition and organization related to its mission and tasks assigned;
g. the extent, if any, to which cultural differences affected the conduct of operations;
h. the attitude of all rank levels towards the lawful conduct of operations; and,
i. the appropriateness of professional values and attitudes in the Canadian Airborne Regiment and the impact of deployment in Somalia on those values and attitudes.
6. In addition, but subject to paragraph 3 and 4, the Board of Inquiry will make recommendations on any other matter arising from its inquiry.
7. The President may seek authorization from the Convening Authority for additions and/or amendments to these Terms of Reference.
8. Pursuant to article 21.12 of Queen’s Regulations and Orders, the proceedings of the Board of Inquiry shall not be opened to the public.
9. The Minutes of Proceedings of the Board of Inquiry shall be unclassified except as otherwise provided for by law.
10. The Minutes of Proceedings of the Board of Inquiry shall be made available to the public except as otherwise provided for by law.
11. The Board of Inquiry shall commence its proceedings as soon as practicable.
12. The Board of Inquiry shall submit its Minutes of Proceedings to the Convening Authority no later than 30 July 1993.
It is clear to me that the Terms of Reference of the Board of Inquiry limit the hearings to a review of the various principles, policies and practices of the Canadian Airborne Regiment Battle Group, an elite battle group which was recently called upon to exercise a peacekeeping role in a distraught environment called Somalia. Incidents there have received copious attention from the media and it is of record that criminal charges have been filed against four members of the Regiment. These incidents are of a nature to attract the attention of the public and to merit even more the attention of the media which, with respect, feel obliged to make sure that the attention of the public does not wane.
It is clear on the evidence before me that the mandate given to the Board must be exercised within a very short time. When first established on April 28, 1993, it was given a 90-day life span. Yet it was bestowed with a wide generic field of enquiry, which would necessarily involve in its proceedings the kind of communication which might be classified or might be prejudicial to any one or more of the named accused, or which might otherwise be contrary to public interest to disclose or which would constrain the proper exercise of Canada’s international peacekeeping role. No serious observer would conclude that these are not at least plausible grounds for a discreet approach. As elaborated by the respondent, Major-General deFaye, in the course of his cross-examination by the applicants, an open policy would have required a series of voir dire on what evidence was to be adduced, on what was classified or not, on what was directly or by implication prejudicial to individuals. These voir dire would of course have had to be conducted behind closed doors, otherwise the whole purpose of the enquiry within the enquiry would have been aborted.
It is further noted in the evidence that the report of the Board of Inquiry will be made public, subject to such constraints as are noted in the Board’s Terms of Reference or as imposed by law.
An analysis of the statutory and regulatory framework under the National Defence Act [R.S.C., 1985, c. N-5] indicates to me that a Board of Inquiry is far more an in-house procedure than a public forum which citizens may freely attend or on which the media may freely report. Whether or not it is constituted under a particular provision of the National Defence Act and its constitution made public, or simply organized by ministerial directive, the function of the Board, on a reading of its Terms of Reference, is such that, in my view, it does not necessarily or automatically trigger a concomitant right to sit in on the collection or collation of the evidence or on the deliberations of the members of the enquiry dealing with these Terms of Reference. To suggest otherwise is to propound the right to information in absolute terms and to effectively metamorphose a process of an internal enquiry into an adjudication function characteristic of judicial proceedings.
There is abundant case law, of course, that with respect to judicial proceedings, freedom of the press encompasses a right of access, as in Re Southam Inc. and The Queen (No. 1) (1983), 41 O.R. (2d) 113 (C.A.), and in Re Southam Inc. and The Queen (1986), 53 O.R. (2d) 663 (C.A.). As was stated by MacKinnon A.C.J.O. in Re Southam (No. 1) [at page 119]:
There can be no doubt that the openness of the courts … was and is a felt necessity; it is a restraint on arbitrary action by those who govern and by the powerful.
The question may then be asked: what is a judicial proceeding? Mr. Justice Dickson [subsequently Chief Justice], as he then was and, as he continued to be, a master of the analytical method to resolve such questions, has suggested the following tests in Minister of National Revenue v. Coopers and Lybrand, [1979] 1 S.C.R. 495, at page 504:
(1) Is there anything in the language in which the function is conferred or in the general context in which it is exercised which suggests that a hearing is contemplated before a decision is reached? [Underlining mine.]
(2) Does the decision or order directly or indirectly affect the rights and obligations of persons?
(3) Is the adversary process involved?
(4) Is there an obligation to apply substantive rules to many individual cases rather than, for example, the obligation to implement social and economic policy in the broad sense?
