Date: 20041108
Citation: 2004 FC 1566
Docket: T-1976-04
BETWEEN:
ROBERT GORDON, Journalist, and
CANADIAN BROADCASTING CORPORATION
Applicants
and
MINISTER OF NATIONAL DEFENCE
Respondent
AND
Docket: T-1980-04
BETWEEN:
TRANSCONTINENTAL NOVA SCOTIA MEDIA INC.,
the publisher of the Halifax DAILY NEWS
Applicant
and
MINISTER OF NATIONAL DEFENCE
Respondent
AND
DOCKET: T-1981-04
BETWEEN:
THE HALIFAX HERALD LIMITED
Applicant
and
THE MINISTER OF NATIONAL DEFENCE AND COMMODORE R. MURPHY
(PRESIDENT OF THE BOARD OF INQUIRY FIRES AND CASUALTIES -
HMCS CHICOUTIMI)
Respondents
Let the attached certified transcript of my reasons for order delivered orally from the Bench via video conference between Ottawa, Ontario and Halifax, Nova Scotia, on the 5th day of November, 2004, be filed to comply with section 51 of the Federal Courts Act.
"Sean Harrington"
Judge
Ottawa, Ontario
November 8, 2004
IN THE FEDERAL COURT OF CANADA
(TRIAL DIVISION)
Court File No. T-1976-04
BETWEEN:
ROBERT GORDON, Journalist, and
CANADIAN BROADCASTING CORPORATION
Applicants
- and -
MINISTER OF NATIONAL DEFENCE
Respondent
---
Court File No. 1980-04
BETWEEN:
TRANSCONTINENTAL NOVA SCOTIA MEDIA INC., the Publisher of the Halifax Daily News
Applicant
- and -
MINISTER OF NATIONAL DEFENCE
Respondent
---
Court File Number: 1981-04
BETWEEN:
THE HALIFAX HERALD LIMITED
Applicant
- and -
THE MINISTER OF NATIONAL DEFENCE and COMMODORE R.D. MURPHY (President of the Board of Inquiry Fires and Casualties - HMCS Chicoutimi)
Respondents
EXCERPT FROM PROCEEDINGS ON
APPLICATIONS FOR A STAY OF PROCEEDINGS PENDING JUDICIAL REVIEW OF THE BOARD OF INQUIRY DECISION re MEDIA ACCESS TO PROCEEDINGS
(DECISION, WITH ORAL REASONS)
---
Heard Before The Honourable Justice Sean J. Harrington, at Ottawa, Ontario and Halifax, Nova Scotia (via Video Conference), on Friday, November 5, 2004, commencing at 7:30 p.m.
---
APPEARANCES:
David G. Coles)
David J. Doyle) for Robert Gordon, Journalist, and the Canadian Broadcasting Corporation
Nancy G. Rubin for the Halifax Herald Limited
Alan V. Parish, Q.C. for Transcontinental Nova Scotia Media Inc., the Publisher of the Halifax Daily News
Martin Ward )
Elizabeth Richards) for the Respondents
---
Court Registrars: Danielle Flemming, Ottawa
Tanya J. Breton, Halifax
Court Reporters: Barbara. Neuberger, C.S.R.,
Noel C. Keeley, C.S.R.
National Reporting Group
A Division of KRSI
900-275 Slater Street
Ottawa, Ontario K1P 5A0
Telephone No. (613) 233-8601
Fax No. (613) 236-3754
email: keeleyrs@rogers.com
INDEX
Decision, with Oral Reasons (Harrington, J)...........2
-----
--- The Court commenced the hearing of the Applications at 7:30 p.m., on Friday, November 5, 2004. At the conclusion of Submissions by the Applicants and the Respondents, including Reply Submissions by all Applicants, the Court recessed at 11:15 p.m. to consider its Decision.
--- Upon reconvening at 11:30 p.m.:
THE REGISTRAR: The Sitting is resumed.
JUSTICE HARRINGTON: I will now provide Reasons for Order that apply to all three Applications. For purposes of the record, there will need to be three separate Orders, all of which will be worded in the same way, with the exception of slight amendments to reflect the references in the Applications to an "Injunction" and a "Stay", as the case may be.
The Reasons will be recorded by the Court Reporter. In addition, I will be dictating them as I deliver them.
They will be reduced to writing as soon as possible, though I make no particular promise as to precisely when that will be.
---
--- Decision, with Oral Reasons, Harrington, J.
There was a fire last month on HerMajesty's Canadian Submarine Chicoutimi. It caused loss of life and personal injury. The submarine was disabled and severely damaged.
