A. THE INQUIRY
- This Inquiry shall be conducted in accordance with the Inquiries Act and the Terms of Order in Council P.C. 2006-293 and without restricting the generality of the foregoing will, when appropriate, follow the following guidelines.
The Commission proceedings will start with the voluntary testimony of the victims of the bombing of Air India Flight 182 ("Stage 1"). The balance of the Inquiry ("Stage 2") will inquire in phases into the matters set out in clauses (b)(i)-(vii) of the Terms of Reference of the Commission, PC 2006-293.
- In the Rules, unless otherwise provided, the following words mean:
- Commission: the Commission of Inquiry into the Investigation of the Bombing of Air India Flight 182, established by Order in Council, PC 2006-293;
- Commissioner: The Honourable John C. Major, Q.C., appointed by Order in Council, PC 2006-293;
- Commission Counsel: Counsel appointed by the Commissioner to aid and assist the Commissioner in the Inquiry. Commission Counsel shall have standing throughout the Inquiry;
- Commission Offices: the offices of the Commission are located at 222 Queen Street, Ottawa, Ontario, K1P 5V9;
- Documents: records made or stored in physical or electronic form and include written, electronic, audiotape, videotape, digital reproductions, photography, maps, graphs, microfiche or any other data and information recorded or shared by means of any device;
- Family: relatives of the victims of the Bombing of Air India Flight 182 or others to the discretion of the Commissioner;
- Inquiry: the Commission;
- Intervenor: a person granted status as an intervenor by the Commissioner;
- Party: a person granted full or partial standing as a party by the Commissioner;
- Person: an individual, group, government or agency or other entity.
- The Commissioner may amend these Rules or dispense with compliance with them as he deems necessary to ensure that the Inquiry is thorough, fair and timely.
- All parties, intervenors, witnesses and their counsel shall be deemed to undertake to adhere to the Rules, and may raise any issue of non-compliance with the Commissioner.
- The Commissioner shall deal with a breach of these Rules as he sees fit including, but not restricted to, revoking the standing of a party, and imposing restrictions on the further participation in or attendance at (including exclusion from) the hearings by any party, intervenor, counsel, individual, or member of the media.
- Subject to the Inquiries Act, the conduct of and the procedure to be followed on the Inquiry is under the control and discretion of the Commissioner.
- Hearings will be convened in Ottawa unless otherwise directed in the discretion of the Commissioner
- Insofar as he needs to hear evidence, the Commissioner is committed to a process of public hearings to the greatest extent possible. However, the Terms of Reference direct the Commissioner to take all steps necessary to prevent disclosure of information that, if it were disclosed to the public could, in the opinion of the Commissioner, be injurious to international relations, national defence or national security. The procedure which will govern hearings where such issues may arise is addressed in the section on "National Security Confidentiality".
- Applications may also be made to proceed in camera for reasons of personal confidentiality, referred to as "Personal Confidentiality" in these Rules. Such applications should be made in writing at the earliest possible opportunity.
- A person may be granted full or partial standing as a party by the Commissioner if the Commissioner is satisfied that the person is directly and substantially affected by the mandate of the Inquiry or portions thereof.
- A person may be granted standing as an intervenor by the Commissioner if the Commissioner is satisfied that the person represents clearly ascertainable interests and perspectives essential to the Commissioner's mandate, which the Commissioner considers ought to be separately represented before the Inquiry, in which event the intervenor may participate in a manner to be determined by the Commissioner.
- Any person wishing to be granted standing must apply by way of a motion in writing supported by affidavit on or before July 7, 2021, or at the discretion of the Commissioner at any other date, which must include the following information:
- name, address, telephone and fax numbers, and e-mail addresses of the person;
- whether the person seeks standing as a party or as an intervenor for all or a portion of the mandate of the Inquiry;
- the areas and issues where the person is directly and substantially affected or where the person has a clearly ascertainable interest or perspective which would enhance the work of the Commissioner and the reasons in support thereof;
- the names of the lawyers, if any representing the person, together with the lawyer's address, telephone number, e-mail address and fax number.
- Applicants for standing will be permitted to make oral submissions not exceeding 15 minutes at a public standing hearing in Ottawa, on July 18-20, 2006 at the Bytown Pavilion, Victoria Hall, 111 Sussex Drive, Ottawa, Ontario, or at the discretion of the Commissioner at any other date.
- The Commissioner will determine any special conditions under which a person may participate and those parts of the Inquiry in which a person granted standing may participate.
- From time to time, the Commissioner may, in his discretion, at any time grant to or rescind standing from a person, or modify the status or conditions of the standing of a person.
- The Commissioner will determine on what terms and in which parts of the Inquiry a party or intervenor may participate, and the nature and extent of such participation.
- The Commissioner may direct that a number of applications share in a single grant of standing.
