[1997] 2 F.C. 391
T-309-97
John Edward Dixon (Applicant)
v.
The Commission of Inquiry into the Deployment of Canadian Forces to Somalia and the Governor in Council (Respondents)
T-317-97
John Edward Dixon (Applicant)
v.
The Governor in Council (Respondent)
Indexed as: Dixon v. Canada (Commission of Inquiry into the Deployment of Canadian Forces to Somalia) (T.D.)
Trial Division, Simpson J.—Vancouver, March 25, 26 and April 1, 1997.
Inquiries — Commission of Inquiry into deployment of Canadian Forces to Somalia — Order in Council establishing Commission to investigate, report on 6 topics, 19 issues — Final report due December 22, 1995 but two extensions granted — Commission needing even more time but Order in Council imposing final deadlines — Motion for order of mandamus requiring Commission to comply with mandate or declaring that Governor in Council amend Commission’s terms of reference by limiting inquiry and order declaring Governor in Council’s decision on final deadlines contrary to law — Importance, independence of public inquiries — Whether Commission required to report on all matters mandated — Who decides whether investigation complete — Whether commission unable to report on full mandate — Original reporting date unrealistic, never intended to be final — Commission of Inquiry not like government department to be created, directed, disbanded as Governor in Council sees fit — Governor in Council not entitled to decide when enough evidence received — To lawfully curtail mandate, Governor in Council must list items deleted from Commission’s mandate — Order in Council imposing final deadlines ultra vires for (1) non-compliance with Interpretation Act, s. 31(4); (2) breaching rule of law by requiring the impossible; (3) breaching rule of law by disrespect of Commissioners’ independence.
Armed Forces — Commission of Inquiry into deployment of Canadian Forces to Somalia — Inquiry undertaken in response to national outrage over murder of Somalis by Canadian soldiers — Commission’s broad mandate including inquiring, reporting on leadership within chain of command, discipline, whether cultural differences impacted on operations, actions of Department of National Defence, allegations of cover-up, evidence destruction — Governor in Council imposing final deadlines for Commission’s investigations, report — Applicant was Special Advisor to Defence Minister Campbell, directly involved in communications between C.F., Minister — Controversy between applicant, C.F. representative as to date applicant told of Somali’s torture, murder by Canadian Airborne Regiment members — Media questioning whether applicant cover-up participant — Applicant denied standing due to government’s imposition of final deadlines — Applicant seeking order of mandamus requiring Commission to comply with mandate or declaring that Governor in Council amend Commission’s terms of reference and declaring decision imposing final deadlines contrary to law — Order in Council imposing final deadlines held ultra vires.
Practice — Parties — Standing — Motion for mandamus requiring Somalia Commission of Inquiry to comply with mandate or other relief — Applicant Special Advisor to then Minister of Defence — Directly involved with communications between Minister, representatives of Canadian Armed Forces — Disputing date Minister’s staff told of torture, murder in Somalia by members of Canadian Airborne Regiment — Allegations of cover-up — Within Commission’s mandate, but applicant denied standing because Commission’s mandate truncated when Governor in Council deciding to end hearings March 31, 1997 — Applicant directly affected, having standing to bring motion pursuant to Federal Court Act, s. 18.1.
These were originating motions for mandamus requiring the Commission of Inquiry to comply with its mandate; and a declaration that the Governor in Council’s decision to require the Commission to terminate its public hearings by March 31, 1997 and to submit its final report by June 30, 1997 was contrary to law.
The Commission of Inquiry was established under the Inquiries Act by Order in Council P.C. 1995-442 to investigate the deployment of the Canadian Airborne Regiment Battle Group to Somalia, in response to national outrage over both the Arone murder and the events of March 4, 1993, when one Somali was killed and another wounded. The Order in Council required the Commission to inquire into and report on six topics with respect to the Canadian Forces deployment to Somalia, including “actions and decisions of the Canadian Forces; and actions and decisions of the Department of National Defence” and 19 specific issues. The Commission was also expected to make recommendations to correct problems identified in the course of its investigation. A final report was due December 22, 1995, but an extension to June 28, 1996 was granted. A second extension to September 1997 was requested, citing nine reasons therefor, including the delay caused by “missing, altered or destroyed documents”. An extension to March 31, 1997 was granted. In November 1996, the Commission Chairman explained the difficulties in meeting the March 31, 1997 reporting deadline, noting the enormous number of documents received and the “dilatory manner” in which the Department of National Defence had treated the Commission’s entreaties for cooperation and assistance. Although the Commission was of the view that it would be impossible to complete the work assigned before December 31, 1997, an extension of only three months, to June 30, 1997 was granted. Hearings were to be completed by March 31, 1997. These dates were confirmed by Order in Council P.C. 1997-174. When the final deadlines were imposed, the mandate was not reduced.
In 1993 the applicant was employed as a Special Advisor to the Right Honourable Kim Campbell, then Minister of National Defence. As such he was directly involved in the communications between the Minister and representatives of the Canadian Forces, with whom he now disputes the date on which the Minister’s staff was told about the torture and murder of Shidane Arone by members of the Canadian Airborne Regiment in Somalia. When the controversy was made public, media speculation began about whether the applicant was part of a cover-up. The applicant was refused standing before the Commission of Inquiry. The hearing and reporting deadlines in Order in Council P.C. 1997-174 precluded the Commission of Inquiry from examining the nature and adequacy of the response of National Defence Headquarters (NDHQ) to the events in Somalia, and the “crucial issue” of a possible cover-up in the upper echelons of NDHQ and the Canadian Forces. The Commission’s mandate covered the allegations of possible cover-up and the applicant’s evidence would be important on that issue.
The issues were: (1) whether the applicant had standing to bring these motions; (2) whether the mandate as set out in Order in Council P.C. 1995-442 required the Commission to report on all matters mentioned or whether the Commission had a discretion to report only on those issues which it considered important; (3) whether the Governor in Council or the Commission decides whether the investigation is complete; (4) whether it was impossible for the Commission of Inquiry to complete its mandate; (5) whether Interpretation Act, subsection 31(4) imposed any requirements on the Governor in Council; (6) whether Order in Council 1997-174 was ultra vires the Governor in Council.
Held, the motion for mandamus should be dismissed; Order in Council 1997-174 should be declared ultra vires.
(1) The applicant was personally involved in the events whereby the Minister was advised of the Arone murder. He had been scheduled to be a witness at the Commission of Inquiry for a long time and his lawyer for this purpose was provided by the federal government. Thus the applicant was directly affected and therefore had standing pursuant to Federal Court Act, subsection 18.1(1).
(2) By asking the Commission to “inquire into and report”, Order in Council P.C. 1995-442 imposed a duty to report on all of the six topics and 19 designated issues. The Commission did not have a discretion to report only on those issues they chose to deal with in the time available. A mandate could have been written so as to provide such a discretion. The initial reporting date was unrealistic. But December 22, 1995 was never intended to be a final reporting date. It was a target date and there was nothing unlawful in the Governor in Council imposing target dates.
