Ruling on Second Motion Re “Means of Knowing

MPCC File No.: 2008-042

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 Second Motion Re “Means of Knowing

A. Introduction

1. Counsel for seven (7) of the subjects to this complaint has brought a second motion requesting that this Commission give a preliminary ruling on the meaning of the phrase “the means of knowing”, as used by Harrington J. in his September 16, 2009 ruling in Attorney General of Canada v. Amnesty International Canada et al, 2009 FC 218. This Federal Court ruling 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 relation to the detainee transfer process in Afghanistan.

2. The applicants' previous motion on this question was addressed in a ruling by the Military Police Complaints Commission (the Commission) issued April 1, 2010. At that time, the Commission ruled that it should not further clarify the meaning of “means of knowing” in advance of receiving evidence, as the application of this phrase from the Federal Court judgment was “inherently factual and contextual”.

3. The Commission's ruling of April 1, 2010, was not challenged through an application for judicial review, and the Commission has proceeded to hear the evidence of non-subject witnesses.

4. By letter dated June 7, 2010, counsel for seven of the subjects delivered a second motion seeking an interpretation of the expression “means of knowing” as used by the Federal Court in its decision of September 16, 2009.

5. By letter dated June 10, 2010, Commission counsel advised that the second “means of knowing” motion. would be heard after the non-subject witnesses had testified, and before the subjects testified. This was confirmed orally by the panel at the hearings on June 15,2010.

6. The last of the scheduled non-subject witnesses testified on October 13, 2010, and the applicants' motion was heard on October 14, 2010.

7. The first of the subjects is scheduled to testify on November 15, 2010.

8. The applicants maintain their position that a ruling by the Commission on the meaning of the “means of knowing” should have been made at the outset of the present hearing (and, indeed, have sought relief from the Commission's oral decision of June 15, 2010 in the Federal Court on these grounds). Nonetheless, they also submit that there is “residual value” in the Commission issuing such a ruling now, before it hears from the subjects of the complaint and receives closing submissions from the parties.

B. Submissions of Counsel for Seven (7) Subjects

9. According to the moving parties, their primary concern is for procedural fairness in answering allegations which, if they are found to have merit, could negatively affect their reputations and careers. The subjects submit they are thus entitled to a high level of fairness in these hearings, and this entails knowing the “case to meet” in order to defend themselves against the allegations.Footnote 1 Knowing “the case to meet”, they argue, includes having the benefit of a declarative interpretation of the phrase “means of knowing”.

10. The moving parties identified three main points that they sought to make in their oral submissions. First, they contended that defining “means of knowing” is a pure issue of law. The moving parties contended in their oral submissions that “means of knowing” is a legal standard that can be established by a declarative ruling in advance, without reference to facts or context, and that it is “part and parcel” of the standard of conduct.Footnote 2 They submit that this is similar to informing an accused in a criminal context of the applicable mens rea standard relating to the charge they are facing. In the submissions of the moving parties, what the Commission will find their actual knowledge to be is a factual question, but what the subjects had the “means of knowing” beyond actual knowledge, is a question of law.Footnote 3

11. Secondly, the moving parties submitted that this standard must be declared in advance of the hearing, and most decidedly before the subjects' testify.Footnote 4 With respect to this point, reliance was placed on the submissions of counsel on March 24, 2010 at the hearing of the motions concerning the standard of conduct and the definition of the “means of knowing”.Footnote 5

12. In oral submissions on this motion, counsel for the moving parties submitted that whereas the original complaint was framed in terms of a failure to investigate in that “… members of the NIS in Kandahar and the Task Force Provost Marshal have been aware that former Canadian Forces Detainees were likely tortured …” - i.e., based on actual knowledge that former detainees were tortured - the nature of the complaint has shifted to include that the police were not sufficiently proactive in making “simple inquiries”.Footnote 6 They complained of a “shifting target” in terms of the standard to be met, and stated that the complaint has moved from “a failure to investigate” in light of knowledge, to what amounts to “a failure to be curious”;Footnote 7 it has moved from being an inquiry into investigations (which requires reasonable suspicion to initiate) to an inquiry into a preliminary stage of inquiries which might have lead to an investigation.Footnote 8

13. In their submissions on the previous motion on March 24,2010, the moving parties had themselves suggested that a final determination of the standard for the “means of knowing” should be reserved to the end of the evidence in order to address unforeseen developments in the evidence.Footnote 9 In oral submissions on this motion, they submitted that if the Commission issued a ruling on “means of knowing” at this time, then any future submissions on their part would be directed to an application of that ruling to the facts. However, they also stated they would reserve the right to be making submissions “relevant to the issues”.Footnote 10

14. Thirdly, the moving parties addressed what, in their view, the “means of knowing” standard should be. Put briefly, the moving parties contended that actual knowledge should be the focus of inquiry, and anything beyond this must be approached with “great caution” as it would be “inherently unfair to assess people on the basis of what they didn't know or had no reason to know”.Footnote 11 Thus, according to the moving parties the definition of “means of knowing” consists of what the subjects actually knew (which includes imputed knowledge based on “wilful blindness”), or information that they did not know but which was in their “effective control”, and information the subjects otherwise had a duty to find out.Footnote 12 They submitted that the Commission may include something other than actual knowledge “only with great caution bearing in mind the unfairness to a subject of holding him accountable for knowledge he didn't actually know”.Footnote 13