- Counsel representing witnesses called to testify before the Commission may participate during the hearing of such evidence as provided in these Rules.
- For the purposes of the Inquiry, parties who would not otherwise be able to participate may seek funding by way of a motion in writing, with supporting affidavit(s), to be filed with the Commission on or before August 16, 2006, or at the discretion of the Commissioner at any other date. Funding will be recommended at the Commissioner's discretion in accordance with paragraph (h) of the Terms of Reference. There will be no oral hearing with respect to funding.
- Where the Commissioner's funding recommendation is accepted, funding shall be in accordance with approved Treasury Board guidelines respecting rates of remuneration and reimbursement and the assessment of accounts.
F. RIGHT TO COUNSEL
- Witnesses have the right to consult counsel at their own expense unless funding for said costs is ordered by the Commissioner as provided in these Rules. Anyone interviewed by or on behalf of Commission Counsel is entitled to have one personal counsel present for the interview to represent his or her interests.
G. HEARING AND DECORUM
- In so far as it needs to consider evidence under the Inquiry, the Commission is committed to a process of public hearings.
- However, applications may be made by a party asking that the Commissioner issue an order that any portion of the proceedings be in camera, or issue an order prohibiting the disclosure, publication or communication of any testimony, document, personal information or evidence. Such applications shall be made in writing, supported by affidavit(s), at the earliest opportunity. The evidence and submissions on such applications may be presented in private or in public, or a combination of both, at the discretion of the Commissioner, according to these Rules, which are applicable to in camera matters with appropriate modifications.
- The Commissioner may, at his discretion, issue an order that any portion of the proceedings be in camera, or issue an order prohibiting the disclosure, publication or communication of any testimony, document, personal information or evidence.
- The Commission will set the dates, hours and places of its hearings. Unless otherwise directed by the Commissioner in his discretion, hearings will start at 9:30 a.m. and end at 4:30p.m., from Monday to Friday, inclusive, and will take place in Ottawa at the Bytown Pavilion, Victoria Hall, 111 Sussex Drive, Ottawa, Ontario or at such other place as the Commissioner determines.
- The Commissioner may receive any evidence or information which he considers to be helpful in fulfilling his mandate whether or not such evidence or information would be admissible in court.
- The Commissioner, in his discretion, may accept as conclusive or give such weight as he deems appropriate to the findings of the examinations of the circumstances surrounding the bombing of Air India Flight 182 set out in paragraph (a) of the Commission's Terms of Reference, Order in Council, PC 2006-293.
- 1. Commencement of the Inquiry (Stage 1)
- Family of the victims of the bombing of Air India Flight 182 who participate in Stage 1 of the Inquiry will not be required to give their testimony upon oath or upon affirmation and shall not be subject to cross-examination.
- The Commissioner, in his discretion, may make such further Rules as he deems appropriate with respect to the conduct of Stage 1 of the Inquiry. The Rules with respect to evidence in the balance of the Inquiry (Stage 2) will not apply to Stage 1, unless specifically so ordered by the Commissioner.
- 2. Testimony in Stage 2 of the Inquiry
- Preparation of Documentary Evidence
- As soon as possible after being granted standing, parties and intervenors shall provide to the Commission all documents relevant to the subject matter of the Inquiry.
- Where a party objects to the production of any document on the grounds of privilege, the document shall be produced in its original unedited form to Commission Counsel who will review and determine the validity of the privilege claim. The party, intervenor and/or counsel may be present during the review process. In the event the party or intervenor claiming privilege disagrees with Commission Counsel's determination, the Commissioner, on application, may either inspect the impugned document(s) and make a ruling, or may direct the issue to be resolved by the Federal Court.
- Upon the request of Commission Counsel, parties and intervenors shall provide originals of relevant documents.
- Documents received from a party, intervenor, or any other organization or individual, shall be treated as confidential by the Commission unless and until they are made part of the public record or the Commissioner otherwise declares. This does not preclude Commission Counsel from producing a document to a proposed witness prior to the witness giving his or her testimony, as part of the investigation being conducted, all subject to National Security Confidentiality.
- Witness Interviews
- Commission Counsel may interview people who have information or documents which have any bearing upon the subject matter of the Inquiry. People who are interviewed are entitled, but not required, to have a legal counsel present at their expense unless otherwise ordered by the Commissioner, as provided in these Rules.
- If Commission Counsel determines that a person will be called as a witness following an interview, Commission Counsel will prepare a statement of the witness' anticipated evidence. Commission Counsel will provide a copy of the statement of anticipated evidence to the witness for review before the witness testifies before the Commission. Where a statement of anticipated evidence is released to persons with party status prior to the testimony of a witness, the statement will be deemed confidential and unless otherwise ordered by the Commissioner shall be not be disclosed to third parties until after the completion of the testimony of the witness in question.
