[1993] 2 F.C. 60
T-1774-92
In the Matter of an Investigation by the Canadian Transportation Accident Investigation and Safety Board into a Marine Occurrence and Captain Roger Parrish
and
Canadian Air Line Pilots Association
and
The Company of Master Mariners of Canada, Vancouver Division
and
Harold Brown, Frank Dresser, Richard Hyne, Charles Lawlor, Lochlan McQuarrie, Allan Murray and British Columbia Ferry and Marine Workers Union
and
Canadian Merchant Service Guild, Western Branch
and
The British Columbia Coast Pilots Ltd. (Interveners)
Indexed as: Parrish (Re) (T.D.)
Trial Division, Rouleau J.—Vancouver, December 2, 1992; Ottawa, January 14, 1993.
Judicial review — References — Whether Canadian Transportation Accident Investigation and Safety Board can require individual to attend and testify before it concerning marine accident without right to counsel being present — Duty to act fairly implying presence of counsel where, inter alia: a) individual subpoenaed, required to attend and testify under oath with threat of penalty; b) absolute privacy not assured and attendance of others not prohibited; c) reports made public; d) individual can be deprived of rights or livelihood; e) other irreparable harm can ensue.
Transportation — Canadian Transportation Accident Investigation and Safety Board inquiring into marine occurrence — Collision involving freighter, ferry — Denying witness counsel when testifying — Board’s function not to determine civil, criminal liability — Board may restrict number, role of counsel — Procedural fairness requiring witness not deprived of right to counsel for sake of administrative expediency.
The Canadian Transportation Accident Investigation and Safety Board was inquiring into a collision between a ferry, the Queen of Alberni, and a Japanese freighter, the Shinwa Maru. Having interviewed crew members of the freighter with counsel present, the Board sought to interview Captain Parrish, of the Queen of Alberni, in the absence of counsel. When his counsel was denied standing, he refused to testify. In a typical Board inquiry, the investigator, customarily an expert in the field, summons the witnesses within days and sometimes only hours after the Board has been made aware of the occurrence. The Board seeks to make findings as to causes and contributing factors. The purpose is to identify safety deficiencies and make recommendations designed to eliminate or reduce risks. The results of the investigations are eventually made available to the public. The Act specifies that it is not the function of the Board to assign fault or determine civil or criminal liability, but that the Board shall not refrain from fully reporting causes or contributing factors merely because fault or liability can be inferred from its findings. The Act also provides that a person who fails to comply with a request of an investigator to testify or gives false evidence is liable to a term of imprisonment not exceeding two years. The question of law for determination by the Court under section 18.3 of the Federal Court Act, was whether an investigator appointed by the Board could require Captain Parrish to attend and testify concerning the occurrence without the right to counsel being present, pursuant to subparagraph 19(9)(a)(i) of the Canadian Transportation Accident Investigation and Safety Board Act.
Held, the question should be answered in the negative.
There is no doubt that a number of inquiries held by administrative tribunals can be conducted without the presence of counsel. Case law suggests, however, that the duty to act fairly requires the presence of counsel when a combination of some or all of the following elements are either found within the enabling legislation or to be implied from a practical application of the statute governing the tribunal: where a witness is subpoenaed, required to attend and testify under oath with a threat of penalty; where absolute privacy is not assured and the attendance of others is not prohibited; where reports are made public; where an individual can be deprived of his rights or his livelihood; or where some other irreparable harm can ensue.
There is no doubt that boards or tribunals are masters of their own procedure and when witnesses appear, as did Captain Parrish, with two or three counsel, it is within the Board’s domain to limit not only the number of counsel but also the scope of their participation. But the Board cannot, for the sake of administrative expediency, deprive a witness of the right to counsel. A witness is subpoenaed very shortly after the accident, perhaps still shaken, to attend and give testimony under oath with the threat of penalty over his head. He may not have the knowledge or the presence of mind to best protect his rights or object to inappropriate questions. He runs the risk of being deprived not only of his reputation but of his professional certification and his livelihood. Interim reports are sometimes leaked to the press before the witness has an opportunity to comment.
In the circumstances of the case at bar, procedural fairness requires that the witness be permitted to be accompanied by counsel when at the inquiry. There was no need to address the argument that denial of the right to counsel violated section 7 of the Charter.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Canada Evidence Act, R.S.C., 1985, c. C-5.
Canada Labour Code, R.S.C. 1970, c. L-1.
Canadian Bill of Rights, R.S.C., 1985, Appendix III.
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], s. 7.
Canadian Transportation Accident Investigation and Safety Board Act, S.C. 1989, c. 3, ss. 7, 9, 10, 14, 19(9), (10), 21, 23(2)(d), 24, 25, 30, 35.
Combines Investigation Act, R.S.C. 1970, c. C-23.
Combines Investigation Act, R.S.C., 1985, c. C-34 (as am. by R.S.C., 1985 (2nd Supp.), c. 19).
Evidence Act, R.S.B.C. 1979, c. 116.
Federal Court Act, R.S.C., 1985, c. F-7, s. 18.3 (as enacted by S.C. 1990, c. 8, s. 5).
CASES JUDICIALLY CONSIDERED
DISTINGUISHED:
Irvine v. Canada (Restrictive Trade Practices Commission), [1987] 1 S.C.R. 181; (1987), 41 D.L.R. (4th) 429; 24 Admin. L.R. 91; 74 N.R. 33; Royal Canadian Mounted Police Act (In re) and in re Husted, [1981] 2 F.C. 791; (1981), 58 C.C.C. (2d) 156 (T.D.); Selvarajan v Race Relations Board, [1976] 1 All E.R. 12 (C.A.); Re Pergamon Press Ltd, [1970] 3 All E.R. 535 (C.A.); Ha v. Canada (Minister of Employment and Immigration), T-1426-91, Rouleau J., order dated 14/7/92, F.C.T.D., not yet reported.