(3) The Commission decides when the investigation has been adequate. The Governor in Council can create a commission of inquiry, establish the mandate, appoint the commissioners, set reasonable target dates and terminate a commission of inquiry in a lawful manner. But, at a minimum, a commission of inquiry is independent when its decisions relate to the manner in which it will carry out its mandate. This independence means that it is the Commission, where it is compelled to investigate and report, which must decide when it has received sufficient evidence to enable it to make the findings of fact necessary to support conclusions in its report. The Governor in Council is not entitled to decide when the Commission has received sufficient evidence.
(4) If the Commission must report on all issues, and if it is entitled to decide when it has sufficient evidence, then if it is left with a full mandate, it is impossible for it to fulfil its duty to provide a full report and respect the final deadlines. This impossibility was known to the Governor in Council when it imposed the final deadlines, which were six months earlier than the Commission indicated was needed to complete its work. Nothing could undermine the value of a public inquiry more than the spectre of a government curtailing the activities of a commission.
(5) The Governor in Council does have the power to curtail the mandate. Interpretation Act, subsection 31(4) provides that commissions may be amended or varied “in the same manner” as that in which they are created. In Order in Council P.C. 1995-442, the mandate was established by a detailed listing of six topics and 19 designated issues. To curtail the mandate in a manner that meets the requirements of the Interpretation Act, the Governor in Council must specifically list those items in the mandate which are to be considered deleted. If the Governor in Council wants to curtail the mandate, it must do so in clear and specific terms.
(6) Order in Council P.C. 1997-174, which imposed the final deadlines was ultra vires because: (1) it did not comply with Interpretation Act, subsection 31(4) 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 Commission and by placing it in a position where it cannot obey the law; and (3) it breaches the rule of law by not respecting the Commission’s independence.
There was no justification for an order of mandamus against the Commission of Inquiry. It cannot complete its full mandate, but this was not due to an unlawful act on its part.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
An Act respecting Inquiries concerning Public Matters, S.C. 1868, c. 38.
Canada Evidence Act, R.S.C., 1985, c. C-5.
Federal Court Act, R.S.C., 1985, c. F-7, s. 18.1 (as enacted by S.C. 1990, c. 8, s. 5).
Inquiries Act, R.S.C., 1985, c. I-11, s. 13.
Interpretation Act, R.S.C., 1985, c. I-21, ss. 2(1) “regulation”, 31(4).
CASES JUDICIALLY CONSIDERED
CONSIDERED:
Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), [1995] 2 S.C.R. 97; (1995), 124 D.L.R. (4th) 129; 31 Admin. L.R. (2d) 261; 39 C.R. (4th) 141; 180 N.R. 1.
REFERRED TO:
Canada (Attorney General) v. Canada (Commissioner of the Inquiry on the Blood System), [1997] 2 F.C. 36 (1997), 142 D.L.R. (4th) 237; 207 N.R. 1 (C.A.).
AUTHORS CITED
Canada. Law Reform Commission. Administrative Law: Commissions of Inquiry: A New Act (Working Paper No. 17), Ottawa: Supply and Services Canada, 1977.
Lucas, Alastair R. “Public Inquiries” 29 C.E.D. (West. 3rd) , Title 122, 1987.
Ontario. Law Reform Commission. Report on Public Inquiries. Toronto: The Commission, 1992.
MOTIONS for mandamus requiring the Somalia Commission to comply with the terms and conditions of its mandate and a declaration that the Governor in Council’s decision to require the Commission to terminate its public hearings by March 31, 1997 and to submit its final report by June 30, 1997 was contrary to law. Motion for mandamus dismissed; Order in Council 1997-174 declared ultra vires.
COUNSEL:
Joseph J. Arvay, Q.C. for applicant.
W. Stanley Martin and Simon R. Coval for respondent Commission of Inquiry into the Deployment of Canadian Forces to Somalia.
Donald J. Rennie for respondent Governor in Council.
SOLICITORS:
Arvay, Finlay, Victoria, for applicant.
Russell & DuMoulin, Vancouver, for respondent Commission of Inquiry into the Deployment of Canadian Forces to Somalia.
Deputy Attorney General of Canada for respondent Governor in Council.
The following are the reasons for order rendered in English by
Simpson J.:
THE MOTIONS
John Edward Dixon (the applicant) has two originating motions before the Court. Each is made pursuant to section 18.1 of the Federal Court Act, R.S.C., 1985, c. F-7 [as enacted by S.C. 1990, c. 8, s. 5]. The first is in Court file T-309-97 (the first motion). In the first motion, the applicant names both the Commission of Inquiry into the Deployment of Canadian Forces to Somalia (the Commission of Inquiry) and the Governor in Council. In Court file T-317-97 (the second motion), only the Governor in Council is a respondent.
In the first motion, the Court was asked to make the following orders:
(1) an order in the nature of mandamus requiring the Commission of Inquiry into the Deployment of Canadian Forces to Somalia (the Commission) to comply with the terms and conditions of P.C. 1995-442 as amended by P.C. 1995-1273; P.C. 1996-959 and P.C. 1997-174.
(2) in the alternative an order declaring that the Governor in Council amend the Commission’s terms of reference by either limiting the matters to be inquired into and reported upon or to extend the date by which the Commission is to conclude its public hearings and submit a final report.
In the second motion, the following orders were sought:
(1) an order declaring that the Governor in Council’s decision to require the Commission of Inquiry into the Deployment of Canadian Forces to Somalia (the Commission) to terminate its public hearings by March 31, 1997 and to submit its final report by June 30, 1997 was contrary to law;
(2) in the alternative an order declaring that the Governor in Council amend the Commission’s terms of reference by either limiting the matters to be inquired into and reported upon or to extend the date by which the commission is to conclude its public hearings and submit a final report.
The pre-hearing procedures for these motions were expedited at the applicant’s request so that both motions could be heard and decided before March 31, 1997, which is the date suggested by Order in Council P.C. 1997-174 for the conclusion of the oral hearings before the Commission of Inquiry. By orders of Denault J. dated March 4, 1997, the applicant was to file his supplementary application record on Monday, March 24, 1997, and his applications were to be heard on or before Thursday, March 27, 1997.
Accordingly, the hearing was held on Tuesday, March 25 and for a short time on Wednesday, March 26. An order disposing of the two motions was made on Thursday, March 27, 1997, on the basis that reasons would be released the following week. These are the promised reasons.
THE PARTIES
(i) John Edward Dixon
In January 1991, the applicant was seconded from his position as an instructor in philosophy at Capilano College in North Vancouver to serve in the Department of Justice in Ottawa under the terms of a federal executive interchange program. At the Department of Justice, the applicant worked for a time as Senior Policy Advisor to the Deputy Minister of Justice. Thereafter, in January 1993, he was seconded to the Department of National Defence as a Special Advisor to the Right Honourable Kim Campbell who was then the Minister of National Defence (the Minister).
