A-425-04
2005 FCA 213
Royal Canadian Mounted Police Public Complaints Commission (Appellant)
v.
Attorney General of Canada (Respondent)
Indexed as: Canada (Royal Canadian Mounted Police Public Complaints Commission) v. Canada (Attorney General) (F.C.A.)
Federal Court of Appeal, Décary, Létourneau and Pelletier JJ.A.--Ottawa, May 11 and June 7, 2005.
RCMP -- Police informer privilege -- Appeal, cross-appeal from F.C. decision upholding RCMP Commissioner's refusal to disclose information to RCMP Public Complaints Commission on basis subject to police informer privilege -- Complaint following search of complainant's property by RCMP, Ontario Provincial Police -- Commission Chairperson requesting from Commissioner all materials relevant to complaint under RCMP's control, pursuant to Royal Canadian Mounted Police Act, s. 45.41(2)(b) -- Information received not containing all relevant materials -- Appellant seeking mandamus compelling compliance with Act, s. 45.41(2)(b), declaration Commissioner not capable of refusing disclosure -- Act not conferring upon Chairperson power to access, examine information protected by police informer privilege -- Police informer privilege legal rule of public order promoting efficiency in enforcement, implementation of criminal law -- Informer's identity only revealed if disclosure of that information necessary to enforce criminal law -- Extending concept of "Crown" to Commission Chairperson, staff truncating privilege, jeopardizing its usefulness, existence -- Appeal dismissed.
Practice -- Parties -- Standing -- Cross-appeal re: appellant's jurisdiction, capacity to bring application for judicial review of Commissioner's refusal to disclose relevant material pursuant to RCMP Act, s. 45.41(2)(b) -- RCMP Public Complaints Commission directly affected by refusal, needing legal means of ensuring compliance with Act -- Capacity to initiate legal proceedings much more necessary than for Privacy Commissioner -- Act, s. 45.41(2)(b) concerned with particular duty imposed on Commissioner in context of complaints investigation, not powers of Commission at public hearing -- Nothing inappropriate with Commission seeking to enforce duty owed in public interest -- Commission thus having jurisdiction, capacity to compel performance of duties imposed by Act, s. 45.41(2)(b) -- Cross-appeal dismissed.
Criminal Justice -- Evidence -- Appeal from Federal Court decision upholding RCMP Commissioner's refusal to disclose information to RCMP Public Complaints Commission on basis subject to police informer privilege -- During review of complaint concerning RCMP search of private property, Commission requesting all relevant materials under Force's control pursuant to RCMP Act, s. 45.41(2)(b) -- Certain material provided by confidential informant missing from information provided -- Origins, nature and scope of police informer privilege reviewed -- S. 45.41(2)(b) not derogating from law of evidence regarding privilege -- Act not conferring on Commission Chairperson or Commission power to access, examine information protected by police informer privilege -- In context of police informer privilege, "Crown" narrowly construed to include persons directly involved in law enforcement.
This was an appeal from a decision of the Federal Court concluding that information sought from the Commissioner of the Royal Canadian Mounted Police did not have to be produced to the RCMP Public Complaints Commission because that information was subject to police informer privilege. In a cross-appeal, the respondent argued that the appellant was without jurisdiction and capacity to bring an application for judicial review of the Commissioner's refusal to disclose the information.
The Commission is an independent federal agency established in order to review and investigate public complaints about the conduct of the RCMP. The complaint at issue in this case followed a search conducted by the RCMP and the Ontario Provincial Police (OPP) on the complainant's property. The Commission requested that the RCMP provide the Commission Chairperson with all of the materials under the RCMP's control relevant to the complaint, pursuant to paragraph 45.41(2)(b) of the Royal Canadian Mounted Police Act (Act). The information package received did not include the information sworn in support of the search warrant, and the RCMP member's notes from the day of the search had been vetted.
Following the commencement of the application for judicial review, the Commission Chairperson was provided with vetted copies of Appendices to sworn and unsworn informations. Still, the Commission proceeded with the application for judicial review, and sought an order of mandamus requiring the Commissioner to comply with paragraph 45.41(2)(b) of the Act. Also sought was a declaration that the Commissioner could not refuse to furnish the relevant material.
The Judge below dismissed the application based on police informer privilege since the parties agreed that the facts of the case involved a confidential informant who had provided information to the RCMP.
Held, the appeal and cross-appeal should be dismissed.
When Parliament has intended that the protection afforded by privileges not be available, it has clearly said so and indicated which privilege, if any, will still prevail. Both a literal and a purposive interpretation revealed that paragraph 45.41(2)(b) of the Act contains no derogation to the law of evidence regarding privilege. The Act does not confer upon the Commission Chairperson or the Commission the power to access and examine information that is protected by police informer privilege. The Commissioner thus had no duty under the Act to provide the appellant with the privileged information.
The Commission Chairperson does not fall under the definition of those representatives of the Crown who may and should be entitled to share the informer's privileged information. In the context of the police informer privilege, the notion of "Crown" should be narrowly defined and refers to those persons who are directly involved in law enforcement. Although the Commission and Commission Chairperson play a pivotal role in ensuring that the RCMP is held accountable, this accountability mechanism is peripheral to the law enforcement process of which police informer privilege partakes. Police informer privilege is a legal rule of public order designed to promote efficiency in enforcement and implementation of the criminal law. Essential to the achievement of that objective is the protection of the identity of the informer which can only be obtained if disclosure and circulation of his name, and information likely to reveal his name, are limited to what is necessary to enforce the criminal law. Extending the concept of "Crown" so as to include the Commission Chairperson and some of her staff would be truncating the privilege and, in the long run, jeopardizing its usefulness and eventually its existence.
As to whether the Commission possesses the jurisdiction and capacity to act pursuant to section 18.1 of the Federal Courts Act, the Commission is directly affected by the Commissioner's decision not to provide material relevant to a complaint. Without a legal means of ensuring compliance with the Act by the Commissioner, the Commission becomes hindered to the point of uselessness. Although the Commission can resort to a public hearing under section 45.43 of the Act to enforce compliance by the Commissioner with paragraph 45.41(2)(b), that is a costly procedure not favoured by Parliament or the Commission itself. Investigation is the rule, a public hearing the exception.
Canada (Privacy Commissioner) v. Canada (Attorney General), wherein the Supreme Court of British Columbia accepted the argument that the Privacy Commissioner did not have the capacity to initiate an action, was distinguished in the present instance. Unlike the Privacy Commissioner, the Commission and Commission Chairperson's right to access information is dependent on a relevancy criterion. Moreover, they do not possess the kind of power that the Privacy Commissioner possesses, i.e. the right to enter on any premises occupied by any government institution, converse in private with any person therein, and carry out such inquiries within his authority as he sees fit. The Commission's need to have the capacity to initiate legal proceedings is thus much more necessary.
In Rankin (Re), the F.C.T.D. held that it was inappropriate for the Commission to take the initiative of an application under subsection 38(1) of the Canada Evidence Act. In the decision under appeal, the Judge distinguished Rankin on the basis that the Court there was examining the power of the Commission to compel the type of evidence mentioned in subsection 45.45(11), the wording of which is very different from that of subsection 45.41(2). Rankin was correctly limited to the interpretation of section 45.45. There is nothing inappropriate about the Commission taking legal action for the limited purpose of securing the materials it needs from the RCMP to perform its statutory duty. Paragraph 45.41(2)(b) is concerned not with the powers of the Commission at a public hearing, but with a particular duty imposed on the Commissioner in the context of complaints investigation. While it makes sense to refuse to allow a board whose decision is under attack to aggressively participate in the debate and attempt to justify its decision, if not itself, there is nothing inappropriate with the Commission seeking to enforce a duty that is owed to it in the public interest, as intended and indicated by Parliament in paragraph 45.41(2)(b). Moreover, section 45.37 authorizes the Commission Chairperson to be the complainant against any member of the RCMP, including the Commissioner. While Parliament intended the Commission to always be fair, it did not intend the Commission to always be neutral.
For these reasons, the Commission Chairperson has the jurisdiction and capacity to compel the performance of the duties imposed upon the Commissioner by paragraph 45.41(2)(b). By way of obiter, the sealing order issued by the Ontario Court of Justice limits public access to some material in the Court's file. It does not extend to documents that are in the possession of the RCMP.
In concluding, it was noted that although the Commissioner had a valid ground for refusing disclosure of information that could identify the informant, the respondent's behaviour in this case did nothing to enhance public confidence in the RCMP or the Commission's trust in the Commissioner.
statutes and regulations judicially
considered
Access to Information Act, R.S.C., 1985, c. A-1, ss. 36, 52(1) (as am. by S.C. 2002, c. 8, s. 112), 53(1), 54(1), 69.
| Canada Evidence Act, R.S.C., 1985, c. C-5, s. 38(1). |
| Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 2(d), 6, 7, 8. |
| Canadian Security Intelligence Service Act, R.S.C., 1985, c. C-23, ss. 31, 34(1), 39. |
| Criminal Code, R.S.C., 1985, c. C-46, s. 487.3 (as enacted by S.C. 1997, c. 23, s. 14; 1997, c. 39, s. 1). |
| Federal Courts Act, R.S.C., 1985, c. F-7, ss. 1 (as am. by S.C. 2002, c. 8, s. 14), 17(3) (as am. idem, s. 25), 18.1 (as enacted by S.C. 1990, c. 8, s. 5; 2002, c. 8, s. 27), 18.3 (as enacted by S.C. 1990, c. 8, s. 5; 2002, c. 8, s. 28). |
| International Covenant on Civil and Political Rights, December 19, 1966, [1976] Can. T.S. No. 47. |
| Privacy Act, R.S.C., 1985, c. P-21, ss. 34, 53(1), 70. |
| Royal Canadian Mounted Police Act, R.S.C., 1985, c. R-10, ss. 2 "member" (as am. by R.S.C., 1985 (2nd Supp.), c. 8, s. 1), 5 (as am. idem, s. 2), 6 (as am. idem, ss. 3, 24(E)), 7 (as am. idem, s. 4), 24.1(3) (as enacted idem, s. 15), 45.29(1) (as enacted idem, s. 16), 45.32 (as enacted idem), 45.34 (as enacted idem), 45.35(1) (as enacted idem; S.C. 1996, c. 15, s. 22), (3) (as enacted by R.S.C., 1985 (2nd Supp.), c. 8, s. 16), 45.36(1) (as enacted idem), 45.37 (as enacted idem), 45.4 (as enacted idem), 45.41 (as enacted idem), 45.42 (as enacted idem), 45.43 (as enacted idem), 45.45 (as enacted idem; S.C. 1996, c. 15, s. 23). |
| Universal Declaration of Human Rights, GA Res. 217 A (III), UN GAOR, December 10, 1948. |
cases judicially considered
applied:
R. v. Leipert, [1997] 1 S.C.R. 281; (1997), 143 D.L.R. (4th) 38; [1997] 3 W.W.R. 457; 112 C.C.C. (3d) 385; 4 C.R. (5th) 259; 41 C.R.R. (2d) 266; 207 N.R. 145; Bisaillon v. Keable, [1983] 2 S.C.R. 60; (1983), 2 D.L.R. (4th) 193; 4 Admin. L.R. 205; 7 C.C.C. (3d) 385; 37 C.R. (3d) 289; 51 N.R. 81.
