2011 FC 1099, 2011 FC 1099

[2013] 3 F.C.R. 146 T-846-10 2011 FC 1099 Lieutenant-Colonel (Ret’

d) W. H. Garrick, Major J. P. P. Kirschner, Major B. Hudson, Major J. T. M. Zybala, Major R. R. Gribble, Chief Warrant Officer B. Watson, Master Warrant Officer (Ret’

d) J. Y. Girard, Brigadier-General J. A. V. R. Blanchette and the Attorney General of Canada ( Applicants ) v. Amnesty International Canada and British Columbia Civil Liberties Association ( Respondents ) and The Military Police Complaints Commission ( Intervener ) Indexed as: Garrick v. Amnesty International Canada Federal Court, de Montigny J.—Ottawa, March 28, 29 and September 29, 2011. Armed Forces — C onsolidated judicial reviews challenging interlocutory decisions of Military Police Complaints Commission (MPCC) made during public interest hearing held under National Defence Act,

Part IV — Hearing aimed at examining respondents’ complaint alleging military police members’ failure to investigate potential wrongdoing by Canadian Forces officers who directed transfer of detainees to Afghan authorities — First application challenging summons issued by MPCC for production of certain documents; second application alleging MPCC’s refusal to hear motion on ruling on standard against which applicants’ professional conduct will be assessed; third application contesting ruling MPCC issuing on standard — Respondents making two complaints regarding military police — On judicial review, Federal Court quashing respondents’ first complaint but upholding MPCC’s jurisdiction to inquire into second complaint regarding failure to investigate but solely on basis of what military police subjects of complaint knew or had “means of knowing” — MPCC issuing two rulings in response to applicants’ motions on how MPCC would interpret “means of knowing” standard — Whether Federal Court should exercise discretion to consider applications pertaining to MPCC’s interlocutory decisions or dismiss as premature; if Federal Court intervening, whether MPCC erring in law by failing to articulate standard by which would assess applicants’ conduct before calling witnesses — MPCC’s alleged lack of jurisdiction regarding “means of knowing” standard not demonstrated beyond reasonable doubt — Act not delineating precisely MPCC’s jurisdiction regarding conduct complaint; not providing clear answer as to circumstances that should prompt military police officer to investigate — “Means of knowing” standard not well-defined, not referring to shared understanding of parameters in context of Canadian criminal or military law — MPCC careful not to bind itself to any particular understanding of “means of knowing” standard — Applications premature, waste of judicial resources since content of MPCC’s final report unknown — If dissatisfied with inquiry’s result, applicants entitled to challenge final report by judicial review — As external oversight body, MPCC must be left with discretion to determine for itself what military police officers subject of inquiry knowing or had means of knowing — To fulfill mandate, MPCC must be left with room to manoeuvre, to determine for itself what is or not relevant — Would be premature for Federal Court to declare standard according to which determination must be made as to what applicants had means of knowing — Since applicants’ applications premature, no need to address issue of whether MPCC erring in law by failing to articulate “means of knowing” standard — Military police officers subject of inquiry knowing enough about particulars of complaint, allegations, legal principles to be applied to make their case, to respond fully — Applications dismissed.

Armed Forces — Investigations — Evidence — Summons Military Police Complaints Commission (MPCC) issuing to government officials to compel production of documents challenged by judicial review — Document disclosure fundamental to MPCC’s ability to discharge mandate, conduct full investigation into complaint — Reason why National Defense Act, s. 250.41(1)(

a) granting MPCC power to require production of documents considered necessary to full, independent investigation — Thus, MPCC authorized by statute to make decision thereon — Should not have to rely on selected documents provided on basis of opaque screening process conducted in- house by government officials — Therefore, MPCC not exceeding jurisdiction when issuing summons for production of documents relating to screening process, guidelines applied by government departments in response to previous summons — Relief applicants seeking in relation to summons premature.

Administrative Law — Practice — Judgments and orders — Interlocutory decisions — Consolidated j udicial reviews challenging interlocutory decisions of Military Police Complaints Commission (MPCC) made during public interest hearing held under National Defence Act,

Part IV — Interlocutory decisions of administrative bodies not subject to judicial review until final decision issued — Applicants’ first application for judicial review clearly moot since applicants’ motion ultimately heard, decided before application for judicial review could be determined — Absent exceptional circumstances, courts not interfering with ongoing administrative processes until running their course — Applicants’ argument that interlocutory decisions challenged herein raising exceptional circumstances rejected — Allegation that commission or tribunal exceeding jurisdiction in rendering interlocutory decision not sufficient for intervention.

These were three consolidated applications for judicial review challenging interlocutory decisions of the Military Police Complaints Commission (MPCC) made in the course of a public interest hearing held under

Part IV of the National Defence Act . The hearing is to examine a complaint made by the respondents back in June 2008 alleging that military police members had failed in their duty to investigate potential wrongdoing by Canadian Forces officers who directed the transfer of detainees to Afghan authorities. The first judicial review application challenged the summons issued proprio motu by the MPCC to one of the applicants directing the production of a number of documents.

The second application alleged the MPCC’s refusal to hear a motion made by the applicants at the early stage of the hearing seeking a ruling on the standard against which their professional conduct will be assessed. The third application contested the ruling eventually made by the MPCC on that standard. The MPCC is an investigative body established pursuant to

Part IV of the Act to provide oversight and greater accountability on the part

of the Canadian Forces’ Military Police. It was vested with the power and responsibility to examine complaints about the conduct of military police members in the exercise of their policing duties and functions. To carry out this mandate, the Chair of the MPCC has the power to investigate complaints, convene public hearings, render findings and make recommendations based on those findings. The respondents have, through various proceedings, challenged matters affecting the issue of the transfer of detainees by Canada to Afghan authorities.

The respondents first called into question the legality of the policy of the Government of Canada to transfer to Afghan authorities the detainees captured by the Canadian Forces operating in Afghanistan but this challenge proved unsuccessful. They also disputed the legality of the implementation of this policy by filing two conduct complaints with the MPCC. The first complaint (detainee complaint) related to the involvement of the military police in the actual transfer of detainees to Afghan authorities and the MPCC later decided to hold a public interest hearing into that complaint.

The respondents filed a second conduct complaint (failure to investigate complaint) alleging, in particular, that military police members had failed in their duty to investigate potential wrongdoing by Canadian Forces officers who directed the transfer of detainees to Afghan authorities. The MPCC decided to conduct a public interest hearing into the failure to investigate complaints under

Part IV of the Act . The MPCC’s jurisdiction to inquire into the respondents’ complaints was challenged by judicial review. The respondents’ first complaint was quashed by the Federal Court since the handling of detainees was not a policing function per se and therefore the MPCC could not examine the duties of the military police in that regard. However, the MPCC’s jurisdiction to inquire into the failure to investigate complaint was upheld but only on the basis of what the military police subjects of the complaint knew or had the “means of knowing”.

When the public hearings commenced, the MPCC issued summons to government officials to compel production of documents. By way of judicial review, the applicants sought to have the summons set aside. Shortly after the Federal Court’s ruling, the applicants brought two motions to the MPCC for a determination on how the MPCC would interpret the Federal Court’s expression “means of knowing” since they claimed that they were entitled to know the case they had to meet.

The MPCC issued two rulings in response to the motions but the applicants contended that they were no further ahead in knowing the case they had to meet as a result of the last decision. Therefore, they brought a third application for judicial review.

The issues were whether the Federal Court should exercise its discretion to consider the applications pertaining to interlocutory decisions made by the MPCC in the course of its investigation or dismiss them as premature and, to the extent that the Federal Court were to intervene, whether it can be said that the MPCC erred in law by failing to articulate the standard by which it will assess the applicants’ conduct before calling witnesses. Held , the applications should be dismissed. Interlocutory decisions of administrative bodies are not subject to judicial review until a final decision is issued.

As to the applicants’ first application for judicial review, it was clearly moot since the applicants’ motion was ultimately heard and decided before the application for judicial review could be determined. Therefore, nothing more needed to be said concerning this first application. Courts will not interfere with ongoing administrative processes until they have run their course, absent exceptional circumstances. The applicants’ argument that the interlocutory decisions challenged herein raised exceptional circumstances was not accepted.