As Special Advisor to the Minister, the applicant was directly involved in the communications between representatives of the Canadian Forces and the Minister. One representative of the Canadian Forces was Captain Blair of the Office of the Judge Advocate General (Blair). The applicant and Blair have different recollections about the date on which the applicant and others on the Minister’s staff were told about the torture and murder of Shidane Arone by members of the Canadian Airborne Regiment in Somalia on March 16, 1993 (the Arone murder).
Blair says in a memorandum dated November 2, 1994, that he made the Arone murder known to the applicant and others on the Minister’s staff on March 26, 1993. On the other hand, in his letter to Esprit de corps magazine earlier in 1994, the applicant had indicated that “neither Minister Campbell nor any member of her staff had knowledge of the atrocity until March 31.” This controversy between Blair and the applicant became public when, on January 13, 1997, the Commission of Inquiry released Blair’s memorandum of November 2, 1994. As a result, a Canadian press story dated January 15, 1997, raised the question whether the applicant and his colleagues had participated in a cover-up.
Following these events, the applicant moved before the Commission of Inquiry on January 27, 1997, for an order granting him standing. However, in an order dated February 4, 1997, the Commission of Inquiry refused the applicant’s request. In its reasons for order, the Commission of Inquiry indicated that, because its mandate had been “truncated” by the government’s decision to end the hearings on or about March 31, 1997, it would be unable to investigate the role and responsibilities of high-ranking governmental officials, including the matter of interest to the applicant, which was whether there was a cover-up of the Arone murder. However, the Commission of Inquiry made it clear that, had it been able to pursue the matter of the cover-up, the applicant’s evidence would have commanded attention.
The Governor in Council has correctly noted that the applicant has no formal standing before the Commission of Inquiry and that he has not received a notice of a charge of misconduct under section 13 of the Inquiries Act, R.S.C., 1985, c. I-11. He is therefore, in the Governor in Council’s submission, merely a potential witness at the Commission of Inquiry who “has no right to use judicial review as a remedy for perceived civil wrongs”. However, the mandate of the Commission of Inquiry in Order in Council P.C. 1995-442 covers the allegations of possible cover-up and the commissioners have acknowledged that the applicant’s evidence would be important on that issue.
The applicant was personally involved in the events whereby the Minister was advised of the Arone murder. The applicant has been scheduled to be a witness at the Commission of Inquiry for a long time and his lawyer for this purpose is provided by the federal government. In my view, these facts are sufficient to conclude that the applicant is directly affected and therefore entitled to standing pursuant to subsection 18.1(1) of the Federal Court Act. In view of this conclusion, it is not necessary to decide whether the applicant could also have been given public interest standing.
(ii) The Commission of Inquiry into the Deployment of Canadian Forces to Somalia
The Commission of Inquiry was established under Part I of the Inquiries Act by Order in Council P.C. 1995-442 on March 20, 1995. Shortly thereafter, the Commission of Inquiry received its formal name by means of Order in Council P.C. 1995-528, dated March 28, 1995. For accuracy, I should make two observations. First, there is technically no entity known as a “commission of inquiry”. There are commissioners who are commissioned to undertake an inquiry. However, the term “commission of inquiry” is a practical fiction which is commonly used to describe the commissioners and their task. Second, as the Commission of Inquiry in this case was not established by letters patent, it is not a royal commission.
The Honourable Gilles Létourneau was appointed as a commissioner and as the chairperson of the Commission of Inquiry (the Chairman). He is a judge of the Federal Court of Appeal. Peter Desbarats, who is a well-known Canadian journalist, is a commissioner, as is the Honourable Robert Campbell Rutherford. He is a judge of the Ontario Court of Justice (General Division). The three commissioners will hereinafter be described collectively as the Commissioners.
The Chairman and Commissioner Desbarats were both appointed when the Commission of Inquiry was first established on March 20, 1995. Commissioner Rutherford was appointed at a later date to replace a commissioner who had resigned. The relevant Order in Council was P.C. 1995-614 dated April 23, 1995. However, Commissioner Rutherford was not able to begin his work as a commissioner until May 23, 1995.
It is well known that the Commission of Inquiry was established to investigate the deployment of the Canadian Airborne Regiment Battle Group to Somalia, and that the inquiry was undertaken largely in response to national outrage over both the Arone murder on March 16, 1993, and the events of March 4, 1993, when one Somali was killed and another wounded (the shooting incident).
What is not widely known, however, is the extraordinary scale of the mandate given to the Commission of Inquiry in Order in Council P.C. 1995-442. In the description which follows, I have underlined and emphasized with bold type the material which, in my view, is particularly relevant to these motions. The Commissioners were appointed to inquire into and report on the following six matters (the six topics) with respect to the Canadian Forces deployment to Somalia:
1. the chain of command system;
2. leadership within the chain of command;
3. discipline;
4. operations;
5. actions and decisions of the Canadian Forces; and
6. actions and decisions of the Department of National Defence.
The Commission of Inquiry was further directed that, without restricting the generality of the matters listed above, it was also to inquire into and report on nineteen specific issues (the designated issues). Those issues relate to the pre-deployment period before January 10, 1993, the in-theatre period from January 10 to June 10, 1993, and the post-deployment period from June 11, 1993 to November 28, 1994. To illustrate the enormity of the task given to the Commission of Inquiry, I have reproduced the designated issues in their entirety.
In the pre-deployment period, the Commission of Inquiry was to inquire into and report on:
(a) the suitability of the Canadian Airborne Regiment for service in Somalia;
(b) the mission and tasks assigned to the Canadian Airborne Regiment Battle Group (CARBG) and the suitability of its composition and organization for the mission and tasks assigned;
(c) the operational readiness of the CARBG, prior to deployment, for its mission and tasks;
(d) the adequacy of selection and screening of officers and non-commissioned members for the Somalia deployment;
(e) the appropriateness of the training objectives and standards used to prepare for deployment of the Airborne Regiment;
(f) the state of discipline within the Canadian Airborne Regiment prior to the establishment of the CARBG and within the CARBG prior to deployment;
(g) the effectiveness of the decisions and actions taken during the training period prior to deployment by leadership at all levels of the Airborne Regiment to prepare for its mission and tasks in Somalia;
(h) the effectiveness of the decisions and actions taken by leadership at all levels within Land Forces Command to resolve the operational, disciplinary and administrative problems that developed in the Canadian Airborne Regiment and the CARBG in the period leading up to the CARBG deployment to Somalia;
(i) the effectiveness of the decisions and actions taken by Canadian Forces leadership at all levels to ensure that the CARBG was operationally ready, trained, manned and equipped for its mission and tasks in Somalia.