distinguished:
Canada (Privacy Commissioner) v. Canada (Attorney General), [2003] 9 W.W.R. 242; (2003), 14 B.C.L.R. (4th) 359; 2003 BCSC 862; 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.
considered:
Canada (Royal Canadian Mounted Police--RCMP) v. Saskatchewan (Commission Inquiry into the death of Leo La Chance), [1992] 6 W.W.R. 62; (1992), 100 Sask. R. 313; 75 C.C.C. (3d) 419 (C.A.); Rankin (Re), [1991] 1 F.C. 226; (1990), 38 F.T.R. 23 (F.C.T.D.); Lavigne v. Canada (Office of the Commissioner of Official Languages), [2002] 2 S.C.R. 773; (2002), 214 D.L.R. (4th) 1; 289 N.R. 282; 2002 SCC 53; Canada (Royal Canadian Mounted Police Public Complaints Commission) (Re), [1992] F.C.J. No. 502 (C.A.) (QL); Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010; (1997), 153 D.L.R. (4th) 193; [1999] 10 W.W.R. 34; 66 B.C.L.R. (3d) 285; 99 B.C.A.C. 161; [1998] 1 C.N.L.R. 14; 220 N.R. 161.
referred to:
R. v. Scott, [1990] 3 S.C.R. 979; (1990), 61 C.C.C. (3d) 300; 2 C.R. (4th) 153; 1 C.R.R. (2d) 82; 116 N.R. 361; 43 O.A.C. 277; Solicitor General of Canada et al. v. Royal Commission of Inquiry (Health Records in Ontario) et al., [1981] 2 S.C.R. 494; (1981), 128 D.L.R. (3d) 193; 62 C.C.C. (2d) 193; 23 C.P.C. 99; 23 C.R. (3d) 338; 38 N.R. 588; Kwicksutaineuk/Ah-kwa-mish Tribes v. Canada (Minister of Fisheries and Oceans) (2003), 227 F.T.R. 96; 2003 FCT 30; affd (2003), 313 N.R. 394; 2003 FCA 484; leave to appeal to S.C.C. refused [2004] S.C.C.A. No. 55 (QL); Canada (Commissioner of the Royal Canadian Mounted Police) (Re), [1993] 2 F.C. 351; (1993), 15 C.R.R. (2d) 131; 61 F.T.R. 210 (T.D.); affd [1994] 3 F.C. 562; (1994), 25 Admin. L.R. (2d) 174; 173 N.R. 290 (C.A.).
authors cited
Wigmore, John Henry. Evidence in Trials at Common Law, McNaughton Revision, Vol. 8. Boston: Little, Brown & Co., 1961.
APPEAL and CROSS-APPEAL from a decision of the Federal Court ((2004), 255 F.T.R. 270; 2004 FC 830) that information sought from the Commissioner of the Royal Canadian Mounted Police by the RCMP Public Complaints Commission was subject to police informer privilege and did not have to be produced. Appeal and cross-appeal dismissed.
appearances:
Steven C. McDonell for appellant.
Patrick D. Bendin for respondent.
solicitors of record:
Commission for Public Complaints Against the RCMP for appellant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment rendered in English by
[1]Létourneau J.A.: The appellant, the Royal Canadian Mounted Police Public Complaints Commission (the Commission), seeks to set aside a decision of Russell J. of the Federal Court [(2004), 255 F.T.R. 270] whereby the learned Judge concluded that the information sought from the Commissioner of the Royal Canadian Mounted Police (Commissioner) was subject to police informer privilege and, therefore, need not be produced to the Commission.
[2]In a cross-appeal, the respondent asks this Court to rule that the appellant was without jurisdiction and capacity to bring, as it did, an application for judicial review of the Commissioner's refusal to provide the requested information.
[3]In this application for judicial review, the appellant sought an order in the nature of mandamus requiring the Commissioner to comply with the statutory obligation imposed upon him by paragraph 45.41(2)(b) [as enacted by R.S.C., 1985 (2nd Supp.), c. 8, s. 16] of the Royal Canadian Mounted Police Act, R.S.C., 1985, c. R-10 (Act) to furnish the Chairperson of the Commission with all materials under the control of the Royal Canadian Mounted Police (RCMP) as are relevant to a complaint made to the Commission. It also requested a declaration that the Commissioner could not refuse to furnish the said material.
[4]I shall deal with the appeal first. The facts in this case are of significant importance. I need not apologize for reciting them at some length. Before I do, I reproduce some of the relevant legislative provisions to which I will refer in these reasons. I also need to say a word about the respective roles of the Commission and the Commission Chairperson.
Royal Canadian Mounted Police Act, R.S.C., 1985, chap. R-10 [2 "member" (as am. by R.S.C., 1985 (2nd Supp.), c. 8, s. 1), 5 (as am. idem, s. 2), 6 (as am. idem, ss. 3, 24(E)), 7 (as am. idem, s. 4), 24.1(3) (as enacted idem, s. 15), 45.29(1) (as enacted idem, s. 16), 45.32 (as enacted idem), 45.34 (as enacted idem), 45.35(1) (as enacted idem; S.C. 1996, c. 15, s. 22), (3) (as enacted by R.S.C., 1985 (2nd Supp.), c. 8, s. 16), 45.37 (as enacted idem), 45.41 (as enacted idem), 45.42 (as enacted idem), 45.43 (as enacted idem), 45.45 (as enacted idem; S.C. 1996, c. 15, s. 23)].
2. (1) In this Act,
. . .
"member" means any person
(a) who has been appointed as an officer or other member of the Force under section 5 or paragraph 6(3)(a) or 7(1)(a), and
(b) who has not been dismissed or discharged from the Force as provided in this Act, the regulations or the Commissioner's standing orders;
. . .
5. (1) The Governor in Council may appoint an officer, to be known as the Commissioner of the Royal Canadian Mounted Police, who, under the direction of the Minister, has the control and management of the Force and all matters connected therewith.
. . .
6. (1) The officers of the Force, in addition to the Commissioner, shall consist of
(a) Deputy Commissioners,
(b) Assistant Commissioners,
(c) Chief Superintendents,
(d) Superintendents,
(e) Inspectors,
and such other ranks as are prescribed by the Governor in Council.
(2) The maximum number of officers in each rank shall be as prescribed by the Treasury Board.
(3) The Governor in Council may
(a) appoint any person to the rank of an officer;
(b) authorize the issue of a commission under the Great Seal to an officer on the officer's first appointment to the rank of an officer;
(c) by way of promotion appoint an officer to a higher rank; and
(d) by way of demotion appoint an officer to a lower rank.
. . .
7. (1) The Commissioner may
(a) appoint members of the Force other than officers;
(b) by way of promotion appoint a member other than an officer to a higher rank or level for which there is a vacancy in the establishment of the Force;
(c) where the Commissioner is requested by any department of the Government of Canada or considers it necessary or in the public interest, appoint for a period not exceeding twelve months at any one time special constables supernumerary to the strength of the Force for the purpose of maintaining law and order; and
(d) designate any member, any supernumerary special constable appointed under this subsection or any temporary employee employed under subsection 10(2) as a peace officer.
(2) The ranks and levels of members other than officers and the maximum numbers of persons that may be appointed to each rank and level shall be as prescribed by the Treasury Board.
(3) The Commissioner may at any time revoke the appointment of any supernumerary special constable appointed under subsection (1).
(4) The Commissioner may issue
(a) a certificate to any member stating that the person to whom it is issued is a member of the Force and, if that person is also a peace officer, that the person is such an officer; and
(b) a certificate to any other person appointed or employed under the authority of this Act stating that the person to whom it is issued is a peace officer, if that person has been designated as such under subsection (1).
(5) Any document purporting to be a certificate referred to in subsection (4) is evidence in all courts and in all proceedings of the facts stated therein.
. . .
24.1 . . .
(3) A board of inquiry has, in relation to the matter before it, power
(a) to summon any person before the board and to require that person to give oral or written evidence on oath and to produce such documents and things under that person's control as the board deems requisite to the full investigation and consideration of that matter;
(b) to administer oaths;
. . .
45.29 (1) There is hereby established a commission, to be known as the Royal Canadian Mounted Police Public Complaints Commission, consisting of a Chairman, a Vice-Chairman, a member for each contracting province and not more than three other members, to be appointed by order of the Governor in Council.
. . .
45.32 (1) The Commission shall carry out such functions and duties as are assigned to it by this Act.
(2) The Commission Chairman shall carry out such functions and duties as are assigned to the Commission Chairman by this Act.
. . .
45.34 The Commission Chairman shall, within three months after the end of each fiscal year, submit to the Minister a report of the activities of the Commission during that year and its recommendations, if any, and the Minister shall cause a copy of the report to be laid before each House of Parliament on any of the first fifteen days on which that House is sitting after the day the Minister receives it.
45.35 (1) Any member of the public having a complaint concerning the conduct, in the performance of any duty or function under this Act or the Witness Protection Program Act, of any member or other person appointed or employed under the authority of this Act may, whether or not that member of the public is affected by the subject-matter of the complaint, make a complaint to
(a) the Commission;
(b) any member or other person appointed or employed under the authority of this Act; or
(c) the provincial authority in the province in which the subject-matter of the complaint arose that is responsible for the receipt and investigation of complaints by the public against police.
. . .
(3) The Commissioner shall be notified of every complaint under subsection (1).
. . .
45.37 (1) Where the Commission Chairman is satisfied that there are reasonable grounds to investigate the conduct, in the performance of any duty or function under this Act, of any member or other person appointed or employed under the authority of this Act, the Commission Chairman may initiate a complaint in relation thereto and where the Commission Chairman does so, unless the context otherwise requires, a reference hereafter in this Part to a complainant includes a reference to the Commission Chairman.
(2) The Commission Chairman shall notify the Minister and the Commissioner of any complaint initiated under subsection (1).
(3) Forthwith after being notified of a complaint under subsection (2), the Commissioner shall notify in writing the member or other person whose conduct is the subject-matter of the complaint of the substance of the complaint unless, in the Commissioner's opinion, to do so might adversely affect or hinder any investigation that is being or may be carried out in respect of the complaint.
(4) A complaint under subsection (1) shall be investigated by the Force in accordance with rules made pursuant to section 45.38.
. . .
45.41 (1) A complainant under subsection 45.35(1) who is not satisfied with the disposition of the complaint by the Force or with a direction under subsection 45.36(5) in respect of the complaint may refer the complaint in writing to the Commission for review.
