CEA-3-88
Commission de la santé et de la sécurité du travail
(Plaintiff)
v.
Her Majesty the Queen (Defendant)
INDEXED AS: QUEBEC (COMMISSION DE LA SANTÉ ET DE LA
SÉCURITÉ DU TRAVAIL) V. CANADA (T.D.)
Trial Division, Addy J.—Ottawa, November 14,
15, 16 and December 22, 1989.
Access to information — Canada Evidence Act, ss.
36.1(1),(2), 36.2(1) — In action claiming damages for negli
gence, plaintiff seeking disclosure of deleted information in
Canadian Armed Forces investigative inquiry report on use of
military firearm and ammunition in shooting in Quebec Na
tional Assembly — Public interest in non-disclosure out
weighing that in disclosure as disclosure injurious to national
defence or security — Deletions referring to security systems,
codes and access control monitoring equipment, base defence
installations, firearm and ammunition inventory — Strategic
importance of particular military base — Judge examining
material as to relevance, balancing of competing public inter
ests in view of Crown's possible conflict of interest.
Armed forces — Disclosure of information re national
defence or security, ss. 36.1(1),(2), 36.2(1) Canada Evidence
Act — Plaintiff, in action claiming damages for negligence,
seeking disclosure of deleted information in military investiga
tive inquiry report re Corporal Denis Lortie's use of military
firearm and ammunition in shooting incident in Quebec Na
tional Assembly — As deletions referring to location and
operation of security systems, security codes and access con
trol monitoring equipment, base defence installations, number
and type of firearms and ammunition in stock and as base of
national strategic importance, public interest in non-disclosure
outweighing that in disclosure.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canada Evidence Act, R.S.C. 1970, c. E-10, ss.
36.1(1),(2), 36.2(1) (as added by S.C. 1980-81-82-83,
c. 111, Schedule III, s. 4).
Workmen's Compensation Act, R.S.Q. 1977, c. A-3.
COUNSEL:
Jean -Félix Brassard for plaintiff.
Jean-Marc Aubry, Q.C. and René Leblanc
for defendant.
SOLICITORS:
Flynn, Rivard, Québec, for plaintiff.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment
rendered in English by
ADDY J.: On May 8, 1984 Corporal Denis
Lortie, a soldier with the Canadian Forces, Regu
lar Force, using a submachine gun and ammuni
tion obtained without authorization from the Carp
Military Base in Ontario, burst into the Quebec
National Assembly and shot several people, three
of whom were killed and nine wounded. It was also
alleged that several others suffered nervous shock
as a result of the shooting.
The plaintiff, an organization of the province of
Quebec, is responsible inter alia for administering
the province's Workmen's Compensation Act
[R.S.Q. 1977, c. A-3]. As part of this responsibili
ty, it has compensated the victims injured and the
dependants of those who died. It will also in some
cases have to continue paying compensation.
In an action brought in the Federal Court, the
plaintiff claimed repayment for the amounts which
it had to pay and will have to pay in the future to
compensate the injured and the beneficiaries of
deceased persons. It based its claim on allegations
that the defendant was negligent in not exercising
effective control over the weapons and ammunition
stored at Carp and in not providing adequate
supervision of personnel in this regard, in particu
lar of Corporal Denis Lortie.
Carp Military Base, located some twenty kilom
eters from Ottawa, in addition to serving as a
communications control point for Canadian naval,
air and land forces, located both outside and inside
Canada, also includes premises which, in the event
of a nuclear war or a major conflict, could serve as
a refuge for the Cabinet and National Defence
Command, and from which the CBC could trans
mit emergency instructions to the public.
Corporal Lortie was assigned to the headquar
ters detachment on the base for the storing and
maintenance of weapons and ammunition. As such
he was among the four persons who had access to
the vault where they were stored.
On May 15, 1984 the Canadian Forces initiated
an inquiry into the removal of weapons and ammu
nition from the Carp Base by Corporal Lortie. The
relevant paragraphs of the order of Brigadier Gen
eral Simpson, Commander, Communication Com
mand for Canadian Forces, convening the military
inquiry Board read as follows:
2. The Board shall investigate and report upon the circum
stances surrounding the removal of firearms and ammunition
from CFS Carp, allegedly by Cpl D. Lortie, a member of the
Canadian Forces, Regular Force, culminating in the alleged
subsequent use of these firearms and ammunition in a shooting
incident in Quebec City on 8 May 1984.