Freedom of the press as encompassing a right to information or a right of access to judicial proceedings is a well-established doctrine which, as I have already mentioned, has been known and respected for decades prior to the advent of the Charter. Similarly, the doctrine has been applied to other proceedings, as for a hearing under the Police Act [R.S.O. 1980, c. 381] dealing with a charge of discreditable conduct against a police officer: Re Ottawa Police Force and Lalande (1986), 57 O.R. (2d) 509 (Dist. Ct.); or as for a detention review hearing under the Immigration Act 1976 [S.C. 1976-77, c. 52] Southam Inc. v. Canada (Minister of Employment and Immigration), [1987] 3 F.C. 329 (T.D.), where Rouleau J., at page 336 found that:
[S]tatutory tribunals exercising judicial or quasi-judicial functions involving adversarial-type processes which result in decisions affecting rights truly constitute part of the “administration of justice”.
It seems to me in the circumstances that the right of access to information, as a corollary to the freedom of the press, has been consistently recognized when the right is claimed to cover judicial or quasi-judicial proceedings. That right, however, is no more than the expression of the “open court” doctrine. If open courts are to be the rule, there is no issue as to the press generally having access to them and to the information their proceedings disclose.
I should nevertheless seriously doubt that the right of access to information applies to hearings of committees, boards of inquiry, study groups, task forces or any similar group which might be entrusted to hear evidence and submissions, and make recommendations thereon to the authority which appointed them. If I should express this thought in doubtful terms, it is to eschew the temptation to make any kind of generalized statement on the issue. It is not the name given to an enquiry which determines its judicial or quasi-judicial characteristics; it is rather the nature of its function which would either meet or not meet the test set out by Mr. Justice Dickson in Coopers and Lybrand (supra).
It is in this light that the inquiry before me must be analyzed to see whether or not it is of a nature where the applicants can place reliance on the jurisprudence otherwise favourable to them and which deal either with judicial or quasi-judicial proceedings or with enquiries where some kind of modus vivendi was reached as to access in whole or in part. Counsel referred among others to the Marin Inquiry [Commission of Inquiry Relating to Public Complaint, Internal Discipline and Grievance Procedure within the Royal Canadian Mounted Police] which albeit under media pressure, did change its Terms of Reference to allow limited access to its proceedings. The nature of the inquiry, in any event, related to any evidence of wrongdoing on the part of the RCMP, a term of reference not found in the Board of Inquiry before me.
Similarly, it was a policy decision of the well-known McDonald Commission [Commission of Inquiry concerning certain activities of the Royal Canadian Mounted Police] to hold limited public hearings and again, the Commission had been asked to investigate RCMP activities not authorized or provided for by law, in other words, to gather evidence, if any, of wrongdoing.
The enquiry before me is evidently not of the same nature. No impropriety or wrongdoing is involved. No individual rights or duties are made subject to scrutiny. No general determination of rights and duties is part of its mandate. An analysis of its Terms of Reference indicates to me that it is much more an internal affair by which the Chief of Defence Staff, faced with certain anomalies in the conduct of a crack battle group in Somalia, wishes to obtain findings and recommendations in respect of the leadership, discipline, operations, actions and procedures of that group and, as I interpret the Terms of Reference, the appropriateness of its particular training, conditioning and disciplinary methods in the conduct of peace-keeping operations.
In my view, it is the kind of enquiry which goes on within the National Defence establishment and which, in normal circumstances, is conducted as a matter of course. The fact that the constitution of the enquiry was made public does not change its nature. The purpose behind such public announcements is not for this Court to decide nor is it material to a finding as to the nature of the enquiry. It is not, I repeat, not involved in the individual conduct of certain members of the battle group which, we all recognize, is what provoked the media’s attention and what in turn created a highly politicized atmosphere both inside and outside Parliament.
Pursuant to its mandate, the enquiry could have been open to the public. The convening authority, for the reasons stated, decided otherwise. Many would not agree that the reasons advanced are sufficient or appropriate. Many would suggest that they are spurious, facile or essentially self-serving. A continuing public debate might flow from all this, but I respectfully submit that they raise policy issues and not legal issues.
In this light, the forceful arguments advanced by counsel for the applicants deal not so much with constitutional guarantees as with a policy decision which the convening authority was empowered to make. As it is not the kind of enquiry to which the intended “right of access to information” can apply, I fail to see that the closed-door policy is in breach of paragraph 2(b) of the Charter.
The appropriateness of that policy, absent a breach of the Charter, is perhaps a matter for continuing political and media debate, but I should find that it lies beyond the field of judicial comment.
I would therefore dismiss the application.