In the in-theatre period the Commissioners were to inquire into and report on:
(j) the mission and tasks of the Canadian Joint Task Force Somalia and the suitability of the composition and organization of the Task Force for its mission and tasks;
(k) the manner in which the Task Force conducted its mission and tasks in-theatre and responded to the operational, disciplinary and administrative problems encountered, including allegations of cover-up and destruction of evidence;
(l) the extent, if any, to which cultural differences affected the conduct of operations;
(m) the attitude of all rank levels towards the lawful conduct of operations, including the treatment of detainees;
(n) the appropriateness of professional values and attitudes in the Task Force and the impact of deployment in Somalia on those values and attitudes;
(o) the extent to which the Task Force Rules of Engagement were effectively interpreted, understood and applied at all levels of the Canadian Forces chain of command;
(p) the effectiveness of the decisions and actions taken by leadership at all levels of the chain of command within the Task Force in response to the operational, disciplinary and administrative problems encountered during the deployment;
(q) the effectiveness with which information concerning operations, discipline and administration and problems encountered in-theatre was reported through the chain of command:
(i) within the Canadian Joint Task Force Somalia,
(ii) from Canadian Joint Task Force Somalia Headquarters to National Defence Headquarters,
(iii) within National Defence Headquarters;
(r) the effectiveness of the decisions and actions taken by leadership at all levels of National Defence Headquarters in response to the operational, disciplinary and administrative problems encountered during the Somalia deployment.
And finally, in post-deployment, the report was to specifically address the results of an inquiry into:
(s) the manner in which the chain of command of the Canadian Forces responded to the operational, disciplinary and administrative problems related to the Somalia deployment.
It is also noteworthy that the Commissioners were empowered to:
— establish their own procedures;
— sit wherever and whenever in Canada they wished;
— rent whatever space and facilities they required;
— hire experts and others as required; and
— sit in camera if they considered it necessary in the public interest.
Finally, before me, counsel for the Governor in Council and counsel for the Commission of Inquiry agreed that both parties understand that the role the Commission of Inquiry is actually playing is both investigatory and advisory. Accordingly, in addition to investigating and reporting on the designated issues, the Commission of Inquiry is expected to make appropriate recommendations aimed at correcting problems it identifies in the course of its investigation. The Commission of Inquiry’s entire assignment, as set out in Order in Council P.C. 1995-442, will hereinafter be described as its “mandate”.
The Commissioners were directed to submit a final report on the mandate in both official languages not later than December 22, 1995. This gave the Commissioners nine months to complete their work.
(iii) The Governor in Council
The Governor in Council is the source of the executive power in the Government of Canada. In practice, Governor in Council is a term which describes a process whereby the decisions of the Prime Minister and his Cabinet are implemented by the Governor General. In this case, the decisions were implemented by subordinate legislative enactments known as orders in council.
THE INQUIRIES ACT
The Commission of Inquiry was established pursuant to Part I of the Inquiries Act. Part I is entitled “Public Inquiries”. Section 2 under Part I reads as follows:
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.
Professor Alastair R. Lucas, in an article entitled “Public Inquiries” in the Canadian Encyclopedic Digest[1] (the article), indicates that the first Canadian inquiries statute was enacted as a temporary measure in 1846 by the Assembly of the United Provinces, and that a later permanent version of the original statute was enacted as An Act respecting Inquiries concerning Public Matters [S.C. 1868, c. 38]. This Act was given Royal Assent on May 22, 1868. It contained only two sections but one was virtually identical to section 2 in the present Act.
Over the years, legislative amendments have given commissions of inquiry the power to compel the production of documents from public offices and institutions and to issue subpoenas. As well, the protection of the Canada Evidence Act [R.S.C., 1985, c. C-5] was given to witnesses and commissioners were entitled to engage counsel, experts and staff, and delegate their powers. Notices of proposed findings of misconduct were established, and commissioners were empowered to give those investigated the right to counsel.
The Law Reform Commission of Canada has also provided a brief history of the Act in its “Working Paper 17 on Commissions of Inquiry”, which was published in 1977 (the CLRC Paper).[2] The CLRC Paper estimates that, in the period from 1867 to 1977, approximately 400 federal commissions of inquiry were appointed under Part I of the Act.
THE INDEPENDENCE OF PUBLIC INQUIRIES
The issue of the nature and extent of the independence of commissions of inquiry was not fully argued before me. However, it was submitted and I accept, that there are differing degrees of independence. At one end of the spectrum there is the independence accorded to the judiciary. It is free from executive action and subject only to the will of Parliament. At the other end of the spectrum is a situation where there is virtually no independence, in which a commission of inquiry is considered to be an aid to the executive with a position akin to that of a department in a government ministry. Then there is a middle ground where, once established, a commission of inquiry has independence regarding its procedure and the manner in which it fulfills its mandate.
The Supreme Court of Canada had occasion to comment on the importance and independence of commissions of inquiry in its decision in Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), [1995] 2 S.C.R. 97. At pages 137-138, the Court noted that:
Commissions of inquiry have a long history in Canada. This Court has already noted (Starr v. Houlden, supra, at pp. 1410-11) the significant role that they have played in our country, and the diverse functions which they serve. As ad hoc bodies, commissions of inquiry are free of many of the institutional impediments which at times constrain the operation of the various branches of government. They are created as needed, although it is an unfortunate reality that their establishment is often prompted by tragedies such as industrial disasters, plane crashes, unexplained infant deaths, allegations of widespread child sexual abuse, or grave miscarriages of justice.
At least three major studies on the topic have stressed the utility of public inquiries and recommended their retention: Law Reform Commission of Canada, Working Paper 17, Administrative Law: Commissions of Inquiry (1977); Ontario Law Reform Commission, Report on Public Inquiries (1992); and Alberta Law Reform Institute, Report No. 62, Proposals for the Reform of the Public Inquiries Act (1992). They have identified many benefits flowing from commissions of inquiry. Although the particular advantages of any given inquiry will depend upon the circumstances in which it is created and the powers it is given, it may be helpful to review some of the most common functions of commissions of inquiry.
One of the primary functions of public inquiries is fact-finding. They are often convened, in the wake of public shock, horror, disillusionment, or scepticism, in order to uncover “the truth”. Inquiries are, like the judiciary, independent ; unlike the judiciary, they are often endowed with wide-ranging investigative powers. In following their mandates, commissions of inquiry are, ideally, free from partisan loyalties and better able than Parliament or the legislatures to take a long-term view of the problem presented. Cynics decry public inquiries as a means used by the government to postpone acting in circumstances which often call for speedy action. Yet, these inquiries can and do fulfil an important function in Canadian society. In times of public questioning, stress and concern, they provide the means for Canadians to be apprised of the conditions pertaining to a worrisome community problem and to be a part of the recommendations that are aimed at resolving the problem. Both the status and high public respect for the commissioner and the open and public nature of the hearing help to restore public confidence not only in the institution or situation investigated but also in the process of government as a whole. They are an excellent means of informing and educating concerned members of the public. [My emphasis.]
