Ruling on Applications to call additional Government witnesses

1. INTRODUCTION

On behalf of several complainants, Joseph Arvay, Q.C. of the Arvay, Ward, Sandford team has brought an application to compel the attendance of Prime Minister Jean Chrétien, Minister of Foreign Affairs Lloyd Axworthy, Marc Brault, Patricia Hassard, David Ashton, Cal Corley and Dilys Buckley-Jones as witnesses at this hearing. In addition, complainant Jonathan Oppenheim has brought an application to compel the attendance of Peter Donolo, Benjamin Parwoto and Ali Alatas, as well as the Prime Minister, Minister Axworthy and Cal Corley. Except for Mr. Parwoto and Mr. Alatas, who are representatives of the government of Indonesia, the witnesses proposed by Mr. Arvay and Mr. Oppenheim are all representatives of the government of Canada.

The applications have been brought in accord with the following procedure which I implemented on March 5, 1999:

1. It is proposed that in the ordinary course Commission counsel will call and question all witnesses who will be heard at the Inquiry. Counsel for a party* may apply to the Commissioner to adduce a particular witness' evidence in chief. If counsel is granted the right to do so, examination shall be confined to the normal rules governing the examination of one's own witness.
   
   (*Reference to a party here and subsequently in this ruling means a participating complainant, a person whose conduct is the subject matter of a complaint or any other participant who has been afforded standing before this Commission.)

2. Parties are encouraged to provide to Commission counsel the names and addresses of all witnesses they feel ought to be heard.

3. Commission counsel have a discretion to decline to call witnesses whose evidence does not appear to them relevant or falls within an area which they intend to cover with other witnesses.

4. If, at the end of a stage of the hearing there are persons who a party believes must be heard and Commission counsel has not called them the party may apply for leave to have them called as witnesses. If leave is granted, Commission counsel shall call them, subject to Rule 1.

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The principal role of Commission Counsel in this hearing has been to perform the functions identified in step 1 of the foregoing procedure. Over the course of 149 sitting days, they have presented and examined 130 witnesses. They have done so with the neutrality that their assignment requires. Contrary to a practice that often pertains at a Commission of Inquiry, Commission Counsel in this hearing are not advisors to me in either law or practice. Other than casual and infrequent discussions of a purely administrative nature, my relationship with them has been confined to that which occurs in the open hearing room.

Steps 2 and 3 of the foregoing procedure have been followed by the parties. The present applications to compel the attendance of the 10 persons identified in the first paragraph of this ruling are brought pursuant to step 4. The parties provided me with written submissions in respect of the applications and oral argument was heard on January 19 and 20, 2000.

Commission Counsel opposed the applications, as did counsel for the members of the RCMP whose conduct is under review in these proceedings, and counsel for the RCMP as an institution and the Attorney General of Canada.

The British Columbia Civil Liberties Association (the "BCCLA") limited its submission to whether the Prime Minister should be called to testify. With one exception, which I do not consider to be particularly relevant, the BCCLA advised that it is generally not interested in compelling the attendance of the Prime Minister.

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2. JURISDICTION OF COMMISSION

In order to fully appreciate my ruling in respect of the present applications, it is essential that all parties clearly understand the nature of my jurisdiction in this hearing. The following six subsections (a to f) discuss the nature and scope of that jurisdiction.

(a) Royal Canadian Mounted Police Act

Subsection 45.35(1) of the Royal Canadian Mounted Police Act (the "RCMP Act") describes the nature of a complaint properly receivable by the Commission as follows:

Any member of the public having a complaint concerning the conduct, in the performance of any duty or function under this Act, of any member or other person appointed or employed under the authority of this Act may ... make the complaint to ... the Commission.... (emphasis added)

After numerous complaints regarding RCMP conduct at the APEC conference were received by the Commission , the present hearing was instituted pursuant to subsection 45.43(1) of the RCMP Act, which reads as follows:

Where the Commission Chairman considers it advisable in the public interest, the Commission Chairman may investigate, or institute a hearing to inquire into, a complaint concerning the conduct, in the performance of any duty or function under this Act, of any member or other person appointed or employed under the authority of this Act, whether or not the complaint has been investigated, reported on or otherwise dealt with by the Force under this Part. (emphasis added)

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Subsection 45.43(1) of the RCMP Act makes it clear that the Commission Chair may only institute a hearing to inquire into:

(i) a complaint;

(ii) concerning the conduct in the performance of any duty or function under the RCMP Act;

(iii) of any member or other person appointed or employed under the authority of the RCMP Act.

