Date: 19980720
Docket: T-1313-98
BETWEEN:
CRAIG ELTON JONES, MARK BROOKS,
JAMIE DOUCETTE, ANNETTE MUTTRAY,
DENNIS PORTER and ANDREA ALISSA
WESTERGARD-THORPE
Applicants
- and -
RCMP PUBLIC COMPLAINTS COMMISSION,
ROYAL CANADIAN MOUNTED POLICE,
INSPECTOR DINGWALL, SUPERINTENDENT MAY,
SUPERINTENDENT THOMPSETT, STAFF SERGEANT PLANTE
and STAFF SERGEANT STEWART,
Respondents
REASONS FOR ORDER
REED, J.:
[1] This is an application for judicial review of a decision of the RCMP Public Complaints Commission ("Commission").1 The Commission refused to order the payment of funds to the applicants to allow them to be represented by counsel before the Commission, or to recommend to the federal government that such funding be provided.
[2] There is some urgency to this application because the hearings to which it relates are scheduled to begin on September 14, 1998. The pre-hearing procedures are already in progress. Reasons will therefore be brief.
[3] The conduct in relation to which the Commission's inquiry relates arose as a result of demonstrations on the University of British Columbia campus in opposition to the Asia Pacific Economic Co-operation (APEC) Conference on November 23 - 25, 1997. The applicants are all students without financial resources. They have all initiated civil proceedings against members of the R.C.M.P. for what they allege to have been improper conduct . The applicants are all complainants before the Commission with respect to that same conduct. They are not entitled, for the purposes of the Commission"s inquiry, to legal aid because of the narrow scope of coverage available under British Columbia's legal aid program. There were eight publicly funded counsel representing the respondents at the hearing before me. The R.C.M.P. and the individually named members of the force who are respondents all have publicly funded counsel representing them before the Commission. The Commission has publicly funded counsel to advise it.
[4] The applicants assert that denying them funding to pay counsel is essentially the denial of a right to counsel. They anticipate being required to testify and to undergo cross-examination by the lawyers representing the respondents . They assert that the imbalance that will exist will lead to an unfair hearing and potential damage to their reputations. They note that shortly after the events of 1997 the R.C.M.P. issued a press release that stated that the applicants were under investigation for "committing criminal offences" and had not been "engaged in a lawful protest". More recently an undertaking has apparently been given that no criminal charges will be laid.
[5] In their arguments to the Commission, the applicants initially appear to have focused on whether or not the Commission had authority to issue an order to provide funding for their legal representation. It seems reasonably clear that the Commission does not have such authority. This follows in large measure from the terms of subsection 45.45(13) of the Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10 ("the R.C.M.P. Act"). That subsection provides for payment by the Commission of certain expenses incurred by complainants in certain circumstances.2 The payment of legal fees to allow them to be represented by counsel before the Commission is not among these. The presence of authority to pay for some expenses with an absence of authority to pay for legal fees leads to the conclusion, by implication, the Commission does not have that authority to pay for the latter. The presence of authority to pay for some expenses with an absence of authority to pay for legal fees leads to the conclusion, by implication, that the Commission does not have that authority to pay for the latter. In addition, the authority to pay amounts from the public purse is not usually a power that exists unless expressly conferred.
[6] The material on the record discloses that the Commission explored the question of whether or not there might be a constitutional right to state-funded counsel that would take precedence over the provisions of the R.C.M.P. Act. No convincing argument could be made to that effect. Nor was a convincing argument made based on the interpretative provisions of the Canadian Bill of Rights. In any event, counsel for the applicants no longer press the claim that the Commission issue an order providing funding.
[7] There is considerable support for the proposition, however, that without state-funded legal representation the complainants/applicants will be at a great disadvantage - there will not be a level playing field. Reference was made to part of an opinion the Commission had received from Professor Ratushny in which he noted that the "Commission has acknowledged publicly, the potential unfairness of a complainant not being represented by counsel at a hearing".
[8] Reference was made to the Commission's 1990-91 Annual Report, at page 70, where it stated:
| At hearings there has been a problem with ensuring that, in the interests of fairness, complainants be able to have legal representation in appropriate cases. The RCMP as a whole will be represented by Justice lawyers, and the individual members involved may be represented, also at public expense, either by Justice lawyers or by lawyers from the private bar. |
[9] A reference was also made to the Ward Report in which the Commission made arrangements for funds to be provided so that a complainant might be represented by counsel:
| Where a complainant will be giving testimony or providing other evidence, and particularly where there may be other legal proceedings arising from the subject matter of the complaint, which involve the complainant as a witness or as a party, the complainant may benefit from the assistance of legal counsel ... where these circumstances have arisen, and the complainant could not afford counsel, arrangements have been made to compensate the counsel retained by the complainant. |
| Chairman's Final Report Following a Public Hearing, April 26, 1994, Complainant: Cameron Ward (the "Ward Report"), p. 6. |
[10] The applicants argued, as an alternative before the Commission, that at the very least it should make a recommendation to the federal government that the government arrange for funding for the applicants. The Commission refused to do so. The Commission gave two reasons for its refusal:
| 1. The Commission's duty of impartiality would be compromised by advocating for a benefit in favour of only one of the parties appearing before it, i.e., the complainants; and |
| 2. Submissions by the Commission to the Federal Government for the funding requested would intrude on the exclusive power of Parliament to legislate the entitlement which is sought. |
[11] Counsel for the R.C.M.P. argues that the applicants are trying to use the Commission for political (small "p") ends. For example, they ask that the Commission write a public letter recommending funding by the federal government. They assert that if the funding is not forthcoming the panel "would have no choice but to resign, or stay the hearing, or prohibit the presence of any lawyers at the hearing ..." (emphasis added). One has to acknowledge that there is a public relations strategy to the applicants" approach. Nevertheless, the question before me is whether or not the Commission unduly limited the scope of its options with respect to the applicants' motion because it operated on a misunderstanding of the relevant law.