It is worthy of note that the Supreme Court has accorded public inquiries a degree of independence equivalent to that given to the judiciary. It is also interesting that the Federal Court of Appeal recently adopted the Supreme Court’s description of commissions of inquiry.[3] However, neither Court was asked to consider the impact, if any, of this type of independence on the Governor in Council’s ability to terminate a commission of inquiry before it completes its mandate.
On this topic, the Ontario Law Reform Commission in its Report on Public Inquiries in 1992 cautioned at page 30 that:
Another innovative and important use of the order in council is to impose a reporting date on a public inquiry. Such reporting dates have been imposed on five of the last ten Ontario public inquiries, although in some cases subsequent orders in council have been issued to extend the deadline. There are some advantages in terms of controlling delay and limiting costs in giving inquiries a definite reporting date. On the other hand, a reporting date could limit the thoroughness of an inquiry and perhaps compromise its independence if an extension is requested by the commission but denied by the Cabinet. [My emphasis.]
It also comments at page 206 in the following terms:
Although the independence of public inquiries is not absolute, its central features should be protected. If they could not be protected, the case for retaining public inquiries as a unique instrument of government would be weakened considerably.
The most important attribute of a public inquiry’s independence is that once appointed, the commission has complete freedom to conduct its proceedings and deliver its report for public release. Nothing could undermine the value of a public inquiry more than the spectre of a government preventing the issue of a report that it would rather not see released, or curtailing the activities of a commission. [My emphasis.]
Finally, on this issue, it is subsection 31(4) of the Interpretation Act, R.S.C., 1985, c. I-21, which provides the Governor in Council with the power to amend the mandate. Subsection 31(4) reads:
31. …
(4) Where a power is conferred to make regulations, the power shall be construed as including a power, exercisable in the same manner and subject to the same consent and conditions, if any, to repeal, amend or vary the regulations and make others.
Subsection 2(1) of the Interpretation Act defines a “regulation” to include a commission such as that which establishes a commission of inquiry.
THE WORK OF THE COMMISSION OF INQUIRY
Having reviewed the material filed for these motions, it is clear to me that the Commissioners have worked systematically and diligently on their enormous task. Any suggestion that the Commission of Inquiry did not “get on with it” would be wholly unwarranted. The Commissioners’ investigatory work has not been confined to public hearings. It has taken many forms. For example:
— Orders were issued to compel the production of documents. On April 21, 1995, the Commission of Inquiry issued an order requiring the Department of National Defence and the Canadian Forces to file with the Commission of Inquiry within 30 days certain “Somalia-related” documents. On May 18, 1995, the Commission of Inquiry issued further orders to the Clerk of the Privy Council and to the Deputy Minister of Foreign Affairs for the disclosure of “Somalia-related” documents located in their respective departments. Almost one year later, the first order had not been complied with to the Commission of Inquiry’s satisfaction. Accordingly, on April 2, 1996, the Commission of Inquiry issued another order to the Minister of National Defence summoning the Department of National Defence and the Canadian Forces to file with the Commission of Inquiry within 48 hours all records and documents relating to the issue of the responses of the Department and the Forces to public requests for information, and relating to the April 21, 1995 order for the production of documents.
— Experts’ studies were commissioned to deal with specific issues. The Commission of Inquiry planned to table (in conjunction with or prior to the final report) a collection of six or seven studies of specific issues.
— A procedural hearing was held. On May 24, 1995, immediately after Commissioner Rutherford began his work, the Commission of Inquiry held a hearing to establish the Commission of Inquiry’s rules of procedure and to determine who would be granted standing before the Commission of Inquiry.
— Policy hearings were held. In the period from June 19 to 23, 1995, the Commission of Inquiry received an overview of the policies, regulations, rules and practices of the Canadian Armed Forces, the structure and organization of the Canadian Armed Forces, the Department of National Defence, and the Canadian military justice system.
— Documents were reviewed and assessed. An enormous volume of documents has been received by the Commission of Inquiry. As of February 26, 1997, the Commission of Inquiry has received over 150,000 documents totalling over 600,000 pages. The Commission of Inquiry hired a document management team to track and monitor these documents as they were received. Every document was numbered and reviewed, page by page, assessed for relevance and catalogued chronologically and by issue.
— Documents from other proceedings were requested. The Commission of Inquiry has obtained the 4,000-page Board of Inquiry report and the transcripts of the fourteen court martial proceedings arising from incidents that occurred in Somalia during the in-theatre period.
— Issues hearings were held and the Commission of Inquiry decided to work through the issues in the order in which they were set out in its mandate. The first phase of public hearings, the “pre-deployment phase”, was held from October 2, 1995 to February 22, 1996, and involved testimony from 46 witnesses. The second phase, the “in-theatre phase” began on April 1, 1996, but, after hearing 12 witnesses, this phase was suspended while the Commission of Inquiry held a public investigation into alleged document tampering and document destruction in the Directorate General Public Affairs. This investigation consumed 40 hearing’ days from April 15, 1996, to August 30, 1996. The “in-theatre phase” testimony resumed in the week of September 9, 1996, but it has recently stopped due to the March 31, 1997 deadline imposed by Order in Council P.C. 1997-174.
In addition to its investigatory work, the Commissioners addressed management issues. They dealt with the administrative and logistical matters relating to the establishment and conduct of the Commission of Inquiry. Commission of Inquiry counsel and staff were recruited, basic operations and procedures implemented, scheduling issues were addressed, media facilities were established, and offices and a hearing room were eventually arranged (the procedure and policy hearings held in May and June of 1995 were held in borrowed premises). In addition, the Commissioners obtained expert advice as to the mechanics of printing and publishing their final report (the Commissioners were advised that at least four months were required to edit, translate, print and publish their 1,500 to 2,000 page report). They also provided the Governor in Council with comprehensive reports on their progress in the context of seeking extensions of their reporting deadlines.
In response to the hearing and reporting deadlines set on January 10, 1997, the Commission finished hearing evidence relating to the shooting incident and then stopped its in-theatre hearings. The first week of April 1997 was reserved for submissions from parties and, thereafter, the Commission of Inquiry will prepare its report to meet the June 30, 1997, deadline.
There is no evidence before me about what the Commission of Inquiry will include in its report. However, in his remarks of January 13, 1997, the Chairman indicated that the hearing and reporting deadlines in Order in Council P.C. 1997-174 precluded the Commission of Inquiry from examining the nature and adequacy of the response of National Defence Headquarters to the important events that transpired in Somalia (especially, the shooting incident that occurred on March 4, 1993, which the Commission of Inquiry had been examining, and the Arone murder on March 16, 1993). He added that the deadlines almost completely eliminated the Commissioners’ ability to probe the “crucial issue” of a possible cover-up in the upper reaches of National Defence Headquarters and the Canadian Forces. These matters are covered in the mandate at issues (k), (q) and (r) of the designated issues and in topics 5 and 6 of the six topics.