- All government entities, agencies and officials and all witnesses shall co-operate fully with the Commission and shall make available all documents and witnesses relevant to the mandate of the Commission.
- Witnesses who testify will give their evidence at a hearing under oath or upon affirmation unless otherwise ordered by the Commissioner in his discretion.
- Commission Counsel may issue and serve a subpoena or summons upon each witness before he or she testifies. Witnesses may be called more than once.
- Witnesses who are not represented by counsel for parties are entitled to have their own counsel present while they testify, subject to National Security Confidentiality. Counsel for a witness will have standing only for the purpose of that witness' testimony to make any objections thought appropriate and for other purposes as directed by the Commissioner in his discretion.
- Parties and intervenors are encouraged to advise Commission Counsel of the names, addresses and telephone numbers of all witnesses they wish to have called and, if possible, to provide summaries of the information the witnesses may have.
- If the proceedings are televised, applications may be made for an order that the evidence of a witness not be televised or broadcast.
- Commission Dossier
- At the commencement of any phase of Stage 2 of the Inquiry, Commission Counsel may present to the Commissioner a statement of evidence, facts or conclusions together with the sources or basis for the evidence, facts or conclusions that Commission Counsel proposes that the Commissioner adopt for purposes of the Commission's findings or conclusions with respect to that phase of Stage 2 (a "Commission Dossier").
- Commission Counsel may call witnesses or experts to support or supplement the Commission Dossier.
- A person who has been granted party status with respect to a phase of Stage 2 with respect to which Commission Counsel has presented a Commission Dossier may cross-examine witnesses called with respect to the Dossier. A person granted status as a party may propose witnesses to be called with respect to the Dossier. Where Commission Counsel declines to call a witness proposed by a person with party or intervenor status, that person may follow the procedure as set out in Rule 49.
- Oral Examination
- In the ordinary course Commission Counsel will call and question witnesses who testify at the Inquiry. Counsel for a party may apply to the Commissioner to lead a particular witnesses' 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 in court proceedings, unless otherwise directed by the Commissioner.
- Commission Counsel have a discretion to refuse to call or present evidence.
- The order of examination in the ordinary course will be as follows:
- Commission Counsel will lead the evidence from the witnesses. Except as otherwise directed by the Commissioner, Commission Counsel is entitled to ask both leading and non-leading questions;
- parties will then have an opportunity to cross-examine the witness to the extent of their interest. The order of cross-examination will be determined by the parties and, if they are unable to reach agreement, by the Commissioner;
- after cross-examinations, counsel for a witness may then examine the witness. Except as otherwise directed by the Commissioner, counsel for the witness is entitled to ask both leading and none-leading questions;
- Commission Counsel shall have the right to re-examine last.
- After a witness has been sworn, affirmed, or otherwise qualified at the commencement of giving evidence, no counsel other than Commission Counsel may speak to such witness about the evidence that he or she has given until the evidence of such witness is complete except with the permission of the Commissioner. Commission Counsel may not speak to any witness about his or her evidence while the witness is being cross-examined by other counsel.
- When Commission Counsel indicate that they have called the witnesses whom they intend to call in relation to a particular issue, a party may then apply to the Commissioner for leave to call a witness whom the party believes has the evidence relevant to that issue. If the Commissioner is satisfied that the evidence of the witness is needed, Commission Counsel shall call the witness, subject to Rule 47.
- Use of Documents at Hearings
- In advance of a witness' testimony, Commission Counsel will endeavour to provide to parties and intervenors with an interest in the subject matter of the proposed evidence, a statement of that witness' anticipated evidence and associated documents, subject to the Rules regarding National Security Confidentiality, and subject to receipt of an undertaking that all such documents or information will be used solely for the purpose of the Inquiry. In addition, the Commissioner may require that documents provided, and all copies made, be returned to the Commission if not tendered in evidence. Counsel are entitled to provide such documents or information to their respective clients only on terms consistent with the undertakings given, and upon the clients entering into written undertakings to the same effect. These undertakings will be of no force regarding any document or information once it has become an exhibit. The Commissioner may, upon application, release any party or intervenor in whole or in part from the provisions of the undertaking in respect of any particular document or other information.
- Parties shall provide Commission counsel with any documents that they intend to file as exhibits or otherwise refer to during the hearings at the earliest opportunity, and in any event shall provide such documents to Commission counsel no later than two business days before the document will be referred to or filed.
- Before using a document for purposes of cross-examination, counsel shall provide a copy to the witness and to all parties having an interest in the subject matter of the proposed evidence not later than two business days prior to the commencement of that witness' testimony.