The Commission Chair has no authority to institute a hearing pursuant to subsection 45.43(1) for any other purpose. Specifically, the Commission Chair is not authorized to institute a hearing into the conduct of members of the federal government, unless those members were appointed or employed under the RCMP Act and were performing a duty or function under that statute at the time of the impugned conduct.

Subsection 45.45(14) of the RCMP Act provides that, upon the completion of a hearing:

... the Commission shall prepare and send to the Minister and the Commissioner a report in writing setting out such findings and recommendations with respect to the complaint as the Commission sees fit. (emphasis added)

Clearly, the findings and recommendations must relate to the "complaint" which, as noted, must concern the "conduct in the performance of any duty or function under the Act of any member or other person appointed or employed under the Act".

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(b) Terms of Reference

As the Commission Chair's authority to institute a hearing derives from subsection 45.43(1) of the RCMP Act, it is clear that the Terms of Reference set by the Commission Chair cannot confer a jurisdiction upon this Commission which is broader than that authorized by subsection 45.43(1). The Terms of Reference set by the Commission Chair in respect of this hearing instruct me to:

... inquire into all matters touching upon these complaints, to hear all evidence relevant thereto, to ensure a full and fair hearing in respect of these complaints and to report at the conclusion of the hearing such findings of fact and recommendations as are warranted, and, without limiting the generality of the foregoing, to inquire into and to report on:

(a) the events that took place during, or in connection with, demonstrations during the Asia Pacific Economic Cooperation ("APEC") Conference in Vancouver, B.C. between November 23 and 27, 1997 on or near the UBC campus and subsequently at the UBC and Richmond detachments of the RCMP;

(b) whether the conduct of members of the RCMP involved in the events was appropriate to the circumstances;

(c) whether the conduct of members of the RCMP involved in the events was consistent with respect for the Fundamental Freedoms guaranteed by section 2 of the Canadian Charter of Rights and Freedoms².

Clearly, the central issue in this hearing, consistent with subsection 45.43(1) of the RCMP Act, is the RCMP conduct which gave rise to the complaints. As I stated on March 5, 1999, that is the "purpose, function and raison d'être for this proceeding". Although the Terms of Reference state that I am to inquire into "all matters touching upon these complaints", I cannot inquire into any matters which are not the subject matter of a complaint properly receivable by the Commission pursuant to subsection 45.35(1).

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(c) The Ward Application

By Notice of Motion dated January 21, 1999, counsel CameronWard, now of the Arvay, Ward, Sandford team, sought to clarify the scope of my jurisdiction by seeking the following three declarations:

1. that the RCMP Public Complaints Commission has the jurisdiction to investigate whether the Right Honourable Jean Chrétien, Prime Minister of Canada, or members of the Office of the Prime Minister ("PMO"), the Privy Council Office ("PCO") or the Government of Canada gave improper orders or directions to any members of the RCMP respecting security at the APEC '97 conference;

2. that the RCMP Public Complaints Commission has the jurisdiction to make findings that the Right Honourable Jean Chrétien, Prime Minister of Canada, or members of the Office of the PMO, the PCO or the Government of Canada gave improper orders or directions to any members of the RCMP respecting security at the APEC '97 conference; and

3. that the RCMP Public Complaints Commission has the jurisdiction to make recommendations to the Commissioner of the RCMP concerning political interference in its operations by the Prime Minister of Canada or members of the Office of the PMO, the PCO or the Government of Canada. (emphasis added)

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On February 5, 1999, I ruled on Mr. Ward's application as follows:

Appreciating that I must always meet my responsibilities within the framework of the Royal Canadian Mounted Police Act and the mandate given to me thereunder, my answer is, yes, I can so inquire if there is evidence that takes or points to where it is Mr. Ward wants to go as identified by him in the first request in his Notice of Motion. That is my determination with respect to area number 1. I make the same determination with respects to findings as that word is used in area 2 identified by Mr. Ward and with respect to recommendations as that word is used in area 3 identified by Mr. Ward; that is to say, the answer is yes if the evidence is supportive of me doing so. (emphasis added)