[12] With respect to the first ground on which the Commission based its decision, the conclusion is inaccurate. The Commission would not compromise its impartiality by making a recommendation to the federal government that the applicants be provided with funding. The other side is already fully funded by the federal government. Thus, recommending that funding for the applicants be arranged could not be characterized as advocating a benefit in favour of only one of the parties. In addition, as counsel for the applicants argues, if this was a serious concern, all the Commission need do is make a recommendation that all parties be so funded. The recommendation would be neutral although unnecessary insofar as the respondents are concerned.
[13] With respect to the assertion that a recommendation would intrude on Parliament's exclusive power to legislate, this also is incorrect. In the first place, the Commission would only be making a recommendation, so that "intrusion" is not an accurate description. In the second place, the recommendation would be made to the executive branch of government, not Parliament. There would be no intrusion on Parliament"s authority by seeking such funding.
[14] The reasons given by the Commission for its decision demonstrate that the Commission was operating on misunderstandings of the law. Neither of the reasons given by the Commission is sound in law and none of the counsel before me seriously sought to defend them.
[15] Counsel for the R.C.M.P. argues that whether or not the Commission proceeded on an incorrect understanding of the legal consequences that would follow from the making of a recommendation is irrelevant because the Commission, in any event, does not have authority to make a recommendation of the type contemplated. This argument is based on the fact that the Commission has not been given, in its constituent statute, any authority to make such recommendations. It is argued that because there is no express provision granting the Commission authority to recommend that the government provide funding, Parliament considered that option and decided not to grant such authority to the Commission.
[16] I am not persuaded that such an inference can be drawn. I am prepared to accept that Parliament did not intend to confer on the Commission authority to directly pay legal costs itself. The legislation in subsection 45.45(13) specifically describes when payments by the Commission may be made. I am not prepared to accept an inference that Parliament intended to preclude the Commission, however, making recommendations that funds be provided for the legal representation of complainants before it. This is not much different from a request for funds for purposes in addition to those that form part of its usual budget. Counsel for the applicants characterize what they seek as nothing more than the writing of a letter by the Commission. There is no reference in the statute at all to the writing of letters to make such recommendations or requests. The inference that arises is that Parliament simply did not deal with that matter. I could not conclude that Parliament considered and made a decision to preclude the Commission from taking such action of it wished to do so.
[17] It is not unreasonable to recognize that Commissions and other tribunals are likely to face demands for expenditures as a result of unanticipated circumstances and seek additional financial resource allocations from time to time. As counsel for the applicants argue, how these requests are dealt with and whether there are any funds that could be allocated are not matters that they can be expected to address. But this does not, however, preclude the Commission making a recommendation if it so wishes. In addition, while the exact mechanism by which funding might be provided is not something to which the applicants are privy, they note that at least one piece of internal legal advice to the Commission mentions the possibility of ex gratia payments.
[18] Counsel for the applicants argues that the inquiry before the Commission is a very special circumstance: it is expected to be unusually long - six weeks (if the hearing were only for one or two days counsel could appear on a pro bono basis); the amount of evidence, including testimony and documents, that is expected to become part of the record will be very difficult for unrepresented complainants to deal with; the proceedings will be complex involving, for example, issues relating to the disclosure of classified government documents; there are parallel civil proceedings pending to which the applicants are parties; the issue at stake is of fundamental public importance addressing as it does the boundary between freedom of expression and police security for representatives of foreign governments.
[19] The Commission has an obligation under subsection 45.45(5) to ensure that "the parties [which includes a complainant] and any other person" are afforded "a full and ample opportunity" to present evidence, to cross-examine witnesses and to make representations. If the Commission considers that for the purposes of the present inquiry, "a full and ample opportunity" can best be achieved by the complainants having counsel, then it is open to the Commission to recommend that the state fund counsel. If the Commission wishes to do so in a public as opposed to a private manner, that is also within the Commission"s discretion.
[20] Another argument made by counsel for the R.C.M.P., as support for the proposition that the Commission lacks authority to make a recommendation of the type in question, is based on the nature of the inquiry proceedings. It is argued that: the proceedings are not adversarial in nature; the complainants initiate the process but then have no direct interest that is affected thereby; the named R.C.M.P. members are the ones who are at risk; the Commission counsel presents the evidence to the Commission, essentially acting as a prosecutor.
