Date: 19980911
Docket: T-1750-98
BETWEEN:
ANNETTE MUTTRAY, JAMIE DOUCETTE, MARK BROOKS,
DENNIS PORTER, ALISSAS WESTERGARD-THORPE,
AARON-KENDRICK MAUSER, ELISE THORBURN,
DUSTIN PIRILLO, An Infant, by his Guardian Ad Litem
SHERI ASH, MARK BROOKS, TRACIE PARK, STEPHANIE PHILLIPS,
CHRISTINA McCARTHY, DENNIS PORTER, FINDLAY HILL,
RYAN MIJKER, ANDREW ROBERTSON, JOHN HUGHES,
SABRINA BONFONTI, FRANK TESTER, ERIN KAISER,
GARTH MULLINS, LINDSAY DAVIS, ANNA LEWIS, JAIME SALAS,
ANDREA NEYEDLI, MATTHEW LAW, JOHN IRWIN and
ELIZABETH ORMOND GRAYER, An Infant, by her Guardian Ad Litem
INESSA ORMOND
Applicants
- and -
ROYAL CANADIAN MOUNTED POLICE
PUBLIC COMPLAINTS COMMISSION,
ATTORNEY GENERAL OF CANADA, SOLICITOR GENERAL OF CANADA,
HER MAJESTY IN RIGHT OF CANADA, HUGH STEWART, WILLIAM
DINGWALL and APPROXIMATELY TWO THOUSAND MEMBERS OF
THE ROYAL CANADIAN MOUNTED POLICE
Respondents
REASONS FOR ORDER
(Given at a telephone conference held at Ottawa, Ontario,
and Vancouver, British Columbia, on Thursday, September 10, 1998.)
HUGESSEN, J.:
[1] The applicants apply for interim relief to suspend the hearing of the Royal Canadian Mounted Police Public Complaints Commission which is scheduled to begin next Monday, September 14, and is anticipated to last, at least for the first part, if not more, for some six weeks. The Commission is inquiring into the events which took place at the APEC Summit which was held in Vancouver in November of last year.
[2] The applicants have brought an application for judicial review but, in addition to their application for interim relief which is before me now, they have also asked that I should immediately undertake the judicial review of a decision made by the Commission on September 3rd last by which the Commission refused an adjournment request made by the applicants. I did not call upon counsel for the respondents to respond to that aspect of the applicants' present motion because, in my view, it was indistinguishable from their application for interim relief and falls to be governed by the same rules. Those rules which I now apply are the well-known three-part test which was laid down by the Supreme Court of Canada and most recently restated in the case of R.J.R. MacDonald Limited v. Canada, [1994] 1 S.C.R. 312.
[3] The applicants include five of some forty-nine complainants whose complaints gave rise to the holding of the inquiry which they now seek to suspend. I note that the other complainants have not made a similar request to the Court. It is important to bear in mind the function of the Royal Canadian Mounted Police Public Complaints Commission. Its sole role, as I understand it from the legislation, is to inquire into complaints of misconduct by members of the R.C.M.P. and to report thereon to the Commissioner. Its decisions are not executory decisions and they are not judgments of a Court of law. They do not, in my view, have the force of law. They are simply recommendations.
[4] I am prepared, for present purposes today, to assume without deciding that the applicants have raised a serious question to be decided. The bar is set very low in the first branch of the three-part test and I would be very reluctant to dismiss an application for interim relief solely on that basis although I do not exclude the possibility of doing so. I assume, as I say, without deciding that there is a serious question raised, although I cannot help but noticing that the principal argument advanced by counsel for the applicants in support of his serious question, namely the argument that the Commission suffers from an institutional bias, is one that has been both known and knowable for many many months and it comes very late in the game to apply today for relief based upon that ground.
[5] On the issue of irreparable harm, the Commission can make no findings against the applicants. The Commission can make no recommendation which will affect the applicants' rights. Counsel suggested, however, that the applicants would suffer harm by being made to appear and to testify and to undergo cross-examination, perhaps, without the assistance of counsel, at a public hearing. In my view, that cannot be irreparable harm in law.
[6] The duty to appear and testify before a public inquiry is one which may be cast upon any citizen and so long as the witness tells the truth, he or she has nothing to fear. I note that the applicants, none of them, have been prosecuted with respect to the events of last November. Their evidence before the Commission cannot, of course, be used against them and it is, in any event, now too late to bring charges against them for any of the summary conviction offences with which they might conceivably have been charged.
[7] I turn to the question of balance of convenience and to the assessment of possible harm to other persons in the event that the requested interim relief were granted. At this point I must mention the powerful submission that was made by Mr. MacIntosh who acts for some thirty-nine, if I heard him correctly, of the members of the R.C.M.P. whose conduct is the subject matter of the inquiry which is to begin next Monday. Those people are the only people who really stand to suffer any serious harm from an adverse report by the Commission. They have a very strong interest indeed in the Commission doing its work. The events took place last November. It is important that charges or suggestions or innuendos about their conduct, which are unfavourable to them and may impact upon their professional careers, should be aired and explored and disposed of as soon as possible. The suspension of the hearing would cause harm to those people.
[8] There is also a question of harm to the public interest. The events at the APEC Summit last November caused a great deal of public concern and that concern still manifests itself today in the media. It is in the public interest that a public inquiry into those events should take place. Indeed, the applicants themselves are amongst those who are responsible for the fact that the public inquiry is to take place next Monday. It seems to me to be unjust and improper that they should now attempt to bootleg the process which they have themselves started and to bring it to a halt when it is at the very point of bearing fruit.
[9] I conclude therefore that the balance of convenience clearly favours the refusal of the interim relief. Accordingly, the application for interim relief will be dismissed and the order which I am now about to sign reads "the application for interim relief is dismissed".
Judge
Ottawa, Ontario
September 11, 1998