CONSIDERED:
Alliances des Professeurs Catholiques de Montreal v. Quebec Labour Relations Board, [1953] 2 S.C.R. 140; [1953] 4 D.L.R. 161; Canadian Pacific Air Lines Ltd. v. C.A.L.P.A., [1988] 2 F.C. 493; (1988), 84 N.R. 81 (C.A.).
REFERRED TO:
Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425; (1990), 67 D.L.R. (4th) 161; 54 C.C.C. (3d) 417; 29 C.P.R. (3d) 97; 76 C.R. (3d) 129; 47 C.R.R. 1; 106 N.R. 161; 39 O.A.C. 161; R. v. Therens et al., [1985] 1 S.C.R. 613; (1985), 18 D.L.R. (4th) 655; [1985] 4 W.W.R. 286; 38 Alta. L.R. (2d) 99; 40 Sask. R. 122; 18 C.C.C. (3d) 481; 13 C.P.R. 193; 45 C.R. (3d) 57; 32 M.V.R. 153; 59 N.R. 122; R. v. Hebert, [1990] 2 S.C.R. 151; [1990] 5 W.W.R. 1; 47 B.C.L.R. (2d) 1; 57 C.C.C. (3d) 1; 77 C.R. (3d) 145; 49 C.R.R. 114; 110 N.R. 1; Morena et al. v. The Queen et al. (1990), 90 DTC 6685 (F.C.T.D.); The Queen v. Oakes, [1986] 1 S.C.R. 103; (1986), 26 D.L.R. (4th) 200; 24 C.C.C. (3d) 321; 50 C.R. (3d) 1; 19 C.R.R. 308; 65 N.R. 87; 14 O.A.C. 335.
AUTHORS CITED
de Smith, S. A. Judicial Review of Administrative Action, 3rd ed. London: Stevens & Sons Ltd., 1973.
REFERENCE pursuant to section 18.3 of the Federal Court Act asking the Federal Court to determine whether an investigator appointed by the Board can require a witness to attend and testify concerning a marine occurrence without the right to counsel being present with him, pursuant to subparagraph 19(9)(a)(i) of the Canadian Transportation Accident Investigation and Safety Board Act. The question was answered in the negative.
COUNSEL:
D. Rodney Urquhart for Canadian Transport Accident and Safety Board.
W. G. Wharton for Captain Parrish.
Caroline J. Askew for British Columbia Ferry and Marine Workers Union.
J. T. Keenan for Canadian Air Line Pilots Association.
Stephen C. Best for Company of Master Mariners of Canada.
Jack D. Buchan for Canadian Merchant Service Guild.
Mark Sachs for British Columbia Coast Pilots Ltd.
SOLICITORS:
McCarthy Tétrault, Vancouver, for applicant.
Campney & Murphy, Vancouver, for defendant.
McGrady, Askew & Fiorillo, Vancouver, for British Columbia Ferry and Marine Workers Union.
Gravenor Keenan, Montréal, for Canadian Air Line Pilots Association.
Russell & DuMoulin, Vancouver, for Company of Master Mariners of Canada.
Cohen, Frost, Buchan, Edwards, Richmond, B.C., for Canadian Merchant Service Guild.
Bull, Housser & Tupper, Vancouver, for British Columbia Coast Pilots Ltd.
The following are the reasons for determination of a question of law rendered in English by
Rouleau J.: In March 1990, Parliament established a body responsible for investigating marine, air, rail and pipeline occurrences through the Canadian Transportation Accident Investigation and Safety Board Act, S.C. 1989, c. 3, hereinafter referred to as the Act. Section 14 of the Act provides for investigations being conducted with respect to any transportation occurrence.
Captain Roger Parrish was required to attend before the Canadian Transportation Accident Investigation and Safety Board, hereinafter referred to as the Board, as a result of an occurrence on March 12, 1992. He arrived accompanied by his counsel who was denied standing; he refused to testify. As a result, the Board, pursuant to section 18.3 of the Federal Court Act, R.S.C., 1985, c. F-7 [as enacted by S.C. 1990, c. 8, s. 5], have put the following question to the Federal Court for determination:
Can an investigator require Captain Parrish to attend before him and give evidence under oath concerning the marine occurrence without the right to counsel being present with him, pursuant to section 19(9)(a)(i) of the Canadian Transportation Accident Investigation and Safety Board Act.
The particular facts surrounding the occurrence involved a collision between the British Columbia ferry Queen of Alberni and the Japanese freighter the Shinwa Maru. An investigation was initiated and after conducting interviews of the crew of the Shinwa Maru with legal counsel present, the Board sought to conduct interviews of the crew members aboard the Queen of Alberni and more particularly Captain Roger Parrish without affording him legal counsel. It is alleged that in the past the Board had always permitted counsel to be present during investigations. Captain Parrish did attend on three separate occasions (March 13, March 23 and April 28, 1992) to assist in the investigation. On these occasions he was accompanied by at least two counsel and was prepared to testify but the Board refused to proceed in the presence of both counsel. It is suggested that the investigator may have proceeded with the witness had he been accompanied by one advisor, but the ultimate question is concerned with whether when an individual is requested to attend before the Board he may be accompanied by a legal representative.
Subsequent to the Court being asked to answer the question, numerous professional associations expressed concern with the outcome in this case since they could be affected during future inquiries. In a motion before the Court on August 20, 1992, these parties were granted intervenor status.
Before analyzing submissions by counsel, it is important to point out that in most cases, immediately following an incident, the Board initiates an inquiry and the Director of Investigation for a designated branch appoints an investigator. The investigator is the Director’s representative and is customarily an expert in the field, such as in this case, Captain Grabowski, who undoubtedly is well qualified to probe marine incidents. In order to obtain precise evidence surrounding the circumstances of an occurrence, the investigator summons witnesses within days and sometimes only hours after the Board has been made aware of an occurrence. Evidently this allows for the gathering of accurate information before recollection or memory becomes distorted or influenced. The time within which the investigator initiates the procedure to determine causes is important, not only to the Department, but also to satisfy the public’s “need to know” and allay fears.