The Minister of National Defence is naturally anxious to find out what happened, and why, so that whatever went wrong can be made right and such a tragedy will not be repeated.
In the meantime, the entire Submarine Fleet has been tied up.
The Board of Inquiry was struck pursuant to Section 45 of the National Defence Act, which reads:
"45.(1) The Minister, and such other authorities as the Minister may prescribe or appoint for that purpose, may, where it is expedient that the Minister or any such other authority should be informed on any matter connected with the government, discipline, administration or functions of the Canadian Forces or affecting any officer or non-commissioned member, convene a board of inquiry for the purpose of investigating and reporting on that matter." (Taken as Read)
The Applicants are members of the Media. They wish to be present when the Board takes evidence from the Crew tomorrow in Halifax, in less than nine hours time.
Chapter 21.12 of the Queen's Regulations and Orders, issued pursuant to the Act, provides, and I quote:
"Unless the convening authority otherwise directs, a board of inquiry shall exclude from its meetings all persons except ---"
The persons excepted do not include members of the Media.
Under the Terms of Reference of this particular Board of Inquiry -- and I quote Section 12 in full:
"The President of the BOI shall ensure that the proceedings and activities of the BOI are conducted in such a manner as to strike the appropriate balance between the interest of the public in being informed of the BOI's progress, and the public's interest in ensuring that security, privacy, operational and international relations requirements is achieved. This direction is to ensure that as much information as is appropriate and reasonable is publicly available and disclosed. In accordance with QR & O 21.12(c), the President may permit the attendance of persons with a direct and substantial interest in the BOI concerning death or injury." (Taken as Read)
R.D. Murphy, Commodore, President of the Board of Inquiry, has refused Press access.
This is what he said in his Decision, handed down today -- and I quote Paragraphs 2 through 8 of the Reasons:
"2. A BOI convened under section 45 of the National Defence Act is an internal administrative investigation. Its purpose is to inform in a timely manner the convening and review authorities of the facts it has been asked to find and to make recommendations in respect thereof.
3. Pursuant to Chapter 21 of the Queen's Regulations and Orders (QR & O), made under the National Defence Act, a BOI is closed to the public subject to the direction of the convening authority. At paragraph 12 of the terms of reference for this BOI, I am directed to ensure that information on the BOI's progress is publicly available and disclosed. In doing so, I am required to weigh security, privacy, operational and internationals relations requirements. A variety of mechanisms have been used for this purpose including the posting of information on a National Defence website, interviews with the media and the distribution of printed material.
4. Of note, this investigation has been ongoing for four weeks. In that time, the Board has reviewed more than 200 pieces of documentary information and heard from 18 witnesses. I have conducted a news conference attended by CTV, CP, Globe and Mail, Toronto Star, Southam and Daily News. Also in attendance from the UK were the BBC, Sky News, Herald, Daily Mail, Daily Record, Courier, Dundee Evening Telegraph, Scotsman, North Sound Radio and others. I met personally with journalists from CP, Globe and Mail, Toronto Star, Daily News, Sky News (live), as well as the CBC's Nancy Durham.
5. In accordance with QR & O 21.12(c), I have invited the attendance of the Saunders family representative who had in my view, a direct and substantive interest in the BOI because of the death of their family member.
6. A BOI is not a judicial or quasi-judicial proceeding, nor is it a public inquiry under the federal Inquiries Act. This is an internal Canadian Forces investigation by military members with appropriate technical expertise, directed to gather facts that determine the cause of fires, the death of a sailor, and other casualties.
Recommendations on how such incidents could be prevented in the future must also be made. All Board members have been carefully selected to provide a wide range of expertise to conduct a thorough analysis by understanding the environment in which submarines and submariners operate.
7. My mandate must be exercised within a very short time. Public access would cause delays as it would require me to take additional steps to ascertain when witnesses and information could be heard in the presence of the public. As I have indicated previously, I must be mindful of the release of information that could compromise privacy, security, operational and international relations requirements. To adopt an "open court" process to permit me to decide when information may be heard in public will alter the very nature of the fact-finding function of this BOI.
8. You have also requested the opportunity to attend a meeting of the BOI to make oral argument in support of your request. In light of the foregoing and having considered your written submissions, it is my view that oral arguments are not required." (Taken as Read)
The Applicants have filed Applications for a Judicial Review of that Decision.
It should be borne in mind that unless the Parties or the Court abridges the delays set out in Federal Court Rules 300 and following, rules designed to permit the Parties to gather their evidence, file Affidavits, be subjected to cross-examination, to file full Written Submissions and to present Oral Argument, several months will pass before the Judicial Review is heard on the merits.