Case law shows that the “exceptional circumstances” allowing the courts to intervene and to review interlocutory decisions have been quite narrowly defined. While exceptional circumstances may not be exhaustively defined, courts have held that such will exist when the impugned decision is dispositive of a substantive right of a party, raises a constitutional issue or goes to the legality of the tribunal itself. An allegation that a commission or tribunal has somehow exceeded its jurisdiction in the course of rendering an interlocutory decision will not be sufficient.

As to the “means of knowing standard”, this was not a case where the alleged lack of jurisdiction was demonstrated beyond any reasonable doubt. Moreover, the Act itself does not delineate with precision the MPCC’s jurisdiction with respect to a conduct complaint and certainly does not provide a clear answer as to the circumstances that should prompt a military police officer to investigate. It is therefore much more difficult to demonstrate with reasonable certainty that the MPCC not only erred in crafting such a standard but exceeded its jurisdiction.

Nor did the MPCC contravene the Federal Court decision since the decision simply stressed that the MPCC could not use its limited jurisdiction as a springboard to investigate government policy at large. As well, it cannot be said that the “means of knowing” standard carries a well-defined meaning and refers to a shared understanding of its parameters, at least in the context of Canadian criminal or military law. Moreover, the MPCC was very careful not to bind itself to any particular understanding of the “means of knowing” standard.

While it rejected the “effective control” test on the basis that it is without support in the case law, the MPCC went no further than accepting what both parties had previously agreed upon, that is, that the “means of knowing” standard captures “information which a reasonable military police officer would have obtained by making reasonable inquiries. It added that a determination as to whether a military police officer acted reasonably is obviously an issue that cannot be decided in the abstract because it heavily depends on the evidence.

The MPCC did not overstep its mandate and go beyond its jurisdiction in addressing the applicants’ complaint regarding the “means of knowing” standard. It could not be speculated what the MPCC would say in its final report, which is why the applications were premature and a waste of judicial resources. It would be premature for the Federal Court to articulate the standard of conduct applicable to the complaint of failure to investigate. It did not have the benefit of either the MPCC’s knowledge of the complaint, of the proceedings or evidence.

Making a ruling in a factual vacuum and looking over the shoulders of an administrative tribunal carrying out its mandate would be at odds with fundamental principles of administrative law. The Federal Court would be in a much better position to intervene, if required, once the MPCC has made its own findings on the basis of all the evidence. In the absence of a compelling demonstration that the MPCC exceeded its jurisdiction, it must be allowed to complete its final report before an application for judicial review could be entertained.

The argument that the MPCC attempted to investigate beyond the conduct of military police officers and into government policy, as evidenced in its treatment of witnesses and in the nature of the documents sought, was examined. The MPCC, as an external oversight body, must be left with the discretion to determine for itself, as a result of its investigation, what the military police officers that are the subject of its inquiry know or had the means of knowing.

To fulfill its mandate, the MPCC ought to be left with some room to manoeuvre and be given the latitude to determine for itself what is relevant and what is not. It would be premature for the Federal Court to declare

the standard according to which a determination must be made as to what the applicants had the means of knowing. Although inferior bodies, such as the MPCC, have no common law power to compel the production of evidence, either testimonial ordocumentary, document disclosure is fundamental to the MPCC’s ability to discharge its mandate and conduct a full, independentinvestigation into the complaint. That is precisely why paragraph 250.41(

a) of the Act grants the MPCC the power to require theproduction of documents that it considers necessary to a full investigation. That is a decision that the MPCC is authorized by statute tomake based on its assessment of the needs of its investigative effort. It is the MPCC’s responsibility to make its own independent decision as to what documents it considers necessary for a full investigationof the complaint. It should not have to rely on selected documents provided on the basis of an opaque screening process conducted in-house by government officials.

Section 250.41 of the Act must be broad enough to allow the MPCC to inquire into the screening processand the guidelines used by the government in response to its summons for documents when it appears that one of the impediments to afull investigation is the lack of production of information. If the MPCC does not have full access to relevant documents, which are thelifeblood of an inquiry, there cannot be a full and independent investigation.

Therefore, the MPCC did not clearly exceed its jurisdictionwhen it issued a summons for the production of documents relating to the screening process and the guidelines applied by governmentdepartments in response to its previous summons. Consequently, the relief sought by the applicants in relation to the summons wassimilarly dismissed as being premature. Given the conclusion that the applicants’ applications were premature, there was no need to address the second issue as to whether theMPCC erred in law by failing to articulate the “means of knowing” standard. Nevertheless, a few comments were made.

The applicantswere not denied the right to make full answer and defence guaranteed by paragraph 250.44(

a) of the Act. A commission of inquiry is nota criminal court and the task of the MPCC is not to determine guilt or innocence but to make a report setting out its findings andrecommendations with respect to the complaint. Also, there is a limit how far down the road a commission should go in completelyarticulating the legal standards according to which it will make its findings. In the case at bar, the commission did provide some insightsas to how it purported to apply the “means of knowing” standard of conduct.

Finally, the military police officers who are the subject ofthe inquiry know enough about the particulars of the complaint and the substance of the allegations, as well as the applicable legalprinciples to be applied, to make their case and to respond fully. They have been afforded all the rights provided for by

section 250.44 ofthe Act, and if ever they are dissatisfied with the inquiry’s result and final report, they will be entitled to challenge the final report byway of judicial review. STATUTES AND REGULATIONS CITED Access to Information Act, R.S.C., 1985, c. A-1. Canada Evidence Act, R.S.C., 1985, c. C-5, ss. 38–38.16 (as enacted by S.C. 2001, c. 41, ss. 43, 141). 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]. Criminal Code, R.S.C., 1985, c. C-46. Federal Courts Rules, SOR/98-106, r. 1 (as am. by SOR/2004-283, s. 2), Tariff B, Column IV. Military Police Professional Code of Conduct, SOR/2000-14. National Defence Act, R.S.C., 1985, c. N-5, ss. 118(2)(c) (as am. by S.C. 1998, c. 35, s. 32), 124,

Part III (as enacted idem, s. 18),

Part IV(as enacted idem, s. 82), 302 (as am. idem, s. 90). Privacy Act, R.S.C., 1985, c. P-21, ss. 8(1),(2) (as am. by S.C. 2004, c. 11, s. 37; 2006, c. 10, s. 33). Queen’s Regulations and Orders for the Canadian Forces, Vol. II, c. 106, art. 106.02(1), online: <http://www.admfincs-smafinsm.forces.gc.ca/qro-orf/index-eng.asp>. Rules of Procedure for Hearings Before the Military Police Complaints Commission, SOR/2002-241, s. 7. CASES CITED applied: Zündel v. Canada (Human Rights Commission), (FCA), [2000] 4 F.C. 255, (2000), 25 Admin. L.R. (3d) 135, 256N.R. 125 (C.A.); C.B. Powell Limited v.

Canada (Border Services Agency), 2010 FCA 61, [2011] 2 F.C.R. 332, 400 N.R. 367. distinguished: Attorney General (Que.) and Keable v. Attorney General (Can.) et al., (SCC), [1979] 1 S.C.R. 218, (1978), 90 D.L.R.(3d) 161, 43 C.C.C. (2d) 49; Re Nelles et al. and Grange et al. (1984), (ON CA), 46 O.R. (2d) 210, 9 D.L.R. (4th) 79,42 C.P.C. 109 (C.A.); Starr v. Houlden, (SCC), [1990] 1 S.C.R. 1366, (1990), 68 D.L.R. (4th) 641, 55 C.C.C. (3d) 472. considered: Canada (Attorney General) v. Amnesty International Canada, 2009 FC 918, [2010] 4 F.C.R. 182; Canada (Attorney General) v.

