CEA-2-90
In the Matter of an Order made by the Royal
Canadian Mounted Police Public Complaints
Commission to the Royal Canadian Mounted
Police on April 22, 1990;
And in the Matter of the Complaints of Darrell
Rankin, Number 2000-P.C.C. 89060 and 2000-
P.C.C. 89083;
And in the Matter of an application pursuant to
section 38(1) of the Canada Evidence Act, R.S.C.,
1985, c. C-5, for determination of an objection to
disclosure of information made by Joseph Philip
Robert Murray in a Certificate dated June 7,
1990.
INDEXED AS: RANKIN (RE) (T.D.)
Trial Division, Denault J.—Ottawa, September 25
and October 9, 1990.
RCMP — Inappropriate for Royal Canadian Mounted
Police Public Complaints Commission to apply under Canada
Evidence Act, s. 38 to overturn RCMP's certificate of objection
to production of intelligence files and Protective Policing
Manual — As quasi-judicial tribunal, impartiality required
— S. 45.45, Royal Canadian Mounted Police Act (allowing
Commission to hold in camera hearings) not giving it power to
compel evidence — Mere procedural device — Commission
having only some powers of board of inquiry.
Practice — Evidence — Application to determine validity of
objection to disclosure of intelligence files and policing
manual under Canada Evidence Act, s. 38 — Complaint
concerning use of excessive force by RCMP against demon
strator during visit of American President — Objection based
on grounds of public interest, national security and interna
tional relations — Balancing of public interest in administra
tion of justice against public interest in non-disclosure
National and international security issues raised in view of
risk from terrorist organizations — Public interest ill served
by disclosure of sensitive information where not crucial to
finding of fact and non-disclosure not prejudicial to
complainant.
This was an application by the Royal Canadian Mounted
Police Public Complaints Commission under Canada Evidence
Act, subsection 38(1) for the determination of the validity of an
objection to disclosure of information made by the Assistant
Commissioner of the RCMP under section 37. Subsection
38(1) provides that an objection to disclosure of information on
grounds that the disclosure would be injurious to international
relations or national defence or security may be determined
only by the Chief Justice of the Federal Court, or his designate.
Section 37 allows an objection to disclosure of any government
information to be filed in any court, on grounds of a specified
public interest. The complainant alleged that excessive force
had been used against him by an RCMP officer while he was
protesting against cruise missile testing in Canada during a
visit by the President of the United States of America, and that
his freedom of expression had been infringed. In the course of
its hearing, the Commission ordered the RCMP to produce two
intelligence files and the Protective Policing Manual. The
RCMP filed a certificate of objection on the basis that disclo
sure would be injurious to the public interest, national security
and international relations. The issues were (1) whether it was
appropriate for the Commission to take an active role in
seeking to have a certificate overturned considering the man
date conferred on it by Parliament, and (2) whether the
certificate should be overturned. The Commission submitted
that an objection to disclosure can only be maintained if its
disclosure would be injurious to international relations, national
defence or security. It submitted that the information might be
injurious to the functioning of the RCMP and other police
forces but was not information which would be injurious to
international relations or national defence.
Held, the application should be denied.
(1) It was inappropriate that the Commission take the
initiative of this application. As a quasi-judicial tribunal, the
Commission has an obligation to appear and act impartially.
When the matter is remitted back for a hearing, the Commis
sion will have to resume its role as an arbitrator. Subsection
45.45 of the Royal Canadian Mounted Police Act, which
allows the Commission to order the hearing be held in private
"if it is of the opinion that during the course of the hearing
[certain] information will likely be disclosed", does not give the
Commission power to compel the evidence. It is merely a
procedural device to assist the Commission in holding in
camera proceedings. The Commission has some, but not all, of
the powers of a board of inquiry, i.e. it can summon persons to
give evidence, administer oaths and receive and accept on oath
evidence as the board sees fit whether or not it would be
admissible in a court. It cannot examine the records and make
inquiries as it deems necessary. The Commission is further
restricted by paragraph 45.45(8)(a) in that, unlike certain
other tribunals, it cannot receive any evidence that would be
inadmissible in a court of law by reason of privilege.