As well, in its reasons for order of February 4, 1997, refusing the applicant’s request for standing, the Commission of Inquiry stated:
It is now well understood that the Government, in choosing to cut off this inquiry in the course of its investigation, has precluded an examination of crucial aspects of the Somalia Affair, including inter alia the vital aspects of possible cover-up within the higher ranks of the military and the adequacy of the response of the Canadian Forces and National Defence Headquarters to the myriad problems that were encountered by Canadian troops in the Somalia theatre.
REPORTING DATES AND REQUESTS FOR EXTENSIONS
Pursuant to Order in Council P.C. 1995-442 dated March 20, 1995, the Commissioners were directed to submit a final report in both official languages to the Governor in Council not later than December 22, 1995. However, very soon after Commissioner Rutherford joined the Commission of Inquiry, the Commissioners realized that the report date was unrealistic. Accordingly, by a letter dated June 2, 1995, to Jocelyne Bourgon, Clerk of the Privy Council and Secretary to the Cabinet, the Chairman requested an extension of the Commission of Inquiry’s final reporting deadline to September 20, 1996. In requesting this extension, the Chairman cited, inter alia, the “monumental” nature of the Commissioners’ mandate and the delay resulting from the late assumption of duties (on May 23, 1995) by the newly-appointed Commissioner Rutherford. He also noted that he was “unaware of any Royal Commission established in recent years that has operated under a deadline as tight as that which has initially been established for our Inquiry”. In reply, pursuant to Order in Council P.C. 1995-1273 dated July 26, 1995, the Governor in Council granted the Commission’s request for an extension of the deadline for filing the final report, but only to June 28, 1996, not to September 20, 1996, as had been requested.
On March 6, 1996, the Chairman wrote again to Ms. Bourgon requesting a further extension of the final reporting deadline from June 28, 1996 to March 31, 1997. In requesting this second extension, the Chairman noted, inter alia, the appearance of new issues, the significant underestimation of the volume of documents expected to be filed with the Commission of Inquiry, and the delays encountered in obtaining essential documents from the Department of National Defence. In a subsequent letter dated May 3, 1996, to Ms. Margaret Bloodworth, Deputy Clerk of the Privy Council Office, the Chairman indicated that he proposed to provide the Privy Council Office with “a more elaborate projection and an adjusted request concerning the Commission’s ultimate reporting deadline”. This was done in a four-page letter dated May 9, 1996, to Ms. Bloodworth. In that letter, the Chairman requested a further extension of the final reporting deadline to September 30, 1997, and gave nine reasons in support of the request including the delay caused by “missing, altered or destroyed documents”. In this letter, the Chairman expressed the Commissioners’ resolve to complete the final report—estimated to be from 1,500 to 2,000 pages in length—by March 31, 1997, but requested the September 30, 1997, report date because “it would be safer at this point before our request formally goes to the Treasury Board for its formal consideration, for us to build an additional six months into our time line”.
The Chairman emphasized that the Commissioners had no desire to prolong the inquiry process, noting, in particular, that Commissioner Rutherford, who as a supernumerary judge would normally be expected to assume reduced responsibilities, had been working “more than full time” for the Commission of Inquiry. Despite the Commissioners’ request, the Governor in Council, pursuant to Order in Council P.C. 1996-959 dated June 20, 1996, extended the Commission’s final reporting deadline to March 31, 1997, rather than to September 30, 1997. In a letter to the Chairman dated June 21, 1996, Ms. Bourgon explained that:
… the Government of Canada, the Canadian Forces and all Canadians are anxious to resolve the questions surrounding the incidents which occurred in Somalia. The Government would encourage you to proceed as quickly as possible with this Inquiry so that it can have the benefit of the commission’s view in considering the options in any reform of the Canadian Forces. We agree that this is a challenging task, but note that your current reporting date is already an extension of the original deadline.
Ms. Bourgon concluded the letter by saying:
This extension will give the Commission an additional nine months to continue its work. The Commission’s progress can be assessed further in the fall. [My emphasis.]
Further to the June 21, 1996 letter, the Commissioners and senior Commission of Inquiry personnel met with Mr. Dion and Ms. Poirier of the Privy Council Office in November 1996 to discuss the Commission of Inquiry’s scheduling and final report publication projections, and the Commissioners’ requirement of a further extension beyond March 31, 1997. In an eight-page letter to Mr. Dion dated November 27, 1996, the Chairman explained the Commission of Inquiry’s difficulties in meeting the March 31, 1997, reporting deadline, noting in particular the enormous number of documents received by the Commission of Inquiry and the “dilatory manner” in which the Department of National Defence had treated the Commissioners’ entreaties for cooperation and assistance. The Chairman noted that “serious shortfalls in the document disclosure process”, including revelations of document destruction and alteration, had necessitated additional hearings.
In his November 27, 1996 letter, the Chairman provided three scenarios for completing the hearings and preparing the final report; each scenario required an extension of the reporting date. The earliest reporting deadline contemplated by the Commissioners was December 31, 1997, pursuant to their third scenario (scenario No. 3). Accordingly, the Governor in Council was aware, as early as November 1996, that the Commission of Inquiry did not feel it could report effectively on its mandate prior to December 31, 1997.
Scenario No. 3 set the most compressed timetable. It allowed for approximately 23 hearing weeks to hear evidence principally about (i) the Arone murder and (ii) the actions and decisions of senior personnel in National Defence Headquarters, and (iii) the issue of a possible cover-up. These hearings were to conclude in July 1997.
The Commissioners indicated that scenario No. 3 had required them to make some hard choices about how to complete their work in a timely fashion. For example, they had planned to receive oral evidence before they reported on incidents in Somalia other than the shooting incident and the Arone murder, but they decided instead to proceed to report without hearing evidence. As well, they proposed to hear no oral evidence about the Canadian Forces’ activities in the post-deployment period but still they planned to include the topic in their final report.
Towards the end of the letter, the Commissioners advised the Governor in Council that:
The Commissioners are firmly of the view that it would be impossible to complete the work assigned to them in a comprehensive, reasonable and effective manner if they are asked to adhere to a reporting deadline that is earlier than December 31, 1997.
In his letter of reply dated January 10, 1997, Mr. Dion of the Privy Council Office informed the Chairman that the Commissioners would receive an extension of only three months, to June 30, 1997, to allow the Commission of Inquiry to complete its work and file its final report. The letter also said that the Commission of Inquiry must complete its public hearings on or about March 31, 1997. These dates (the final deadlines) were confirmed by Order in Council P.C. 1997-174 dated February 4, 1997. It is important to note that, when the final deadlines were imposed, the mandate was not reduced.
Mr. Dion’s explanation for the final deadlines was as follows:
Although all scenarios proposed in your workplan 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 at least another year to receive the Commission’s input.