[21] I do not find that description to be complete. While the complainant may initiate the proceeding, he or she, in a case such as the present, acts as a representative of the public interest - the public interest in ensuring that the police do not overstep the bounds of what is proper conduct. The public interest is as important as the R.C.M.P. members" private interests in their jobs and reputations. While the proceedings are theoretically not adversarial, there is much about them that engenders all the trappings of such a process, e.g., the right of all to cross-examine, the definition of complainants as "parties", the fact that the Commission cannot ban all lawyers from the room (one of the applicants' suggestions) or prevent cross-examination of the witnesses (another of the applicants' suggestions). With respect to the role of Commission counsel, Professor Ratushny's description of the limitations that exist is instructive:
| Mr. Whitehall expressed the view that the role of Commission counsel is not as restricted as had been suggested. He also pointed out that there was nothing wrong with Commission members cross-examining witnesses. While that may be legally correct, aggressive questioning by Panel members may seriously detract from the perception of impartiality of the Panel and the credibility of its subsequent recommendations. Similarly, Commission counsel is an extension of the Panel and must avoid the perception of favouring some parties over others. It is true that an inquiry is not, essentially, adversary [sic]. But there are occasions during inquiries when aggressive cross-examination of witnesses or protection of witnesses from overly aggressive cross-examination must be undertaken by Commission counsel. |
| It is difficult to maintain a perception of impartiality when taking on an adversarial role in public and then meeting in private with the Panel to discuss the proceedings. This is an inherent dilemma for Commission counsel where there is a dual role of presenting the evidence and advising the Panel. The example provided by Mr. Arvay at page 219 with respect to the Securities Commission is preferable. Counsel who presents the case to the Panel acts at arm's length from the Panel, which may draw upon its own counsel for advice as may be required. Similarly, counsel for some human rights commissions have the statutory responsibility for "carriage of the complaint" before a tribunal panel. |
[22] The inquiry is public; it has many of the trappings of an adversarial proceeding; the Commission cannot turn it into a purely investigative type of proceeding; the Commission cannot prevent the presence of counsel acting on behalf of individuals who appear before the Commission; it cannot prevent the cross-examination of witnesses. I am not persuaded that the nature of the proceeding leads to a conclusion that independent legal representation of the complainants is a matter about which the Commission should not be concerned.
[23] Another argument to be addressed is what I will call the floodgates argument. There are many students who are likely to be called as witnesses. The argument is made that if funding is provided for the six students who seek to be represented by Messrs. Arvay and Nader, then, such funding should equally be provided for the counsel of choice of the 50 others who have not yet asked. This kind of argument is often referred to as an in terrorem argument. This is not a persuasive argument.
[24] There is not an automatic right to counsel of choice and the Commission has authority to prevent duplication of representation and argument. Funding could be provided, for example, to Messrs. Arvay and Nader on condition that they also represent other students who might wish to be represented. The fees to be paid can be established beforehand at a fixed amount per day of hearing plus disbursements, disbursements and fees to be approved by Commission counsel. I note, in this regard, that one of the attractive features of Professor Ratushny's suggestion that independent Commission counsel be appointed to act as advocate for all the complainants avoids many of these administrative questions. But that suggestion is not an option that is presently before me.
[25] The consideration that I would think would be crucial for the Commission is whether legal representation of the complainants would improve the quality of the proceedings before it. My observation is that when decision-makers have before them one party who is represented by conscientious, experienced and highly competent counsel, a description that we all know from experience applies to Mr. Whitehall, they prefer that the opposite party be on a similar footing. They prefer that one party not be unrepresented. An equality in representation usually makes for easier and better decision-making.
[26] That leaves for consideration the appropriate remedy. The notice of motion seeks an order of certiorari quashing the decision not to make a recommendation that funding be provided and an order of mandamus requiring the Commission to make such a recommendation. The applicants in their Memorandum of Fact and Law expanded the request to seek also a declaration that the Commission has "legal authority to request the Federal Government to provide funding for counsel for the Complainants".
[27] I have not been persuaded that mandamus is an appropriate remedy. While the Commission has authority to make a recommendation, there is no duty on it to do so. This is a matter within its complete discretion as is the manner in which any such request might be made. The factors that are relevant are better known to the Commission than to this Court. The most appropriate order is to quash the decision under review because it was based on erroneous propositions of law and to issue a declaration that the Commission has the authority to make a recommendation that funding be provided if it wishes to do so.
[28] An order in accordance with these reasons has issued.
Judge
OTTAWA, ONTARIO
July 20, 1998
__________________1 See Royal Canadian Mounted Police Act , R.S.C. 1985, c. R-10, s. 49.29 et seq.
2 45.45(13) Where the Commission sits at a place in Canada that is not the ordinary place of residence of the member or other person whose conduct is the subject-matter of the complaint, of the complainant or of the counsel of that member or other person or that complainant, that member or other person, complainant or counsel is entitled, in the discretion of the Commission, to receive such travel and living expenses incurred by the member or other person, complainant or counsel in appearing before the Commission as may be fixed by the Treasury Board.