(2) As to the merits of this case, it was necessary to
determine whether the public interest in the administration of
justice outweighed the public interest in non-disclosure. This
involved an inquiry into whether the documents were of critical
importance to the complainant, and whether he would be
prejudiced if the documents were not provided. The materials
sought were not necessary with respect to the finding of fact as
to whether there had been excessive use of force, or whether the
complainant's right to demonstrate had been infringed. As they
did not relate to a material fact in issue and the information
was not relied upon by the RCMP as part of its defence, the
impugned documents were not critical to the complaint against
the RCMP and the complainant would not be prejudiced by
their non-disclosure. The public interest would be ill served if
sensitive material were disclosed when it is not even crucial to a
finding of fact.
The Commission's submission, that the information was not
within sections 37 and 38, assumed that domestic policing
operations can be separated from international security opera
tions. The operations between police forces in Canada and
abroad are interrelated by exchanges of intelligence and
resources. The information referred to in the certificate related
to a visit of the President of the United States and issues of
national and international security were raised in view of the
threat posed by terrorist organizations.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canada Evidence Act, R.S.C., 1985, c. C-5, ss. 37, 38.
Canadian Security Intelligence Service Act, R.S.C.,
1985, c. C-23, s. 39(2),(3).
Royal Canadian Mounted Police Act, R.S.C., 1985, c.
R-10, ss. 24.1(3) (as enacted by R.S.C., 1985 (2nd
Supp.), c. 8, s. 15), 45.35(1)(a) (as enacted idem, s.
16), 45.45 (as enacted idem), 45.46 (as enacted idem).
CASES JUDICIALLY CONSIDERED
APPLIED:
Northwestern Utilities Ltd. et al. v. City of Edmonton,
[1979] 1 S.C.R. 684; (1978), 12 A.R. 449; 89 D.L.R.
(3d) 161; 7 Alta. L.R. (2d) 370; 23 N.R. 565; Goguen v.
Gibson, [1983] 1 F.C. 872 (C.A.).
CONSIDERED:
Royal Canadian Mounted Police Act (Can.) (Re),
[1990] 2 F.C. 750 (T.D.).
REFERRED TO:
Caimaw v. Paccar Canada Ltd., [1989] 2 S.C.R. 983;
(1989), 62 D.L.R. (4th) 437; [1989] 6 W.W.R. 673; 102
N.R. 1; Ferguson Bus Lines Ltd. v. Amalgamated
Transit Union, Local 1374, [1990] 2 F.C. 586 (C.A.).
COUNSEL:
Simon Noël for the Royal Canadian Mounted
Police Public Complaints Commission.
D. J. Rennie, André A. Morin and Marc
McCombs for the Royal Canadian Mounted
Police.
Elizabeth Thomas for Darrell Rankin.
Richard Mongeau for S.-Sgt. Raymond
Bergeron.
SOLICITORS:
Noël, Berthiaume, Aubry, Hull, Quebec for
the Royal Canadian Mounted Police Public
Complaints Commission.
Deputy Attorney General of Canada for the
Royal Canadian Mounted Police.
Elizabeth Thomas, Ottawa, for Darrell
Rankin.
Mongeau, Gouin, Côté, Roy, Montréal, for
S.-Sgt. Raymond Bergeron.
The following are the reasons for order ren
dered in English by
DENAULT J.: This is an application by the
Royal Canadian Mounted Police Public Com
plaints Commission ("the Commission"), under
subsection 38(1) of the Canada Evidence Act' for
the determination of the objection to disclosure of
information made by Assistant Commissioner
Murray in a certificate dated June 7, 1990.