Interpretation as to the content of the Act as submitted by counsel for the Board
The object of the Board is to advance transportation safety and it expects to achieve this objective by conducting independent investigations into transportation occurrences in order to make findings as to causes and contributing factors. The purpose is to identify safety deficiencies and make recommendations designed to eliminate or reduce risks. The result of the investigations are eventually made available to the public.
Both the Board’s objective and the means by which it is to achieve that objective are specific in section 7 of the Act.
7. (1) The object of the Board is to advance transportation safety
(a) by conducting independent investigations and, if necessary, public inquiries into transportation occurrences in order to make findings as to their causes and contributing factors.
(b) by reporting publicly on its investigations and public inquiries and on the findings in relation thereto;
...
(2) In making its findings as to the causes and contributing factors of a transportation occurrence, it is not the function of the Board to assign fault or determine civil or criminal liability, but the Board shall not refrain from fully reporting on the causes and contributing factors merely because fault or liability might be inferred from the Board’s findings.
(3) No finding of the Board shall be construed as assigning fault or determining civil or criminal liability.
(4) The findings of the Board are not binding on the parties to any legal, disciplinary or other proceedings.
Sections 9 and 10 provide for the appointment of directors of investigations in various fields as well as investigators.
In accordance with section 14, no department of government other than the Department of National Defence may conduct safety investigations into a transportation occurrence when it has been disclosed that the Board has either initiated an investigation or has proposed that an occurrence is to be investigated. Only this Board is permitted to make findings as to the cause and contributing factors of the occurrence. Nevertheless, the Royal Canadian Mounted Police are not prohibited from conducting investigations for its purposes. It should be noted that various departments may conduct inquiries for other reasons but are not empowered to make findings as to causes and contributing factors into safety measures as this responsibility rests exclusively within the province of the Board. The Coast guard may conduct an investigation of its own to determine from a regulatory point of view, fault or breaches in regulations. This is also distinguishable from the functions of the Board.
Pursuant to section 19 of the Act, the investigator has powers of search and seizure under warrant but this exigency can be circumvented when it may not be practical to do so. Subsections 19(9) and (10) read in part as follows:
19. ...
(9) An investigator who is investigating a transportation occurrence may
(a) where the investigator believes on reasonable grounds that a person is in possession of a document, or of information relating to a matter, relevant to that investigation,
(i) by notice in writing signed by the investigator, require the person to produce the document to the investigator or to attend before the investigator and give evidence, under oath or solemn affirmation, concerning that matter, and
...
(10) No person shall refuse or fail to produce a document to an investigator, or to attend before an investigator and give evidence concerning a matter, in accordance with a requirement imposed under paragraph (9)(a), to provide information in accordance with a requirement imposed under paragraph (9)(c) or to make the body of a deceased person or other human remains available for the performance of an autopsy or medical examination in accordance with a requirement imposed under paragraph (9)(d).
Sections 24, 25 and 30 read in part as follows:
24. (1) On completion of any investigation, the Board shall prepare and make available to the public a report on its findings and any safety deficiencies that it has identified, and wherever possible shall, in the interests of transportation safety, include in its report recommendations based on its findings.
(2) Before making public a report under subsection (1), the Board shall, on a confidential basis, send a copy of the draft report on its findings and any safety deficiencies that it has identified to each Minister and any other person who, in the opinion of the Board, has a direct interest in the findings of the Board, and shall give that Minister or other person a reasonable opportunity to make representations to the Board with respect to the draft report before the final report is prepared.
(3) No person shall communicate or use the draft report, or permit its communication or use, for any purpose, other than the taking of remedial measures, not strictly necessary to the study of, and preparation of representations concerning, the draft report.
...
25. (1) The Board shall, on a confidential basis, provide an interim report on the progress and findings of an investigation
(a) on written request made in respect of that investigation, to any Minister responsible for a department having a direct interest in the subject-matter of the investigation; and
(b) to any peace officer or coroner investigating the transportation occurrence, where the transportation occurrence involved a fatality and significant progress has been made in the Board’s investigation.
(2) A person, other than a Minister, who is provided with an interim report under subsection (1) shall not use the report, or permit its use, for any purpose not strictly necessary to the examination of the report.
...
30. (1) For the purposes of the section,
(a) “statement” means
(i) the whole or any part of an oral, written or recorded statement relating to a transportation occurrence and given, by the author of the statement, to the Board, an investigator or any person acting for the Board or for an investigator,
(ii) a transcription or substantial summary of a statement referred to in subparagraph (i), or
(iii) conduct that could reasonably be taken to be intended as such a statement; and
(b) where a statement is privileged, the identity of its author is privileged to the same extent.
(2) A statement is privileged, and no person, including any person to whom access is provided under this section, shall knowingly communicate it or permit it to be communicated to any person except as provided by this Act or as authorized in writing by the person who made the statement.
(3) The Board may make such use of any statement as it considers necessary in the interests of transportation safety.
(4) The Board shall make statements available to
(a) a peace officer authorized by law to gain access thereto;
(b) a coroner who requests access thereto for the purpose of an investigation that the coroner is conducting; or
(c) any person carrying out a coordinated investigation under section 18 or designated as an observer by the Minister of Transport under subsection 23(2).
Section 35 provides that a person who fails to comply with a request of an investigator or gives false or misleading evidence is guilty of an indictable offence and liable on conviction to a term of imprisonment not exceeding two years. In the alternative, he may be charged with a summary conviction offence.
Counsel for the Board submits that there is no absolute right to counsel in these proceedings either at common law or by statute and that the discretion whether or not to allow representation should be left to the investigator. He is of the view that there is adequate protection provided within the Act for all those who testify and that the presence of counsel would only serve to delay the inquiry because of interruptions and objections. He points out that it is not the function of the Board to assign fault or determine civil or criminal liability but the Board shall not refrain from fully reporting causes or contributing factors merely because fault or liability can be inferred from its findings.
