4,

Court File No.

FEDERAL COURT
3oN'6
BETWEEN:
MILITARY POLICE COMPLAINTS COMMISSION
Applicant

- and -

ATTORNEY GENERAL OF CANADA

Respondent
APPLICATION UNDER Sections 18 and 18.1
of the Federal Courts Act, RSC 1985,c F-7
NOTICE OF APPLICATION
TO THE RESPONDENT:
A PROCEEDING HAS BEEN COMMENCED by the applicant. The relief claimed
by the applicant appears on the following page.
THIS APPLICATION will be heard by the Court at a time and place to be fixed by
the Judicial Administrator. Unless the Court orders otherwise, the place of hearing will
be as requested by the applicant. The applicant requests that this application be heard
at Ottawa.
IF YOU WISH TO OPPOSE THIS APPLICATION, to receive notice of any step in
the application or to be served with any documents in the application, you or a solicitor
acting for you must prepare a notice of appearance in Form 305 prescribed by the
Federal Courts Rules and serve it on the applicant's solicitor, or where the applicant is
self-represented, on the applicant, WITHIN 10 DAYS after being served with this notice
of application.

Copies of the Federal Courts Rules, information concerning the local offices of
the Court and other necessary information may be obtained on request to the
Administrator of this Court at Ottawa (telephone 613-992-4238) or at any local office.
IF YOU FAIL TO OPPOSE THIS APPLICATION, JUDGMENT MAY BE GIVEN
IN YOUR ABSENCE AND WITHOUT FURTHER NOTICE TO YOU.
RE
March ), 2015

Issued by:

LEY ACIRO
RY OFFICER
U GREFFE
icer

Address of 180 Queen Street West

local office: Suite 200
Toronto, Ontario
M5V 3L6
Telephone: 416.973-3356
Facsimile: 416.954.5068
Telecommunications Device
for the Hearing Impaired (TD):
416.954.4245

TO:

Attorney General of Canada

c/o Deputy Attorney General of Canada
Office of the Deputy Attorney General of Canada
284 Wellington Street
Ottawa, ON K1A OH8
Col R. P. Delaney, CD, OMM
Canadian Forces Provost Marshal
National Defence Headquarters
Major-General George R. Pearkes Building
101 Colonel By Drive
Ottawa, ON K1A OK2

APPLICATION
1.

This is an application for judicial review in respect of:

(a)

A policy of the Canadian Forces Provost Marshal ("CFPM") to prevent

publication by the Applicant Military Police Complaints Commission (the
"Commission") of Notices of Action produced to the Applicant pursuant to
sections 250.51 and 250.52 of the National Defence Act, R.S.C., 1985, c.
N-5 in the context of Public Interest Hearings conducted by it by
designating them as "Protected B" and prohibiting their public disclosure
(the "Policy"); and

(b)

Decisions by the CFPM, pursuant to the Policy, to prevent publication of

the Notice of Action in Military Police Complaints Commission Hearing
#2011-004 by marking the Notice of Action with a designation "Protected
B" and refusing to remove the designation, including a decision dated
Feburary 11, 2015, pursuant to the Policy, requiring the Commission to
agree not to publish the Notice of Action in the Commission's Final Report
as a pre-condition for removing the "Protected B" designation from the
said Notice of Action.

2.

The applicant makes application for:

(a)

declarations that:
(i)

the CFPM has no jurisdiction to determine the use to be made by

the Commission of the Notice of Action;

(ii)

the CFPM has no jurisdiction to prohibit the Commission from

publishing the Notice of Action as part of its Final Report;

(iii)

the CFPM has no jurisdiction to initiate a policy of attempting to

shield Notices of Action from public scrutiny by designating them as
confidential or marking them "Protected B" or requiring an

-4

undertaking not to publish a Notice of Action as a precondition for

removing the "Protected B" designation; and
(iv)

the designation "Protected B" has been improperly attached to the

Notice of Action and related correspondence in Military Police
Complaints Commission Hearing #2011-004.