The issue relates to two complaints filed by
Darrell T. Rankin concerning an alleged use of
excessive force and an infringement of his right to
freedom of expression, filed pursuant to paragraph
45.35(1)(a) of the Royal Canadian Mounted
Police Act (RCMP Act.). 2 The complaints were
filed after an incident occurred on February 10,
1989 wherein the complainant was engaged in an
authorized demonstration protesting cruise missile
testing in Canada on the occasion of the visit of
President George Bush of the United States of
America. The demonstration was to take place on
Sussex Drive in the vicinity of the External Affairs
Building. The RCMP established secure and ster
ile zones disallowing protesters on the north side of
Sussex. Several minutes prior to the arrival of the
R.S.C., 1985, c. C-5.
2 R.S.C., 1985, c. R-10 (as enacted by R.S.C., 1985 (2nd
Supp.), c. 8, s. 16).
presidential motorcade, the complainant Rankin
crossed Sussex to the north side carrying a large
banner which said "George take your missiles
home". S.-Sgt. Bergeron of the RCMP arrived and
advised him that no one was allowed on the north
side of Sussex. The complainant refused to relo
cate, claiming that he had a permit. The complai
nant submits that Bergeron grabbed his arm,
twisted it behind his back, and forced him face
first over the trunk of the car, and then into the
back of the police vehicle. S.-Sgt. Bergeron's evi
dence with respect to the amount of force used to
put Rankin in the vehicle is different.
There was a hearing by the Commission of the
complaints on May 22 and 23, 1990. The applicant
Commission in the course of its hearing issued an
order to the respondent (RCMP) to produce for
inspection and examination by the counsel for the
applicant the following:
i) File No. P.O.B.-200—a respondent intelligence
file,
ii) a respondent intelligence file referred to in
the testimony of Sgt. Angelo Fiore of the
Ottawa Police Force,
iii) The Protective Policing Manual as related to
VIP Security and Protection.
In response to the order, the respondent made
an oral objection to disclosure of the _ aforemen
tioned information under subsection 37(1) of the
Canada Evidence Act. At the request of the appli
cant Commission, the respondent filed a certificate
of objection on the basis that the disclosure of the
information would be injurious to the public inter
est, namely, the sound and effective functioning of
the RCMP and of other police and security forces
in Canada and elsewhere, the conduct of criminal
investigations, the implementation of criminal law.
He also added that some documents contained
information the disclosure of which would be
injurious to the national security of Canada and
international relations.
The Commission subsequently filed an applica
tion pursuant to section 38 of the Canada Evi
dence Act with the Federal Court to determine the
validity of the objection.
Preliminary Objection
Counsel for the RCMP raised a preliminary
objection to the Commission taking an aggressive
role to overturn the certificate. It submits that the
Commission's role as an impartial body is to inves
tigate complaints by members of the public con
cerning the performance of duties by members and
officers of the RCMP, and to make recommenda
tions based on the investigation to the Commis
sioner and the Solicitor General, but not to take an
aggressive role in the proceedings.
In response, the Commission argues it has the
powers of a board of inquiry in relation to the
matter before it, by virtue of subsection 45.45(4)
[as enacted by R.S.C., 1985 (2nd Supp.), c. 8, s.
16] of the RCMP Act, and that the purpose
behind the creation of the Commission is to ensure
that members of the public are treated fairly and
impartially. The Commission relies on a
judgment' of MacKay J. of this Court who had
this to say on Part VI (RCMP Public Complaints
Commission) and Part VII (Public Complaints) of
the RCMP Act:
I am prepared to conclude that Parts VI and VII in the
amendments to the Act were enacted with the primary objec
tive of protecting the public and the RCMP itself from the risk
of an apprehension of or actual bias in dealing with complaints
about police conduct. Prior to these amendments, the RCMP
itself was functioning as the sole arbiter of complaints made
against it. The opportunity for independent and open review by
the Commission of RCMP disposal of complaints can only
enhance confidence of the general public in the force and its
activities.