(2) Where a complainant refers a complaint to the Commission pursuant to subsection (1),
(a) the Commission Chairman shall furnish the Commissioner with a copy of the complaint; and
(b) the Commissioner shall furnish the Commission Chairman with the notice under subsection 45.36(6) or the report under section 45.4 in respect of the complaint, as the case may be, and such other materials under the control of the Force as are relevant to the complaint.
45.42 (1) The Commission Chairman shall review every complaint referred to the Commission pursuant to subsection 45.41(1) or initiated under subsection 45.37(1) unless the Commission Chairman has previously investigated, or instituted a hearing to inquire into, the complaint under section 45.43.
(2) Where, after reviewing a complaint, the Commission Chairman is satisfied with the disposition of the complaint by the Force, the Commission Chairman shall prepare and send a report in writing to that effect to the Minister, the Commissioner, the member or other person whose conduct is the subject-matter of the complaint and, in the case of a complaint under subsection 45.35(1), the complainant.
(3) Where, after reviewing a complaint, the Commission Chairman is not satisfied with the disposition of the complaint by the Force or considers that further inquiry is warranted, the Commission Chairman may
(a) prepare and send to the Minister and the Commissioner a report in writing setting out such findings and recommendations with respect to the complaint as the Commission Chairman sees fit;
(b) request the Commissioner to conduct a further investigation into the complaint; or
(c) investigate the complaint further or institute a hearing to inquire into the complaint.
45.43 (1) Where the Commission Chairman considers it advisable in the public interest, the Commission Chairman may investigate, or institute a hearing to inquire into, a complaint concerning the conduct, in the performance of any duty or function under this Act, of any member or other person appointed or employed under the authority of this Act, whether or not the complaint has been investigated, reported on or otherwise dealt with by the Force under this Part.
. . .
45.45 (1) For the purposes of this section, the member or members conducting a hearing to inquire into a complaint are deemed to be the Commission.
(2) The Commission shall serve a notice in writing of the time and place appointed for a hearing on the parties.
(3) Where a party wishes to appear before the Commission, the Commission shall sit at such place in Canada and at such time as may be fixed by the Commission, having regard to the convenience of the parties.
(4) The Commission has, in relation to the complaint before it, the powers conferred on a board of inquiry, in relation to the matter before it, by paragraphs 24.1(3)(a), (b) and (c).
(5) The parties and any other person who satisfies the Commission that the person has a substantial and direct interest in a complaint before the Commission shall be afforded a full and ample opportunity, in person or by counsel, to present evidence, to cross-examine witnesses and to make representations at the hearing.
(6) The Commission shall permit any person who gives evidence at a hearing to be represented by counsel.
(7) In addition to the rights conferred by subsections (5) and (6), the appropriate officer may be represented or assisted at a hearing by any other member.
(8) Notwithstanding subsection (4), the Commission may not receive or accept
(a) subject to subsection (9), any evidence or other information that would be inadmissible in a court of law by reason of any privilege under the law of evidence;
(b) any answer or statement made in response to a question described in subsection 24.1(7), 35(8), 40(2), 45.1(11) or 45.22(8);
(c) any answer or statement made in response to a question described in subsection (9) in any hearing under this section into any other complaint; or
(d) any answer or statement made in the course of attempting to dispose of a complaint under section 45.36.
(9) In a hearing, no witness shall be excused from answering any question relating to the complaint before the Commission when required to do so by the Commission on the ground that the answer to the question may tend to criminate the witness or subject the witness to any proceeding or penalty.
. . .
(11) 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 or security outweighs the public's interest in the information.
Canadian Security Intelligence Service Act, R.S.C., 1985, c. C-23.
31. (1) Notwithstanding any other Act of Parliament but subject to subsection (2), the Inspector General is entitled to have access to any information under the control of the Service that relates to the performance of the duties and functions of the Inspector General and is also entitled to receive from the Director and employees such information, reports and explanations as the Inspector General deems necessary for the performance of those duties and functions.
(2) No information described in subsection (1), other than a confidence of the Queen's Privy Council for Canada in respect of which subsection 39(1) of the Canada Evidence Act applies, may be withheld from the Inspector General on any grounds.
. . .
34. (1) There is hereby established a committee, to be known as the Security Intelligence Review Committee, consisting of a Chairman and not less than two and not more than four other members, all of whom shall be appointed by the Governor in Council from among members of the Queen's Privy Council for Canada who are not members of the Senate or the House of Commons, after consultation by the Prime Minister of Canada with the Leader of the Opposition in the House of Commons and the leader in the House of Commons of each party having at least twelve members in that House.
. . .
39. (1) Subject to this Act, the Review Committee may determine the procedure to be followed in the performance of any of its duties or functions.
(2) Notwithstanding any other Act of Parliament or any privilege under the law of evidence, but subject to subsection (3), the Review Committee is entitled
(a) to have access to any information under the control of the Service or of the Inspector General that relates to the performance of the duties and functions of the Committee and to receive from the Inspector General, Director and employees such information, reports and explanations as the Committee deems necessary for the performance of its duties and functions; and
(b) during any investigation referred to in paragraph 38(c), to have access to any information under the control of the deputy head concerned that is relevant to the investigation.
(3) No information described in subsection (2), other than a confidence of the Queen's Privy Council for Canada in respect of which subsection 39(1) of the Canada Evidence Act applies, may be withheld from the Committee on any grounds.
Privacy Act, R.S.C., 1985, c. P-21.
34. (1) The Privacy Commissioner has, in relation to the carrying out of the investigation of any complaint under this Act, power
(a) to summon and enforce the appearance of persons before the Privacy Commissioner and compel them to give oral or written evidence on oath and to produce such documents and things as the Commissioner deems requisite to the full investigation and consideration of the complaint, in the same manner and to the same extent as a superior court of record;
(b) to administer oaths;
(c) to receive and accept such evidence and other information, whether on oath or by affidavit or otherwise, as the Privacy Commissioner sees fit, whether or not the evidence or information is or would be admissible in a court of law;
(d) to enter any premises occupied by any government institution on satisfying any security requirements of the institution relating to the premises;
(e) to converse in private with any person in any premises entered pursuant to paragraph (d) and otherwise carry out therein such inquiries within the authority of the Privacy Commissioner under this Act as the Commissioner sees fit; and
(f) to examine or obtain copies of or extracts from books or other records found in any premises entered pursuant to paragraph (d) containing any matter relevant to the investigation.
(2) Notwithstanding any other Act of Parliament or any privilege under the law of evidence, the Privacy Commissioner may, during the investigation of any complaint under this Act, examine any information recorded in any form under the control of a government institution, other than a confidence of the Queen's Privy Council for Canada to which subsection 70(1) applies, and no information that the Commissioner may examine under this subsection may be withheld from the Commissioner on any grounds.
. . .
53. (1) The Governor in Council shall, by commission under the Great Seal, appoint a Privacy Commissioner after approval of the appointment by resolution of the Senate and House of Commons.
. . .
70. (1) This Act does not apply to confidences of the Queen's Privy Council for Canada, including, without restricting the generality of the foregoing, any information contained in
(a) memoranda the purpose of which is to present proposals or recommendations to Council;
(b) discussion papers the purpose of which is to present background explanations, analyses of problems or policy options to Council for consideration by Council in making decisions;
(c) agenda of Council or records recording deliberations or decisions of Council;
(d) records used for or reflecting communications or discussions between ministers of the Crown on matters relating to the making of government decisions or the formulation of government policy;
(e) records the purpose of which is to brief ministers of the Crown in relation to matters that are before, or are proposed to be brought before, Council or that are the subject of communications or discussions referred to in paragraph (d); and
(f) draft legislation.
(2) For the purposes of subsection (1), "Council" means the Queen's Privy Council for Canada, committees of the Queen's Privy Council for Canada, Cabinet and committees of Cabinet.
(3) Subsection (1) does not apply to
(a) confidences of the Queen's Privy Council for Canada that have been in existence for more than twenty years; or
(b) discussion papers described in paragraph (1)(b)
(i) if the decisions to which the discussion papers relate have been made public, or
(ii) where the decisions have not been made public, if four years have passed since the decisions were made.
Access to Information Act, R.S.C., 1985, c. A-1 [s. 52(1) (as am. by S.C. 2002, c. 8, s. 112]
36. (1) The Information Commissioner has, in relation to the carrying out of the investigation of any complaint under this Act, power
(a) to summon and enforce the appearance of persons before the Information Commissioner and compel them to give oral or written evidence on oath and to produce such documents and things as the Commissioner deems requisite to the full investigation and consideration of the complaint, in the same manner and to the same extent as a superior court of record;
(b) to administer oaths;
(c) to receive and accept such evidence and other information, whether on oath or by affidavit or otherwise, as the Information Commissioner sees fit, whether or not the evidence or information is or would be admissible in a court of law;
(d) to enter any premises occupied by any government institution on satisfying any security requirements of the institution relating to the premises;
(e) to converse in private with any person in any premises entered pursuant to paragraph (d) and otherwise carry out therein such inquiries within the authority of the Information Commissioner under this Act as the Commissioner sees fit; and
(f) to examine or obtain copies of or extracts from books or other records found in any premises entered pursuant to paragraph (d) containing any matter relevant to the investigation.
(2) Notwithstanding any other Act of Parliament or any privilege under the law of evidence, the Information Commissioner may, during the investigation of any complaint under this Act, examine any record to which this Act applies that is under the control of a government institution, and no such record may be withheld from the Commissioner on any grounds.
. . .
52. (1) An application under section 41 or 42 relating to a record or a part of a record that the head of a government institution has refused to disclose by reason of paragraph 13(1)(a) or (b) or section 15 shall be heard and determined by the Chief Justice of the Federal Court or by any other judge of that Court that the Chief Justice may designate to hear those applications.
. . .
53. (1) Subject to subsection (2), the costs of and incidental to all proceedings in the Court under this Act shall be in the discretion of the Court and shall follow the event unless the Court orders otherwise.
. . .
54. (1) The Governor in Council shall, by commission under the Great Seal, appoint an Information Commissioner after approval of the appointment by resolution of the Senate and House of Commons.
. . .
69. (1) This Act does not apply to confidences of the Queen's Privy Council for Canada, including, without restricting the generality of the foregoing,
(a) memoranda the purpose of which is to present proposals or recommendations to Council;
(b) discussion papers the purpose of which is to present background explanations, analyses of problems or policy options to Council for consideration by Council in making decisions;
(c) agenda of Council or records recording deliberations or decisions of Council;
(d) records used for or reflecting communications or discussions between ministers of the Crown on matters relating to the making of government decisions or the formulation of government policy;
(e) records the purpose of which is to brief ministers of the Crown in relation to matters that are before, or are proposed to be brought before, Council or that are the subject of communications or discussions referred to in paragraph (d);
(f) draft legislation; and
(g) records that contain information about the contents of any record within a class of records referred to in paragraphs (a) to (f).