- National Security Confidentiality
- As contemplated by paragraph (m) of the Terms of Reference, Order in Council, P.C. 2006-293, the Attorney General of Canada may apply from time to time to have certain evidence heard in camera to prevent public disclosure of information on grounds of National Security Confidentiality. The Commissioner will conduct proceedings to determine the disposition of such applications in accordance with paragraph (m) (i-v) of the Terms of Reference subject to such additional procedures consistent with the Terms of Reference as the Commissioner may at his discretion direct.
- Personal Confidentiality
- Upon application, the Commissioner may make an order for a grant of "Personal Confidentiality", aimed at protecting the identity of any person. For the purposes of the Inquiry, Personal Confidentiality shall include the right of any person to have his or her identity disclosed only by way of non-identifying initials, and, if the Commissioner so rules, the right to testify before the Commission in camera, together with any other privacy measures which the Commissioner grants.
- Upon application, the Commissioner may make an order to conduct hearings in camera when he is of the opinion that intimate financial, personal or other matters are of such a nature, having regard to the circumstances, that the desirability of avoiding disclosure outweighs the desirability of adhering to the general principle that the hearings should be open to the public.
- A person who is granted Personal Confidentiality will not be identified in the public records and transcripts of the hearing except by non-identifying initials, and the public transcripts may be redacted to exclude any identifying details. Any reports of the Commission referring to a person who has been granted Personal Confidentiality will use non-identifying initials only, and may exclude reference to identifying details.
- Media reports relating to a person granted Personal Confidentiality shall avoid references that might reveal the identity of the person. No photographic or other reproduction of a person granted confidentiality shall be made either during the person's testimony or upon his or her entering and leaving the site of the Inquiry.
- Any witness who is granted Personal Confidentiality may either swear an oath or affirm to tell the truth using the non-identifying initials given for the purpose of the witness's testimony.
- Any party, intervenor or witness may apply to the Commissioner to have intimate financial or personal information which is not relevant to the subject matter of the Inquiry redacted from documents proposed to be introduced into evidence.
- All media representatives shall be deemed to undertake to adhere to the Rules respecting Personal Confidentiality. A breach of these Rules by a media representative shall be dealt with by the Commissioner as he sees fit.
- Access to Evidence
- All evidence shall be categorized and marked P for public sittings and C for sittings in camera
- One copy of the P transcript and the P exhibits of the public hearings will be made available for public review at the Commission offices.
- Only those persons authorized by the Commission, in writing, shall have access to C transcripts and exhibits.
I. CONSULTATION PAPERS, POLICY FORUMS,
- The Commissioner, in his discretion, may authorize the commissioning of Consultation Papers, and/or the convening of Expert Policy Forums or Public Consultations for use in the preparation of Commission Dossiers.
- The Commissioner, in his discretion, may receive evidence at any stage of Phase 2 of public hearings from one or more panels of expert witnesses. The Commissioner may modify the Rules for cross-examination of witnesses as he deems appropriate, so as to allow persons with standing in relation to the relevant phase of Stage 2 to participate appropriately in relation to the evidence of the panel in question.
- Persons with an interest in any phase of Stage 2 may, prior to the commencement of that phase, may make a submission in writing about any matter relevant to that phase, including specific proposals for the recommendations to be made by the Commissioner with respect to that phase.
- The Commissioner may convene public and private consultations to hear submissions with respect to any matter raised in any phase of Stage 2 of the Inquiry. The participants in such consultations may include any persons whom the Commissioner concludes will contribute to the process.
J. MEDIA COVERAGE
- The Commission may authorize the tape recording and live broadcasting of the public hearings by a designated media representative who will provide such recording and live feed to all other media pursuant to a pooling agreement. If the media cannot agree on a pooling agreement, they may apply to the Commissioner for a decision.
- Representatives of the media who have signed the pooling agreement have the same rights in connection with the utilization of the tape recording and live broadcasting feed of the public hearings as the designated media representative.
- The designated media representative authorized to tape record and broadcast the public hearings may provide a copy of such recording to the Commission's Registrar.
- Cameras and microphones will be located at pre-determined places in the hearing rooms. Only fixed cameras and the lighting system in the hearing room will be allowed.
- No media scrums, interviews, or reporting will be allowed in the hearing rooms or within a prescribed distance from the hearing room entrances.
- Media representatives will have to abide by the Commission's directives.
- Whenever the Commission decides pursuant to Rules 8, 9, 53, 54 and 55 to proceed in camera, or issue a publication, disclosure or communication ban, the designated media representative must, to the satisfaction of the Commission, take all necessary measures to ensure that all tape recording or sound recording machines have been turned off.
- No other forms or means of recording, re-broadcasting or photographing beyond those permitted by these Rules will be allowed in the hearing rooms.
- Notwithstanding Rule 75, the Commission may allow, at his discretion at times and under conditions set by him, one photographer to take pictures in the hearing room with the understanding that he make available his negatives to representatives of the media pursuant to a pooling agreement of the kind described in Rule 68 above.