He admits that pursuant to section 19, a person who is required to attend before the investigator is compelled to do so and not only is he required to testify but he must also produce pertinent documents. Undoubtedly, his failure to cooperate can bring about sanctions which are outlined in section 35 of the Act. He admits that this effectively “removes what I might loosely call his right to silence”. He argues, and quite correctly so, that without this power to compel the attendance of witnesses the whole purpose of the Act dealing with safety in the transportation field would be defeated.
He further submits that pursuant to section 24, before a report is made public, the Board must provide a draft copy of the interim report to those who have a direct interest in the findings and provide them with a reasonable opportunity to make representations before a final report is disclosed to the public. At this point, individuals such as Captain Parrish may review these interim findings with their counsel and correct or clarify the content.
The statute prohibits the use of the evidence obtained by the Board in criminal or quasi-criminal proceedings as well as in civil proceedings, except of course in cases of perjury. A witness, when required to appear, may seek the protection of the Canada Evidence Act [R.S.C., 1985, c. C-5] as well as the British Columbia Evidence Act [R.S.B.C. 1979, c. 116].
To briefly summarize representations made by counsel for the Board in dealing with the Act itself, he is of the view that adequate safeguards are afforded any witness and that the only negative impact from an inquiry would amount to a slight stigma to an individual’s reputation.
Interpretation as to the content of the Act as submitted by Captain Roger Parrish and the intervenors
Bearing in mind that it is acknowledged that the right to silence has been taken from the witness by statute, they submit that certain sections of the Act do not afford the protection suggested which is in effect illusory. To allow total discretion to the investigator as to whether or not a witness should have the benefit of counsel is totally contrary to the concepts of fairness as well as the Canadian Bill of Rights, R.S.C., 1985, Appendix III and 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]].
There is no doubt that the objects as outlined in section 7 of the Act can be attained or achieved without the presence of counsel. Nevertheless, they point out that the section, though it recites that the Board will not assign fault or determine criminal or civil liability, goes on to state that “the Board shall not refrain from fully reporting on the causes and contributing factors merely because fault or liability might be inferred from the Board’s findings” (subsection 7(2)). The investigation and subsequent report which is then made available to the public in order to point out any safety deficiencies, would obviously contain implications of fault. Though the evidence from the inquiry is not binding in a civil or criminal context, it is evident that other investigatory or regulatory agencies would be influenced by the findings and launch inquiries of their own. As a concrete example, counsel refers to the unfortunate incident during 1992 at the Nanaimo Ferry Terminal which resulted in loss of life. Within hours of the occurrence the Canadian Transportation Accident Investigation and Safety Board, the Canadian Coast Guard, the Royal Canadian Mounted Police and the Coroner initiated investigations. In addition, the Government of British Columbia launched a public inquiry and the British Columbia Ferry Commission began an internal investigation.
Counsel argues that the witnesses cannot be adequately protected without the benefit of counsel. Section 14 of the Act deals with the exclusive jurisdiction of the Board to determine causes and contributing factors as to safety, nevertheless this section does not preclude activities of other agencies. Without lawyers participating in the process, the witness is at the mercy of potential regulatory investigatory bodies who will undoubtedly launch inquiries of their own. It is certainly not adequate that counsel be standing in the hall. Someone should be present to at least ensure that the investigator remains within the scope of his jurisdiction and to limit the extent to which a witness should be subject to examination.
It is submitted that a careful reading of section 21 of the Act also creates a quandry. It provides that:
21. (1) Where, in the course of an investigation of a transportation occurrence, the Board considers it necessary that a public inquiry be made into the transportation occurrence and the Governor in Council has not caused a public inquiry to be made under Part I of the Inquiries Act, the Chairperson may, subject to section 18, designate a person or persons, who may be or include the Chairperson, to conduct a public inquiry into that transportation occurrence in accordance with any regulations made under section 34 and to report to the Board thereon.
Contrary to what is suggested by counsel for the Board with respect to the safeguards provided, it is apparent that the Board may elevate a private inquiry to a public inquiry at any stage. Thus, the protection of the witness, as suggested by counsel for the Board, has once again been constrained.
Subsection 23(2) of the Act provides that the Board may, after imposing conditions, allow persons to attend investigations as observers. Paragraph 23(2)(d) provides as follows:
23. ...
(2) Subject to any conditions that the Board may impose, a person may attend as an observer at an investigation of a transportation occurrence conducted by the Board if the person
...
(d) is invited by the Board to attend as an observer because, in the opinion of the Board, the person has a direct interest in the subject-matter of the investigation and will contribute to achieving the Board’s object.
This opens the door to the Canadian Coast Guard to attend as observers.
Turning to subsection 24(2) which is concerned with the interim reports and the reasonable opportunity given an interested party to make representations, before the final report is made public, it is suggested that Parliament, by implication, must have taken for granted that in order to make representations, counsel would have to be present during the giving of the evidence. Unless counsel are involved from the beginning, it is not possible for the witness to be provided with a “reasonable opportunity” to reply to the interim report.
Pursuant to section 25, the Board, on a confidential basis, may provide interim reports on the findings of an investigation on receipt of written requests from ministers responsible for a department having a direct interest and any peace officer, regulatory agency or a coroner investigating an occurrence where a fatality is involved. At this stage of the inquiry, there are no provisions to protect the witness who has not yet had an opportunity to review the findings nor has he had the assistance of counsel. Without a lawyer present, attending before an investigator who is in most cases not legally trained, the witness may be subjected to questions that are unclear, double-barrelled or simply misunderstood. If some material facts have been omitted, the interim report may be inaccurate or unfair in its assessement of the occurrence.