Canada(Commissioner of the Inquiry on the Blood System), (FCA), [1997] 2 F.C. 36, (1997), 142 D.L.R. (4th) 237, 207 N.R.1 (C.A.), affd (SCC), [1997] 3 S.C.R. 440, (1997), 151 D.L.R. (4th) 1, 48 Admin. L.R. (2d) 1. referred to:

Amnesty International Canada v. Canada (Chief of the Defence Staff), 2007 FC 1147, 287 D.L.R. (4th) 35, 73 Admin. L.R. (4th) 206,162 C.R.R. (2d) 308; Amnesty International Canada v. Canada (Chief of the Defence Staff), 2008 FC 162, 79 Admin. L.R. (4th) 91, 320F.T.R. 300; Amnesty International Canada v. Canada (Chief of the Defence Staff), 2008 FC 336, [2008] 4 F.C.R. 546, 292 D.L.R. (4th)127, 81 Admin. L.R. (4th) 190, affd 2008 FCA 401, [2009] 4 F.C.R. 149, 305 D.L.R. (4th) 741, 182 C.R.R. (2d) 203, leave to appeal toS.C.C. refused, [2009] 1 S.C.R. v; Hill v.

Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129, 285D.L.R. (4th) 620, 64 Admin. L.R. (4th) 163; Szczecka v. Canada (Minister of Employment and Immigration) (1993), (FCA), 116 D.L.R. (4th) 333, 25 Imm. L.R. (2d) 70, 170 N.R. 58 (F.C.A.); Canada v. Schnurer Estate, (FCA), [1997]2 F.C. 545, 208 N.R. 339 (C.A.); Sherman v. Canada (Customs and Revenue Agency), 2006 FC 715, 54 Admin. L.R. (4th) 274, 295F.T.R. 274; CHC Global Operations v. Global Helicopter Pilots Assn., 2008 FCA 345; Cannon v. Canada (Assistant Commissioner,RCMP), (FC), [1998] 2 F.C. 104, (1997), 6 Admin.

L.R. (3d) 246 (T.D.); Greater Moncton International AirportAuthority v. Public Service Alliance of Canada, 2008 FCA 68; Bell Canada v. Canadian Telephone Employees Assn., 2001 FCA 139,270 N.R. 399; Canada (Minister of Citizenship and Immigration) v. Varela, 2003 FCA 42, 238 F.T.R. 200, 26 Imm. L.R. (3d) 20, 300N.R. 183; Jamieson v. City of Edmonton (1916), (SCC), 54 S.C.R. 443, 36 D.L.R. 465, [1917] 1 W.W.R. 1510; R. v.Mack, (SCC), [1988] 2 S.C.R. 903, [1989] 1 W.W.R. 577, (1988), 44 C.C.C. (3d) 513. AUTHORS CITED Ratushny, Ed. The Conduct of Public Inquiries: Law, Policy and Practice. Toronto: Irwin Law, 2009.

APPLICATIONS for judicial review challenging interlocutory decisions of the Military Police Complaints Commission made in thecourse of a public interest hearing held under

Part IV of the National Defence Act. Applications dismissed. APPEARANCES Alain Préfontaine for applicants. Paul Champ for respondents. Ronald Lunau for intervener. SOLICITORS OF RECORD Deputy Attorney General of Canada for applicants. Champ & Associates, Ottawa, for respondents. Gowling Lafleur Henderson LLP, Ottawa, for intervener.

The following are the reasons for judgment and judgment rendered in English by [1] de Montigny J.: The applicants have filed three applications for judicial review that were consolidated into this proceeding,challenging interlocutory decisions of the Military Police Complaints Commission (the Commission or MPCC) made in the course of apublic interest hearing held under

Part IV [ss. 250–250.53 (as enacted by S.C. 1998, c. 35, s. 82)] of the National Defence Act, R.S.C.,1985, c. N-5 (the Act); partially reproduced in the Appendix to these reasons.

The hearing is to examine a complaint made by therespondents on June 12, 2008, alleging that military police members [MPs] had failed in their duty to investigate potential wrongdoing byCanadian Forces officers who directed the transfer of detainees to Afghan authorities. [2] The application in file number T-846-10 challenges the summons issued proprio motu by the MPCC to Major Gagnon,subsequently replaced by Brigadier-General Blanchette, directing them to produce a number of documents. The second judicial reviewapplication, filed under Court File No.

T-1126-10, alleges a refusal by the Commission to hear a motion made by the applicants at theearly stage of the hearings seeking a ruling on the standard against which their professional conduct will be assessed. The thirdapplication, filed under Court File No. T-2110-10, contests the ruling eventually made by the Commission on that standard. [3] These applications raise important issues with respect to the jurisdiction of the MPCC and the role of this Court in overseeinginvestigative bodies, and commissions of inquiries in particular.

For the reasons that follow, I find that these applications are prematureand, for that reason, ought to be dismissed. 1. Background [4] The MPCC is an investigative body established pursuant to

Part IV of the Act to provide oversight and greater accountability onthe part of the Canadian Forces’ military police. Parliament vested it with the power and responsibility to examine complaints about theconduct of military police members in the exercise of their policing duties and functions (subsection 250.18(1) of the Act). To carry outthis mandate, the Chair of the Commission has the power to investigate complaints, convene public hearings, render findings and makerecommendations based on those findings.

The MPCC reports to Parliament through the Minister of National Defence, but in thedischarge of its functions, the MPCC is independent from both the Department of National Defence (DND) and the Canadian Forces. [5] There is no need to expand on Canada’s role in Afghanistan, or on the role of the military police both as custodian of Afghanprisoners and as an investigative unit.

This has been covered extensively by Justices Mactavish and Harrington in previous Federal Courtdecisions, to which I shall refer below. [6] Amnesty International and the British Columbia Civil Liberties Association (to whom I shall refer collectively as “Amnesty”)have, through various proceedings beginning in 2007, challenged matters affecting the issue of the transfer of detainees by Canada toAfghan authorities. Amnesty first called into question the legality of the policy of the Government of Canada to transfer to Afghanauthorities, the detainees captured by the Canadian Forces operating in Afghanistan.

Amnesty pursued this unsuccessful challenge all the

way to the Supreme Court of Canada: see Amnesty International Canada v. Canada (Chief of the Defence Staff) , 2007 FC 1147 , 287 D.L.R. (4th) 35; Amnesty International Canada v. Canada (Chief of the Defence Staff) , 2008 FC 162 , 79 Admin. L.R. (4th) 91 ( Amnesty – Canadian Forces ); Amnesty International Canada v. Canada (Chief of the Defence Staff) , 2008 FC 336 , [2008] 4 F.C.R. 546, affd 2008 FCA 401 , [2009] 4 F.C.R. 149, leave to appeal to S.C.C. refused, [2009] 1 S.C.R. v ( Canada – Amnesty International ). It is now settled law that the 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] (the Charter), does not apply to the detention of non-Canadians by the Canadian Forces or to their transfer to the Afghan authorities. [ 7 ] Amnesty also disputed the legality of the implementation of this policy by filing two conduct complaints with the Commission. The first complaint (the detainee complaint) related to the involvement of the military police in the actual transfer of detainees to Afghan authorities and was filed on February 21, 2007.

On February 26, 2007, the Commission decided to initiate an investigation of that complaint in the public interest, and on March 12, 2008, the Commission announced its intention to hold a public interest hearing into that complaint. [ 8 ] On June 12, 2008, the respondents filed a second conduct complaint (the failure to investigate complaint), seeking an extension of the timeframe of its first complaint and, as a distinct issue, alleging that military police members had failed in their duty to investigate potential wrongdoing by Canadian Forces officers who directed the transfer of detainees to Afghan authorities.

The complaint was based on information obtained in the previous Court application to halt the transfers on Charter grounds, to which Madam Justice Mactavish refers in her decision to dismiss an application for an interlocutory injunction filed by Amnesty: see Amnesty – Canadian Forces , above, at paragraphs 85–87. The substance of this complaint reads as follows (June 12, 2008 complaint, respondents’ record, Vol. II, at pages 245–251): Amnesty International Canada and the B.C. Civil Liberties Association hereby file a new, discrete conduct complaint pursuant to

section 250.18 of the National Defence Act , concerning the failure of certain members of the Military Police to investigate crimes or potential crimes committed by senior officers in command of Task Force Afghanistan, from May 3, 2007 to the present [which is when Canada signed a new detainee agreement with Afghanistan that permitted Canadian officials to visit and inspect detainees in Afghan custody].