The Commission also argues that subsection
38(1) of the Canada Evidence Act can be made
"on application" and places no restriction on
whom may bring the application. It reads as
follows:
38. (1) Where an objection to the disclosure of information
is made under subsection 37(1) on grounds that the disclosure
3 Royal Canadian Mounted Police Act (Can.) (Re), [1990] 2
F.C. 750 (T.D.), at pp. 774-775.
would be injurious to international relations or national defence
or security, the objection may be determined, on application, in
accordance with subsection 37(2) only by the Chief Justice of
the Federal Court, or such other judge of that Court as the
Chief Justice may designate to hear such applications.
I agree with that proposition but the question is
whether it is appropriate for the Commission to
bring the application considering the mandate con
ferred upon it by Parliament.
The Commission submits that subsection
45.45(11) [as enacted by R.S.C., 1985 (2nd
Supp.), c. 8, s. 16] of the RCMP Act confers upon
it the jurisdiction to compel the production of the
certificate. Subsection 45.45(11) reads like this:
45.45 ...
(I I) A hearing to inquire into a complaint shall be held in
public, except that the Commission may order the hearing or
any part of the hearing to be held in private if it is of the
opinion that during the course of the hearing any of the
following information will likely be disclosed, namely,
(a) information the disclosure of which could reasonably be
expected to be injurious to the defence of Canada or any
state allied or associated with Canada or the detection,
prevention or suppression of subversive or hostile activities;
(b) information the disclosure of which could reasonably be
expected to be injurious to law enforcement; and
(c) information respecting a person's financial or personal
affairs where that person's interest outweighs the public's
interest in the information.
That section allows the Commission to order the
hearing to be held in private "if it is of the opinion
that during the course of the hearing any of the
following information will likely be disclosed"
(emphasis added). The plain wording of the sec
tion does not give the Commission power to
compel the evidence. Rather it is a procedural
device to assist the Commission in holding in
camera proceedings where in its opinion any infor
mation likely to be disclosed would reasonably be
expected to be injurious to the defence of Canada
or any state allied or associated with Canada or
injurious to law enforcement. This section does not
give the Commission power to compel this type of
evidence. The intent of Parliament was to allow
the Commission, in its discretion, to hold the
proceedings in camera. The Commission cannot
bring this application on the strength of subsection
45.45(11).
The Commission here has some but not all of
the powers of a board of inquiry (subsection
24.1(3) [as enacted by R.S.C., 1985 (2nd Supp.),
c. 8, s. 15], RCMP Act). Parliament incorporated
by reference the power of a board of inquiry to
summon any person before that board and require
that person to give evidence, to administer oaths,
and to receive and accept on oath evidence as the
board sees fit whether or not it would be admis
sible in a court of law (subsection 45.45(4)). It did
not grant the power to examine the records and to
make inquiries as the board deems necessary.
The Commission is further restricted by para
graph 45.45(8)(a) [as enacted by R.S.C., 1985
(2nd Supp.), c. 8, s. 16] in that it cannot receive
any evidence that would be inadmissible in a court
of law by reason of any privilege under the law of
evidence. Contrast this with another tribunal, the
Security Intelligence Review Committee, 4 which
can hear privileged evidence.
Considering the impartial role given to the
Commission, the question is whether it is appropri
ate for it to bring this application on behalf of the
complainant. It is instructive to refer to Justice
Estey's remarks in Northwestern Utilities Ltd. et
al. v. City of Edmonton 5 wherein counsel to a
utility board presented detailed and elaborate
arguments supporting its decision in favour of the
company:
Such active and even aggressive participation can have no other
effect than to discredit the impartiality of an administrative
tribunal either in the case where the matter is referred back to
it, or in future proceedings involving similar interests and issues
or the same parties. The Board is given a clear opportunity to
make its point in its reasons for its decision, and it abuses one's
notion of propriety to countenance its participation as a full-
fledged litigant in this Court, in complete adversarial confron
tation with one of the principals in the contest before the Board
itself in the first instance.
Justice Estey added that it has been the policy of
the Supreme Court "to limit the role of an
administrative tribunal whose decision is at issue
4 Canadian Security Intelligence Service Act, R.S.C., 1985,
c. C-23, s.39(2) and (3).