Briefly, section 30 provides that statements are privileged but subsection (4) specifies that “the Board shall make statements available to a peace officer authorized by law to gain access thereto”. It is submitted that Parliament certainly must have presumed that in such circumstances a witness would have the benefit or assistance of counsel. This subsection also provides that these statements can be made available to the coroner or to any person carrying out a coordinated investigation. This clearly implies the Coast Guard who, in turn, could make determinations having serious consequences to an individual’s professional standing.
Section 30 undoubtedly further affects the privilege afforded in subsection (7) where prohibition is specifically waived in civil proceedings. It is ludicrous, as suggested by counsel for the intervenors, that untrained lay people would have the required expertise to stand up before an investigator and claim the privilege of the Canada Evidence Act and the British Columbia Evidence Act.
In summary, it is argued that the presence of counsel would ensure:
(1) that the witness is treated fairly;
(2) that the witness is asked proper questions within the scope of the legislation (questions which are relevant to the investigation);
(3) that the witness is aware of his rights and obligations in giving evidence;
(4) that the witness is not operating under any language difficulty or any other impairment;
(5) protect the witness from double-barrelled questions or questions which call for conclusions of law or interpretation of the statute;
(6) assist the witness in order to enable him to adequately review the draft report and advise in responding in an appropriate manner.
With respect to the effect of the inquiry on the witness, it is submitted that there is no doubt that the result of any investigation or inquiry will either expressly or impliedly find fault with some of the parties and adversely affect witnesses’ reputations and employment potential. Though the identity of an individual may be protected, clearly everyone in the maritime community is aware of who is in charge of a vessel when it is involved in an incident. If the Coast Guard attend as observers, they have the potential to attack the certification of a maritime officer and deprive him of his livelihood. Protection provided by this Act is inadequate; it does not only have the seemingly harmless effect of damaging reputation but a witness is exposed to possible prosecution and adverse ramifications of his rights.
Counsel then proceeded to outline the various groups which would be nefariously affected should this new policy be adopted. The Company of Master Mariners of Canada, with a membership of 600 persons who are holders of certificates of competency, would most likely be involved should there be a marine incident of any magnitude. The potential consequences not only run to a mariner’s loss of reputation but may result in the loss of his certificate and consequently his livelihood. The stress alone of being implicated in a marine incident and being summoned on such short order before an investigator surely requires assistance and advice of counsel.
The Canadian Air Line Pilots Association, some 4,000 in number, have always been permitted counsel in the past when attending investigations. The trauma experienced by a pilot following an aviation incident is beyond description. An investigation could seriously prejudice his or her employment. The use of interim reports by other departments, such as the Department of Transport, could lead to remedial or enforcement action against a pilot. Reports when made public are released to the press and can seriously affect one’s professional reputation. Interim reports that make vague findings of pilot error may be highly prejudicial to the individual.
The Canadian Merchant Service Guild representing certified officers and crew members aboard vessels may also be subjected to the prejudicial effects previously mentioned. In an affidavit submitted on behalf of this body, they refer to a report prepared by the Board and issued to the press some 5 days before the interested parties were advised; as a result they were never given an opportunity to reply. They point out that though in theory this should not have happened, in practice on some occasions these lapses occur. The Canadian Merchant Service Guild express the same misgivings.
The British Columbia Coast Pilots Limited reiterates that never before in investigations conducted for the purposes of improving safety have they been asked to respond without counsel. They say that many inquiries result in civil proceedings after a significant incident. They refer to a recent collision between two passenger ferries where the Board prepared and issued to the public a preliminary report on the circumstances of the collision without notice to the parties involved nor were they able to review it with counsel. The Board even provided a copy of the preliminary report to the news media.
Submissions by counsel for the Board on the applicable jurisprudence
No absolute right to counsel at common law
Counsel for the Board suggests that at common law only when there was a determination of legal rights was one entitled to counsel and in the present circumstances the statute precludes such a determination. These inquiries are not criminal in nature and certainly are not a court-like proceeding. No legal issues are to be determined, and therefore, the inquiry is of no great consequence to any individual. The only matter that can really be affected here is Captain Parrish’s reputation, not his livelihood.
He submits that historically the right to representation by counsel has developped within the curial as opposed to the investigatory setting. He quotes Estey J. in Irvine v. Canada (Restrictive Trade Practices Commission), [1987] 1 S.C.R. 181 [at page 210]:
The institution of the counsel has been a part of our legal system for at least seven centuries. The practice and later the right to counsel carried with it the right of the litigant to speak to the courts through counsel ... [Underlining added.]
In my view, however, this statement by Estey J. is merely introductory to an historical overview of the evolution of administrative law over the years. The principles of administrative law have certainly developed from that stage.
It is submitted that the bulk of the jurisprudence dealing with administrative bodies has upheld the right to counsel in very restrictive circumstances, more particularly, when an inquiry can result in serious consequences; that these proceedings are distinguishable from the present situation since the Board’s inquiries are non-criminal and fact-gathering only. To support the proposition that the practice of allowing counsel is very limited, he suggests that even in cases where a penalty may be imposed there is limited access. Counsel referred me to Royal Canadian Mounted Police Act (In re) and in re Husted, [1981] 2 F.C. 791 (T.D.), in which Addy J. states at page 795:
There is no absolute common law right to counsel in all cases where an individual is subject to some penalty.
As I review Addy J., I am satisfied he was creating an exception in this particular case because of the subject-matter. He himself distinguished these exceptional circumstances by pointing out that he was dealing with the Armed Forces. He quite correctly asserts that the courts have usually refused to intervene in service disciplinary matters [at page 795]:
... the hearing is, by nature of the subject-matter or the alleged offence, of an internal administrative nature and concerns a disciplinary matter within a special body such as a branch of the armed services or a police organization ... The exigencies of the service require this degree of informality without which the day-to-day administration of the Force and the maintenance of discipline within it would become so cumbersome and time-consuming as to be ineffective.
Counsel alleges further support for this proposition is found in Selvarajan v Race Relations Board, [1976] 1 All E.R. 12 (C.A.), where at page 19 Lord Denning states:
The investigating body is, however, the master of its own procedure. It need not hold a hearing. It can do everything in writing. It need not allow lawyers. [His emphasis.]