It is clearly implicit in my ruling that, given the jurisdiction conferred upon me by the RCMP Act, I cannot engage in a general inquiry into the conduct of members of the federal government. Nevertheless, if there is evidence to suggest that the impugned RCMP conduct resulted from orders or directions given by the Prime Minister or the Prime Minister's Office in an area within the exclusive jurisdiction of the RCMP (i.e., security matters), I may inquire into such orders or directions as a necessary adjunct to my assessment of the impugned RCMP conduct. Indeed, in assessing such conduct, it will be important to know whether the conduct arose as a result of orders or directions from the government of Canada or its identified representatives. Such an investigation falls within the scope of subsection 45.43(1) of the RCMP Act.

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(d) Judicial Confirmation of my Mandate and Jurisdiction

The courts have recently confirmed the nature of my mandate and scope of my jurisdiction. In Singh et al v. Canada (Attorney General), several of the complainants in this hearing challenged the constitutionality of sections 38(6) and 39 of the Canada Evidence Act. On June 25, 1999, McKeown J. described this Commission's mandate as follows:

The mandate of the Commission, which is a public inquiry incapable of establishing either civil or criminal liability, is to investigate whether the conduct of RCMP officers assigned to the APEC Conference contravened the Charter. Although the Commission has stated that it has the jurisdiction to make findings concerning the involvement of the executive in giving improper orders or directions to the RCMP, the inquiry is concerned with the conduct of the RCMP officers and not the conduct of the executive. (emphasis added)

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In the course of his decision, McKeown J. quoted the three requests made of me in the Ward Application. He then stated as follows:

On February 5, 1999, Commissioner Hughes ruled that the Commission had jurisdiction to conduct the investigation and make the findings and recommendations sought in the said Notice of Motion, provided there is evidence before the Commission that points in those directions. Commissioner Hughes confirmed this ruling on March 5, 1999.

The Commission is a statutory tribunal and its jurisdiction is derived from section 45.45(14) of the RCMP Act. In his ruling dated March 5, 1999, Commissioner Hughes described his mandate as follows:

Central to this inquiry is the conduct of those members of the Force who are the subject of one or more of the complaints. That is the purpose, function and raison d'être for this proceeding.

On March 5, 1999, Commissioner Hughes also ruled that the Commission has jurisdiction to summons any person to give evidence who the Commission deems necessary to the full investigation and consideration of the matter before it. Commissioner Hughes clarified that no person is exempt from being summoned as a witness, provided that there is evidence before the Commission that takes it in that person's direction.

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The decision of McKeown J. was appealed to the Federal Court of Appeal and a decision was rendered on January 14, 2000 by Strayer J.A. In that decision, Strayer J.A. made reference to my ruling in the Ward application and stated as follows:

[Commissioner Hughes] stated in response that he could so inquire, could make such findings and such recommendations, "if the evidence is supportive of me doing so". This ruling is not in dispute before us. Counsel did confirm to us that the members of the RCMP who are the objects of complaints within the ambit of section 45.35 of the RCMP Act have not suggested any defence of superior orders. It is no longer in dispute that there were discussions between officials of the Prime Minister's office and personnel of the RCMP concerning security arrangements. It is the position of the Attorney General of Canada, however, that these did not constitute instructions to, or interference with, the RCMP in the conduct of their security functions at the APEC Conference. It is obviously the position of some or all of the complainants that there was such direction and interference from political sources which had the effect of causing the RCMP to infringe their Charter rights.

Later in his ruling, Strayer J.A. made the following comments regarding my jurisdiction:

Even if one treats the Commission as a forum where unlawful conduct by "the Executive" may be relevant to the making of recommendations it must be observed, as the trial judge noted, that "the inquiry is concerned with the conduct of the RCMP officers and not the conduct of the executive". Basically section 45.35 of the R.C.M.P. Act gives the Commission power to consider complaints against members of the R.C.M.P. and to make recommendations to the Commissioner of the R.C.M.P. and the Minister as a result. Any findings which may be made about the conduct of the Prime Minister's Office or other members of the Executive in relation to the conduct of the R.C.M.P. will presumably be incidental to this and cannot be legally determinative of whether such persons have done something constitutionally unlawful. (emphasis added)

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(e) Discussion

The foregoing review of the nature of my jurisdiction, as expressed in the RCMP Act, my Terms of Reference, and by both the trial and appellate levels of the Federal Court, makes it very clear that I cannot inquire into the conduct of the federal executive per se and, further, that I cannot make findings regarding whether the federal executive acted in breach of the Canadian Charter of Rights and Freedoms.