5 [1979] I S.C.R. 684, at p. 709.
before the Court, even where the right to appear is
given by statute, to an explanatory role with refer
ence to the record before the Board and to the
making of representations relating to
jurisdiction." 6 Mahoney J.A., following upon the
S.C.C. Paccar' decision commented that only
when its jurisdiction is in issue is it appropriate for
an administrative tribunal to appear in Court. 8 As
a quasi-judicial tribunal, the Commission has an
obligation to appear and act impartially. The
policy being that when the matter is remitted back
for a hearing with or without the impugned evi
dence, the Commission will have to resume its role
as an arbitrator.
Accordingly the Commission has the obligation
to be and appear to be impartial as a quasi-judicial
body. 9 This Court holds that it is inappropriate
that the Commission take the initiative of an
application under subsection 38(1) of the Canada
Evidence Act. However, in the present circum
stances it would serve no useful purpose to dismiss
the applicant's motion on that ground since the
complainant's counsel adopted the position of the
Commission. It would not serve the interest of the
parties to deny the applicant Rankin's motion.
Therefore, this Court will consider the merits of
the case.
Merits of the Case
The question to be addressed is whether the
public interest in the administration of justice
would outweigh the public interest in non-disclo
sure as articulated in the certificate of Assistant
Commissioner Murray, Director of Protective
Policing.
Summing up, the Commission issued an order
for the inspection by counsel for the Public Com
plaints Commission of two RCMP intelligence
files and the Protective Policing Manual. Even
though Assistant Commissioner Murray issued the
certificate pursuant to subsection 37(1) of the
Canada Evidence Act, on the grounds of a specific
public interest, paragraph 9 of the certificate
clearly states that the objection is also made on
grounds that the disclosure would be injurious to
6 Ibid., at p. 709.
' Caimaw v. Paccar of Canada Ltd., [ 1989] 2 S.C.R. 983.
8 Ferguson Bus Lines Ltd. v. Amalgamated Transit Union,
Local 1374, [1990] 2 F.C. 586 (C.A.).
9 Northwestern Utilities Ltd. and Ferguson, supra.
the national security of Canada and international
relations (subsection 38(1)).
Counsel for the Commission objected to the
certificate on two grounds: first, the information
requested does not fall within the ambit of sections
37 and 38 of the Canada Evidence Act and second,
Assistant Commissioner Murray is in a conflict of
interest.
With respect to the first objection, concerning
mainly the Protective Policing Manual as related
to VIP Security and Protection, the Commission
submits that it does not always contain informa
tion the disclosure of which could result in injury
to the nation. While it might be injurious to the
sound and effective functioning of the RCMP and
of other police and security forces in Canada and
elsewhere in conducting criminal investigations
and implementing criminal investigations, it is not
"information ... which would be injurious to
international relations or national defence". It sub
mits that an objection to disclosure of the informa
tion can only be maintained if its disclosure would
be injurious to international relations, or national
defence or security.
I disagree. Subsection 37(1) of the Canada Evi
dence Act allows an objection to disclosure of any
government information to be filed in any court,
on grounds of a specified public interest. Subsec
tion 38(1) allows an objection to be determined
only by the Chief Justice of the Federal Court, or
such other judge of that Court as the Chief Justice
may designate to hear such applications if an
objection to the disclosure is made "on grounds
that the disclosure would be injurious to interna
tional relations or national defence or security".
The Commission's submission assumes that
domestic policing operations can be separated
from international security operations. On the con
trary, the certificate filed by Assistant Commis
sioner Murray indicates, amongst other reasons,
that the operations between the police forces in
Canada and abroad are interrelated by way of
"exchanges of criminal intelligence and, in some
cases, of resources." 10 The certificate asserts that
this information provided in confidence to the
RCMP will not be disclosed without the consent of
the police or security force providing it. To do so
would compromise the relationships between
Canadian security forces and those abroad. More
over, the information referred to in the certificate
relates to a visit of the President of the United
States of America which itself has risk from ter
rorist organizations and raises issues of national
and international security.