A careful reading of Selvarajan v Race Relations Board, supra, suggests to me that the emphasized quote “it need not allow lawyers” is obiter. What Lord Denning was deciding on the facts before him was whether or not a board had acted properly in investigating an allegation of prejudice, not whether or not counsel should be present. He ultimately determined that tribunals are masters of their own procedure provided they act fairly. The question as to whether or not counsel should or should not be involved was not in issue. The following passage from Lord Denning’s reasons again on page 19 bears repeating:
The fundamental rule is that, if a person may be subjected to pains or penalties, or be exposed to prosecution or proceedings, or deprived of remedies or redress, or in some such way adversely affected by the investigation and report, then he should be told the case made against him and be afforded a fair opportunity of answering it.
Procedural fairness
Fairness is a flexible concept and its content varies depending on the nature of the inquiry and the consequences for the individuals involved. Irvine v. Canada (Restrictive Trade Practices Commission), [1987] 1 S.C.R. 181 [at page 231].
It is argued that for the sake of administrative efficiency and economy, an inquiry should be faced with as few impediments as possible. To support this allegation, counsel for the Board refers to Lord Sachs in Re Pergamon Press Ltd, [1970] 3 All E.R. 535 (C.A.) at pages 541-542:
... in the conduct of the proceedings there must be displayed that measure of natural justice which Lord Reid in Ridge v Baldwin described as ‘insusceptible of exact definition but what a reasonable man would regard as fair procedure in particular circumstances’ ...
In the application of the concept of fair play, there must be real flexibility, so that very different situations may be met without producing procedures unsuitable to the object in hand.
May I point out that this also appears to me to be obiter and it should be noted that at page 542 Lord Sachs went on to say:
... it is the characteristics of the proceedings that matter, not the precise compartment or compartments into which they fall—and one of the principal characteristics of the proceedings under consideration is to be found in the inspectors’ duty, in their statutory fact-finding capacity, to produce a report which may be made public and may thus cause severe injury to an individual by its findings . [My emphasis.]
Though the ultimate decision in Re Pergamon Press Ltd, supra, was to restrain additional interference and participation by counsel, I find it interesting to further quote Lord Sachs at page 543 where, when dealing with general principles concerning privilege of a witness, he states:
It is simply something which has to be taken into account in view of the fact that statements made by witnesses to these inspectors are not the subject of absolute privilege. It is often difficult enough to persuade a citizen to give evidence in road accident cases. How much more reluctant may they well be to risk becoming themselves involved in litigation as the result of coming forward in the course of their public duty at an investigation unless they can be given protection.
Much reliance by the Board’s counsel was placed on Irvine v. Canada (Restrictive Trade Practices Commission), supra. A number of passages were referred to and quoted outlining the history of what counsel considers to be the evolution of the “right to counsel” in administrative law cases. He submits that the Board established by the Canadian Transportation Accident Investigation and Safety Board Act is quite similar in scope to the “Restrictive Trade Practices Commission” as it then existed. He argues that the Supreme Court of Canada in dealing with the Restrictive Trade Practices Commission found that it also was not to determine fault but to conduct strictly fact-finding exercises. As in the case at bar, the Commission had the power to subpoena; the inquiries were conducted by a director; the Director was to submit interim reports outlining the evidence obtained as well as his opinion as to its effect which were then turned over to the Attorney General of Canada “for consideration as to whether an offence has been or is about to be committed against this Act” [at page 196]. No evidence from in camera findings would be receivable against a person in criminal proceedings and counsel would have an opportunity to review the director’s submissions and comment before ultimate decisions were taken.
There is no doubt that both statutes contain many similarities but I am of the view that Irvine, supra, is quite distinguishable from the legislation governing this Board in so far as privilege extended to witnesses. It should be pointed out that the Combines Investigation Act [R.S.C., 1985, c. C-34 (as am. by R.S.C., 1985 (2nd Supp.), c. 19)] provides for the right to counsel when appearing before the Restrictive Trade Practices Commission. In fact, what Estey J. was determining in Irvine was whether or not counsel could exercise greater functions, such as the cross-examination of other witnesses. The Supreme Court of Canada ultimately decided that commissions or tribunals are masters of their own procedure. I think it is important to point out the distinctions between the enabling legislation of this Board and the Restrictive Trade Practices Commission which are succinctly described at pages 231-232 of the judgment and I paraphrase. Before this Board, observers and other regulatory bodies may be present. In Irvine the Hearing Officer could not make public the transcript of evidence; only the Director could publish a report of the investigation. Before this Board transcripts can, in certain circumstances, be made available. In Irvine the evidence gathered was not published but was delivered by the Director only to those persons against whom an allegation may have been made and they were to be “allowed full opportunity to be heard in person or by counsel”. It is obvious from the evidence before me that such is not the case before this Board.
Though I agree that Estey J. stated quite emphatically that the doctrine of procedural fairness did not always provide that an individual’s counsel had the right to cross-examine other witnesses also present, he certainly implied that generally speaking an administrative body must exercise its functions within the bounds of the duty to act fairly.
Counsel suggests that the jurisprudence establishes that the criteria to be analyzed by a court when determining whether or not a witness should be entitled to counsel are broadly speaking the following: the circumstances of the case, the characteristics of the proceeding, the nature of the resulting report, the report circulation to the public, penalties that may result, its nature and gravity, the complexity and the capacity of an individual to understand the case and present his defence, the vital importance of the controversy to the individual and whether a person’s reputation, liberty or livelihood is at stake. Counsel suggests that in the present circumstances, the case at bar would not qualify. It is his view that this is merely a fact-gathering stage of the administrative process and that the maxim audi alteram partem does not apply to an administrative officer simply concerned with this process.
I totally disagree with this proposition considering the circumstances of the Board’s inquiry. I am of the view that the complexity of issues, the requirements of attendance without adequate protection and the public release of a report which impliedly finds fault constitutes more than a mere fact-gathering exercise.