4. The Board shall establish and maintain liaison with appro
priate officers of the Quebec Provincial Police, and any other
civil police force which may be involved, to ensure that the
Board's investigation does not in any way interfere with or
prejudice the conduct of the investigation(s) conducted by civil
authorities.
5. Subject to paragraph 4 above, the Board shall obtain state
ments from all available witnesses, and in particular shall
record evidence and make findings as to:
(a) the position, duties and functions of Cpl Lortie at CFS
Carp;
(b) the weapon(s) allegedly found in Cpl Lortie's possession
at the time of his arrest in Quebec City, including ownership,
the circumstances under which he obtained it or them, and
whether his acquisition was duly authorized;
(c) regulations and procedures in effect at CFS Carp for the
custody, control, and issue of firearms and ammunition, and
whether these regulations and procedures are adequate for
the purpose;
(d) whether the regulations and procedures referred to in
subparagraph c. above, and other applicable regulations and
procedures, were complied with; and
(e) such other findings as the Board may consider relevant
and appropriate, having regard to the nature and purpose of
the inquiry.
The inquiry Board, headed by Lieutenant Colo
nel A. R. K. Martineau (now Colonel Martineau)
consisted of four officers. It submitted its report to
Brigadier General Simpson on June 8, 1984, in
which the purpose of the inquiry was described in
the following way:
Investigation and reporting upon the circumstances surround
ing the removal of firearms and ammunition from CFS Carp,
allegedly by Cpl D. Lortie, a member of the Canadian Forces
Regular Force, culminating in the alleged subsequent use of
these firearms and ammunition in a shooting incident in
Quebec City on 8 May 1984.
In response to a request for disclosure in the
action, the defendant sent the plaintiff a copy of
the inquiry report. However, certain words and
some complete sentences were deleted. A second
request was made for disclosure of the full report
and the defendant refused to disclose the deleted
portions, indicating by affidavit that the disclosure
would be likely to adversely affect national
defence. The defendant based its refusal to pro
duce the deleted portions of the report on subsec
tion 36.1(1) of the Canada Evidence Act [R.S.C.
1970, c. E-10 (as added by S.C. 1980-81-82-83, c.
111, Schedule III, s. 4], which reads as follows:
36.1 (I) A Minister of the Crown in right of Canada or
other person interested may object to the disclosure of informa
tion before a court, person or body with jurisdiction to compel
the production of information by certifying orally or in writing
to the court, person or body that the information should not be
disclosed on the grounds of a specified public interest.
In the case at bar the plaintiff submitted to me,
as the designated judge in this matter, an applica
tion for disclosure in accordance with the provi
sions of subsection 36.2(1) [as added idem]:
36.2 (1) Where an objection to the disclosure of information
is made under subsection 36.1(1) on grounds that the disclosure
would be injurious to international relations or national defence
or security, the objection may be determined, on application, in
accordance with subsection 36.1(2) only by the Chief Justice of
the Federal Court, or such other judge of that court as the
Chief Justice may designate to hear such applications.
In an analysis of subsection 36.2(1), counsel for
the plaintiff sought to distinguish the application
at bar, which may involve injury to national
defence, from all earlier cases in which there was a
possibility of injury to national security. Simply
from reading the wording of this subsection, I
cannot accept his argument. Also, injury to nation
al defence would by the same token be injury to
national security, since national defence exists only
to ensure the protection and security of the nation.
The alarm and control systems designed to pre
vent unauthorized removal of weapons and ammu
nition stored at the Carp Base may be considered
in two quite different ways. First, they may be
viewed in terms of the important part they play in
the defence of the Base as a military facility.
Second, the security provisions for these weapons
and ammunition may be considered in relation to
the unauthorized use which may be made of them
by personnel of the armed forces or members of
the public, quite apart from the fact that they are
intended for military protection of the base. Only
the second aspect is relevant in the case before the
Federal Court. Further, since the admitted facts
establish that it actually was Corporal Lortie, as a
member of the military staff on the Base, who took
the submachine gun and ammunition for this
weapon, measures to prevent unauthorized entry of
other persons to the Base in general or to the vault
in particular are not really relevant.
On account of his assignment to the Base, Cor
poral Lortie necessarily had a right of entry. The
nature and effectiveness of the regulations and
measures in effect, and the way they were put into
practice to prevent unauthorized use of weapons
and ammunition by members of the military per
sonnel on the Base, are very relevant to the case at
bar. In particular, it is relevant to consider the
existence or non-existence of measures affecting
entry to the vault, the taking of weapons and
ammunition and their removal from the vault and
the Base.