Specifically, members of the National Investigation Service (NIS) in Kandahar and the Task Force Provost Marshall (TFPM) have been aware that former Canadian Forces (CF) detainees were likely tortured by Afghan authorities, yet they failed to investigate whether any members of the CF should be charged for their role in facilitating these crimes.

In particular, senior officers occupying the position of Commander of Task Force Afghanistan ordered the transfer of detainees to the custody of the Afghan secret police during the relevant period, despite compelling first-hand reports that previous CF detainees were tortured by those authorities.

In our submission, when officers in the chain of command order a detainee to be transferred to the custody of Afghan authorities, in full knowledge that the Afghan authorities are predisposed to torture these persons, a number of possible criminal offences warrant investigation…. [ 9 ] It is worth noting that on or about November 6, 2007, the acting Commander of Task Force Afghanistan issued a temporary moratorium on detainee transfers.

This followed a report by a Canadian official who interviewed a detainee held by the Afghan secret police on November 5, 2007, in which the detainee alleged that he was knocked unconscious during a first interrogation and was then beaten with electrical wires and rubber hose during a second one. [ 10 ] Given the seriousness of the subject-matter, the complexity of the legal and factual issues involved, and the public interest in the issues, the MPCC decided on September 30, 2008, to conduct a public interest hearing into the failure to investigate complaints under

Part IV of the Act . [ 11 ] Lieutenant-Colonel (Ret) W. H. Garrick, Major J. P. P. Kirschner, Major B. Hudson, Major J. T. M. Zybala, Major R. R. Gribble, Chief Warrant Officer B. Watson and Master Warrant Officer (Ret) J.Y. Girard are seven of the eight subjects later named by the Commission for the failure to investigate complaint. Brigadier-General Blanchette is a witness summonsed by the Commission, ex proprio motu , to produce documents in the control of DND and the Canadian Forces. [ 12 ] The Attorney General challenged the MPCC’s jurisdiction to inquire into the respondents’ 2007 and 2008 complaints.

The applications for judicial review were heard together and, on September 16, 2009, the Court issued a judgment quashing the respondents’ first complaint: see Canada (Attorney General) v. Amnesty International Canada , 2009 FC 918 , [2010] 4 F.C.R. 182. According to Justice Harrington, the handling of detainees was not a policing function per se , and therefore the MPCC could not examine the duties of the military police in that regard. However, he upheld the jurisdiction of the MPCC to inquire into the failure to investigate complaint.

The gist of his decision is captured in the following two paragraphs (12–13): Although the Attorney General’s position may be somewhat overstated, and although the detention of insurgents in Afghanistan and their subsequent release to the Afghan authorities may possibly be described as policing duties or functions which were performed by members of the military police in Afghanistan pertaining to the arrest or custody of persons, those duties or functions, policing or not, relate to military operations that resulted from established military custom or practice and, therefore, are beyond the jurisdiction of the Commission.

With respect to the second complaint, the “failure to investigate” complaint, I am satisfied that this is a policing duty or function in that the conduct of an investigation within the meaning of the Regulations includes a failure to investigate. However, as the National Defence Act makes clear, the Commission is limited to considering the conduct of members of the military police in the performance of their policing duties or functions. It has no jurisdiction to inquire into the conduct of the military at large, much less the conduct of persons who are not members of the military.

Thus, while the Commission may legitimately inquire as to what any member of the military police knew, or had the means of knowing, it would be an excess of jurisdiction to investigate government policy and to inquire as to the state of knowledge of the Government of Canada at large, and more particularly the Department of Foreign Affairs and International Trade (DFAIT), and to the extent, if any, it had relevant information to question why that information was not shared with the military police. [ 13 ] While acknowledging the jurisdiction of the Commission with respect to the second complaint, the Court cautioned that it could

not use this complaint as a “springboard” into investigating government policies or practices (at paragraph 62): On this second complaint, I re-emphasize that the jurisdiction of the Commission is to investigate complaints about members of the military police in carrying out their policing functions. The Commission does not have jurisdiction to investigate complaints about government officials, whether or not they are carrying out policing functions.

If one were to take the Commission’s approach to the extreme, there would be no question of military police misconduct in Afghanistan if Canadian Forces were not there. The whys and wherefores of that policy decision are beyond the reach of the Commission and of this Court. [ 14 ] As a result, the Court quashed the decisions of the MPCC to investigate the detainee transfer complaint.

With respect to the failure to investigate complaint, the Court declared that “the Military Police Complaints Commission may only investigate what the military police subjects of the complaint knew, or had the means of knowing.” It is in the context of the hearing of this failure to investigate complaint that the impugned decisions were made by the MPCC. 2. The impugned decisions (

a) The summons (application T-846-10) [ 15 ] Throughout the public interest hearings before the MPCC, it is fair to say that many issues and concerns have arisen in connection with the scope, pace and completeness of document production by the government in response to Commission summons, and in response to requests for documents identified by witnesses during their testimony.

These issues of document production have caused significant delays to the MPCC hearing of the complaint, and have raised concerns as to how documents were being vetted and selected by the government for disclosure to the Commission. [ 16 ] As previously mentioned, the Commission began to conduct a public interest investigation into the initial complaint in February 2007, and until March 2008, DND apparently provided documents without censoring or redacting them for national security purposes.

However, the production of documents stopped when the Commission announced that it would hold a public interest hearing in March 2008. When the hearings commenced on the two complaints in the spring of 2009, an adjournment had to be called after two weeks because the Commission had yet to receive any disclosure from the subjects or the Attorney General. The government took the position that the Commission was not allowed to receive unredacted documents once it decided to convene public hearings, by virtue of

section 38 [sections 38 to 38.16 inclusive (as enacted by S.C. 2001, c. 41 , ss. 43, 141)] of the Canada Evidence Act , R.S.C., 1985, c. C-5. It explained the delay in providing documents on the grounds that those documents needed to be reviewed and redacted in accordance with that legislative provision.

It appears that the government took the position that no disclosure would be made until all documents requested by the Commission had been reviewed and redacted. [ 17 ] Concerned that the requested documents would not be produced voluntarily, the MPCC sought to compel production through the issuance of summons in July 2009 to senior officials in the Canadian Forces (Brigadier-General Blanchette) and the Department of Foreign Affairs and International Trade Canada (DFAIT) (Deputy Minister Edwards).

Despite government counsel’s written assurances that outstanding document requests would be provided shortly, no further documents had been produced when the Commission reconvened shortly after the issuance of the judgment of Justice Harrington in October 2009. Counsel for the Commission also explained that some government officials were prevented from producing documents by the Attorney General. Captain Moore, the former Canadian Forces Provost Marshal, was provided with documents to assist him in preparing for his case.

He was however required to sign an undertaking that specifically prohibited him from providing them to the Commission. Similarly, Mr. Colvin, a DFAIT official, indicated that he would attend a pre-hearing interview and would provide the Commission with documents pursuant to the summons served on him. However, he was prevented from doing so because he was issued a notice under

section 38 of the Canada Evidence Act over the entirety of the information that he may have to provide: see MPCC transcripts, October 7, 2009, in respondents’ record, Vol. II, at pages 263–264 and 266–268. [ 18 ] A five-month adjournment ensued to give the government more time to produce documents. To push the process along, the MPCC issued new summons on October 26, 2009 to Deputy Minister Edwards and on October 21, 2009 to Brigadier-General Blanchette (applicants’ record, Vol. I, at pages 38 and 46).

In keeping with the guidance of Justice Harrington, the summons often referred to categories of documents either directly communicated to military police members “or that were otherwise available to the military police chain of command and/or technical chain”. The MPCC also issued a direction on December 10, 2009 that required parties to produce all other relevant and necessary documents by February 19, 2010 (respondents’ record, Vol. II, at page 402). [ 19 ] When the hearings resumed on March 22, 2010, many documents had been disclosed but many more remained outstanding.

The hearings proceeded on the basis that the Attorney General would produce documents as quickly as possible. On April 1, 2010, the respondents obtained documents through a request under the Access to Information Act , R.S.C., 1985, c. A-1 consisting largely of communications between Canadian Forces officers in Kandahar and civilian officials in Ottawa concerning the decision to suspend transfers on November 6, 2007. [ 20 ] The Commission counsel reviewed the documents and wrote to counsel for the Attorney General on April 8, 2010.