ISSUE:
Consequently, what is actually before me is an Application for a Stay or an Injunction, however it is termed in the Applications, of the closed door proceedings pending that Judicial Review.
If a Stay is granted, the Inquiry will be shut down for some time -- unless, of course, Commodore Murphy changes his mind.
He does not have to change his mind. I am dismissing the Applications, whether they be termed "Stays" or "Injunctions", with costs.
ANALYSIS:
A Stay pending resolution of an underlying proceeding is akin to an interlocotory injunction.
A leading case is RJR MacDonald Inc. v Canada (Attorney General), 1994, 1 Supreme Court Reports, 311.
In order to succeed, the Media must establish, not one, not two, but all three of the following:
(a) there is a serious issue to be tried;
(b) they will suffer irreparable harm if the Stay is not granted; and
(c) the balance of convenience is in their favour.
Urgent Applications require rapid thought and rapid decisions. There is no time for serenity. Tonight, I must rely upon my judicial instinct, which tells me that the Press falls short on all three prongs of the test.
Serious Issue:
To my mind, there is a controlling case, Travers v. Canada (Chief of Defence Staff), 1993, 3 Federal Court, 528, maintained in Appeal at 1994 F.C.J. No. 932.
As I understand it, this Board of Inquiry, like that Board of Inquiry, under the same section of the Act, is a Board of Inquiry "for the purpose of investigating and reporting on" the matter at-hand.
The Applicants draw a distinction. They suggest that under the Terms of Inquiry, this particular Board exercises judicial or quasi-judicial functions.
I cannot agree. The Terms of Reference of the Board of Inquiry must be construed as being within the meaning of Section 45 of the Act.
The Board of Inquiry could have been open to the public or it could have been closed. Some discretion has been given to the President. The question on Judicial Review is whether or not his exercise of that discretion is reviewable.
Generally speaking, the exercise of discretion is subject to a reasonableness simpliciter standard of review. But even if the standard of review is correctness, in my opinion, Commodore Murphy was correct.
The evidence before me, in Affidavit form, shows that he has been very conscious of the balance he was called upon to strike. The fact that he permitted a family member of the deceased, Lieutenant Saunders, to attend does not open the "floodgates" and require that other persons be given that same right.
His discretion was not exhausted by his exercise in one instance.
By analogy, I refer to the Canadian Transportation Accident Investigation and Safety Board Act and the Transportation Safety Board Regulations issued thereunder.
Section 12 of the Regulations provides that the Board "investiate an accident without a public inquiry, unless it decides otherwise".
There is, I suggest, good reason for this. The prime interest here is that of public safety.
I am happy to adopt as my own the folllowing passage from a Paper by Jack Buchan, entitled "A review of Problems and Evidentiary Issues Arising for Marine Casualty Investigations", presented today to the Federal Court and the Federal Court of Appeal.
He said, with respect to safety, and I quote:
"The merits of investigating marine casualties with a view of determining the causes and contributing factors and making recommendations with respect to safety deficiencies to prevent further occurrences is beyond question. It appears to be the intention of the legislation to encourage witnesses to be open and frank in discussing marine casualties and for that purpose a comfort level has been created for witnesses such that statements they make should not have repercussions against them either in other civil, criminal or disciplinary proceedings, nor with respect to a relationship with employers, co-workers, nor their ability to seek employment. That is, their reputation should not be adversely affected due to the fact that they have been candid and forthright in assisting on the safety aspects of the investigation."
I emphasize that last sentence because the parallel between the Transportation Safety Board and this Board of Inquiry is not perfect, in that the Inquiry in fact is being carried out by the Employer.
Nevertheless, with strict rules not being obliged to be followed, there is an opportunity, behind closed doors, for someone to be candid, for someone to speculate, someone who would be under no obligation to do so if in the public eye.
As to "irreparable harm" and the "balance of convenience", in my opinion both favour the Minister.
It is not necessary to deal with this in great detail. As far as I am concerned, the operation of the Navy is at stake, and that has to take precedence over the Charter rights of the Press.
For these reasons, the Applications are dismissed, with costs.
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We will get that Decision and Reasons out to you as soon as we possibly can.
You will note that I haven't dealt with the Judical Review or in any way tried to dismiss the Judicial Review. That is there. You know what rights you have to bring on a Motion for an expedited Hearing, if you see fit so to do. That will be for another day.
That brings this Hearing to a close.
THE REGISTRAR: This Special Sitting of the Federal Court is now concluded.
--- The Court Closed
Certified Correct:
_______________________
Noel C. Keeley, C.S.R.