(b)

a mandatory order requiring the CFPM to remove the "Protected B"

designation from the Notice of Action in Military Police Complaints
Commission Hearing #2011-004 without preconditions;

(c)

a mandatory order requiring the CFPM to remove the "Protected B"

designation from the correspondence related to the Policy and to the
Notice of Action in Military Police Complaints Commission Hearing #2011004;

(d)

an interim order sealing the court file in this application pending the judicial
review;

(e)

directions as to any in camera hearings in this proceeding; and

(f)

if necessary, an order extending the time for filing this Notice of

Application.

3.

The grounds for the application are:

(a)

The Applicant, Military Police Complaints Commission (the "Commission"),

is a body created by Part IV of the National Defence Act, RSC 1985 c N-5,
and is tasked with providing independent civilian oversight with respect to
complaints about the Military Police.

(b)

In January 2011, the Commission received a complaint from Shaun Fynes

on behalf of himself and his wife, Sheila Fynes, seeking a review of
investigations conducted by the Canadian Forces National Investigation

Service following the suicide of their son, Cpl. Stuart Langridge (the
"Fynes complaint).
(c)

In September 2011, the Commission Chairperson issued a decision to

hold a public interest hearing regarding the complaint.

(d)

The public interest hearing in respect of the Fynes complaint was

concluded in January 2013.

(e)

The following process is mandated by ss 250.48-250.53 of the National

Defence Act, RSC 1985 c N-5, following completion of a public interest
hearing:

(i)

The Commission Chairperson prepares an Interim Report setting

out his or her findings and recommendations. The Interim Report is
sent to the Minister of National Defence, the Chief of the Defence
Staff, the Judge Advocate General, and the CFPM;

(ii)

Upon receipt of the Interim Report, the CFPM must review the
complaint in light of the findings and recommendations set out in
the Interim Report. The CFPM is then required to give notice of any
action that has been or will be taken with respect to the complaint,
as well as reasons for not acting on

any findings or

recommendations (the "Notice of Action");

(iii)

After receiving and considering the Notice of Action, the

Commission Chairperson is required to prepare a Final Report
setting out the Commission's findings and recommendations; and

(iv)

The Final Report is sent to the Minister of National Defence, the

Deputy Minister, the Chief of Defence Staff, the Judge Advocate
General, the CFPM, the complainant, the person(s) who is(are) the
subject of the complaint, and all persons who have satisfied the

-6

Commission that they have a substantial and direct interest in the

complaint. The Final Report of a Public Interest Hearing is
ultimately published by the Commission as a public document.

(f)

The Notice of Action represents the CFPM's position on the Commission's

findings in the public interest, whether they will be accepted, and how, if at
all, it proposes to implement the Commission's recommendations.

(g)

In the past, the Commission has included the text of the Notice of Action in
the Final Reports it has delivered for Public Interest Hearings, either by
appending the Notice of Action to its Report or by reproducing the words
of the Notice of Action verbatim within the Report.

(h)

Publication of the Notice of Action ensures that the parties and the public
at large are aware of whether the CFPM accepts the Commission's
findings and recommendations and how, if at all, the CFPM proposes to
implement the recommendations.

(i)

The Commission delivered its Interim Report in the Fynes complaint to the
Minister of National Defence, the Chief of the Defence Staff, the Judge
Advocate General, and the CFPM, on May 1, 2014.

(j)

On December 16, 2014, the CFPM delivered a Notice of Action to the

Commission in response to the Interim Report. The Notice of Action was
designated by the CFPM as "Protected B. The covering letter was also
designated "Protected B.

(k)

"Protected B" is an internal Government of Canada designation intended

to prevent the disclosure of sensitive personal, private, or business
information whose disclosure could result in "grave injury'.