Commission counsel was of the view that the documents collected in response to the access to information request would also be relevant to the subject-matter of the Commission’s inquiries, and found it “inconceivable” that these documents, many of which were addressed or copied to individuals who are summonsed as witnesses, could have been considered irrelevant to the matters under inquiry. [ 21 ] The Department of Justice and the MPCC exchanged further letters on this issue.

In a letter dated April 9, 2010, counsel for the Attorney General indicated that the documents were not produced “because they were not communicated to any military police members, including the subjects of the complaint and there is no evidence that they were otherwise available to them” (applicants’ record, Vol. I, at page 73). In other words, the Attorney General takes the position that it is the government’s prerogative to determine whether the documents were shared with military police members or were “within their means of knowing”.

In response, MPCC counsel strongly disagreed with that position and wrote: “We believe it is the Commission’s mandate to determine whether or not there is evidence that documents were communicated to, or available to, Military Police members. This cannot be determined by government officials looking at the face of the documents and deciding not to produce them” (applicants’ record, Vol. I, at page 82). This is clearly

the nub of the dispute between the Attorney General and the Commission. [ 22 ] There were further tense exchanges of oral and written communication between counsel on this issue. Deputy Minister Edwards and Brigadier-General Blanchette were then ordered to appear before the Commission to explain how they were determining which documents should or should not be produced to the Commission (MPCC transcripts, April 21, 2010, respondents’ record, Vol. II, at pages 788–790). [ 23 ] Brigadier-General Blanchette appeared before the MPCC with Major Denis Gagnon on April 27, 2010.

The military officers testified jointly about the Canadian Forces’ work in gathering and disclosing documents. They were questioned at length about the following issues: (

a) The means by which the government made determinations regarding the responsiveness of documents to the Commission’s summons; (

b) Whether written or oral guidelines had been provided to the departments as to a document’s responsiveness to a summons; (

c) Staffing issues; (

d) The structure of the teams dealing with matters related to detainee hearings and information; (

e) The preparation of witnesses for testimony before the Commission; (

f) The procedure for producing documents subject to a notice under

section 38 of the Canada Evidence Act ; (

g) Whether instructions had been given to witnesses to deliberately slow the production of documents to the Commission; (

h) The storage of documents in Afghanistan and their repatriation; (

i) Whether DFAIT site visit reports would have been publicly released if not summonsed by the Commission; and (

j) Whether the subject of the reappointment of the former Chair of the Commission had been discussed at the Deputy Ministerial meetings on Afghanistan. [ 24 ] Brigadier-General Blanchette and Major Gagnon testified that documents were first screened out when they were deemed not to be responsive to the summons. This was determined by examining who it was addressed to, the content of the document, and whether the MPs knew or should have known about the content of those documents (MPCC transcripts, April 27, 2010, at pages 46–47 and 52; applicants’ record, Vol. I, at pages 244–245 and 250).

Once a document has been deemed relevant and responsive to the summons, it is then reviewed for any potential

section 38 claims. [ 25 ] On April 29, 2010, the MPCC served a new summons upon Major Gagnon, requiring him to produce several new categories of documents. On August 25, 2010, the Commission released Major Gagnon from his summons and issued an identical summons to Brigadier-General Blanchette. These summons were not requested by the respondents. Rather, they were issued by the MPCC ex proprio motu , pursuant to the granting of authority under paragraph 250.41(1) (

a) of the Act , apparently because it considered it necessary for its full investigation and consideration of the matters before it. [ 26 ] These summons required the production of 16 categories of documents, which can be grouped into five different classes: (

a) Documents related to the response of DND and of the Canadian Forces to a previous summons (items 1–6 and 8); (

b) Documents not produced to the Commission as being non-responsive to the summons (items 7 and 9); (

c) Documents recording the factors considered by the Commander of the Joint Task Force Afghanistan (JTFA) in deciding to transfer a detainee to Afghan authorities (items 10–12); (

d) A list of any witness met by DND officials in connection with the hearing (item 13); and (

e) Three uncontroversial items, since produced. [ 27 ] The Attorney General of Canada challenged these summons by way of judicial review. On May 28, 2010, the application bearing file number T-846-10 was issued. The applicants seek to have the summons set aside and other declaratory relief on the basis that the Commission has exceeded its jurisdiction. (

b) The “means of knowing” (application T-1126-10) [ 28 ] Shortly after the Federal Court’s ruling on September 16, 2009, the applicants brought two motions to the Commission for a determination on how the Commission would interpret the Court’s expression “means of knowing”. Relying on the right to make full answer and defence to the allegations of misconduct brought against them, as guaranteed by paragraph 250.44 (

a) of the Act , they essentially argued that they were entitled to know the standard by which their actions would be assessed, in advance of evidence being called. Delaying this determination to a later point, they submitted, effectively brings to naught the right of the subjects to understand the case that they have to meet of any meaning or substance, to decide what evidence they need to lead, to determine which testimony they should challenge by cross-examination, and why. [ 29 ] The MPCC adjourned the motion, along with other procedural issues, until the hearing reconvened.

The applicants filed written submissions with the Commission on March 22, 2010, and the “means of knowing” motion was argued on March 24, 2010. It is interesting to note that in his written submissions, counsel for the applicants took the position (relying on Justice Harrington’s decision

on the legal environment of investigations and on previous judicial consideration of “means of knowing”) that this concept is “limited to that information which might have been gleaned by any inquiries made by a reasonable Military Police officer in like circumstances, without recourse to the investigative and enforcement powers bestowed by law on peace officers”: respondents’ record, Vol. II, page 404, at paragraph 2. [ 30 ] In oral submissions, the applicants’ counsel expanded on this

interpretation and further clarified his clients’ understanding about the “means of knowing” concept in the following terms (respondents’ record, Vol. II, at pages 492–493): The only thing that is relevant to the review of the conduct of the subjects is what these other actors shared with them by way of information, or the information that they would have shared if they had been asked.

I think that’s a fair construction of the word “means of knowing”. [ 31 ] The respondents largely agreed with the applicants’ definition of the “means of knowing”, although they would have expanded it to encompass information in the public domain, information available to the subjects by virtue of their station and rank, and information that the subjects should have known by virtue of their duties. Instead they took the position that it was premature for the Commission to rule on that matter.

They suggested that the Commission may, at times, hear evidence that did not necessarily fall within the strict definition of “means of knowing”, as this may sometimes be necessary to understand the context of the interactions between certain actors. Finally, the respondents submitted that there are other means at the disposal of the Commission to provide procedural fairness to the subjects as the case goes on; for example, issuing updated notices of adverse findings as the hearings progress. [ 32 ] The Commission issued two separate decisions on the applicants’ motion on April 1, 2010.

The Commission concluded in its “means of knowing” decision that it was not advisable to issue a ruling at that early stage, stating that such determinations would be “inherently factual and contextual, and must not be ruled on in a factual vacuum” (applicants’ record, Vol. I, page 61, at paragraph 12), particularly in light of submissions that factors such as security clearances and need to know principles might affect what military police had the means of knowing (applicants’ record, Vol. I, page 61, at paragraph 15).

The Commission similarly found in its “standard of conduct” ruling that it would be inadvisable to try to set out a conclusive standard by which the subject military police members’ conduct will ultimately be judged (respondents’ record, Vol. I, at pages 123–130). The MPCC did reiterate the significance of the “reasonable police officer” standard, as found in Hill v. Hamilton-Wentworth Regional Police Services Board , 2007 SCC 41 , [2007] 3 S.C.R. 129, and affirmed that it would be relevant to whether the military police had the means of knowing certain information (applicants’ record, Vol.

I, page 61, at paragraph 14). [ 33 ] The applicants did not seek judicial review of either of the MPCC’s April 1, 2010 decisions, and the MPCC thereafter proceeded to receive the testimony of 20 non-subject witnesses. During the course of their examination, the Commission explored wide ranging issues to which counsel for the applicants objected, on the basis that they relate to government policy and the state of knowledge of the government at large.

To provide some context relevant to the case at bar, counsel for the applicants drew the attention of the Court to some of the lines of examination permitted by the Commission (memorandum of argument, applicants’ record, Vol.