The second objection to the certificate is that
there is a conflict of interest. It submits that for
the RCMP through Assistant Commissioner
Murray to file a certificate creates a conflict of
interest because the party filing the certificate for
non-disclosure is also a party to the proceedings by
virtue of subsection 45.45(15) [as enacted by
R.S.C., 1985 (2nd Supp.), c. 8, s. 16] of the
RCMP Act. He then becomes judge and party. I
do not share that view because there is no evidence
that Assistant Commissioner Murray was in any
way involved in the complainant's case. The only
involvement that Assistant Commissioner Murray
had was to render an opinion regarding the disclo
sure of certain information, which is appropriate
considering his position as Director of Protective
Policing.
In this application, the Court must weigh the
public interest in the administration of justice
against the public interest in non-disclosure set
forth in the certificate. Chief Justice Thurlow, as
he then was, established the test in Goguen v.
Gibson:"
... before exercising the authority to examine the information
the judge hearing the application will have to be persuaded on
the material that is before him either that the case for disclo
sure, that is to say, the importance of the public interest in
disclosure, in the circumstances outweighs the importance of
the public interest in keeping the information immune from
disclosure or, at the least, that the balance is equal and calls for
examination of the information in order to determine which
public interest is more important in the particular circum
stances ... the object of the Court's examination, when an
examination takes place, will be to ascertain whether a prepon-
10 Assistant Commissioner Murray's certificate, paragraph
21.
" [1983] 1 F.C. 872 (C.A.), at p. 888.
derance of importance in favour of disclosure exists. That
seems to be the expressed intention of the subsection.
And the former Chief Justice added:
On the other hand, if no apparent case for disclosure has been
made out, if the balance does not so much as appear to be even,
the preponderance obviously favours the upholding of the
objection and in such a situation I do not think the subsection
requires the Court to examine the information to see if it will
tip the balance the other way.
In weighing the interests in disclosure and non-
disclosure, the Court must inquire as to whether
the documents are necessary, of critical impor
tance to the complainant, and whether the com
plainant (Mr. Rankin) would be prejudiced if the
documents are not provided.
Mr. Rankin's first complaint relates to an
alleged use of force against him in that, while
being involved in a demonstration protesting cruise
missile testing in Canada, "he was pressed up
against an RCMP vehicle and his arm was twisted
behind his back". ' 2 The second complaint relates
to a denial of his freedom of expression in that he
would have been ordered "to fold up and put away
a banner (he) wished to display ... and told he
could not display the banner". 13 The finding of
whether he was mistreated by the use of excessive
force, or whether his right to demonstrate was
actually infringed, is a factual finding which
depends on the particular facts or the circum
stances. In coming to its conclusion, the Commis
sion must weigh the evidence of Mr. Rankin
against that of the RCMP and decide whether
there was abuse in this specific circumstance. It
has not been shown to the satisfaction of the Court
that the Protective Policing Manual, the respond
ent intelligence file and the File No. P.O.B.-
200—are necessary with respect to this finding of
fact. The materials do not relate to a material fact
in issue and the information is not relied upon by
the RCMP as part of its defence. Accordingly, the
impugned documents are not critical to Mr. Ran-
kin's complaint against the RCMP and he would
not be prejudiced by their non-disclosure.
2 Schedule "A" to the affidavit of Perry William Kelly.
13 Schedule "B" to the affidavit of Perry William Kelly.
It is to be noted that the Public Complaints
Commission is neither a court of record, nor
statutorily entitled to issue sanctions against the
member whose conduct is in issue. Its role is
simply to make a recommendation to the Minister
(section 45.46 [as enacted by R.S.C., 1985 (2nd
Supp.), c. 8, s. 16]).
On this basis the public interest in disclosure of
the information is not served. On the contrary, the
public interest would be ill served if sensitive ma
terial is disclosed when it is not even crucial to a
finding of fact.
On this basis, the applicant's case must be
rejected and a fortiori that of the Public Com
plaints Commission. It fails to meet all of the
relevant criteria.
The application is denied. This is not a case
where costs should be awarded.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.