However, to put the matter of the timing of the final report in another perspective, I should observe that the Commissioners’ request for an extension to December 31, 1997, under scenario No. 3 represented only three months more than they had sought in their letter of May 9, 1996, prior to the amendment of Order in Council P.C. 1996-959. It is noteworthy that the Commissioners were never given the extensions they sought.
The Commissioners’ requests for extensions from their initial reporting date of December 22, 1995, and the related orders in council are summarized in the following table:
| O.I.C. |
Date |
Current Report Date |
Extension Requested |
Extension Granted |
| P.C. 1995-1273 |
July 26, 1995 |
December 22, 1995 |
September 20, 1996 |
June 28, 1996 |
| P.C. 1996-959 |
June 20, 1996 |
June 28, 1996 |
September 30, 1997 |
March 31, 1997 |
| P.C. 1997-174 |
February 4, 1997 |
March 31, 1997 |
December 31,1997* |
June 30, 1997 for final report March 31, 1997 (approx.) as cut off date of hearings |
* this was the minimum pursuant to Scenario Three
THE ISSUES
The question is whether Order in Council P.C. 1997-174, which imposed the final deadlines, is ultra vires of the Governor in Council in the circumstances of this case.
This question raises a number of issues:
1. What is the nature of the mandate? Does the mandate as set out in Order in Council P.C. 1995-442 require the Commission of Inquiry to report on all matters mentioned or does it give it discretion to report only on those issues which the Commissioners consider to be important?
2. Who decides whether the Commission of Inquiry’s investigation is complete?
3. Is it impossible for the Commission of Inquiry to complete its mandate?
4. Does subsection 31(4) of the Interpretation Act impose any requirements on the Governor in Council?
THE PARTIES’ POSITIONS
(i) The applicant
The applicant submits that the practical effect of Order in Council P.C. 1997-174 is that the Commission of Inquiry remains legally required to report on its entire mandate even though such a report has become an impossibility due to the final deadlines. It is also the applicant’s position that, given the Chairman’s letter to the Deputy Chief of the Privy Council of November 27, 1996, the Governor in Council knew, when it imposed the final deadlines, that the Commission of Inquiry would be unable to report on all the matters set out in the mandate by June 30, 1997.
The applicant states that laws, including subordinate legislation such as the orders in council in this case, must be capable of performance and that, because Order in Council P.C. 1997-174 imposes the final deadlines but also leaves the full mandate to be fulfilled, the Order in Council creates a situation in which it is impossible for the Commission of Inquiry to obey the law.
The applicant further submits that the Governor in Council acts without jurisdiction when it issues an order in council which cannot be performed. He adds that it also is unseemly and contrary to the rule of law for the Commission of Inquiry to be placed in a position where it cannot comply with the law because it cannot report on its full mandate as required.
The applicant concedes, without prejudice to his right to make an argument to the contrary in future, that the Governor in Council does have the power, by reason of subsection 31(4) of the Interpretation Act, to impose the final deadlines and to reduce the mandate of the Commission of Inquiry. However, he submits that, in the unprecedented circumstances of this case, where the effect of the final deadlines is to preclude the Commission of Inquiry from reporting on its full mandate as it is legally required to do, an order in council, to be lawful, must clearly identify those matters about which the Commissioners need not report. This must be done so that it will be possible for the Commissioners to fulfill the mandate and meet the final deadlines.
The applicant takes the position that it was both offensive and unlawful for the Governor in Council to reduce the mandate by the “back door” imposition of the final deadlines in Order in Council P.C. 1997-174. He further submits that, to pass a new order in council which directly reduces the mandate by clearly listing specific items about which the Commission of Inquiry need not report, would also be offensive but would be lawful and would give the public and the Commissioners a clear understanding of how the Governor in Council wants the Commission of Inquiry to proceed. This would make the Governor in Council accountable for a decision to reduce the mandate.
The applicant says that the Governor in Council’s reasons for issuing the final deadlines are not of significance in this application. Various ministers of the Crown have made statements about the Governor in Council’s motives and there has been much public speculation about possible motives, but, in the applicant’s submission, motive is irrelevant. What matters is the fact that the Commission of Inquiry is not complying with Order in Council P.C. 1995-442.
What is most egregious, according to the applicant, is that the Governor in Council is responsible for the Commission of Inquiry’s failure to comply with the law because it has left the full mandate in place and imposed the unrealistic final deadlines. The applicant says that the intervention of this Court is needed to restore a sense of order and legality to the situation. At the moment, in his submission, Order in Council P.C. 1995-442 is a sham because it cannot be performed.
(ii) The Commission of Inquiry
The Commission of Inquiry’s position is that an order of mandamus against it is inappropriate. It says that, to be successful, the applicant would need to show that the Commission of Inquiry had unlawfully refused or failed to carry out its duty, and that it would be possible for it to perform its duty in response to an order of mandamus. It says that neither of these tests can be met on the facts of this case.
(iii) The Governor in Council
The Governor in Council submits that the mandate is a matter of discretion, and that the Commissioners are not legally required to report on all items in the mandate. In the Governor in Council’s view the mandate sets the boundaries of the investigation but, within those boundaries or “fence posts”, the Commissioners are free to assign priority to those issues they consider to be most worthy of investigation and delete other issues from their consideration and final report. The designated issues are simply optional topics for a final report. It was submitted, for example, that a final report that provided absolutely no information on six of the designated issues would fulfill the mandate from the perspective of the Governor in Council. The Governor in Council states that, under Order in Council P.C. 1995-442, the Commissioners have jurisdiction to inquire into the six topics and the designated issues, but they have no duty to so inquire.
The Governor in Council also takes the position that the mandate does not require a meaningful report even on those issues which the Commissioners choose to investigate. It was submitted that, on the issue of a possible cover-up for example, a report that provided no findings of fact or recommendations but which was limited to a list of questions which might be pursued in another forum, would be an adequate report on the issue from the perspective of the Governor in Council. It was submitted that it is for the Governor in Council, not the Commissioners, to decide when the mandate has been adequately fulfilled, and it is the duty of the Commissioners to organize themselves to do the best job they can given the time and budget they are allocated. In other words, “meaningful” is defined by money and deadlines set by the Governor in Council. It is not defined by the Commissioners.
Counsel for the Governor in Council also noted that the Interpretation Act, subsection 31(4), is the source of its power to amend the mandate. He submitted that the Governor in Council’s action was taken in the national interest and that the decision to impose the final deadlines rather than restrict the mandate was made intentionally to avoid the appearance of interference with the Commission of Inquiry’s independence and its right to select those issues on which it would report.
The Governor in Council also takes issue with the Commissioners’ position that it is unable to report on its full mandate. Reference is made to the Chairman’s letter of November 27, 1996, in which he says that:
In all, the Commissioners have received in the neighbourhood of 150,000 documents totalling over 600,000 pages. What they have considered and admitted into evidence, in their judgment, constitutes the essential documentation necessary to address the core issues identified in nineteen (19) key paragraphs of the Order-in-Council establishing the Commission and setting out the Commissioners’ terms of reference.