(2) For the purposes of subsection (1), "Council" means the Queen's Privy Council for Canada, committees of the Queen's Privy Council for Canada, Cabinet and committees of Cabinet.
(3) Subsection (1) does not apply to
(a) confidences of the Queen's Privy Council for Canada that have been in existence for more than twenty years; or
(b) discussion papers described in paragraph (1)(b)
(i) if the decisions to which the discussion papers relate have been made public, or
(ii) where the decisions have not been made public, if four years have passed since the decisions were made.
Federal Courts Act, R.S.C., 1985, c. F-7 [ss. 1 (as am. by S.C. 2002, c. 8, s. 14), 17(3) (as am. idem, s. 25), 18.1(1) (as enacted by S.C. 1990, c. 8, s. 5), 18.3(1) (as enacted idem; 2002, c. 8, s. 28)]
17. . . .
(3) The Federal Court has exclusive original jurisdiction to hear and determine the following matters:
(a) the amount to be paid if the Crown and any person have agreed in writing that the Crown or that person shall pay an amount to be determined by the Federal Court, the Federal Court--Trial Division or the Exchequer Court of Canada; and
(b) any question of law, fact or mixed law and fact that the Crown and any person have agreed in writing shall be determined by the Federal Court, the Federal Court--Trial Division or the Exchequer Court of Canada.
. . .
18.1 (1) An application for judicial review may be made by the Attorney General of Canada or by anyone directly affected by the matter in respect of which relief is sought.
. . .
18.3 (1) A federal board, commission or other tribunal may at any stage of its proceedings refer any question or issue of law, of jurisdiction or of practice and procedure to the Federal Court for hearing and determination.
The role of the Commission and the Commission Chairperson
[5]Pursuant to section 45.32 of the Act, some functions and duties are assigned to the Commission, others specifically to the Commission Chairperson. Thus, while complaints are addressed to the Commission, it is the Commission Chairperson who has the duty of reviewing a complaint. It is also the Chairperson who may investigate or institute a hearing to inquire into a complaint: see sections 45.42 and 45.43. However, such hearing is conducted by members of the Commission who are then deemed to be the Commission: see section 45.45. It is the Commission which serves a notice of the hearing and possesses the powers of a board of inquiry.
[6]It is questionable whether the application for judicial review in this case could be brought by the Commission since the Commissioner's duty to furnish relevant material is owed to the Commission Chairperson. In view of the conclusion that I come to on the merits of the appeal and cross-appeal, I need not decide this issue which was not raised by the parties.
Facts and judicial history
[7]The Commission (known as the Commission for Public Complaints Against the Royal Canadian Mounted Police since January 1, 2001) is an independent federal agency established in order to review and investigate, in an impartial manner, public complaints about the conduct of the RCMP. The RCMP is the Canadian national police service and provides federal policing service across the country as well as policing services under contract to the three territories, eight of the provinces and to a large number of municipalities and First Nations communities. The Commission is a statutory body that is constituted under and derives its authority from Parts VI and VII of the Act.
[8]The Commission is empowered to receive complaints from any member of the public regarding the RCMP's performance of its duties (subsection 45.35(1)). The Commission Chairperson can investigate such complaints. She can also initiate her own complaint if she is satisfied that there are reasonable grounds to investigate particular conduct (subsection 45.37(1)).
[9]A complaint is first reviewed internally by the RCMP (subsection 45.36(1)) [as enacted by R.S.C., 1985 (2nd Supp.), c. 8, s. 16]). The Commissioner must report the results of the internal review to the complainant (section 45.4 [as enacted idem]). Thereafter, a complainant, who remains dissatisfied, can submit the matter to the Commission for further review (subsection 45.41(1)). The first step is for the Commission Chairperson to review the complaint on the basis of the materials submitted by the Commissioner (paragraph 45.42(2)(b)).
[10]Following such a review, the Commission Chairperson can report her findings and recommendations to the Commissioner and to the Solicitor General, ask the RCMP to investigate further where she believes the first investigation to have been inadequate, undertake her own further investigation of the matter or institute a public hearing (subsection 45.42(3)). The power to institute a hearing is flexible in that the Commission Chairperson can, if she considers it advisable in the public interest, decide to institute a hearing to inquire into conduct without the RCMP having completed or even initiated an internal investigation of a complaint.
[11]The complaint at issue in this case followed a search conducted as part of an investigation by a Tri-Force Investigation Unit comprised of the RCMP, the Ontario Provincial Police (OPP) and the Thunder Bay Police Service. The RCMP and the OPP searched a green barn on the complainant's property under the authority of a search warrant issued by the Ontario Court of Justice pursuant to section 487.3 [as enacted by S.C. 1997, c. 23, s. 14; 1997, c. 39, s. 1] of the Criminal Code [R.S.C., 1985, c. C-46]. Further authorization was sought to search the complainant's home, but was denied. The search of the complainant's property yielded no evidence of criminal activity.
[12]On February 17, 2000, the complainant filed a complaint with the OPP's Public Complaints Bureau suggesting, among other things, that the search warrant had been improperly obtained. On or about February 23, 2000, the OPP Public Complaints Bureau referred the complaint to the Commissioner pursuant to subsection 45.35(3) of the Act.
[13]By letter dated June 19, 2000, the RCMP non-commissioned officer in charge of Complaints and Internal Investigations (NCO in charge) disposed of the complaint, concluding that the investigation had revealed that the RCMP members who undertook the search of the property had acted properly and were duly authorized to conduct the search. Furthermore, the letter reiterated a discussion that had taken place between the complainant and the investigator assigned to the file on March 28, 2000. During that meeting, the investigator had explained to the complainant that the inability of the RCMP to share some of the information used to obtain the search warrant was due to the fact that such information had come from confidential sources. Following the meeting, the investigator had noted that the complainant was satisfied with the explanations given. As a result, the NCO in charge determined that the file should be closed without further action.
[14]By letter dated June 26, 2000, the complainant demanded that the Commission review his complaint pursuant to subsection 45.41(1) of the Act. In order to commence the review process, by letter dated July 10, 2000, the Commission requested that the RCMP provide the Commission Chairperson with the Commissioner's report (section 45.4) as well as with any other materials under the Force's control as are relevant to the complaint (paragraph 45.41(2)(b)).
[15]On or about September 29, 2000, the Commission received a package of materials from the RCMP. Although the letter enclosed with the package made no mention of any materials having been withheld, it later became apparent that the package did not include the information sworn in support of the search warrant. In addition, the copy of the RCMP member's notes from the day of the search had been vetted prior to inclusion in the package. No mention was made in the package of the reason for having vetted the notes, nor was the name of the individual who had undertaken such editing provided.
[16]On or about October 30, 2000, the Commission Chairperson determined that further enquiry into the complaint was warranted and decided to undertake such investigation (paragraph 45.42(3)(c)). The appellant maintains that the ensuing investigation focussed on aspects of the complaint other than the allegation of improperly obtaining a search warrant, due to the refusal of the RCMP to provide either the sworn information on which the warrant was based or an unvetted copy of the notes taken by the RCMP members involved in the search.
[17]According to the appellant, in reviewing the evidence assembled by the OPP Complaints Bureau, it became apparent that the OPP investigator had access to the information currently being withheld and indeed was able to interview the confidential source in the course of the investigation of the complaint.
[18]On the same day the original search warrant was issued (December 21, 1999), the RCMP obtained a sealing order from the Ontario Court of Justice pursuant to subsection 487.3(4) of the Criminal Code in order to prevent disclosure of the sworn information since the information contained in that document might indirectly reveal the identity of the confidential human source.
[19]Counsel for the Commission, under instruction from its Chairperson, began preparing an application to have the sealing order modified in order to allow the Chairperson full access to the sealed materials. On December 4, 2002, the Chairperson and the Commissioner met to discuss the application. At the meeting and in a subsequent letter dated December 18, 2002, the Commissioner indicated that he did not consider the Chairperson to be entitled to access the materials. The Chairperson then decided to withdraw the application to modify the sealing order and the Commission applied for judicial review of the Commissioner's decision in the Federal Court.
[20]Following this change of approach, on or about May 2, 2003, the Commissioner provided the Commission Chairperson with a vetted copy of a draft Appendix A to an unsworn information in respect of an authorization for a warrant to search the complainant's residence. An even further vetted version of this document formed part of the record for the application in the Federal Court. On or about May 15, 2003, the RCMP provided the Commission Chairperson with a vetted copy of Appendix A to the sworn information in respect of an authorization for a warrant to search the complainant's green barn. The RCMP had made an ex parte application for an order varying the sealing order protecting the sworn information so that an edited version might be provided to the Chairperson. By order dated May 14, 2003, Walneck J. of the Ontario Court of Justice ordered that the sealed packet be opened, that its contents be provided to a federal prosecutor for editing in a manner so as not to compromise the identity of the informant, and that the edited version then be provided to the Chairperson of the Commission and the packet resealed.
[21]Notwithstanding the production of these vetted documents, the Commission proceeded with the application for judicial review of the Commissioner's original decision to refuse disclosure. As previously mentioned, the Commission sought a mandamus requiring the Commissioner to comply with his statutory obligation to furnish relevant material in the instance and a declaration to the same effect, presumably in order to avoid encountering similar difficulties in relation to future complaints.
[22]The respondent, in addition to asserting police informer privilege as the basis for its refusal to provide the requested documents, challenged the appellant's jurisdiction and capacity to bring the application, submitting that the Commission does not have the capacity to initiate legal proceedings and suggesting that the act of commencing such proceedings was incompatible with its duty to remain impartial.
[23]Although the Judge expressed concern about the way in which the privileged information had been circulated and shared in this particular case, and recognized the importance of access to information in order for the Commission to effectively play its oversight role, he nevertheless held that the application failed on one ground alone. Since the parties were in agreement that the facts of the case involved a confidential informant who had provided information to the RCMP, the Judge found that the circumstances that trigger the application of police informer privilege were present. Furthermore, in his view, there was no ability for the Court to create an additional exception to the application of the privilege in order to allow the Chairperson access to privileged information. The application for judicial review was therefore dismissed, with costs to the respondent.
Origins, nature and scope of police informer privilege
[24]I should begin by stating, in a nutshell, the nature of police informer privilege and its role and position in the enforcement of criminal law. I will make additional observations when I address the appellant's argument that the definition of "Crown" in this context should include the Commission.
[25]The Supreme Court has instructed that "[a] court considering this issue must begin from the proposition that informer privilege is an ancient and hallowed protection which plays a vital role in law enforcement": see R. v. Leipert, [1997] 1 S.C.R. 281, at paragraph 9. Citizens have a civic duty to assist in enforcing the law. Police informer privilege recognizes and supports that role and encourages continued citizen participation in law enforcement by protecting those who come forward with information regarding alleged criminal activity (ibid.).