Counsel refers to the case of Ha v. Canada (Minister of Employment and Immigration), T-1426-91 (F.C.T.D.), as an example in which legal representation was precluded at the fact-gathering stage. As I review Ha, supra, it should be remembered that the Court was dealing with a refugee claimant who, at that particular stage, had not achieved any standing and was seeking relief by filing an application requesting the Minister to review his case on humanitarian and compassionate grounds. No complex legal issue had to be determined in the proceeding. A refugee seeking review of his status by applying to the Minister on these grounds is already in a negative position. The result from the process can only be positive and therefore no rights are being deprived.
Submissions by counsel for Captain Parrish and the intervenors with respect to the applicable jurisprudence
It is submitted that, generally speaking, there is little or no jurisprudence directly on point with the present situation. They argue that, over the years, administrative law has evolved considerably. In their submissions, they outline a number of decisions pointing out that where a duty to act fairly arises, depending on the complexity of issues and the effects of the decision, the jurisprudence would support the assistance of counsel before administrative tribunals.
A statute which empowers a tribunal to do away with the right to counsel must do so in a clear and explicit language, particularly when individuals’ rights are at stake. The Court is referred to Alliances des Professeurs Catholiques de Montreal v. Quebec Labour Relations Board, [1953] 2 S.C.R. 140, where Rinfret C.J. wrote [at page 154]:
[Translation at [1953] 2 D.L.R. 161, at page 174] The principle that no one should be condemned or deprived of his rights without being heard, and above all without having received notice that his rights would be put at stake, is of a universal equity and it is not the silence of the law that should be invoked in order to deprive anyone of it. In my opinion, nothing less would be necessary than an express declaration of the Legislature in order to put aside this requirement which applies to all Courts and to all the bodies called upon to render a decision that might have the effect of annulling a right possessed by an individual.
It is also argued that the right to counsel must be considered in the context of natural justice. The nature of the investigation by this Board, requiring an examination under oath, is the type which would, by implication, require attendance of counsel.
Although the Supreme Court in Irvine refused to increase the scope of counsel’s participation before the Commission, the intervenors argue that Irvine can be interpreted as providing for the right to counsel’s participation in certain circumstances. Reliance for the proposition is placed on Estey J.’s comment at pages 231-232:
Any loss of reputation, or the right to maintain a good reputation in the community, will be largely and probably entirely dependent on the publication of the transcript of evidence taken before the Hearing Officer. This the Hearing Officer may not bring about. Such a loss or prejudice might be suffered by an appellant if the Director published a report on the evidence gathered in his investigation.
In their view, a careful analysis of this statement suggests that if a commission through its fact-finding affects the reputation of a witness by publishing a transcript of evidence that could prejudicially attack the individual, more protection should be afforded the witness. Contrary to Irvine, in the case at bar, the Board is required to publicly report the result of its investigation and the right to adequately review the draft report is negated by the absence of counsel at the inquiry.
As was stated earlier, a great deal of reliance was placed on the Irvine case and the results. No passage from that decision is more compelling than the one found at page 206, which clearly points out the distinction between the two governing statutes:
That, in overall view, is the regulatory pattern established by the Act. The entire administration of this Act is done in private except where publication of the Commission’s report or the conduct of Commission hearings is directed, and the conduct of prosecutions. At the stage of the administrative process reached here, nothing has been done in public except the application to the Federal Court and to this Court.
It is further submitted that the compelling of a witness to testify under the threat of penalty is a judicial or curial function and not merely fact-finding. The Federal Court of Canada in dealing with the Canada Labour Code [R.S.C. 1970, c. L-1] in Canadian Pacific Air Lines Ltd. v. C.A.L.P.A., [1988] 2 F.C. 493 (C.A.), was reviewing an order to produce documents to complete an investigation and when asked to consider setting aside the directive, the Court found that the tribunal’s order was mandatory and wrote [at page 499]:
[I]t has now been settled on highest authority that the exercise of a legal power to compel persons to testify and to produce documents even when exercised by administrative bodies, is a judicial act.
Tribunals are generally bound to provide an individual with knowledge of the case he has to meet and an adequate opportunity to make representations. They argue that allegations against witnesses which could have as a consequence the loss of employment would seriously affect the right of being properly heard if counsel is denied. This is a widely held principle of natural justice and has been asserted by the courts even when a tribunal has the absolute discretion in the exercise of its administrative functions. As S. A. de Smith wrote in Judicial Review of Administrative Action, 3rd Edition, (1973) at page 208:
That the donee of a power must “act fairly” is a long-settled principle governing the exercise of discretion, though its meaning is inevitably imprecise. Since 1967 the concept of a duty to act fairly has often been used by judges to denote an implied procedural obligation. In general it means a duty to observe the rudiments of natural justice for a limited purpose in the exercise of functions that are not analytically judicial but administrative.
Undoubtedly the scope of the fairness principle depends on the consequences and nature of the inquiry as well as the repercussions on the individuals involved. In this particular case, a witness could be faced with a negative report seriously or adversely affecting his rights without being given a fair opportunity to present his case with the assistance of counsel. The fact that Parliament through this statute compels the attendance of a witness which could result in a seriously flawed published report affecting a person’s reputation or livelihood, implies that the Legislature presumed that counsel would be available.
It is accepted that the participation of counsel may be limited, nevertheless a witness should be provided with adequate safeguards.
Submissions by counsel for Captain Roger Parrish and the intervenors with respect to section 7 of the Canadian Charter of Rights and Freedoms
Counsel for Captain Parrish and the intervenors argues that in Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425, the Supreme Court of Canada did not resolve the question of whether the Combines Investigation Act, R.S.C. 1970, c. C-23, to the extent that it compels testimony violates section 7 of the Charter and therefore it is open to this Court to find that section 7 rights are triggered and the right to counsel automatically follows.
