Since the appointment of Lord Durham in 1840, commissions of inquiry have had a central role in Canadian public affairs. They have been used to develop policy in areas like medicare, bilingualism, and free trade.
They have been used to investigate wrongful convictions, industrial disasters, official misconduct, and political scandals.
Investigative inquiries are more dramatic than those that develop policy and engage many legal issues.
Recent examples of these include: the death of Polish visitor Robert Dziekanski after being stunned with a Taser by police at the Vancouver airport; secret cash payments to former prime minister Brian Mulroney by a government lobbyist; the involvement of Canadian officials in the imprisonment and torture of Canadian citizen Maher Arar in Syria; the sponsorship scandal; and the wrongful convictions of Donald Marshall Jr., Guy Paul Morin, David Milgaard, Thomas Sophonow, James Driskell, and Gregory Parsons.
Common to all of these examples is that the Canadian public did not trust ordinary government institutions or processes to tell them how such extraordinary events could happen. What went wrong? Who was responsible? How can this be avoided in the future? In each case a commission of inquiry was established.
But what exactly is a public inquiry? Where does it “fit” in law and government? What do commissions offer that other public institutions can’t deliver? Why does the public trust them? Why do governments expose themselves to investigation and criticism?
I use the term “commission of inquiry” to refer to an administrative tribunal created under the federal Inquiries Act or one of the corresponding provincial or territorial statutes. While Parliament has granted the authority to create commissions of inquiry, it is the executive branch of government that creates each one.
A commission of inquiry is a unique form of a statutory administrative tribunal because it is created to fulfil a specified executive function and then it ceases to exist.
The function it fulfils is always, and only, to investigate and report. But the scope and subject matter is specified for each one and these may be vastly different.
The cabinet dictates this scope and subject matter through an order in council, which has the legal character of “subordinate legislation.” This means a commissioner who exceeds his or her jurisdiction may be subjected to judicial review. He or she may be restrained from inquiring into certain issues or findings may be declared to be of no force or effect.
Of course the government that establishes a commission is constrained by its constitutional authority. For example, a provincial government must not establish a commission of inquiry for the purpose of conducting a criminal investigation since criminal procedure is a federal responsibility.
Commissions of inquiry form a “residual institution of government” because they are established in exceptional circumstances, when no other institution or process of government appears to be adequate. Justice Peter Cory elaborated in Phillips:
One of the primary functions of public inquiries is fact-finding. They are often convened, in the wake of public shock, horror, disillusionment, or scepticism, in order to uncover “the truth” . . . In times of public questioning, stress and concern they provide the means for Canadians to be apprised of the conditions pertaining to a worrisome community problem and to be a part of the recommendations that are aimed at resolving the problem.
The crucial purpose is to restore public confidence.
Why are commissions of inquiry uniquely suited for this purpose? There are five features of these bodies that inspire public confidence. Other institutions have some of these features but not all.
A fundamental feature is the independence of the commissioner, who has no vested interest in the outcome and will simply let the chips fall where they may. In contrast, an internal investigation may be perceived as trying to protect the persons or bodies that are under scrutiny.
Often judges or retired judges are appointed to enhance the perceived status of independence.
A second feature is the effectiveness of the commissioner to get to the bottom of the problem.
Other professional obligations are set aside to devote all available time and energy to the inquiry. Resources and staff are provided to create a team that also gives an intense commitment. This is a luxury that other public officials and institutions simply cannot afford.
The public will also derive confidence from the mandate of the commission, which is designed to address the very questions and issues that give rise to public concern.
A fourth feature is the broad investigative powers to compel the testimony of witnesses and the production of documents.
A trial judge is a passive observer who is restricted to the issues between the parties as defined by the pleadings or charge. In contrast, a commissioner may go where the mandate and evidence lead.
The final feature that enhances public confidence is the transparency of the proceedings. Hearings are conducted in public, are often televised, and available online. Most inquiries receive detailed coverage in the media.
Judicial processes are independent and open but are restricted to the issues between parties. Judges do not report on what went wrong and why or how that can be avoided in the future.
Legislative hearings are open and may have broad mandates but legislators have many ongoing responsibilities. Partisanship also detracts from public confidence in their objectivity.
Criminal investigations may be detailed and intense but they are narrowly focused. They cannot respond directly to public concerns since they are conducted in private. They also lack the power to compel testimony so the results of their own findings must be tested in court.
The decision to establish commissions is inherently political since it is made by the cabinet. They may serve as both a “political tool” and a “check on politics.”
These purposes may seem contradictory but both are often present and they may interact with varying degrees of tension and harmony. A government may wish to escape criticism by shifting a problem to an inquiry but the public also may be served by receiving an objective and fact-based response to the problem.
The primary political advantage is to take the heat off a government under attack for a problem with a high public profile.
The government can say it has “done something” without admitting to any wrongdoing. It can postpone having to respond to the problem since, inevitably, the earlier attacks included the demand for such an inquiry. Once that demand has been met, critics have to wait for the commission to report.
But there are also potential disadvantages.
The government loses control of the information given to the public and the manner in which it is expressed. The hearings can magnify the criticisms on a daily basis and the final report can be damning of the government that created it.
The government must assess its “exposure.” Is the problem limited to a few individuals? At what level? Will a resignation suffice? Will the publicity put the government in a bad light even if there is no clear evidence of wrongdoing? Is there a strong public suspicion of a coverup that can be confronted only by independent fact-finding?
The government must also assess whether the problem has “legs.” Can it weather the storm by simply repeating its position until the media and public grow tired of the issue? Or is it likely to gain momentum rather than losing it?
The political consequences may be difficult to predict. Former prime minister Paul Martin established the Gomery Commission and was personally exonerated. However, he was defeated in the next election since the public probably did not distinguish his watch from that of his predecessor, Jean Chrétien, in relation to the sponsorship scandal.
A decade earlier, the Chrétien government established the Somalia Inquiry. The commission was frustrated by the lack of co-operation on the part of officials and a relationship of confrontation with the government soon escalated. The government was increasingly critical of the commission’s expense and delay.
More importantly, the public seemed to be increasingly unhappy with the adversarial nature of the highly publicized hearings and the ongoing criticism of our armed forces. The government took the bold step of terminating the commission before it could complete its mandate but suffered no adverse consequences and won another majority in the ensuing general election.
Commissions of inquiry form a “residual” institution in the machinery of government that often serves a unique blend of governmental, social, and political purposes. They continue to be invoked when nothing else seems adequate to satisfy public confidence and there is no end in sight.
Ed Ratushny is a law professor at the University of Ottawa and the author of The Conduct of Public Inquiries, the first comprehensive and integrated treatise on commissions of inquiry.