IV, at paragraphs 17–18; all references to the transcript are found in these paragraphs): • An employee of the Department of Foreign Affairs and International Trade (DFAIT) who conducted prison visits and interviewed detainees transferred by the Canadian Forces to ascertain their post-transfer treatment, was asked about the following: the training he received on detecting signs of torture; the procedure followed on prison visits; the purpose and distribution of site visit reports; and specific allegations of mistreatment which were included in the site visit reports which evidence indicates were not provided to members of the military police; • Another employee of DFAIT, acting as the political advisor to the Commander of the JTFA, was questioned on the following: the reporting structure within DFAIT; the procedure for distributing site visit reports within JTFA and the determination of who should receive them; whether medically unfit detainees had ever been transferred; allegations by a former translator regarding threats made by a senior official of the National Directorate of Security; legal obligations on public servants to make and keep records of their actions, his knowledge of allegations made to U.K. forces; and whether his advice to the Commander was informed by allegations of mistreatment contained in newspaper articles; • The Commander himself of the JTFA was asked about specific human rights reports he might have read or which individuals were tasked with briefing him on their contents, whether information regarding detainees was shared with or received from Canada’s allies in Afghanistan, the factors he took into account when deciding whether to authorize the transfer of detainees to Afghan authorities, whether DFAIT or DND was the cause of difficulties in conducting prison visits, and his personal view on the possibility of having a full-time Canadian presence in Afghan prisons. [ 34 ] On June 7, 2010, counsel for the applicants brought a second motion to the Commission seeking a ruling on the “means of knowing” standard.

At this time, the MPCC was well into hearing the testimony of the non-subject witnesses, but a number of non- subject witnesses remained to be heard. In its notice of motion, counsel for the applicants stated that since the Commission had declined to rule on the applicants’ first “means of knowing” motion, it sought production of information relating to the risk of mistreatment of a detainee transferred to Afghan authorities might face, regardless of whether the information was known to the subjects or whether they reasonably had the means of knowing it.

Counsel also reproached Commission counsel to have explored not only the recollection of witnesses concerning information which military police knew or had the means of knowing, but also the witnesses’ recollection about the risk of mistreatment a detainee transferred to Afghan authorities might face—thus addressing matters that are beyond the Commission’s jurisdiction. [ 35 ] By letter dated June 10, 2010, Commission counsel advised the parties that the Commission would

schedule the applicants’ second “means of knowing” motion after the remaining non-subject witnesses had testified, consistent with its ruling on April 1, 2010 in the original “means of knowing” motion. The panel was then asked by counsel for the applicants to confirm this orally during the hearings on June 15, 2010, which they did. This led to the second judicial review application filed by the applicants under Court File No. T-1126-10, alleging a refusal by the Commission to hear their motion.

[ 36 ] The hearings continued and several more witnesses were heard. As the Commission had indicated, it set down the applicants’ second “means of knowing” motion after all the non-subject witnesses were heard, but before any evidence was heard from the subjects.

The last non-subject witness testified on October 13, 2010, and the next day, the Commission heard the motion. [ 37 ] In their written submissions filed on September 29, 2010, counsel for the applicants repeated that the applicants were entitled to know the case they had to meet, and ought to know how the Commission would interpret the concept of “means of knowing”. In the applicants’ view, the “means of knowing” is a legal standard that can be established by a declarative ruling in advance, without reference to facts or context, and is part and parcel of the standard of conduct. As for the proper

interpretation of “means of knowing”, counsel apparently departed from the representations he had made on the first motion and adopted a more restrictive definition of that concept, which is captured in the overview of his submissions at paragraph 2 (respondents’ record, Vol. I, at page 14): The subjects’ conduct can only legitimately be assessed on the basis of what they knew, or information over which they had effective control.

In the absence of actual knowledge by the Military Police subjects, the “means of knowing” is not whether queries were made or could have been made but rather whether Military Police exercised effective control of information sufficient to warrant a police investigation or other appropriate action. [ 38 ] Fearing that the Commission intended to impute the subjects with knowledge of all information available to the Government of Canada or publicly available, and also with the knowledge of all information which might have been shared with military police if they had requested it, regardless of whether the subjects would have had any reason or duty to seek out that information, counsel further elaborated as to what he saw as the proper mandate of the Commission, in the following terms (respondents’ record, Vol.

I, page 20, at paragraph 20): The subjects’ conduct must not be assessed as if the subjects knew or had the means of knowing the vast array of documents and testimony the Commission has heard. Rather the assessment must be much more precise. In the absence of actual knowledge on the part of the Military Police subjects, the “means of knowing” test is defined by an examination of whether the subjects exercised effective control over the requisite information. Effective control means the physical custody or possession of the information whether or not that information was actively accessed within their control.

It would be sufficient to establish effective control if it is demonstrated that access to the requisite information was the exclusive province of the subjects. [ 39 ] In response, counsel for the respondents reiterated much of the position he had taken in the context of the first “means of knowing” motion. He emphasized once again that the conduct of military police subjects should be assessed “based on what they could have learned through making simple inquiries”, and repeated that whether the subjects should have made those inquiries are matters better left for final submissions on a full evidentiary record.

The following paragraphs capture the essence of the parties’ disagreement as to the proper standard to be applied (respondents’ record, Vol. I, pages 30–31, at paragraph 11): The Complainants allow and agree that the Military Police subjects cannot be imputed with all the knowledge of different actors across the Government of Canada. But they should be held responsible for information they could have reasonably obtained through simple inquiries. Practically all witnesses who have testified before the Commission have had direct contact with one or more of the Military Police subjects.

Many of those witnesses — including and most recently Lt. General Gauthier — gave evidence that they would have shared information about detainee transfers with the Military Police had they been asked. [ 40 ] The Commission rendered its ruling on the second “means of knowing” motion on November 3, 2010, prior to any of the subjects appearing as witnesses. The Commission rejected the notion that the subjects should only be responsible for information over which they had “effective control”.

The Commission agreed that the standard “captures information which a reasonable Military Police officer would have obtained by making reasonable enquiries”.

This, in the Commission’s view, entails a subjective element based on what the military police officer knew, and an objective element as to what a reasonable military police officer would have done in the circumstances to seek out more information “to fill the gaps”. [ 41 ] The Commission considered that it would be inadvisable to make pronouncements as to whether a duty to investigate was triggered in this case, or whether and to what extent the subjects were under some duty to seek out information that would be relevant to any decision to initiate a formal investigation.

As the Commission stated (applicants’ record, Vol.

III, at page 1371): Whether viewed as part of the consideration of the duty to investigate, or as a distinct analytical step preliminary to considering the duty to investigate, the scope of what the subjects had a duty to know may only be fairly established on a full evidentiary record. [ 42 ] Responding to the argument that it was straying beyond the confines of their jurisdiction by enquiring into government policy and the state of knowledge of the Government of Canada at large, the Commission emphasized that the “means of knowing” test does not exist in a factual vacuum and that to determine whether a person had the means of knowing something, one has to know whether that something existed to be known.

That being said, the Commission conceded that some information that is relevant to the subject-matter of the complaint might ultimately be found to fall outside of this perimeter. It went on (applicants’ record, Vol. III, at page 1372): The mere fact that information relating to the subject matter of the complaint has been adduced at these proceedings does not mean that the Commission is going to impute knowledge of all this information to any or all of the subjects.

The breadth of the inquiry to date has been a function of the need to gather evidence that is considered pertinent to the grounds set out in the complaint. It does not reflect an assumption or a pre-determination by the Commission that the individual subjects knew, or could have or should have accessed such information. [ 43 ] Contending that they were no further ahead in knowing the case they have to meet as a result of that decision, the applicants brought a third judicial review application under Court File No. T-2110-10.