[26]The essential characteristic of the privilege is the guarantee of confidentiality owed to the informer. Not only must this guarantee be effective, it must be seen to be so in order to persuade individuals to brave the potential risks involved in sharing information with law enforcement officials, secure in the knowledge that their identity will not be revealed either intentionally or by inadvertence: see for example R.v. Scott, [1990] 3 S.C.R. 979, at page 994. The effectiveness of this guarantee is enhanced by the scope of the privilege, which is broad. Not only must the name of the informant be hidden, but all information, however innocuous, that might allow someone to discover the informant's identity must also remain privileged: Leipert, at paragraph 18.
[27]Police informer privilege is held by the Crown, but in a very real sense also belongs to the informant since the Crown may not unilaterally waive the privilege. The Crown must obtain the consent of the informer: Solicitor General of Canada et al. v. Royal Commission of Inquiry (Health Records in Ontario et al.), [1981] 2 S.C.R. 494; Bisaillon v. Keable, [1983] 2 S.C.R. 60, at page 94. The privilege enjoys a unique status among forms of privilege: once its application has been triggered, there is no ability to balance the privilege against other interests, no matter how compelling these other interests may be: Leipert, at paragraph 12. The privilege, by its nature, trumps other policy concerns and admits of only one exception: in a criminal law context, a balancing of interests can occur when there are grounds to believe that the information covered by the privilege would assist in establishing the innocence of an accused. In such circumstances, the "innocence at stake" exception may require a balancing of interests, and an evaluation of whether aspects of such information might be divulged: Bisaillon v. Keable, at page 93; Leipert, at paragraphs 20-24. Absent such circumstances, the privilege functions as a rule of public order and a judge has no discretion as to its scope or application: Leipert, at paragraph 13.
Whether the Commissioner must disclose to the Chairperson of the Commission information covered by police informer privilege
| (a) pursuant to paragraph 45.41(2)(b) of the Act |
[28]The appellant's argument that the Chairperson of the Commission is entitled to receive and examine the material covered by police informer privilege is based on paragraph 45.41(2)(b) of the Act. According to that paragraph, the Commissioner "shall" furnish material under the control of the Force that is relevant to a complaint.
[29]Counsel for the appellant submits that the wording of that paragraph makes it clear that it was Parliament's intention to require the Commissioner to produce for the Chairperson's examination all relevant material, even material containing privileged information, be it information subject to solicitor-client privilege, Crown privilege or, as in this case, police informer privilege. The only exception would be a confidence of the Queen's Privy Council.
[30]If this argument from counsel for the appellant is right, I then fail to see how and why Cabinet confidences should be excluded. Either the wording of the paragraph is inclusive of all privileged information or it is not. One can find no justification, explanation, or indication in the text of the paragraph itself as to Parliament's intent to include some privileges, but not others, and certainly no indication as to which privileges are to be included or excluded from the ambit of the paragraph.
[31]The truth is that paragraph 45.41(2)(b) of the Act contains no derogation to the law of evidence regarding privileges. When Parliament has intended that the protection afforded by privileges not be available, not only has it clearly said so, it has also indicated which privilege, if any, will still prevail. Subsections 34(2), 70(1),(2) and (3) of the Privacy Act, subsections 36(2), 69(1),(2) and (3) of the Access to Information Act, and subsections 31(1) and (2), 39(2) and (3) of the Canadian Security Intelligence Service Act, previously cited, are cogent examples of Parliament's awareness of the law of privilege and of its intent to derogate when necessary.
[32]With respect, I believe that paragraph 45.41(2)(b), whether subjected to a literal or a purposive interpretation or both, can form no valid basis for a conclusion that Parliament intended to place the Commission Chairperson, in the exercise of her functions and duties, above the law of privileges.
[33]Counsel for the appellant tried to obtain assistance from paragraph 45.45(8)(a) of the Act which addresses the issue of privilege. The paragraph prohibits the acceptance, by the Commission, at a public hearing, of evidence or information which would be inadmissible in a court of law by reason of any privilege under the law of evidence. This, the argument goes, is evidence of Parliament's intent to allow the Chairperson of the Commission to examine privileged information at the review stage of the complaint while protecting such information at the stage of a public hearing because of the increased danger of public disclosure at that stage.
[34]This submission, if accepted, leads to a peculiar situation where the Commission Chairperson would possess more powers at the initial review stage of a complaint than the Commission would at a public hearing although, at this later time, it has all the powers of a board of inquiry, notably the power to summon witnesses and compel them to testify. I seriously doubt that Parliament intended this anomalous result for two reasons.
[35]First, the argument that a privilege is to be upheld at a public hearing because of an increased fear of public disclosure of the privileged information has no merit. Paragraph 45.45(11)(b) of the Act authorizes the Commission to hold the hearing in private where there is a likelihood of disclosure of information "which could reasonably be expected to be injurious to law enforcement".
[36]Second, paragraphs 45.45(8)(a) and 45.41(2)(b) address two different situations. Section 45.45 enumerates the powers of the Commission as well as the restrictions upon such powers when a hearing is held. Subsection 45.41(2) is concerned with duties upon the receipt of a complaint. Paragraph 45.41(2)(a) places a duty on the Commission Chairperson to give the Commissioner a copy of the complaint. In return, the Commissioner must furnish material relevant to the complaint (paragraph 45.41(2)(b)). One provision (paragraph 45.45(8)(a)) defines the powers of the Commission, the other (paragraph 45.41(2)(b)) the duties of the head of the RCMP in responding to the Commission.
[37]In this regard, a cursory review of section 36 of the Access to Information Act or section 34 of the Privacy Act is instructive. Both sections deal with the powers of the respective commissioners in carrying out investigations. It is in this context of the granting of powers to the investigating body, not in the context of duties placed on the head of a government institution (as in our case the duty imposed on the head of the RCMP), that Parliament dealt coherently with the power to admit evidence governed by the law of evidence relating to privileges and the power to access privileged information. For example, paragraph 34(1)(c) of the Privacy Act enables the investigative body to accept evidence not admissible in a court of law. Subsection 34(2) gives it the right to access information privileged under the law of evidence, except for Cabinet confidences. I can find nothing of the kind in the powers conferred upon the Commission, still less in paragraph 45.41(2)(b) of the Act which defines the duties of the head of the RCMP in the context of the referral of a complaint to the Commission.
[38]I shall limit my conclusion to the facts of this case. I am of the view that the Act does not confer upon the Chairperson of the Commission or the Commission the power to access and examine information that is protected by police informer privilege. Consequently, the Commissioner had no duty under the Act to provide the privileged information.
| (b) pursuant to an enlarged definition of "Crown" |
[39]Counsel for the appellant submitted, and the Judge made a finding of fact to that effect, that the privileged information to which the Chairperson of the Commission seeks access was seen by no less than nine persons: three members of the RCMP, one member of the OPP, two judges, a court registrar, a lawyer in private practice serving as agent for the Attorney General and a federal prosecutor working for the Department of Justice, Canada. Not only did the member of the OPP see the material in her capacity as complaint-investigator --Professional Standards Bureau under the OPP Complaints Bureau System, she also interviewed the informant: see decision, at paragraph 187 and Appeal Book at page 139.
[40]Counsel for the appellant submits that the Chairperson of the Commission plays an important role and occupies a significant position in the administration of justice and falls under the definition of those representatives of the Crown who may and should be entitled to share the informer's privileged information. Access to that information is necessary to fulfil her duties, we are told, and to improve the administration of justice through an effective oversight of the police force. Since the Chairperson is a person appointed by order of the Governor in Council, possesses in practice the required security clearance and has undertaken in this case to guarantee and protect the confidentiality of the privileged information, she should be included in the group sharing the information on a "need to know" basis.
[41]Counsel for the respondent takes a narrow view and interpretation of the concept of "Crown". Police informer privilege, he says, originates in the context of law enforcement and criminal prosecutions. The notion of "Crown" refers to police officers and Crown prosecutors who assume responsibilities for enforcing and administering criminal law: see respondent's factum, at paragraph 71.
[42]In Leipert, McLachlin J. reasserted the importance of the rule of informer privilege. At paragraph 10, she wrote:
The rule is of fundamental importance to the workings of a criminal justice system. As described in Bisaillon v. Keable, [1983] 2 S.C.R. 60, at p. 105:
| The rule gives a peace officer the power to promise his informers secrecy expressly or by implication, with a guarantee sanctioned by the law that this promise will be kept even in court, and to receive in exchange for this promise information without which it would be extremely difficult for him to carry out his duties and ensure that the criminal law is obeyed. |
In R. v. Scott, [1990] 3 S.C.R. 979, at p. 994, Cory J. stressed the heightened importance of the rule in the context of drug investigations:
| The value of informers to police investigations has long been recognized. As long as crimes have been committed, certainly as long as they have been prosecuted, informers have played an important role in their investigation. It may well be true that some informers act for compensation or for self-serving purposes. Whatever their motives, the position of informers is always precarious and their role is fraught with danger. |
| The role of informers in drug-related cases is particularly important and dangerous. Informers often provide the only means for the police to gain some knowledge of the workings of drug trafficking operations and networks. The investigation often will be based upon a relationship of trust between the police officer and the informer, something that may take a long time to establish. The safety, indeed the lives, not only of informers but also of the undercover police officers will depend on that relationship of trust. [Emphasis added.] |
[43]I agree with counsel for the respondent that, in the context of the police informer privilege, the notion of "Crown" should be narrowly defined and refers to those persons who are directly involved in the enforcement of the law. When I say that, I do not want by any means to be seen as diminishing or downplaying the importance of the role played by either the Commission or the Chairperson of the Commission in the administration of justice. Police forces have to be accountable for the exercise of the intrusive powers that society has granted them; the Commission and the Commission Chairperson play a pivotal role in ensuring such accountability.
[44]However, the accountability mechanism, as necessary and useful as it is and should be, is peripheral to the law enforcement process of which police informer privilege partakes. It is not, in my respectful view, a sufficient justification to enlarge the scope and definition of "Crown" so as to increase the number of persons sharing the privileged information. I am supported in my belief by the following conclusion of the Supreme Court of Canada in Bisaillon v. Keable, where, at pages 97-98, the Court, in comparing police informer privilege with Crown privilege based on Wigmore's [Evidence in Trials at Common Law] four-part test, wrote:
This procedure, designed to implement Crown privilege, is pointless in the case of secrecy regarding a police informer. In this case, the law gives the Minister, and the Court after him, no power of weighing or evaluating various aspects of the public interest which are in conflict, since it has already resolved the conflict itself. It has decided once and for all, subject to the law being changed, that information regarding police informers' identity will be, because of its content, a class of information which it is in the public interest to keep secret, and that this interest will prevail over the need to ensure the highest possible standard of justice.