The Chairman also noted that:
Serious shortfalls in the document disclosure process including the destruction and alteration of Somalia-related documents created a need for additional hearings. Although time-consuming, these unanticipated hearings were of real value inasmuch as they addressed important questions bearing on the central issue of cover-up.
Counsel for the Governor in Council argued that, if there is documentation on all the designated issues and oral evidence has already been received about the cover-up issue, a meaningful report can reasonably be anticipated on all issues and, therefore, impossibility of performance has not been shown.
In contrast to the applicant, the Governor in Council casts Order in Council P.C. 1997-174 in a positive light. He stresses that it was favourable in that it granted the Commission of Inquiry a three-month extension for the final report. The Governor in Council asks: how can granting an extension be an ultra vires act?
Finally, with respect to scenario No. 3 in the Chairman’s letter of November 27, 1996, the Governor in Council’s position is that the requested final report date of December 31, 1997, was unacceptable because it meant that the report was another year away, and it was in the national interest to speed up its delivery so that the Governor in Council could proceed with the reform of the military with the benefit of the Commissioners’ final report.
DISCUSSION AND CONCLUSIONS
In my view, by asking them to “inquire into and report”, Order in Council P.C. 1995-442 imposed a duty on the Commissioners to report on all of the six topics and on all of the designated issues. Accordingly, I am unable to accept the Governor in Council’s submission that the Commissioners had the discretion to report only on those issues they chose to deal with in the time available.
A mandate could have been written which would have provided such a discretion. It could have said, for example, “here are 19 issues of concern—please choose the four you consider to be the most important and investigate them and report” or “here are ten issues—please investigate as many as you can and report in six months”. However, in this case, the mandate did not give the Commissioners such a choice. Given the horrific nature of the events which sparked the Commission of Inquiry, I am satisfied that the Governor in Council wanted an inquiry and a report on all of the six topics and all of the designated issues.
I have also concluded that the initial reporting date of December 22, 1995, was unrealistic. There was no way that three Commissioners, even working as they did on a full-time basis, could take care of the start-up logistics, hold public hearings, obtain and review the necessary documents and write and publish a final report in both official languages on the full mandate in nine months.
However, I am satisfied that December 22, 1995, was never intended to be a final reporting date. Rather, it was a target date and there was nothing unlawful about the Governor in Council imposing target dates. In this case, the existence of target dates ensured that the Commissioners planned their work in an efficient manner and made reasonable projections. The target dates encouraged this disciplined approach because they meant that, from time to time as the target deadlines approached, the Commissioners would have to justify their requests for extensions. The Commissioners made their requests in comprehensive letters which fully described the reasons for the extensions they sought. This was not, as I stated during the hearing, a commission of inquiry which was whirling out of control in the ether. The Commissioners are responsible and hard working individuals who organized their enormous workload in a professional manner.
However, there is no question that the Governor in Council became frustrated with the time the Commission of Inquiry was taking to investigate the matters in its mandate, and this situation raises the next issue. Does the Governor in Council or do the Commissioners decide when the investigation has been adequate?
The Governor in Council considered the Chairman’s letter of November 27, 1996, and noted that the documents and some hearing evidence had addressed the issue of a cover-up. From my perspective, it is not clear whether the Chairman was talking about a cover-up as it related to document destruction and avoidance of access to information requests or the possible cover-up of the Arone murder by senior military officials or members of the Minister’s staff. In any case, the Governor in Council concluded that the Commissioners had some evidence about a cover-up of some kind and could therefore reasonably be expected to report.
The Commissioners, on the other hand, have clearly stated that, without public hearings and the oral testimony of those involved, including Blair, the applicant and the Minister, they do not consider that they have adequately investigated a possible cover-up of the Arone murder.
In the Westray Mine Tragedy case, as noted on page 407 supra, the Supreme Court of Canada said that “[o]ne of the primary functions of public inquiries is fact-finding.” This being so, it is entirely reasonable for the Commissioners to believe that they must hear from those directly involved before making factual findings about a possible cover-up of the Arone murder. Where they are directed to inquire and report, the report must be meaningful. It cannot be a nil report or simply a list of unanswered questions as the Governor in Council suggested.
The Governor in Council takes the view that it is entitled to treat the Commission of Inquiry like a government department which can be created, directed and disbanded as the Governor in Council sees fit. There is no question that the Governor in Council can create a commission of inquiry, establish the mandate and appoint the commissioners. It can also set reasonable target dates and terminate a commission of inquiry in a lawful manner. However, in my view, at a minimum, a commission of inquiry is independent when its decisions relate to the manner in which it will carry out its mandate. I am also satisfied that this independence must mean that it is for the commissioners, in a situation such as this where they are compelled to investigate and report, to decide when they have heard or otherwise received sufficient evidence to enable them to make the findings of fact necessary to support conclusions in their report. In my view, the Governor in Council is not entitled to decide when the commissioners have received sufficient evidence.
This conclusion leads inexorably to a decision on the issue of impossibility. If the Commissioners must report on all issues, and if they are entitled to decide when they have sufficient evidence, then it follows that, if they are left with a full mandate, it is impossible for them to fulfill their duty to provide a full report and respect the final deadlines. Further, this impossibility was known to the Governor in Council when it imposed the final deadlines, which were six months earlier than the Commissioners indicated they needed to complete their work under scenario No. 3.
As far as I am aware, this case is without precedent in the sense that there has never been a situation where a commission of inquiry—faced with a duty to report on its full mandate—has been put in a position where it cannot report as required by the Governor in Council’s imposition of reporting deadlines.
As noted above, the Ontario Law Reform Commission, when it talked about the independence of public inquiries and the use of reporting dates, observed that nothing could undermine the value of a public inquiry more than the spectre of a government curtailing the activities of a commission.
However, as the law presently stands, the Governor in Council does have the power to curtail the mandate. Subsection 31(4) of the Interpretation Act, as noted at page 409 supra, provides that commissions, such as the one in this case, may be amended or varied “in the same manner” as that in which they are created. In Order in Council P.C. 1995-442, the mandate was established by a detailed listing of the six topics and the designated issues. To curtail the mandate in a lawful fashion that meets the requirements of the Interpretation Act, the Governor in Council must specifically list those items in the mandate which are to be considered deleted. This means that if the Governor in Council wants to curtail the mandate, it must do so in clear and specific terms.
To conclude, there are three reasons why Order in Council P.C. 1997-174, which imposed the final deadlines, is ultra vires:
1) It does not comply with subsection 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.
Finally, I could find no justification for an order of mandamus against the Commission of Inquiry. I am satisfied that it cannot complete its full mandate, but it is clear that this difficulty is not due to an unlawful act on its part.