In contrast, if there is evidence to suggest that the impugned RCMP conduct resulted from orders or directions respecting security given by the Prime Minister or the Prime Minister's Office, I may inquire into such orders or directions where necessary in order to properly assess the impugned RCMP conduct. Such an inquiry would be perfectly consistent with my jurisdiction under the RCMP Act.

However, even if I ultimately decide that improper orders or directions respecting security were given to the RCMP by the federal executive, I wish to make it abundantly clear that the RCMP Act does not clothe me with jurisdiction to go beyond the source of such orders or directions and inquire into their underlying rationale, be it political or otherwise. Indeed, the issue of why any such orders may have been made is beyond the scope of this hearing. My role is to inquire into RCMP conduct. It is not to investigate and determine the underlying rationale, be it political or otherwise, for any orders or directions given by the federal executive, nor is it to weigh that rationale against the alleged infringement of the complainants' civil liberties. There are countless reasons (unrelated to security matters) why the federal government, as host of the APEC conference, may have legitimately given orders or directions to the RCMP. My role is not to assess those reasons. My role is to investigate the RCMP conduct and determine whether it was appropriate in the circumstances. Any investigation of the federal executive can, as stated by Strayer J.A., only be incidental to the exercise of assessing RCMP conduct. If there is evidence that the RCMP was ordered or directed to take certain actions by the federal executive with respect to matters related to security, that evidence would provide me with the basis upon which to assess the RCMP conduct. Although one may be tempted to ask why such orders or directions, if any, were given, I simply have no jurisdiction to compel answers to that question. Indeed, the motivation, political or otherwise, for any such orders or directions is an inappropriate subject for this forum and will not assist me in my assessment of RCMP conduct. This is entirely consistent with my ruling with respect to the Ward application.

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(f) Summary of Jurisdiction of Commission

Given all of the foregoing, the following points should now be fixed firmly in the minds of all concerned:

1. The boundaries of my jurisdiction are as stipulated in subsections 45.35(1) and 45.43(1) of the RCMP Act. Specifically, I may only inquire into and report on (i) complaints (ii) concerning the conduct in the performance of any duty or function under the RCMP Act (iii) of any member or other person appointed or employed under the RCMP Act.

2. My Terms of Reference do not, and cannot, enlarge my jurisdiction under subsections 45.43(1) [sic] and 45.43(1).

3. The purpose of this inquiry is to assess the appropriateness of the conduct of those RCMP members which gave rise to the complaints and whether their conduct contravened section 2 of the Canadian Charter of Rights and Freedoms.

4. As a necessary incident to my investigation of RCMP conduct, I have the jurisdiction to investigate whether the members of the executive who are the subject of these applications gave improper orders or directions respecting security to members of the RCMP, if there is evidence that points in their direction or is otherwise supportive of me doing so.

5. I have no jurisdiction to inquire generally into the conduct of representatives of the federal government or into the underlying rationale, be it political or otherwise, for any orders or directions, improper or otherwise, which may have been given by members of the federal government to members of the RCMP.

6. I cannot make findings regarding whether the federal executive acted in breach of the Canadian Charter of Rights and Freedoms.

7. Any findings and recommendations I may make in respect of the federal executive may only be incidental to my fundamental duty; namely, the investigation of RCMP conduct.

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3. Given the limits of my jurisdiction, is there a basis for issuing a summons to all or any of the persons who are the subject of the present applications ?

(a) The Right Honourable Jean Chrétien - Prime Minister

On March 5, 1999, I made it clear that this Commission has the power to:

... summons any person before it to give evidence as the Commission deems requisite to the full investigation and consideration of the matter before it at the Hearing.

The threshold question in determining whether the Prime Minister should be summonsed to testify is whether there is evidence before the Commission to indicate that he gave improper orders or directions respecting security matters to members of the RCMP at the APEC conference.