Accordingly, the common law has made secrecy regarding police informers subject to a special system with its own rules, which differ from those applicable to Crown privilege. [Emphasis added.]
[45]This was reaffirmed in the Leipert case, at paragraph 12, following which McLachlin J. wrote at paragraphs 13 and 28:
The Court in Bisaillon v. Keable summed the matter up by asserting that the application of informer privilege "does not depend on the judge's discretion, as it is a legal rule of public order by which the judge is bound" (p. 93).
. . .
Informer privilege is of great importance. Once established, the privilege cannot be diminished by or "balanced off against" other concerns relating to the administration of justice. The police and the court have no discretion to diminish it and are bound to uphold it. [Emphasis added.]
[46]Safety and secrecy are major preoccupations sur-rounding police informer privilege. I confess that I am deeply troubled by the number of persons who had access to the privileged information in this case, thereby increasing the risk of disclosure and of defeating the purpose of the privilege. If potential informers were made aware of the way information was shared in this instance, I am not sure that many of them would be keen on coming forward in the future. Furthermore, the fact that information may have been improperly shared in this case cannot serve as support for the appellant's position. To add the Chairperson of the Commission and some of her staff to an already long list would be to add persons who are interested in accessing the privileged information in order "to ensure the highest possible standard of justice". However, as laudable as this goal may be, it cannot justify granting access to persons who are not persons who need to know such information for law enforcement purposes as required in the context of police informer privilege: see Bisaillon. I am persuaded that, if consulted, informers would, for safety reasons, strongly oppose the opening of an additional circuit of distribution of their names, especially where the justification for this distribution is the furtherance of a purpose other than that of law enforcement in the strict sense.
[47]Again, I believe it is appropriate to refer to the Bisaillon case where the Supreme Court, dealing with the confusion of police informer privilege with Crown privilege, stressed the paramount importance of informer privilege and secrecy. At pages 95-97, Beetz J. wrote for a unanimous Court:
The secrecy rule regarding police informers has chiefly taken the form of rules of evidence in criminal and civil proceedings, but it can be said that the rule gives rise to rules of another kind, which impose duties on a peace officer. If the law prohibits a peace officer from disclosing an informer's identity in judicial proceedings based on the public interest which it considers to be superior to that of the administration of justice by the court, a fortiori, it does place on him a duty to maintain confidentiality outside of any judicial proceedings, when the administration of justice by the courts is not in issue.
. . .
The secrecy rule regarding police informers' identity has been confused with Crown privilege, but this in my view is a mistake.
The reason for the mistake may be that the secrecy rule regarding police informers' identity and Crown privilege have several points in common: in both cases relevant evidence is excluded in the name of a public interest regarded as superior to that of the administration of justice; in both cases the secrecy cannot be waived; finally, in both cases it is illegal to present secondary proof of facts which in the public interest cannot be disclosed. However, these points in common should not be allowed to hide the specificity of the set of common law provisions applicable to secrecy regarding police informers' identity, which distinguishes it from the set of rules governing Crown privilege.
In both cases, it is the public interest which makes secrecy necessary, but this public interest, which takes priority over that of the administration of justice, differs depending on whether Crown privilege or secrecy regarding police informers' identity is concerned. The public interest which is the reason behind the Crown privilege lies either in national security or in the effective conduct of government. The public interest which requires secrecy regarding police informers' identity is the maintenance of an efficient police force and an effective implementation of the criminal law. [Emphasis added.]
[48]To summarize, under the existing law, police informer privilege is a legal rule of public order designed to promote efficiency in enforcement and implementation of the criminal law. Essential to the achievement of that objective is the protection of the identity of the informer which can only be obtained if disclosure and circulation of his name, and information likely to reveal his name, are limited to what is necessary to enforce the criminal law. Extending the concept of "Crown" so as to include the Commission Chairperson and some of her staff would be truncating the privilege and, in the long run, jeopardizing its usefulness and eventually its existence. If the concept were extended to the appellant because of its supervisory role over the use of police powers, there would be nothing to prevent further extension to other police complaints commissions and, for that matter, even to ad hoc commissions of inquiry. Indeed, in Canada (Royal Canadian Mounted Police--RCMP) v. Saskatchewan (Commission Inquiry into the death of Leo La Chance), [1992] 6 W.W.R. 62, the Saskatchewan Court of Appeal had to issue an order prohibiting a commission of inquiry set up to inquire into a fatal shooting from requiring disclosure of a police informer's identity. Quoting excerpts from the Bisaillon case, the Court of Appeal refused to broaden the exception to the rule governing police informer privilege. The position taken by the Saskatchewan Court of Appeal and the one that I adopt are consistent with the teachings of the Supreme Court that there should be no "weakening [of] a rule which should remain firm": see Bisaillon v. Keable, at page 95.
The cross-appeal: Whether the Commission had jurisdiction or capacity to seek judicial review of the Commissioner's refusal to furnish the privileged information
[49]Counsel for the respondent argues on the cross- appeal that the Commission has no legal or statutory authority to initiate proceedings as it did in the present instance. In support of his contention, he advances three arguments. All three deserve to be addressed: the Commission has no standing under section 18.1 [as enacted by S.C. 1990, c. 8, s. 5; 2002, c. 8. s. 27] of the Federal Courts Act (FCA), the legislator has given a remedy to the Commission in section 18.3 [as enacted by S.C. 1990, c. 8, s. 5; 2002, c. 8, s. 28] and paragraph 17(3)(b) of the FCA, and the Commission is a statutory body whose functions require that it act impartially and not appear as a party adverse to the RCMP.
Whether section 18.3 and paragraph 17(3)(b) of the FCA are effective remedies available to the Commission
[50]Section 18.3, previously cited, enables a federal board like the Commission to refer to the Federal Court a question of law for hearing and determination. Under paragraph 45.41(2)(b) of the Act, as previously mentioned, the Commissioner is under a statutory duty to furnish the Commission Chairperson with material that is relevant to a complaint.
[51]Relevancy is a legal criterion for the admissibility of evidence before courts and tribunals. Here, the criterion serves to determine which evidence must be given to the Commission Chairperson in order to allow her to perform her duties and functions.
[52]Defining relevancy and determining the scope of the concept are questions of law. However, it is trite law that applying the resulting definition to a given document or material in order to determine if such document or material is relevant entails a question of mixed fact and law. It is not one that can be the subject of a reference to the Federal Court. Since debates between the Commission Chairperson and the Commissioner will generally bear on whether documents claimed are relevant or not, the reference procedure is not an available remedy to determine those issues.
[53]In the present instance, the Commission's request to access the privileged information put in issue the scope of police informer privilege. Although the request raised a question of law and could have been made the subject of a reference, this does not mean that no other remedies are available or that the reference procedure must be chosen in preference to other available remedies. Section 18.3 coexists with section 18.1 of the FCA. It belongs to the Commission to choose the remedy that it believes best serves its interests, provided, of course, that the law does not make the use of one remedy over the other mandatory.
[54]Paragraph 17(3)(b) of the FCA is broader in scope than section 18.3 in that it extends to the determination of questions of fact as well as of mixed law and fact. However, the jurisdiction of the Federal Court is conditional on a written consent of the Crown to the determination by the Court. This makes the remedy hollow and uncertain. Again, I do not believe that the Commission's capacity to fulfil the duties imposed upon it by the Act depends upon the goodwill of a third party.
[55]This brings me to an assessment of the Commission's capacity and jurisdiction to act pursuant to section 18.1 of the FCA.
Whether the Commission possesses the jurisdiction and capacity pursuant to section 18.1 of the FCA to bring an application for judicial review
[56]Under subsection 18.1(1) of the FCA, "anyone directly affected by the matter in respect of which relief is sought" is authorized to bring an application for judicial review. Moreover, the subsection's wording is broad enough to encompass applicants who are not directly affected when they meet the test for public interest standing: see Kwicksutaineuk/Ah-kwa-mish Tribes v. Canada (Minister of Fisheries and Oceans) (2003), 227 F.T.R. 96 (F.C.T.D.); affirmed (2003), 313 N.R. 394 (F.C.A.) and leave to appeal to the Supreme Court of Canada refused, May 20, 2004, [2004] S.C.C.A. No. 55 (QL).
[57]There is no doubt that the Commission is directly affected by a decision of the Commissioner not to provide material relevant to a complaint. The Commission and the Commission Chairperson are, thereby, impeded in the carrying out of their functions and duties as they are mandated to do by section 45.32 of the Act.
[58]Without a legal means of ensuring compliance with the Act by the Commissioner, the Commission becomes, for all practical purposes, hindered to the point of uselessness. I entirely agree with the following comments made by the learned Judge when discussing the respondent's argument that the Commission has no power to initiate legal proceedings. At paragraphs 163 and 164 of his decision, he wrote:
If the Respondent is correct in this regard it would mean that, under ss. 45.41 of the RCMP Act, the Complaints Commission has no right to compel the RCMP Commissioner to provide either a copy of the complaint or any material relevant to that complaint. Just as a right without a remedy is no right at all, so an obligation without the means to compel it is no obligation at all. It would mean, in effect, that the RCMP Commissioner would have a complete discretion, not only as regards what is and what is not relevant, but also as to whether any material is provided at all under ss. 45.41 even if it is relevant.
In my opinion, this is an extraordinary argument to make for anyone concerned with the integrity and reputation of the RCMP because its ultimate effect is to deprive the Force of a significant means of vindication in the face of Complaints against its members. If the Complaints Commissioner cannot compel the RCMP Commissioner to provide materials related to a Complaint, and it is all a matter of discretion on the part of the RCMP, then the whole concept of civilian supervision is severely undermined and a Complainant and the public will never know whether a Complaint has been truly investigated. It renders the Complaints Commission a token investigative agency. [Emphasis added.]
[59]In support of the argument that Parliament did not intend the Commission to have the capacity to initiate legal proceedings, counsel for the respondent submitted that the Commission has been granted political remedies such as the power, pursuant to section 45.34 of the Act, to submit a report to the Minister, and to include recommendations in that report that must be laid before each House of Parliament.
[60]With respect, this is a desperate argument. Just about every federal board has to make an annual report of its activities and file it with Parliament. This is a measure of Parliamentary control over the activities, effectiveness and spending of its creatures. The Commission is no exception. The necessity of filing an annual report has never preempted the existence or exercise of a legal remedy.
[61]The respondent also suggested that the Commission can resort to a public hearing under section 45.43 of the Act to enforce compliance by the Commissioner with paragraph 45.41(2)(b). It should be recalled that the Commission possesses the powers of a board of inquiry to summon witnesses and compel them to give evidence under oath and produce such documents as the Commission "deems requisite to the full investigation and consideration of [the] matter [before it]": see subsection 45.45(4) and paragraphs 24.1(3)(a) and (b) of the Act. The Commission could summon the Commissioner to explain publicly why some documents requested are not, in his view, relevant or why, although they are relevant, he still refuses to deliver them. I note in passing that, while it is not clear under paragraph 45.41(2)(b) who, of the Commissioner or the Commission, determines what is relevant, it is the Commission which, pursuant to paragraph 24.1(3)(a) of the Act, possesses that power in the context of a public hearing.