(I)

By letter dated December 22, 2014 to the CFPM, the Commission

requested that the "Protected B" designation be removed from the Notice

of Action so that the Commission could append it to the Commission's

Final Report.

(m)

By letter dated January 12, 2015, received January 15, 2015, which was
itself designated as "Protected B", the Chief of Staff of the Canadian
Forces Military Police Group, advised the Commission that henceforth
Notices of Action should not be published in the Commission's Final
Reports and that the request to remove the "Protected B" designation from
the Notice of Action was denied.

(n)

By email communication dated February 3, 2015, the CFPM, through the

CFPM Legal Advisor, advised the Commission that the CFPM, as a matter
of policy, would not allow public disclosure of Notices of Action.

(o)

By letter dated February 11, 2015, the CFPM advised the Commission
that the CFPM was willing to remove the "Protected B" designation from
the Notice of Action on condition that the Commission agree not to append
the Notice of Action to its Final Report.

(p)

The policy not to allow public disclosure of Notices of Action and the
decision to implement that policy by means of the "Protected B"
designation and/or by requiring the Commission to agree not to publish a
Notice of Action as a precondition of removing the "Protected B"
designation are unreasonable, made without jurisdiction and with no
support in law. Specifically, but not to limit the generality of the foregoing,
the CFPM committed the following reviewable errors:
(i)

The CFPM acted without jurisdiction in making a policy that

purports to prohibit public disclosure of Notices of Action by the
Commission;

8-

(ii)

The CFPM acted without jurisdiction in designating the Notice of

Action in the Fynes complaint "Protected B" and prohibiting its
public disclosure;

(iii)

The CFPM acted without jurisdiction and with no basis in law in

purporting to require the Commission to agree not to append the
Notice of Action in the Fynes complaint to its Final Report as a
precondition of the CFPM removing the "Protected B" designation
from that Notice of Action;

(iv)

The CFPM acted unreasonably in designating the Notice of Action

in the Fynes complaint "Protected B" and in prohibiting its public
disclosure. The Notice of Action does not contain any sensitive or
private information capable of posing a risk of grave injury to
anyone if disclosed; and

(v)

The CFPM acted unreasonably in designating the correspondence

related to the Policy and to the Notice of Action in the Fynes
complaint "Protected B. The correspondence does not contain any
sensitive or private information capable of posing a risk of grave
injury to anyone if disclosed.

(a)

The Commission considers itself bound by the "Protected B" designations

until determination of this judicial review and therefore seeks an order
sealing this court file pending the judicial review.

(r)

The Applicant relies on sections 18 and 18.1 of the Federal Courts Act,
RSC 1985, c F-7; rules 8, 29, 151, 152, and 369 of the Federal Courts
Rules, SOR/98-106; and sections 250.48, 250.49, 250.51, and 250.53 of
the National Defence Act, RSC 1985, c N-5.

This application will be supported by the following material:

(a)

The affidavit of Jennifer Hohmann Wood,to be sworn; and

(b)

Such other material as counsel may advise and this court may permit.

March 3, 2015
ark J eiman
Lerners LLP
130 Adelaide Street West
Suite 2400
Toronto, ON M5H 3P5
Tel: 416.601.2370
Fax: 416.867.2453
E-mail: mfreiman@lerners.ca
Lawyers for the Applicant, Military Police
Complaints Commission

Court File No.

FEDERAL COURT

BETWEEN:
MILITARY POLICE COMPLAINTS COMMISSION
Applicant
- and ATTORNEY GENERAL OF CANADA
Respondent

NOTICE OF APPLICATION
(Filed this

day of March, 2015)

LERNERS LLP
130 Adelaide Street West, Suite 2400
Toronto, ON M5H 3P5
Mark J. Freiman LSUC# 24960B
Tel: 416.601.2370
Fax: 416.867.2453
Jameel Madhany LSUC# 59247Q
Tel: 416.601.2640
Fax: 416.601.2745
Lawyers for the Applicant
3231918.9