I cannot make definitive findings of fact at this stage of the process, despite the fact that the "reception of evidence" stage is virtually complete. I expect that the written and oral closing arguments which will be presented following the "reception of evidence" stage will be of significant assistance to me in making findings of fact and preparing the Report expected of me pursuant to my Terms of Reference. Accordingly, although I may refer to the evidence adduced to date in order to determine whether it indicates that the Prime Minister may have given improper orders or directions respecting security at the APEC conference to members of the RCMP, I want it to be very clear that I have not yet made any definitive findings of fact on any of the matters at issue in this hearing.

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Hundreds of hours of evidence have been adduced regarding the interaction between the Canadian and Indonesian governments during the months preceding the APEC conference. In his written submission, Mr. Arvay identifies some of those interactions as follows:

• The fact is that it appears that the PM did take some considerable action to ensure the personal attendance of President Suharto: e.g. the PM sent Minister Axworthy and his own personal envoy Mr. Len Edwards to meet with various Indonesian officials including Foreign Minister Alatas and President Suharto himself. The Commissioner is entitled to know what, if any, specific instructions the PM gave to these men prior to their respective meetings and what he was told, if anything, upon their return.

• It is also a fact that the Prime Minister also met personally with Indonesian Ambassador Parwoto whose principal concern was not security (as there was no real issue there) but in ensuring that President Suharto was not embarrassed ... and who was given some kind of assurance (the details have never been provided) by the Prime Minister that Suharto would be treated as Chinese Premier Li Peng was in an earlier visit to Canada -- a foreign leader who was likewise known not to want to be seen by demonstrators. ... The Commissioner is entitled to have the PM's account of this important meeting.

• The Prime Minister sent a special letter to President Suharto to ensure his attendance at APEC -- a letter that no other leader received which stated in part: "I have directed my officials to spare no effort to ensure that appropriate security and other arrangements are made for your stay in Canada as our guest." We are entitled to ask the PM exactly what those directions entailed and why.

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While I remain open to hearing the views of the hearing participants regarding how and why these and any other interactions with Indonesian officials may assist me in preparing my Report, I simply cannot see that the voluminous evidence adduced to date points to or suggests that the Prime Minister may have given improper orders or directions to RCMP members respecting security at the APEC conference. As the testimony thus far does not indicate that any such orders or directions were given by the Prime Minister, a summons ought not to issue for the purpose of sanctioning what, at this point, would be little more than an exploratory excursion. The simple fact of the matter is that the evidence adduced to date regarding the alleged involvement of the Prime Minister in the RCMP's security operations does not indicate that his testimony is "requisite to the full investigation and consideration" of the matters currently before me.

There is, however, evidence that Mr. Jean Carle, the Director of Operations in the Prime Minister's office, may have given orders or directions to senior RCMP personnel regarding the location of the fence in front of the Law School building which increased the distance between the protesters and the visiting heads of state. There is evidence that this involvement may have constituted the giving of improper orders or directions to the RCMP in respect of a security matter (i.e., a matter within the RCMP's exclusive jurisdiction). According to Mr. Arvay:

The Law School fence incident is clear evidence that the PMO became very involved in a matter that ought to have been the exclusive reserve of the RCMP. The Agreement between the federal government and UBC was premised on the right of protest being circumscribed only for reasons of security. ... [T]he inconvertible fact is that Jean Carle did assert himself aggressively on a matter that not only ought to have been left for the RCMP and UBC but the RCMP then were shamefully implicated by Carle into drafting a letter to the President of UBC that even Mr. Vanderloo admitted was misleading.

...What we do not know is whether the PM had any role to play in Carle's initial dealings with the Law School;...

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I agree with Commission Counsel that "... there is no evidence that the Prime Minister had any direct involvement in the establishment of either the 'event perimeter' or the security zone at UBC" and that, accordingly, a basis does not exist for calling him to testify in respect of this issue. Without such threshold evidence pointing to the involvement of the Prime Minister, I lack the jurisdiction to, and am not persuaded by the evidence that I should, issue a summons to the Prime Minister in order to explore whether he had any involvement in the matter and, if so, the nature and extent of such involvement.