15. The moving parties also contended that, in order to investigate, police officers need a personally held reasonable suspicion, and that absent such suspicion, the police would be precluded from exercising their policing powers and commencing an investigation.Footnote 14

16. The moving parties agreed with the analytic distinction made by counsel for Capt (N) (ret'd) Moore between the “means of knowing” and the duty to investigate.Footnote 15 In clarifying, counsel agreed that the Commission may investigate what the subjects had the “means of knowing” in the sense of what could have been known to them had they asked or made simple inquiries, but that the subjects were not accountable to know such things (with the exceptions noted for wilful blindness and “effective control”)Footnote 16 as there is no duty at large to make inquiries.Footnote 17

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

17. Mr. Wallace, on behalf of Capt (N) (ret'd) Moore, largely adopted the position of the moving parties that the definition of “had the means of knowing” should be narrow.Footnote 18 He argued in favour of an analytic distinction between determining what the subjects had the “means of knowing”, and determining their duty to investigate. He submitted that determining what information the subjects had the “means of knowing” is independent of the determination that they had a duty to investigate, and that the task of analyzing what the subjects “knew” or had the “means of knowing” logically precedes the task of determining the scope of their duty to investigate in light of that knowledge. This is because only those facts which a subject knew or had the means of knowing could potentially give rise to a duty to investigate.

18. According to Mr. Wallace, the Commission should be analyzing “[t]he body of knowledge on one and the duty to investigate on the other, and because the body of knowledge in my respectful submission does not include the duty to investigate, that's where it becomes narrow in focus and isn't nearly as broad as the complainants indicate in their material.Footnote 19

19. With respect to timing and the desirability of a preliminary ruling, Mr. Wallace submitted that the Commission should make a ruling to permit the issues to be brought into sharper focus and to let the subjects know the informational parameters for which they must account themselves.Footnote 20

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

20. With respect to the issue whether the “means of knowing” standard involved a pure issue of law, or an issue of fact, the Complainants' position was that the standard is essentially an issue of fact to be determined by answering the question - was it possible for the subjects to find out [information] by making simple inquiries?Footnote 21 The issue whether they ought to have made such inquiries relates to the standard of conduct expected with respect to making inquiries, not whether they had, as a matter of fact, the ability to obtain such information by making simple inquiries. The “means of knowing” standard is, in their view, directed at the latter inquiry.

21. Concerning the need to define the concept of “means of knowing” in advance of the subjects' testimony, the Complainants submitted that the subjects would not be prejudiced if a ruling were deferred until the evidence had been heard, because they were entitled to request that further evidence be called if necessary to answer the allegations. The Complainants also submitted that no legal principle compelled the Commission to issue an advance ruling. Alternatively, the Complainants submitted that if the subjects were entitled to greater notice concerning the “means of knowing”, then they should be advised that they “may be responsible for information they could have obtained through simple inquiry”.Footnote 22

22. With respect to the actual definition of the “means of knowing”, the Complainants contended that the moving parties have changed their position on the interpretation of “means of knowing” and have now argued for a much narrower interpretation than was argued when this motion was first brought. They noted that in their submissions on the first motion dated March 22, 2010, the moving parties had expressedFootnote 23 the view that the Commission could inquire into “the information other governmental actors would have shared with the subjects, had the subjects sought access to the information”. The Complainants agreed with this expression of the notion of “had the means of knowing”.Footnote 24

23. The Complainants thus take the position that the subjects' conduct should be assessed based on what they “could have learned through making simple inquiries”. The Complainants state that the subjects should not be held accountable for information which was only available to them through intrusive investigative steps such as search warrants, since this presupposes that an investigation had already been initiated. It would not include such things as Cabinet discussions, meetings at the deputy ministerial level, but would simply include inquiries of people with whom they worked and who would have shared information,Footnote 25 as well as publicly available information such as newspaper reports and publicly available records. They reject the “wilful blindness” standard as being too narrow and better suited to the criminal context,Footnote 26 and contend that similarly the “effective control” test advanced by the moving parties is too narrow and is unsupported by any case law.Footnote 27

24. The Complainants also agreed with Mr. Wallace's analytic distinction between the “means of knowing” and the standard of conduct, and contended that the latter was beyond the scope of this motion.Footnote 28 While they contend, in response to the moving parties' submissions, that police officers have some minimal duty to be curious or inquisitive,Footnote 29 this speaks to the standard of conduct - the duty to know - rather than the factual inquiry into what the subjects had the means of knowing - the ability to know.

E. Analysis and Decision

25. The moving parties are requesting that the Commission declare what the phrase “the means of knowing”, as used in the September 2009 Federal Court judgment and resulting declaration, means in the context of these proceedings.