A very important distinction has to be made in
comparing the significance of the document at
issue with the documents dealt with in all the
earlier cases involving subsection 36.2(1) of the
Canada Evidence Act. In the case at bar the
military inquiry and the subject-matter of the case
are precisely the same: the question as to how
Corporal Lortie got hold of the weapon and
ammunition in view of the existence and applica
tion of orders, decrees and measures which were or
should have been in effect to prevent unauthorized
removal. There is no need to consider the wording
of the order authorizing the military inquiry, cited
above, to appreciate its general relevance.
Since the general purpose of the inquiry con
ducted in 1984 is so closely connected with the
reasons put forward by the plaintiff in its case, the
circumstances affecting the application for disclo
sure differ substantially from those dealt with in
the other cases cited by the both parties. In all the
earlier cases in which an application for disclosure
under subsection 36.2(1) was at issue it was
alleged that there was a possibility, or in some
cases a probability, that the documents the Gov
ernment refused to disclose could contain evidence
useful to the applicant. Documents dealing directly
with a common subject were not involved.
The Court must also consider that it is in fact
the Crown, defendant in the action for damages,
who through certain members of the Department
of Defence is relying on the non-disclosure of
certain parts of its inquiry report. According to the
allegations of the plaintiff, that Department and
certain members of its security organization may
have been guilty of negligence in the storage and
custody of the weapons. There is thus a possible
conflict of interest.
For these reasons, and especially in view of the
general relevance of the report, I decided at the
hearing, contrary to the procedure adopted in the
other applications under subsection 36.2(1), that
when there could be the slightest doubt as to the
relevance of an excluded part of the report I would
examine it, first, to decide on the question of
relevance, and in the event of an affirmative
response, to decide whether the public interest in
non-disclosure in protecting national defence takes
priority over the public interest in each individual
having a right of access to any evidence useful to
his case.
In the great majority of cases, when the exclu
sion of only one or two words in a sentence or
paragraph was at issue, it was easy in the circum
stances to decide on the relevance of the excluded
portion without examining the deleted words. This
procedure was adopted. It was only when I
believed that the information might be relevant, or
when in view of the number of words excluded in a
sentence or paragraph its meaning or application
could not be determined, that I decided to consult
the original text.
An important consideration arises from the alle
gation that Corporal Lortie was not on duty when
he took the weapons. The Court must also consider
that the break-in occurred during a period when
soldiers were not on duty in the vault and it was
expected that special security precautions would
be in effect to further limit access to it.
After hearing arguments on the relevance of
various passages from the expurgated report, by
counsel for both parties, the hearing continued in
camera in the absence of the plaintiff and its
counsel for detailed examination of the unexpur
gated report. During this part of the hearing,
further representations and arguments were made
to the Court by counsel for the defendant regard
ing the application and significance of the expur
gated words.
In the great majority of cases, it was clear that
the expurgated words or the context as a whole in
which they occurred had no relevance. In three
places, the words or sentences deleted are relevant.
In four other places, it might be argued that there
is some relevance. It is undoubtedly of secondary
and marginal interest.
Considering the intrinsic validity of the objec
tions made in the affidavit of Major Harris, the
Carp Military Base Commanding Officer, and
after hearing the explanations made by counsel for
the defendant, I have to conclude that in each case
where the deleted words are relevant or could be
relevant, the objections to disclosure are firmly
based on a real probability of a danger that nation
al defence might be compromised if the words or
expressions expurgated were known to the public.
The expurgated passages referred either to the
existing security systems, their location and meth
ods of operation, the codes and equipment to con
trol access to the vault, the existing resources for
defence of the Base or to the number and nature of
weapons and ammunition used for that purpose.
In view of the critical role both in military and
political terms that the Carp Base is intended to
play in a major conflict, it is hard to imagine a
place where preservation of security both as
regards access and the means and systems of
defence would be more important.
In the circumstances of the application at bar, I
must conclude that the public interest resulting
from non-disclosure predominates and is of greater
importance than the public interest in disclosure.
I would just note that certain words expurgated
from the report, including those mentioned in
paragraph 14 of Colonel Martineau's affidavit,
were disclosed to counsel for the defendant by
consent at the hearing.
Costs are reserved to the trial judge.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.