Of the grounds advanced by Messrs. Arvay and Oppenheim for issuing a summons to the Prime Minister, I have singled out the "Indonesian issue" and the "Law School fence issue" for specific reasons. Regarding the Indonesian issue, the applicants unquestionably placed the most emphasis on this issue in support of their applications. Regarding the Law School fence issue, it has caused me the most concern given the evidence pertaining to the participation of Mr. Carle, a senior staff member of the Prime Minister's office. After full consideration of both issues, bearing in mind both my jurisdiction (as summarized in subsection 2(f) of this ruling) and the basis upon which this Commission may issue a summons (as set out in my ruling of March 5, 1999 and above), I have concluded that the evidence in respect of these two issues does not justify issuing the requested summons. Having reached that conclusion, I have had little difficulty in concluding that the other grounds advanced by the applicants do not support the issuance of a summons.

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My refusal to issue the requested summons does not, however, preclude the possibility of any participation by the Prime Minister in this hearing.

This has been a long, comprehensive and expensive hearing. Significant issues will require attention in my Report, none more important than the relationship between the impugned RCMP conduct and the freedoms of thought, belief, opinion, expression and peaceful assembly guaranteed to every citizen under the Canadian Charter of Rights and Freedoms. In my view, the time and money expended on the hearing and the preparation of my Report can be well justified if the Report makes a significant contribution to the respect for and appreciation of the freedoms guaranteed to every citizen in our society -- a society which Canadians believe to be as free and democratic as exists anywhere in the world. The facts, when found, with respect to the activities at the UBC campus on November 25, 1997 will present a rare opportunity to explore the appropriate balance between the need to guarantee the security of international visitors and the rights and freedoms enjoyed by Canadian citizens, particularly the right and freedom to engage in peaceful protests.

In my view, it is entirely likely that many members of the general public believe that this hearing is intended, at least in part, to inquire into the conduct of the Prime Minister and the political rationale for his alleged actions. Although this is not the case, a useful example of the public discourse that has fostered such a conclusion occurred on September 9, 1998 when the following exchanged [sic] occurred in the House of Commons between Deborah Grey MP and then Solicitor General Andy Scott:

Miss Deborah Grey (Edmonton North, Ref.): Mr. Speaker, the Prime Minister deliberately ordered police to quash peaceful protesters. Canadians want to know why and what it was he said.

Why was the Prime Minister more concerned about the feelings of a foreign dictator than he was about protecting the rights of our own Canadian citizens?

Hon. Andy Scott (Solicitor General of Canada, Lib.): Mr. Speaker, the public complaints commission is investigating the incidents around the APEC meetings. I think that institution, which has been in existence since 1986, has established a good record and deserves the opportunity to get to the bottom of this. That is how Canadians will find out the answers to the questions.

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This is but one example of the type of statements and commentary which have proliferated in the House of Commons and in the media, without apparent regard for the limits on the jurisdiction of this Commission.

Given that there is some public expectation that this hearing is to include an investigation into the conduct of the Prime Minister and given the presence of evidence, as reviewed above, about the direct involvement of Mr. Carle with senior RCMP personnel regarding a security matter, there is something to be said for Mr. Arvay's submission that, if the Prime Minister does not give evidence at this hearing, "the public's confidence in the completeness, fairness and integrity of this Inquiry and any Report that is ultimately produced" may be compromised. That would indeed be most unfortunate given the important and significant issues that I have reviewed above and on which it is my expectation to report.

Mr. Arvay places considerable emphasis upon the public perception of injustice he feels will result if the Prime Minister is not summonsed to testify:

If the Prime Minister is not summonsed to testify there may forever be a black cloud over the Commission's Final Report. The public may conclude that the Commission did not hear from the Prime Minister simply because he is the Prime Minister. The Rule of Law is at stake in this application: the Prime Minister is not above the law and is just as subject to being summonsed to the Inquiry as any other person in the land if he has relevant to give. Not only does he have relevant evidence to give, but the Commissioner ought to be guided by the question of whether or not there will be a perception of injustice should the Prime Minister not be called to testify.