In order to trigger section 7, there must be deprivation and the deprivation must be in accordance with the principles of natural justice. Counsel submits that the moment a citizen is detained by the state, the right to silence comes into force. The definition of detention has been interpreted as being broad (R. v. Therens et al., [1985] 1 S.C.R. 613) enough in scope to include witnesses compelled to testify under oath on pain of punishment and other serious ancillary incidents. This sort of state-induced coercion leads to a deprivation, of liberty and the right to silence. They submit that this power to compel to testify and produce equals in essence a power of subpoena. The moment the State puts its hand on the shoulder of a citizen and demands answers on pain of punishment, the right of silence is threatened and the right to counsel necessarily arises. This is all the more so when the investigatory tribunal moves beyond the mere collection of information and analyzes the data in order to make findings and recommendations which are publicized. If the legislation is silent, the fundamental constitutional right must prevail. Therefore, the right to counsel should be determined to be existing. Hence, through this deprivation, the first step of triggering section 7 has been satisfied.
Counsel further submits that any loss of a liberty or, as stated previously, the right to remain silent, can only be restricted in accordance with the principles of fundamental justice. It, in turn, encompasses the common law principles of procedural fairness and the jurisprudence would support the proposition that in such cases the attendance of counsel is mandatory.
Submissions by counsel for the Canadian Transportation Accident Investigation and Safety Board with respect to section 7 of the Canadian Charter of Rights and Freedoms
Counsel for the Board, on the other hand, argues that the present case, which involves a non-criminal fact-gathering investigation, does not give rise to the application of section 7 of the Charter. Judicial interpretation of the right to silence has established that section 7 protections do not apply in the circumstances where the person giving evidence is not an accused or a suspect in a criminal context (R. v. Hebert, [1990] 2 S.C.R. 151 and Morena et al. v. The Queen et al. (1990), 90 DTC 6685 (F.C.T.D.)). Furthermore, there is no deprivation of liberty and therefore no infringement of section 7 of the Charter.
According to R. v. Hebert, supra, in order to determine the principles of fundamental justice and whether there has been deprivation of a right contrary to fundamental justice in each instance, one must look at the common law and sections 8 to 14 of the Charter. The common law principles do not provide for the right to counsel, and none of sections 8 to 14 apply in the present case.
In the alternative, counsel argues that in the event that the Court finds that section 7 of the Charter is violated, such a violation is reasonable and justified in a free and democratic society under section 1.
The objective, the advancement of transportation safety, is of sufficient importance to warrant overriding Captain Parrish’s section 7 rights. Transportation safety is a pressing and substantial concern which justifies any limits on Captain Parrish’s right to silence and right to counsel in the context of a fact-gathering, non-criminal investigation.
The proportionality test specified in The Queen v. Oakes, [1986] 1 S.C.R. 103, is satisfied in that the questioning of Captain Parrish is rationally connected to achieving the objective of advancing transportation safety; questioning without counsel minimally impairs Captain Parrish’s rights; and the effects of questioning Captain Parrish are proportional to the safety objective of the Board.
CONCLUSION
There has been, as I have stated before, considerable evolution in the law governing tribunals or administrative bodies in general. There is no doubt that a number of inquiries held by administrative tribunals can be conducted without the presence of counsel. My review of the jurisprudence reveals that the duty to act fairly implies the presence of counsel when a combination of some or all of the following elements are either found within the enabling legislation or implied from the practical application of the statute governing the tribunal: where an individual or a witness is subpoenaed, required to attend and testify under oath with a threat of penalty; where absolute privacy is not assured and the attendance of others is not prohibited; where reports are made public; where an individual can be deprived of his rights or his livelihood; or where some other irreparable harm can ensue. I do not intend this list to be exhaustive but I wish to highlight those factual situations in the jurisprudence giving rise to the need for adequate protection by way of counsel or some other advisor.
There is no doubt that boards or tribunals are masters of their own procedure and when witnesses appear with two or three counsel, it is certainly within the Board’s domain to limit not only the number of counsel but also the scope of their participation. In this particular inquiry, Captain Parrish appeared on most occasions with lawyers representing varying interests. He had one to advise him with respect to his professional standing and others to advise him with respect to the liability interests that could be at stake. The Board may be perfectly free to prohibit the attendance of more than one counsel and it would be up to the investigator to determine if the presence of more than one would seriously impede the progress of the investigation. In most cases reviewed, the legislation provided for the presence of counsel but left the Board the power to determine its own procedure. If one finds that participation is unjustly restricted, judicial review is generally available.
The Canadian Transportation Accident Investigation and Safety Board offers to the Court but one valid argument or explanation as to why it wishes to deprive a witness of the right to counsel: that their presence would cause unwarranted delay and perhaps frustrate the immediate gathering of facts. This Court is asked to deprive an individual of his right to silence. In the event of a tragic and catastrophic incident, a witness is subpoenaed within hours and at best days to attend and give testimony under oath with the threat of penalty over his head while perhaps still in a traumatic state. He may not have the presence of mind to invoke the protection of the Canada Evidence Act and the British Columbia Evidence Act. The witness would be testifying before an investigator who is usually not legally trained, asking double-barrelled questions that in some cases may even be beyond the scope of the Board’s mandate; perhaps in the presence of the coroner, police authorities or some regulatory body that has the power to deprive him not only of his reputation but his professional certification and his livelihood. The witness is then faced with interim reports that are sometimes prematurely leaked to the press before having had an opportunity to comment. In such circumstances, I cannot accept the Board’s argument that the need for administrative expediency in the proceedings outweighs the necessity for the protection of a witness through the presence of counsel.
After reviewing the jurisprudence and arguments submitted by the parties, I am satisfied that in these circumstances the procedural fairness requires that the witness be permitted to be accompanied by counsel when at the inquiry. In view of this conclusion I see no need to address the Charter arguments.
I therefore answer the question in the negative.
Costs to Captain Roger Parrish as well as all intervenors.