[62]The holding of a public hearing to compel the Commissioner to perform a statutory duty imposed upon him by the Act is a costly procedure. It is certainly not the one favoured by Parliament or by the Commission itself. Investigation is the rule, a public hearing the exception. The latter only occurs when the Chairperson considers it advisable in the public interest: see section 45.43 of the Act. I share these views and concerns of the Judge expressed at paragraph 166 of the decision under appeal:
Denial of information and materials under 45.41 of the Act does not mean it is advisable or in the public interest to call a hearing. Hearings under s. 45.43 are rare and most complaints are investigated under s. 45.41. It seems highly inappropriate to suggest that, if the Complaints Commission is not satisfied with the materials furnished by the RCMP Commission under s. 45.41, then it should proceed with a hearing under s. 45.43. Perhaps most objectionable is the notion that the words "shall furnish" under s. 45.41 don't really mean what they say, so that the relatively simple and cost effective way of disposing of complaints under s. 45.41 (and the sheer volume of complaints suggest that, except for something truly exceptional, this will be the most appropriate procedure) doesn't really have any teeth and that, indeed, Parliament didn't intend it to have any teeth. I believe that, if the Respondent's argument is correct in this regard, then the Canadian public may well feel it has been misled concerning the investigative process outlined in Part VII of the Act. [Emphasis added.]
[63]There is another reason, in my respectful view, why it is not advisable to resort to this available procedure each time there is a disagreement between the Commission Chairperson and the Commissioner. It would almost inevitably shatter the relationship between the two. Indeed, the Commissioner might find it more constraining and less comfortable to have to personally appear before the Commission and publicly answer its questions than to be represented, as in the present instance, by the Attorney General in a neutral forum.
[64]I should point out that this position taken and advocated by the respondent is at odds with his contention that the Commission should remain and appear to remain impartial and, therefore, should not be entitled to seek judicial review to compel performance of the duties imposed upon the Commissioner. This brings me to the third argument advanced by the respondent against the Commission's capacity to seek legal redress.
Whether the Commission is under an obligation to be impartial and whether such obligation denies it the capacity and jurisdiction to initiate legal proceedings
[65]Counsel for the respondent relies upon two cases in support of his objection to the Commission's application for judicial review: Canada (Privacy Commissioner) v. Canada (Attorney General), [2003] 9 W.W.R. 242 (B.C.S.C.), and Rankin (Re), [1991] 1 F.C. 226 (T.D.).
[66]The first case involved the Privacy Commissioner seeking a declaration by way of an action in the Supreme Court of British Columbia. Metzger J. accepted the argument of the Attorney General that the Privacy Commissioner did not have the capacity to initiate an action. He likened the role of the Privacy Commissioner to that of an ombudsman as the Supreme Court of Canada had done in Lavigne v. Canada (Office of the Commissioner of Official Languages), [2002] 2 S.C.R. 773, at paragraphs 38 and 39. In that case, the Supreme Court distinguished the approach of the Privacy Commissioner and the Official Languages Commissioner from that of a court. "Their unique mission," Gonthier J. wrote for the Court, "is to resolve tension in an informal manner: one reason that the office of ombudsman was created was to address the limitations of legal proceedings."
[67]With respect, although what was said in the Priva-cy Commissioner's case remains relevant to the case at bar, the legal situation and status of the Commission and Commission Chairperson are somewhat different from those of the Privacy Commissioner.
[68]As the Supreme Court reiterated in the Lavigne case (see paragraph 33), the Privacy Commissioner possesses broad powers for the purpose of conducting investigations into complaints that are filed: "He has access to all information held by a government institution, with the exception of confidences of the Queen's Privy Council for Canada, and no information to which he has access may be withheld from him." The Privacy Commissioner's right to access information is not dependent on a relevancy criterion. This is not the case for the Commission and the Commission Chairperson whose right of access is limited to relevant material, with no indication in the Act as to who determines the issue of relevancy.
[69]Moreover, the Privacy Commissioner "may also enter any premises occupied by any government institution . . ., converse in private with any person therein, and carry out such inquiries within the Privacy Commissioner's authority under the Privacy Act as he sees fit. Lastly, the Privacy Commissioner may examine or obtain copies of or extracts from books or other records found in the premises occupied by a government institution containing any matter relevant to the investigation": ibid.
[70]Much, if not all, enforcement capacity is built in these powers. The Commission and the Commission Chairperson are far from possessing, at the investigation stage, this kind of power, which makes the need to have the capacity to initiate legal proceedings much more necessary, to say the least.
[71]In the B.C. Privacy Commissioner's case, the Privacy Commissioner was seeking a judicial declaration that the Kelowna RCMP video surveillance violated the plaintiff's and the public's paragraph 2(d), sections 6, 7 and 8 Charter [Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] rights and was in breach of the United Nations Universal Declaration of Human Rights [GA RES. 217 A (III), UN GAOR, December 10, 1948] and the International Covenant on Civil and Political Rights [December 19, 1966, [1976] Can. T.S. No. 47]. The Privacy Commissioner was not attempting, as the Commission Chairperson is in this case, to enforce a specific duty placed on a public servant, whose failure to perform such duty strikes at the heart of the Commission's capacity to fulfil the duties imposed upon it by Parliament in the public interest.
[72]I believe I have said enough to demonstrate that the Canada (Privacy Commissioner) case can and must be distinguished, both factually and legally, from the situation which prevails in this instance.
[73]The Rankin case does not stand for the proposition that the Commission has no capacity to initiate legal proceedings in the Federal Court. The question was put by Denault J. in terms of appropriateness of doing so because of the obligation that the Commission has, as a quasi-judicial tribunal, to appear and act impartially: see paragraphs 9 and 14. He held, at paragraph 15, that it was inappropriate for the Commission to take the initiative of an application under subsection 38(1) of the Canada Evidence Act, R.S.C., 1985, c. C-5. However, he proceeded to deal with the merits of the issue because the complainant, Mr. Rankin, had adopted the position taken by the Commission. In an obiter, since the matter of the Commission's status had become of academic interest, this Court expressly noted that it did not want to be understood as disagreeing with the position taken by Denault J. on the question: see Canada (Royal Canadian Mounted Police Public Complaints Commission) (Re), [1992] F.C.J. No. 502 (C.A.)(QL). I believe that a closer look ought to be given to Rankin and its relationship with the Act.
[74]In the Federal Court, the Judge distinguished Rankin on the basis that Denault J. was examining the power of the Commission to compel the type of evidence mentioned in subsection 45.45(11), i.e. evidence whose disclosure might be injurious to security, national interest or law enforcement. He saw a major difference in the wording of subsection 45.41(2). He limited the ruling in Rankin to the interpretation of section 45.45. He then looked at the purpose of the Act in order to ascertain Parliament's intent. In the end, he expressed the view that there was nothing inappropriate about the Commission taking legal action for the limited purpose of securing the materials it needs from the RCMP to perform its statutory duty. I think it is useful, even necessary, to reproduce his analysis of the issue found in paragraphs 170-177 of the decision:
A reading of ss. 45.45(11) confirms the conclusion of Denault J. that the "plain wording of the section does not give the Commission power to compel this type of evidence." In this regard, however, the plain wording of ss. 45.45(11) is very different from the plain wording of ss. 45.41(2) which says that the RCMP Commissioner "shall furnish the Commissioner with a copy of the complaint" and "shall furnish the Commission Chairman with . . . such other materials under the control of the Force as are relevant to the Complaint."
I regard everything said by Denault J. in Rankin as referring to ss. 45.45 of the Act. There is no discussion of ss. 45.41, a very differently worded and constituted provision intended to deal with a very different kind of investigation.
The Respondent argues that the general dicta found in the Rankin case to the effect that "the Commission has the obligation to be and appear to be impartial as a quasi-judicial body" and that it is "inappropriate that the Commission take the initiative" can be taken out of the context of ss. 45.45 and applied generally to the Act and, in particular, to ss. 45.41(2)(d) which is the subject of this Application. I disagree. Rankin is concerned solely with ss. 45.45 and with the specific wording of that section.
But the question does have to be asked whether Parliament intended the Complaints Commission to have the capacity and jurisdiction to come before this Court under ss. 45.41(2) of the Act and seek the materials sought in this Application that the RCMP Commissioner has refused to furnish.
Guided by Rankin, I believe the first thing I have to look at is the "plain wording of the section." To me the plain wording is unequivocal. Parliament's intent was that the RCMP Commission "shall furnish" a copy of the complaint and other materials under the control of the Force relevant to the complaint. This is intended to be mandatory and not discretionary. There is, of course, no specific provision which says that if the RCMP Commission refuses to furnish materials then the Complaints Commission has the right to take legal action to compel compliance with ss. 45.41. So the question becomes, bearing in mind the role of the Complaints Commission in the context of ss. 45.41, was it Parliament's intent that it should be the Complaints Commission who takes action to compel the furnishing of the materials in question?
The role of the Complaints Commission under ss. 45.41 is significantly different from its role under ss. 45.43 where, in the context of a public hearing process the Complaints Commission's quasi-judicial function comes to the for, and, as the Act indicates, a much more circumspect approach is required. But ss. 45.41 provides a discrete process in the context of a hierarchy of forums to deal with a dissatisfied complainant. Subsection 45.41 is an interim procedure situated between internal investigation by the Force and the full-blown quasi-judicial proceedings of ss. 45.43. It is clear from the Act that Parliament intended the Complaints Commission to take the initiative to determine whether further action is necessary on a particular complaint. Subsection 45.42(1) makes review by the Complaints Commission compulsory: "The Commission Chairman shall review every Complaint referred to the Commission pursuant to ss. 45.41(1) . . ." unless there has been a previous investigation or a hearing has been instituted. This process is clearly distinguishable from the "hearing" provisions of the Act and, taken together, ss. 45.41 and ss. 45.42 make it abundantly clear that the Complaints Commission's role in this process is to review how a complaint has been reviewed by the RCMP. The only role of a complainant is to refer the complaint to the Complaints Commission so that it can look at what the RCMP has already done and determine if any further inquiry is necessary. The interaction is then entirely between the Complaints Commission and the RCMP. The mandatory duty imposed upon the Complaints Commission by ss. 45.42 requires a mandatory furnishing of materials under ss. 45.41. The Complaints Commission cannot do its statutory duty unless the RCMP Commissioner does his.