26. None of the parties was able to provide the Commission with previous case law where an oversight agency such as this Commission has considered the application of a “means of knowing” standard in the context of a “failure to investigate” complaint against the police - and more particularly a complaint involving a “failure to investigate” events occurring under wartime conditions.

27. Virtually all of the authorities cited to the Commission involved different factual circumstances and contexts from the present inquiry. Even so, to the extent that the “means of knowing” has been judicially considered in any context, it does not appear to have been equated to an individual having “effective control” over information, or that access to the information was the “exclusive province” of the subjects.

28. The moving parties put forward their view on the meaning of “the means of knowing”, in terms of the categories of information awareness which could fairly be imputed to the MP subjects for the purposes of assessing their conduct in these proceedings. It does not seem to be disputed by any party that the subjects could be held responsible for matters falling within their actual knowledge, as well as for matters towards which the subject MPs were “wilfully blind”. Beyond that, counsel for the moving parties submits that the Commission must be very cautious in imputing knowledge to the subjects and suggests that beyond actual knowledge or wilful blindness, “the means of knowing” should be understood in the context of these proceedings as only that information over which the MPs exercised “effective control”. “Effective control”, the applicants assert may be established where it is demonstrated that information was “the exclusive province of the subjects”. As already stated, however, the existing cases do not seem to define a person's “means of knowing” in such terms.

29. In their March 22, 2010 written submissions, which the moving parties adopted for the purpose of their second motion on the subject, counsel for the moving parties asserted in paragraph 7 that, “… the effect of the Court's declaration is to define ‘means of knowing’ as including only the information other governmental actors would have shared with the subjects, had the subjects sought access to the information”; and, in paragraph 26 that, “The appropriate interpretation of ‘means of knowing’ must consequently be limited to that information which might have been gleaned by any inquiries which would have been made by a reasonable Military Police officer in like circumstances.” This submission does not appear very different from that provided by the Complainants at paragraph 16 of their Written Submissions:

16. The Complainants submit that Military Police officers had the “means of knowing” any information that could have been readily obtained through further enquiries with their colleagues in the military and other government departments.

30. It therefore appears to the Commission that there is at least some measure of agreement that the “means of knowing” standard captures information which a reasonable Military Police officer would have obtained by making reasonable inquires. In the Commission's view, this 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. Whether a Military Police officer acted reasonably in the circumstances is an issue relating to the expected standard of conduct and depends on the evidence.

31. The central issue to be decided in these proceedings is whether the subjects' duty to investigate alleged wrongdoing on the part of those responsible for the transfer of Afghan detainees was triggered - and, if triggered, whether it was reasonably discharged in the circumstances. Given that this is the ultimate issue to be determined in these proceedings, the Commission considers it inadvisable to go further in making predeterminations or pronouncements as to whether a duty to investigate was triggered in this case. In the Commission's view, the same injunction applies to the question of 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. 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.

32. There is also a distinction to be made between the objectives of an investigation and the methodology of an investigation. If the content of what MPs “knew or had the means of knowing” is an ultimate issue in this proceeding, which we consider it to be, then the Commission's investigative process leading to a determination of this question must be able to receive and examine the scope of information that existed to be potentially obtained. In the Commission's view, the “means of knowing” test does not exist in a factual vacuum. It only has meaning if it can be shown that there was information in existence to be obtained by inquiry. Whether a person had the means of knowing something cannot be determined without also determining that something existed to be known. To put the matter another way, it cannot be shown that a person had the means of knowing information if there is no evidence that the information which is sought to be imputed to him even existed.

33. The judgment of Harrington J. did not stipulate that the Commission was limited to merely questioning the MP subjects as to what they “knew or had the means of knowing”. That would seem to be a rather fruitless and ineffective manner of conducting a meaningful public inquiry into the subject matter of the complaint. In the Commission's view, the Federal Court ruling should not be construed as enjoining the Commission from exercising its authority and discretion as an external oversight body to independently determine for itself what information the MP subjects “knew or had the means of knowing”.

34. However, implicit in the task of independently delineating the perimeter of what MPs “knew or had the means of knowing”, is a recognition that some information that is relevant to the subject matter of the complaint might ultimately be found to fall outside of this perimeter. For instance, information known to non-MP actors, but not specifically shared with MPs, could relate to matters of “common knowledge” regarding relevant conditions in Afghanistan. Such information could potentially be relevant in assessing the credibility of potential MP denials of awareness of such matters. Alternatively, information might be relevant to the Commission's inquiry precisely because there could be specific evidence from non-MP sources that such information was not shared with MPs. It goes without saying that the Commission is as interested in evidence which might rebut the complaint allegations as it is in evidence which might sUbstantiate them.

35. 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.

36. The nature of the inquiry to date is also a function of the fact that the Commission has heard from non-subject witnesses first - a sequencing which is both more logical for the Commission and more fair for the subjects. As the Commission moves into the hearing of subject evidence and thereafter the parties' submissions, the question of what the subjects actually knew or should have known will become more of a focus of this inquiry.

DATED at Ottawa, Ontario, this 3rd day of November, 2010.

__________________
Glenn Stannard
Chairperson
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Roy Berlinquette
Commission Member

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