Eventually, the three applications for judicial review were consolidated by orders of prothonotary Aronovitch dated August 31, 2010 and December 22, 2010, and were heard together by this Court on March 28 and 29, 2011. 3. Issues

[44] The parties have raised a number of issues in the course of their written and oral arguments. These issues, as I see them, may bestated as follows: (

a) Should the Court exercise its discretion to consider these applications, or should they all be dismissed as premature? (

b) To the extent the Court were to intervene, can it be said that the Commission erred in law by failing to articulate the standard bywhich it will assess the applicants’ conduct before calling witnesses? 4. Analysis (

a) Should the Court rule on interlocutory decisions? [45] The first question to be determined in the context of these three applications for judicial review is whether the Court shouldintervene and rule on what are essentially interlocutory decisions made by the MPCC in the course of its investigation. Counsel for therespondents and for the intervener have strenuously argued that it would be improper and at variance with the prevailing case law, forthe Court to entertain the challenges brought by the Attorney General.

Conversely, counsel for the applicants acknowledged that, as ageneral rule, interlocutory decisions made during the course of a tribunal proceeding do not usually warrant the intervention of courts,but submitted that the decisions now being disputed fall under the exception to the rule, as they would clearly bring the MPCC outside ofits jurisdiction. (

i) General principles [46] It is trite law that interlocutory decisions of administrative bodies are not subject to judicial review until a final decision is issued.For a variety of reasons, this rule has been upheld both by this Court and the Federal Court of Appeal on numerous occasions. Firstly, theapplication may well be rendered moot and unnecessary by the ultimate outcome of the case, and the tribunal may change its originalposition once it reaches its final decision. Similarly, an application may be overtaken by events.

The second application for judicialreview in the current proceedings is a case in point. [47] It will be recalled that counsel for the applicants delivered a notice of motion on June 7, 2010, requesting a hearing for a motionbefore the MPCC dealing with the “means of knowing” standard. At this time, the MPCC was well into hearing the testimony of the non-subject witnesses, but a number of non-subject witnesses remained to be heard. Consistent with its ruling of April 1, 2010, theCommission advised the parties that it would

schedule the applicants’ motion after the remaining non-subject witnesses had testified. Asit happens, the motion was ultimately heard by the Commission on October 14, 2010 and decided on November 3, 2010, after all thewitnesses were heard but before any of the subjects-applicants were scheduled to testify. This application for judicial review, therefore,is clearly moot, as the motion of the applicants was ultimately heard and decided before the application for judicial review could bedetermined.

As a result, I shall say no more of this application. [48] Moreover, the judicial review of interlocutory decisions creates the risk of fragmenting the process, with the attendantconsequences in terms of costs and delays. Finally, a court is obviously at a disadvantage when ruling on an objection brought at an earlystage of the proceedings, as it lacks a full record and the relevant background to assess how the disputed ruling may actually play out inthe actual determination of the case. [49] These considerations have been aptly summarized in Zündel v.

Canada (Human Rights Commission), (FCA),[2000] 4 F.C. 255, where the Court of Appeal stated (at paragraph 10): Are the applications for judicial review premature? As a general rule, absent jurisdictional issues, rulings made during the course of atribunal’s proceeding should not be challenged until the tribunal’s proceedings have been completed. The rationale for this rule is thatsuch applications for judicial review may ultimately be totally unnecessary: a complaining party may be successful in the end result,making the applications for judicial review of no value.

Also, the unnecessary delays and expenses associated with such appeals canbring the administration of justice into disrepute. For example, in the proceedings at issue in this appeal, the Tribunal made some 53rulings. If each and every one of the rulings was challenged by way of judicial review, the hearing would be delayed for anunconscionably long period. As this Court held in Anti-dumping Act (In re) and in re Danmor Shoe Co.

Ltd., “a right, vested in a partywho is reluctant to have the tribunal finish its job, to have the Court review separately each position taken, or ruling made, by a tribunalin the course of a long hearing would, in effect, be a right vested in such a party to frustrate the work of the tribunal.” [Footnotesomitted.] See also: C.B. Powell Limited v. Canada (Border Services Agency), 2010 FCA 61, [2011] 2 F.C.R. 332 (Canada (Border ServicesAgency)), at paragraphs 30–32; Szczecka v. Canada (Minister of Employment and Immigration) (1993), (FCA), 116D.L.R. (4th) 333 (F.C.A.), at paragraph 4; Canada v.

Schnurer Estate, (FCA), [1997] 2 F.C. 545 (C.A.), atparagraphs 11–12; Sherman v. Canada (Customs and Revenue Agency), 2006 FC 715, 54 Admin. L.R. (4th) 274, at paragraphs 39–41;CHC Global Operations v. Global Helicopter Pilots Assn., 2008 FCA 345. [50] As a result, courts will not interfere with ongoing administrative processes until they have run their course, absent exceptionalcircumstances. As previously mentioned, counsel for the applicants does not dispute this principle, but argued that the interlocutorydecisions now being challenged do raise exceptional circumstances.

According to counsel, the decisions underlying the threeapplications for judicial review do not merely arguably, but clearly, bring the MPCC outside of its jurisdiction. They would effectivelyallow the Commission to investigate beyond the conduct of members of the military police and into both government policy and themilitary at large.

This would be in direct contradiction to the previous decision of this Court, which cautioned the Commission that itcould not use the conduct complaint as a “springboard” into investigating government policies or practices. [51] I have not been persuaded by this line of reasoning, for a number of reasons.

A review of the case law shows that the“exceptional circumstances” allowing the courts to intervene and to review interlocutory decisions have been quite narrowly defined.While exceptional circumstances may not be exhaustively defined, courts have held that such will exist when the impugned decision isdispositive of a substantive right of a party (Canada v. Schnurer Estate, (FCA), [1997] 2 F.C. 545 [cited above]),

raises a constitutional issue (Attorney General (Que.) and Keable v. Attorney General (Can.) et al., (SCC), [1979] 1S.C.R. 218 (Keable)), or goes to the legality of the tribunal itself (Cannon v. Canada (Assistant Commissioner RCMP), (FC), [1998] 2 F.C. 104 (T.D.)).

More recently, the Federal Court of Appeal has gone so far as to say that even those circumstancesmay not qualify as “exceptional”, if there is an internal administrative remedy available (Canada (Border Services Agency), above, atparagraph 33): Courts across Canada have enforced the general principle of non-interference with ongoing administrative processes vigorously. This isshown by the narrowness of the “exceptional circumstances” exception.

Little need be said about this exception, as the parties in thisappeal did not contend that there were any exceptional circumstances permitting early recourse to the courts. Suffice to say, theauthorities show that very few circumstances qualify as “exceptional” and the threshold for exceptionality is high: see, generally, D. J.M. Brown and J.M. Evans, Judicial Review of Administrative Action in Canada (loose-leaf) (Toronto: Canvasback, 1998), atparagraphs 3:2200, 3:2300 and 3:4000 and David J.

Mullan, Administrative Law (Toronto: Irwin Law, 2001), at pages 485–494.Exceptional circumstances are best illustrated by the very few modern cases where courts have granted prohibition or injunction againstadministrative decision makers before or during their proceedings.

Concerns about procedural fairness or bias, the presence of animportant legal or constitutional issue, or the fact that all parties have consented to early recourse to the courts are not exceptionalcircumstances allowing parties to bypass an administrative process, as long as that process allows the issues to be raised and an effectiveremedy to be granted: see Harelkin, above; Okwuobi, above, at paragraphs 38–55; University of Toronto v. C.U.E.W., Local 2 (1988), (ON SC), 65 O.R. (2d) 268 (Div. Ct.).

As I shall soon demonstrate, the presence of so-called jurisdictional issues isnot an exceptional circumstance justifying early recourse to courts. [52] An allegation that a commission or tribunal has somehow exceeded its jurisdiction in the course of rendering an interlocutorydecision will not be sufficient.

The whole approach of attempting to intervene in interlocutory decisions of commissions by labellingthem as “jurisdictional”, has been discarded by the Courts. [53] The Federal Court of Appeal has not accepted the position that the assertion of a jurisdictional issue is, by itself, an exceptionalcircumstance allowing a party to launch judicial review before the administrative process has been completed.

The Court has repeatedlyeschewed interference with intermediate or interlocutory administrative rulings and has forbidden interlocutory forays to the Court, evenwhere the impugned “decision” is alleged to address a jurisdictional issue (Canada (Border Services Agency), above, at paragraphs 39–42 and 45): When “jurisdictional” grounds are present or where “jurisdictional” determinations have been made, can a party proceed to court for thatreason alone?