Bearing in mind the purpose of ss. 45.42, there is nothing inappropriate about the Complaints Commission taking legal action for the limited purpose of securing the materials it needs from the RCMP to do its statutory duty. In my opinion, there is nothing analogous here with the process under ss. 45.43 and the Rankin situation. To hold otherwise would render ss. 45.42 and 45.41 a nullity because the Complaints Commission cannot fulfil a statutory mandate without the power to compel the furnishing of the materials that ss. 45.41 says it is entitled to in order to fulfil that mandate.
If the Respondent's argument is correct, then the RCMP Commissioner could even refuse to provide a copy of the complaint under ss. 45.41(a) and the Complaints Commission would have no real way of compelling him to do so. I cannot believe that Parliament would specifically provide for a discrete review process (indeed, order it) and, at the same time, leave it to the RCMP Commissioner to decide what, if anything, is disclosed under 45.41. A mandatory obligation requires a corresponding power to seek its fulfilment. Consequently, I am of the view that the Complaints Commission has the capacity and jurisdiction to seek the assistance of this Court for the limited purpose of ensuring compliance with ss. 45.42 and 45.41 of the Act.
[75]I agree with the learned Judge of the Federal Court that the problems and concerns under paragraph 45.41(2)(b) are different from those addressed by subsection 45.45(11). Subsection 45.45(11) deals with the power of the Commission to order an in camera hearing at which evidence might be tendered that could be prejudicial to the defence of Canada or law enforcement. It confers no power on the Commission to compel the disclosure of such evidence. Paragraph 45.41(2)(b) deals with a different issue: it is concerned, not with the powers of the Commission at a public hearing, but with a particular duty imposed on the Commissioner in the context of complaints investigation. Therefore, the Rankin case should not be made to say more than it actually says.
[76]In considering in the Rankin case whether it was appropriate for the Commission to bring, on behalf of the complainant, an application under subsection 38(1) of the Canada Evidence Act to challenge an objection to disclosure of information, Denault J. found instructive the remarks of Estey J. in Northwestern Utilities Ltd. et al. v. City of Edmonton, [1979] 1 S.C.R. 684, at page 709. Basically, as Estey J. said, "[i]t has been the policy in this Court to limit the role of an administrative tribunal whose decision is at issue before the Court, even where the right to appear is given by statute, to an explanatory role with reference to the record before the Board and to the making of representations relating to jurisdiction." With respect, the Northwestern case is of little assistance in the context of the present proceedings.
[77]I do not deny that it makes sense to refuse to allow a board whose decision is under attack to aggressively participate in the debate and attempt to justify its decision, if not itself. However, that is not what is happening here. The Commission is not trying to justify or defend one of its decisions. Actually, the decision under attack is the Commissioner's decision to refuse to provide requested information, and he is represented, as he ought to be, by the Attorney General of Canada. What the Commission seeks to do here is to enforce a duty that is owed to it in the public interest, as intended and indicated by Parliament in paragraph 45.41(2)(b). I see nothing inappropriate in doing that.
[78]Moreover, I am not sure that Denault J. would have put the same emphasis on the need for the Commission to be and appear to be impartial in exercising its functions if section 45.37 of the Act had been brought to his attention.
[79]Section 45.37 authorizes the Chairperson of the Commission to be "the complainant" against any member of the RCMP, including the Commissioner himself. "Member" is defined in section 2 as any person who has been appointed as an officer or other member of the Force under section 5 or paragraph 6(3)(a) or 7(1)(a) of the Act. Section 5 is the section governing the appointment of the Commissioner. Section 6 makes it clear that the officers of the Force are the Commissioner, Deputy Commissioners, Assistant Commissioners, Chief Superintendents, Superintendents, Inspectors and other ranks as are prescribed by the Governor in Council.
[80]The complaint can be laid by the Chairperson when she is satisfied that there are reasonable grounds to investigate the conduct of these officers "in the performance of any duty or function under this Act": subsection 45.37(1); see also Canada (Commissioner of the Royal Canadian Mounted Police) (Re), [1993] 2 F.C. 351 (T.D.); affirmed [1994] 3 F.C. 562 (C.A.). Where she does so, subsection 45.37(1) clearly stipulates that, unless the context otherwise requires, a reference in Part VII to a complainant includes a reference to the Commission Chairperson.
[81]With respect, I think that it is obvious that, while Parliament intended the Commission to always be fair, it did not intend the Commission to always be neutral. I believe Parliament realized that there may be situations where the Commission and Commission Chairperson have to adopt a position that is adversarial in order to effectively exercise their functions. I believe this is the case with section 45.37 and paragraph 45.41(2)(b) of the Act.
[82]For these reasons, I am satisfied that the Commission Chairperson has the jurisdiction and capacity to compel the performance of the duties imposed upon the Commissioner by paragraph 45.41(2)(b) of the Act. This means seeking a judicial determination as to whether a requested document is relevant or not and privileged or not and, thus, whether the Commissioner is under a duty to furnish it. However, in the circumstances of this case, where both parties agreed that the material sought was protected by police informer privilege, the Commissioner was under no duty to give it to the Commission Chairperson in view of the legal and binding nature of that privilege.
Whether the sealing order issued by the Ontario Court of Justice pursuant to section 487.3 of the Criminal Code authorized the Commissioner to refuse disclosure of the information requested by the Commission
[83]This was a question raised and argued by both parties. It relates to the scope of the sealing order. In view of the conclusion that I have reached on the issue of privilege, there is no need to answer it. It may, however, be useful for future cases to say a word about the respondent's claim.
[84]Counsel for the respondent submits that the Commissioner was bound by the sealing order issued by the Ontario Court of Justice and, therefore, was justified in refusing to disclose information in the RCMP's possession relating to the search warrant which could have revealed the informant's identity. I cannot accept this submission.
[85]The sealing order under section 487.3 deals with documents that are in the possession of the Court and does not extend to documents that are in the possession of the RCMP. I agree with counsel for the appellant that the purpose of the order is to limit public access to some of the material that is in the Court's file and would otherwise be accessible. The order is not directed at the RCMP, but at the staff of the Court and subsection 487.3(3) indicates that the sealed packet "shall be kept in the custody of the court in a place to which the public has no access."
Transparency in the context of complaints investigation
[86]Before concluding, I believe I should say a word about the need for transparency in the context of complaints investigation. The system put in place by Parliament requires the mutual trust and cooperation of the two principal actors in the process: the Commissioner and the Commission Chairperson. Transparency is not the only prerequisite to the establishment of a trusting and cooperative relationship, but it is an important one. I cannot say that, in the present instance, the Commissioner has been overzealous in his respect for transparency.
[87]When requested by the Commission, in a letter dated July 10, 2000, to furnish relevant information regarding the search warrant executed on the complainant's property, the Commissioner provided some, but not all information relevant to the complaint, without indicating that some information had been withheld and without providing any justification for doing so. The answering letter from the RCMP was quite short. It simply stated as it appears from page 130 of the Appeal Book:
Dear Sir,
Reference is made to your letter dated July 10, 2000 following Mr. [X]'s request for a review by the P.C.C.
As required, pleased find attached a copy of pertinent documents in the complaint lodged by Mr. [X]. I would appreciate receiving an acknowledgement of receipt of these documents as soon as possible.
Yours truly,
[88]It is only after examination of the documents received that the Commission realized that some of the information provided had been vetted and that some documents were missing, despite their apparent relevance to the complaint. The Commission also discovered a fact never mentioned to it by the RCMP: while a search warrant had been issued for the complainant's barn, an application for a search warrant for his residence had been refused.
[89]Through further investigation, the Commission also discovered that an OPP Sergeant Major working for the OPP Public Complaints Bureau had had access to the same information to which the Commission Chairperson has been denied access. This discovery did nothing to foster a good working relationship. This is reflected in the Chairperson's affidavit where, at paragraph 25, page 104 of the Appeal Book, she wrote:
Simply stated, it would appear that the RCMP is prepared to make the information I seek available to its own public complaint investigator and to an OPP Sergeant Major, a peace officer subject to provincial jurisdiction, but not to the Chair of the CPC, a Governor-in-Council appointee designated to oversee the conduct of members of the RCMP in accordance with Part VII of the Act.
[90]The Commissioner's position that the provision of the material to an OPP Sergeant Major within the OPP Public Complaints Bureau was justifiable because she is a police officer, while the withholding of such information from the Chairperson of the Commission was justified because she is not, did nothing to increase the Chairperson's trust in the institution that she has the mandate to supervise.
[91]When apprised of the fact that the OPP Public Complaints Bureau had access to the confidential information, the Chairperson thought that she was denied access by the Commissioner because of the sealing order issued by the Ontario Court of Justice.
[92]However, after meeting with the Commissioner on December 4, 2002, close to three years after the complaint was lodged, to discuss the issue raised in her application to have access to the sealed packet, she was told by the Commissioner that she would not be given the material on the basis that she had no jurisdiction to receive and consider relevant materials when they involved information about confidential sources.
[93]It is at that time that the Commission Chairperson withdrew her application for a modification of the sealing order and that the Commission sought relief in the Federal Court to deal with the Commissioner's objection, with the result that we now know.
[94]In paragraph 34 of her affidavit, the Chairperson of the Commission notes that the Commissioner's behaviour in the present instance is not an isolated case: see Appeal Book, page 109. She notes that in another recent complaint, relevant materials provided to her had significant portions removed before she received them, without any indication in the file as to why the material had been vetted. Again, this does not help foster a good trust-based working relationship.
[95]Excerpts of the RCMP policy regarding public complaints and relevant material are found at page 198 of the Appeal Book. Section J.2 of that policy stipulates that the material must be vetted for names of sources or informants prior to forwarding it for review. The policy does not state that the Commission should be notified of the withholding of information and be given the reasons for the vetting of the material. I would have thought that this is simply a matter of civility between two complementary institutions created for the public good and interest. In the same vein, the Commission, in my view, has a legitimate expectation of being given the reasons as to why documents are considered not to be relevant when disclosure is refused on that basis.
[96]The Commissioner had a valid ground for refusing disclosure of information that could identify the informant. Had this been made clear from the beginning, it might be that the matter would not have degenerated as it did. Some of the arguments raised by the respondent to oppose access by the Commission to the requested information were such that they would not enhance public confidence in the RCMP or the Commission's trust in the Commissioner (e.g. the scope of the sealing order, the significance of the fact that the Chairperson is not a police officer, the denial of the existence of a public duty owed to the Commission Chairperson under paragraph 44.41(2)(b), the suggested characterization of the role of public hearings, the submission that remedy lies in making recommendations within the Chairperson's annual report). And, in case added incentive is required for the promotion of a good working relationship between the two offices and institutions, let me repeat the reminder once issued in another context by the Supreme Court of Canada: "Let us face it, we are all here to stay" (Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, at paragraph 186).
Conclusion
[97]In view of the above, I would dismiss the appeal and the cross-appeal. Success being divided, I would order that each party bear its own costs of the appeal and cross-appeal.
Décary J.A.: I agree.
Pelletier J.A.: I agree.