In contrast, Commission Counsel disputed Mr. Arvay's emphasis on "public perception" as follows:

We submit that [the public perception and the perception of injustice] are not the proper legal principles upon which this Commission ought to base a decision as to whether or not to call a witness, whether that witness is the Prime Minister of Canada or anybody else. ... The decision as to whether or not to call a witness must be based on ... whether that person is able to give evidence that advances the inquiry and has probative value in respect of the issues under consideration.

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I agree with Commission Counsel that the potential public perception of injustice does not justify the issuance of a summons to the Prime Minister. This is why I have clarified the limits of my jurisdiction in this hearing. Even if I wished to engage in a general inquiry into the federal government, or into the political rationale for the federal government's APEC related decisions, I simply have no power to do so.

Mr. Arvay is quite correct when he says that the Prime Minister is just as subject to being summonsed to this hearing as any other person in the land. For me to issue a summons directed to him, an evidentiary basis must be laid that is consistent with the jurisdiction conferred on me by statute and as detailed in my Terms of Reference. The simple fact of the matter is that the evidence adduced to date does not take Mr. Arvay where he wants to go. In his submissions, Mr. Arvay states that "the interest of the complainants in this process is to determine whether the police abuses were due to political interference with RCMP operations, and if so to ensure that steps are taken to prevent such conduct in the future." In other words, it appears that the complainants' primary focus is upon the conduct of members of the federal government. As I have stated, that is not the primary purpose of this inquiry.

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Nevertheless, I do share Mr. Arvay's concern that my ruling regarding the Prime Minister, and the public discussion which will follow, may, rightly or wrongly, foster a public perception of injustice and that, if the Prime Minister does not give evidence at this hearing, there may well be a "cloud", albeit unjustified, over my Report. Surely it is desirable that such a result should be avoided and, therefore, I wish to extend, through counsel to the government of Canada, an invitation to the Prime Minister to appear before this Commission should he share my view that it would be in the public interest for him to do so. Although, for the reasons I have expressed, his testimony is not required in order for me to discharge my duties under the RCMP Act, I believe that his participation could go a considerable distance towards avoiding any "cloud" over my final Report, removing any public perception of injustice, and enhancing public confidence in this process and in public inquiries generally.

If the Prime Minister is disposed to accept my invitation, counsel for the Government of Canada can communicate that response to Commission Counsel, who will make the necessary arrangements. His attendance would be required for a maximum of one sitting day and, considering his schedule and heavy responsibilities of office, it would be his choice as to whether his appearance could best be accommodated through video-conferencing or by a personal appearance. The format would be as it has been for all other witnesses, with a range of questions exploring the same type of issues as raised with previous government witnesses. I can give the assurance that the Prime Minister would be accorded the respect and decency that I have insisted upon for all witnesses. The day of appearance would be the choice of the Prime Minister, given the busy schedule within which he obviously must work, but preferably between now and March 31 or very soon thereafter.

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(b) The Honourable Lloyd Axworthy - Minister of Foreign Affairs

In their written submissions, the applicants state as follows regarding Mr. Axworthy:

Mr. Axworthy, the Minister of Foreign Affairs, has relevant evidence to provide with respect to the involvement of his Department, as well as his direct personal involvement, in dealings with Indonesian officials directed as assuaging the Indonesians' "embarrassment" concerns and ensuring the attendance of President Suharto at APEC. His evidence is necessary in order for the Commission to have a full picture of the nature of the policies, actions and representations made on the part of DFAIT to the Indonesians, as well as the nature of directions and information passed on to the RCMP and ACCO by Foreign Affairs.

I have carefully explained the reasons why the evidence relating to the extensive interactions between officials of the federal government and their Indonesian counterparts does not warrant the issuance of a summons to the Prime Minister. For those very same reasons, a summons will not issue to Mr. Axworthy. There is no evidence that Mr. Axworthy had any contact with the RCMP or that he gave any directions or orders, improper or otherwise, to the RCMP or any of his own officials regarding security matters at the APEC conference.

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(c) Marc Brault - Assistant Deputy Minister for Asia Pacific, Department of Foreign Affairs

Again, it is the "Indonesian issue" and Mr. Brault's involvement in it that prompts the applicants' request for a summons.

The applicants say that Mr. Brault's evidence is relevant in that he appears to have been an important link between the Canadian government and the RCMP regarding information relating to the Indonesians.

