Date: 19990401
OTTAWA, ONTARIO, THIS 1st DAY OF APRIL 1999
PRESENT: THE HONOURABLE MR. JUSTICE McKEOWN
DES-2-99
BETWEEN:
JAGGI SINGH
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
DES-3-99
BETWEEN:
JONATHAN OPPENHEIM & MEGAN HUNTER
Applicants
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
DES-4-99
BETWEEN:
ALISSA WESTERGARD-THORPE, ANNETTE MURRAY,
JAMIE DOUCETTE, MARK BROOKS, DENIS PORTER,
DEKE SAMCHOK & CRAIG ELTON JONES
Applicants
- and -
THE ATTORNEY GENERAL OF CANADA,
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
Respondent
DES-5-99
BETWEEN:
BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIATION
Applicants
- and -
THE ATTORNEY GENERAL OF CANADA,
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
The RCMP Public Complaints Commission (the "Commission") seeks leave to intervene in the application under ss. 37 and 38 of the Canada Evidence Act . Pursuant to my Order of March 9, 1999, this motion was to be decided on the basis of written representations. I received written representations from the Commission, the Attorney General of Canada and Mr. Singh.
In my view, it is a proper part of the role and mandate of the Commission to intervene in this matter. The Commission"s impartiality would not be compromised by taking an active role in the determination of public interest immunity claims under the Canada Evidence Act . Participation by the Commission would be consistent with its investigatory function which would assist the Court in properly balancing the competing public interests under ss. 37, 38 and 39 of the Canada Evidence Act, to the extent that such views are not put forward by any of the other parties to the application.
In applying for participation in the determination under ss. 37, 38 and 39 of the Canada Evidence Act, the Commission is in effect seeking an evidentiary ruling with respect to a matter that the Commission itself is specifically precluded from ruling upon. The Commission must seek such determination from an independent authority to properly administer its process in accordance with s. 45.44(8) of the RCMP Act.
In my view, the circumstances in this case are different from those in Rankin (Re), [1991] 1 FC 226 (F.C.T.D.) and affirmed [1992] F.C.J. No. 502 (F.C.A.).
I am not in agreement with the Attorney General of Canada that the Commission should be granted full rights of participation.
ORDER
The Commission is granted leave to intervene and to address the following issues to the extent that its submissions are non repetitive and in the manner set out hereinafter:
| A. the constitutional isues with respect to ss. 38 and 39 of the Canada Evidence Act; |
| B. the waiver of the privilege provided under ss. 37, 38 and 39 of the Canada Evidence Act; |
| C. the two-stage process of determination under ss. 37 and 38 and whether the Court should proceed to examine the documents under the second stage; |
| D. the public interest favouring disclosure; |
| E. any issue which might arise concerning or affecting the jurisdiction of the Commission; and |
| F. any matter concerning the record before the Commission in respect of which the Commission may assist the Court. |
In particular, with respect to the above issues, the Commission shall be permitted to adduce factual evidence, provided that it demonstrates to the satisfaction of the Court that such evidence is relevant and within the scope of its intervention and is not repetitive. The Commission shall be permitted to cross-examine witnesses on affidavits after the parties have conducted their cross-examination, provided that the proposed cross-examination shall be within the scope of the Commission"s intervention and non repetitive. The Commission may attend and make non-repetitive arguments on matters within the scope of their intervention at all pre-hearing conferences, motions and at all hearings.
William P. McKeown
JUDGE