Ruling on the Motion of “Means of Knowing”

MPCC File No.: 2008-042

MILITARY POLICE COMPLAINTS COMMISSION

IN THE MATTER of the Afghanistan Public Interest Hearings before the Military Police Complaints Commission, pursuant to subsection 250.38(1) of the National Defence Act.

Ruling on the Motion of “Means of Knowing

A. Introduction

1. Counsel for seven (7) of the subjects to this complaint has also brought a motion requesting that this Commission give a preliminary ruling on and clarify how it intends to apply what has come, in the context of these hearings, to be referred to as the “means of knowing” test. This is a reference to wording from the September 16, 2009 judgment of Harrington J. in Attorney General of Canada v. Amnesty International Canada et al, 2009 FC 218 which addressed the boundaries of the Commission’s jurisdiction to inquire into military police (MP) conduct in respect of an alleged failure to investigate certain senior officers in respect of the detainee transfer process in Afghanistan.

2. As discussed in reasons released concurrently with these, counsel for the seven (7) subjects requests the Commission to define the standard of conduct applicable to subject military police members (MPs) in these hearings that incorporates and provides meaning to the Harrington judgment. The Commission has chosen to address the impact of that judgment separately, in the reasons that follow.

B. Submissions of Counsel for Seven (7) Subjects

3. Counsel for the seven (7) subjects provided submissions on what the Federal Court meant when it used the expression “means of knowing”. He refers to paragraph 13 of the reasons for judgment, where Harrington J. described the limits on the Commission when inquiring into MP conduct and the alleged failure to investigate:

… 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.

4. Counsel also draws attention to the statement of the Federal Court, at para. 54, that it would be “unreasonable for the Commission to use its jurisdiction to investigate complaints against Military Police as a springboard to investigate government policy at large.

5. Therefore counsel suggests that a fair construction of “means of knowing” would be to limit its scope to the information that was shared with the subjects, or that would have been shared with them if they had asked. To this counsel would add that, sharing, if asked, in the Government of Canada is further constrained by government security policy and classification requirements and the need-to-know principle.

6. Counsel for the seven (7) subjects also submits that an MP’s “means of knowing” is constrained by the common law and the constitutional right of citizens to remain silent in the face of police questioning.

7. Counsel for the seven (7) subjects therefore submits that the Federal Court has ruled that the Commission can legitimately investigate what the subjects of this complaint knew about the commission of the possible offences listed in the complaint before the Commission, limited, however, to what can be established by (1) direct evidence of subject knowledge, (2) direct evidence from witnesses with personal knowledge of the subjects’ knowledge, and (3) by inference from documents where the documents establish a direct connection between the subject and the information they contain. Permeating this is a willful blindness element that counsel suggests the Commission may consider, where the subject has made a decision not to make inquiries or acquire knowledge where a reasonable MP would have done so.

8. However, counsel argues “means of knowing” does not include imputing knowledge to a subject MP simply on the basis that another MP possessed it, without proof that the information was shared with the subject.

C. Submissions of Counsel to Capt (N) (ret’d) Moore

9. Counsel for the former CFPM agrees that what the subjects knew or had the means of knowing involves an assessment of the subject’s actual or properly imputed knowledge. He adopts wording from the submissions of the other seven (7) subjects to the effect that “means of knowing” should be limited to information that might have been gleaned from inquiries that a reasonable military police officer would have made in like circumstances. It is in this sense that counsel for all subjects have blended the means of knowing test into the reasonableness standard for judging the subjects of this complaint.

D. Submissions of Amnesty International Canada and the B.C. Civil Liberties Association

10. Counsel for the complainants submits that the Commission is essentially being asked to provide a ruling on its own jurisdiction by providing an interpretation of the Federal Court judgment. He submits that it would be premature and would unnecessarily straight-jacket the Commission to provide such a ruling in a factual vacuum. The proper time to deal with this issue would be if and when a specific objection is raised in respect of particular evidence that is alleged to go beyond the “means of knowing” boundaries set out by Harrington J.

11. That said, the complainants agreed with significant portions of the subjects’ submissions on “means of knowing”, disagreeing, however, with the extent to which media and generalized reports on the human rights situation in Afghanistan could be taken as informing police knowledge.

E. Analysis and Decision

12. As is the case with the “standard of conduct” motion, counsel for seven (7) of the subjects requests to reserve the right to make further submissions on the “means of knowing” issue after the evidence has been heard. Accordingly, the Commission does not consider it advisable at this stage, to issue a ruling to clarify the Federal Court decision in Attorney General of Canada v. Amnesty International Canada et al, 2009 FC 218. The application of the Federal Court judgment is inherently factual and contextual, and must not be ruled on in a factual vacuum.

13. This is to be contrasted with the standard of conduct of a reasonable MP in all the circumstances, discussed in our concurrent ruling. To the limited extent discussed in that ruling, describing the standard of conduct against which MPs will be judged is a legal test that can be set out before hearings commence, in its generalized form. Without facts, however, the Commission can do nothing that the Federal Court hasn’t already done in respect of the “means of knowing”, and it would be unwise to attempt such an endeavour.

14. One exception, though, is that the test in Hill v. Hamilton-Wentworth Regional Police, 2007 SCC 41 [hereinafter Hill] can serve as a guide to understanding whether MP subjects had the “means of knowing” any particular piece of information, in the sense that the Commission will consider whether a reasonable MP in all the circumstances would have the means of knowing that information.

15. Furthermore, as with the ruling on the standard of conduct, the Commission will stay alert to the arguments that the parties have raised in respect of the “means of knowing” test (summarized above and found in their submissions), but the Commission will not be bound by them. The Commission will treat them instead like opening submissions in a trial. For example, the submissions have highlighted the possibility that security clearances and need to know principles may affect what subject MPs had the means of knowing, but this is impossible to fully assess without hearing the facts surrounding such a suggestion. In every respect, particular facts are necessary before the Commission could attempt to apply and interpret the Federal Court judgment.

Dated at Ottawa, Ontario, this 1st day of April, 2010.

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Glenn Stannard
Acting Chairperson

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Roy Berlinquette
Commission Member

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