Put another way, is the presence of a “jurisdictional” issue, by itself, an exceptional circumstance that allows a party tolaunch a judicial review before the administrative process has been completed? In my view, the answer to these questions are negative. An affirmative answer would resurrect an approach discarded long ago. Long ago, courts interfered with preliminary or interlocutory rulings by administrative agencies, tribunals and officials by labelling therulings as “preliminary questions” that went to “jurisdiction”: see, e.g., Bell v. Ontario Human Rights Commission, (SCC), [1971] S.C.R. 756.

By labelling tribunal rulings as “jurisdictional,” courts freely substituted their view of the matter for that ofthe tribunal, even in the face of clear legislation instructing them not to do so. Over 30 years ago, that approach was discarded: Canadian Union of Public Employees, Local 963 v. New Brunswick LiquorCorporation, (SCC), [1979] 2 S.C.R. 227.

In that case, Dickson J. (as he then was), writing for a unanimous SupremeCourt declared (at page 233), “The courts, in my view, should not be alert to brand as jurisdictional, and therefore subject to broadercurial review, that which may be doubtfully so.” Recently, the Supreme Court again commented on the old discarded approach,disparaging it as “a highly formalistic, artificial ‘jurisdiction’ test that could easily be manipulated”: Dunsmuir, above, at paragraph 43.Quite simply, the use of the label “jurisdiction” to justify judicial interference with ongoing administrative decision-making processes isno longer appropriate. … It is not surprising, then, that courts all across Canada have repeatedly eschewed interference with intermediate or interlocutoryadministrative rulings and have forbidden interlocutory forays to court, even where the decision appears to be a so-called “jurisdictional”issue: see e.g., Matsqui Indian Band, above; Greater Moncton International Airport Authority, above, at paragraph 1; Air Canada v.Lorenz, (FC), [2000] 1 F.C. 494 (T.D.), at paragraphs 12 and 13; Delmas, above; Myers v.

Law Society ofNewfoundland (1998), (NL CA), 165 Nfld. & P.E.I.R. 150 (Nfld. C.A.); Canadian National Railway Co. v.Winnipeg City Assessor (1998), (MB CA), 131 Man. R. (2d) 310 (C.A.); Dowd v. New Brunswick Dental Society(1999), (NB CA), 210 N.B.R. (2d) 386 (C.A.). See also: Greater Moncton International Airport Authority v.

Public Service Alliance of Canada, 2008 FCA 68, at paragraph 1. [54] The Court of Appeal has also held that a tribunal’s interlocutory decisions on a question of law dealing with the admissibility orcompellability of evidence does not constitute a jurisdictional question justifying immediate judicial review when the tribunal is vestedwith the authority to hear and determine all questions of law and fact, including questions of jurisdiction that arise in the course ofproceedings: Bell Canada v.

Canadian Telephone Employees Assn., 2001 FCA 139, 270 N.R. 399, at paragraph 5; Canada (Minister ofCitizenship and Immigration) v. Varela, 2003 FCA 42, 238 F.T.R. 200, at paragraph 3. [55] Counsel for the applicants submitted that the impugned decisions of the MPCC fit within the exception and clearly raise a seriousissue of jurisdiction. In other words, it is argued that the Commission purports to overstep the boundaries of its mandate by (

a) inquiringinto the conduct of the military police on the basis of what they knew or ought to have known; and (

b) seeking production of documentsemanating from government departments without first establishing that copies of those documents were provided to the military police orthat the military police had the ability to obtain them. In so doing, the applicants claim that the Commission not only strays beyond theconfines of its legislation, but also disregards the previous ruling of this Court. It signals its intention to use as the applicable standard ofconduct for the military police, the duty to be curious, which is at odds and conflicts with a proper understanding of Justice Harrington’s

“means of knowing” standard. I shall deal first with the argument pertaining to the “means of knowing” standard, and the discussionrelating to the production of documents will follow. (ii) The “means of knowing” standard [56] Contrary to the applicants’ argument, I do not think this is a case where the alleged lack of jurisdiction has been demonstratedbeyond any reasonable doubt. Counsel for the applicants relied heavily on the decision of the Supreme Court of Canada in Keable, above,as a precedent for the relief sought in the present application.

The situation in that case was quite different from the one at issue in thecase at bar, however. In that case, it will be remembered, one of the questions was whether a commissioner appointed under provinciallegislation for the purpose of inquiring into the circumstances surrounding the commission of allegedly criminal or reprehensible acts,could inquire into the rules, policies and procedures of a federal institution itself (the RCMP [Royal Canadian Mounted Police]).

Whatwas at stake was a challenge, on a constitutional basis, of the very jurisdiction of the commissioner with respect to a vital part of hisinquiry. It is also worth noting that all eight judges sitting on that case came to the conclusion that a province could not confer on a bodyof its own creation the jurisdiction to inquire into the administration of a federal police force. [57] In the case at bar, the situation is quite different in a number of respects.

Firstly, the argument put forward by the applicants asregards to the standard of conduct to be expected from a military police officer is not based on any constitutional principle. Indeed,constitutional principles do not figure prominently in the abundant case law revolving around that issue in the context of civilian policeofficers, and are absent in the applicants’ discussion in their written and oral arguments.

The right to a fair trial and to make full answerand defence are invoked by counsel for the applicants as the rationale to require the MPCC to articulate fully the standard of conductagainst which the conduct of the applicants will be assessed. This is a separate issue which will be dealt with later in these reasons. [58] Secondly, the Act itself does not delineate with precision, the jurisdiction of the MPCC with respect to a conduct complaint, andcertainly does not provide a clear answer as to the circumstances that should prompt a military police officer to investigate.

It is thereforemuch more difficult to demonstrate with reasonable certainty that the Commission not only erred in crafting such a standard, butexceeded its jurisdiction. [59] Nor can it be said that the Commission clearly contravened the decision reached by this Court in Canada – AmnestyInternational, above. It is not at all obvious that Justice Harrington was intent on setting a legal standard of conduct when he stated, atparagraph 13, without more, that “the Commission may legitimately inquire as to what any member of the military police knew, or hadthe means of knowing”.

The thrust of his decision was meant to address the jurisdiction of the Commission with respect to the firstcomplaint (the detainee complaint). There was not much to say about the second complaint (the failure to investigate complaint), as theAttorney General acknowledged that it related to a policing duty or a function normally carried out by the military police. Accordingly,Justice Harrington went no further than stressing that the Commission could not use its limited jurisdiction as a “springboard” toinvestigate government policy at large.

There is, however, no obvious link between this caveat and the standard to which the militarypolice should be held in conducting its investigations. [60] Moreover, it cannot be said that the “means of knowing” standard, as it has become known, carries a well-defined meaning andrefers to a shared understanding of its parameters, at least in the context of Canadian criminal or military law.

Indeed, it is quite tellingthat counsel for the applicants was unable to point the Court to any judicial precedents where this concept has been used, except in thecontext of claims of negligence as a means of imputing knowledge where the tortfeasor’s lack of knowledge is due to wilful blindness:see Jamieson v. City of Edmonton (1916), (SCC), 54 S.C.R. 443, at pages 446–447.

The Commission also pointed outin its second decision on “means of knowing” dated November 3, 2010, at paragraph 26, that none of the parties were able to provide itwith precedents where an oversight agency had considered this standard in the context of a failure to investigate complaint, against thepolice. [61] To be fair, counsel for the applicants put forward quite an elaborate and interesting argument as to why the “means of knowing”standard should be defined by an examination of whether a military police officer exercised effective control over the requisiteinformation, sufficient to trigger a duty to investigate.

Counsel relied both on the military status of the military police officer and on thenature of a peace officer at common law to delineate that standard. [62] First of all, argue the applicants, the expected standard of conduct found in the Act itself (in particular,

section 124 creating theservice offence of negligent performance of a military duty), in the Queen’s Regulations and Orders for the Canadian Forces, Vol. II -Disciplinary, P.C. 1999-1305 (in particular

article 106.02(1), prescribing that an investigation shall be conducted “[w]here a complaint ismade or where there are other reasons to believe that a service offence may have been committed”), and in the Military PoliceProfessional Code of Conduct, SOR/2000-14, should inform the standard of conduct applicable to military poli

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