A summons will not issue in respect of Mr. Brault for the very same reasons that I declined to issue a summons in respect of the Prime Minister and the Minister of Foreign Affairs. There is simply no evidence to suggest that the link alleged by the applicants relates to orders or directions respecting security given to the RCMP by Mr. Brault or any member of his staff.

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(d) Dilys Buckley-Jones - Director of Liaison, ACCO

Ms. Buckley-Jones was the Director of Liaison in the APEC Canadian Coordinating Office ("ACCO"). Of the thirteen members of ACCO, five have given evidence at this hearing, including the Executive Director, Mr. Robert Vanderloo and the Deputy Executive Director, Ms. Mary McNeil. All five were extensively examined and cross-examined at great length on the Indonesian issue, including the relationship between the Canadian and Indonesian governments during the planning stage of the APEC conference. A summons for Ms. Buckley-Jones is requested primarily for the purpose of conducting questioning on that issue.

After reviewing the matter, I agree entirely with Commission Counsel that it is not necessary to hear from Ms. Buckley-Jones. It is doubtful that she can add anything new and, in any event, there is no indication that further evidence regarding the interaction between the Canadian and Indonesian governments will be helpful to me.

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(e) Patricia Hassard, David Ashton and Cal Corley - Privy Council Office

In their written submissions, the applicants point out that no oral evidence has been heard from "those involved in the Privy Council Office's APEC-related security committees". They request the attendance of Ms. Hassard, Mr. Ashton and Mr. Corley to provide that evidence.

In her oral submissions, Ms. Sandford stated, correctly, that the evidence with respect to Ms. Ashton, Mr. Hassard and Mr. Corley "...is not something that you will have any great familiarity with, as it is evidence that has been placed in the Reading Room to date, but there has not yet been a witness called for the Commission who is knowledgeable about the matters raised in the notes and other documentation relating to those witnesses".

Calling one or more of the three proposed witnesses would be an exploration into a new dimension of this lengthy inquiry without any assurance or reason to suspect that the evidence would be of tangible benefit to this Commission. Once again, the matters raised do not bear directly on my Terms of Reference. There is simply no suggestion that these individuals either contributed to or were in any way connected with the impugned RCMP conduct.

Former Commission Counsel interviewed Ms. Hassard and Mr. Ashton. Based upon those interviews, current Commission Counsel concluded that the potential witnesses "had little to do with APEC security planning" and that they "would add nothing of probative value to this Inquiry."

With respect to Mr. Corley, Commission Counsel advised that, after reviewing many pages of notes made by Mr. Corley at various meetings he attended, "... there was little new information contained in those notes that would justify calling this gentleman to give evidence". I have read the applicants' submission in respect of Mr. Corley and I find nothing there that persuades me to differ from the conclusion reached by Commission Counsel.

It is my conclusion that Ms. Hassard, Mr. Ashton and Mr. Corley do not have evidence to offer that would justify the extension of this Inquiry beyond the timetable as presently set and I decline to order their presence.

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(f) Indonesian Ambassador Parwoto and Foreign Minister Alatas

With respect to Mr. Oppenheim's application, I have already dealt with the Prime Minister, the Minister of Foreign Affairs and Cal Corley. With respect to his request that I issue a summons forIndonesian Ambassador Parwoto and Indonesian Foreign Minister Alatas, it is my view that, even if these gentlemen could be served with a summons, neither of them could give evidence that would assist me in discharging my duties as set out in my Terms of Reference. That being so, I decline to order their attendance.

(g) Peter Donolo - Director of Communications, PMO

I have reviewed the material filed by Mr. Oppenheim in support of his application but it is sparse indeed with respect to Mr. Donolo. I have concluded that there are no grounds to issue a summons for Mr. Donolo, now the Canadian Consul in Milan, Italy. In paragraphs 9 to 11 of the Addendum to their written submissions, Commission Counsel outlined the results of an interview with Mr. Donolo by way of video-conference on November 4, 1999. Having reviewed the results of that interview as summarized in the indicated paragraphs of the Addendum, I accept the conclusion reached by Commission Counsel that "his evidence would not add anything to that already before the Commission".

DATED at Vancouver, British Columbia, this
25th day of February, 2000.

E.N. (Ted) Hughes, Q.C., Commissioner