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THE FOLLOWING ARTICLE HAS APPEARED IN THE RECORD ON March 6, 2002

Lifting the veil on commissions
of inquiry



If the Senate Committee on National Security and Defense has its way, the next commission of inquiry will deal with the security of maritime ports. If the Chretien government agrees it won't be the only one. At any given time, dozens of commissions of inquiry, federal and provincial, are holding sittings all across Canada, thanks to a whole array of government mandates. Some operate in a blaze of publicity while others do their utmost to avoid the public eye.

I should know, I spent years with the now defunct Commission of Inquiry into Organized Crime. While most of the targets were the subjects of public hearings, the ones I worked on remained confidential.


Even municipalities get into the act

Quebec municipalities can also get into the act. They have access to a rarely invoked but much watered down version of a commission of inquiry. In virtue of the Cities and Towns Act, town councils may appoint committees to investigate matters within their jurisdiction. This is what occurred in May 1999, when the Town of Brome Lake Council appointed three councilors to examine the David Allen Gauthier file.


Their distinct features

Commissions of inquiry have very distinct features, two of which are extremely important. Their proceedings begin with an independent investigation and terminate with a report that includes a summary of the findings as well as a series of recommendations. Governments call on them in matters of public interest especially when the scope of an inquiry requires a high degree of expertise. This is not to say that public pressure never plays a substantial role in any government's decision to set up an inquiry. Quite the contrary.

While their final reports are neither binding nor conclusive, their influence can lead to pressing legislation as well as major changes in government practices. If offences are disclosed during the course of their hearings, the evidence is relayed to the Attorney General's office where prosecutors must decide whether to institute regular criminal proceedings.

Ability to focus on a particular subject matter


Much like a Coroner's inquest, their effectiveness lies in the ability to focus on a particular subject matter, without being bogged down by the many rules of evidence and judicial procedure that are part and parcel of our criminal trial system. However, this does not prevent the hearings from erupting into a highly charged atmosphere, especially during the spirited interrogations of uncooperative or hostile witnesses.

Concentration of tough legal powers

What enables a commission of inquiry to be so effective are the powers and immunities vested by law in the commissioners. Contrary to police investigators, commissioners have the legal authority to order witnesses to give evidence under oath or affirmation and to produce any document in their custody or control. As with US grand juries, any witness who fails to appear, is subject to arrest. Any witness who refuses to be sworn or to answer any question, exposes himself to contempt procedures and ultimately incarceration. Failing to give truthful answers can lead to charges of perjury and obstruction of justice.

Why not resort to conventional investigations

Why is it necessary to resort to such exceptional investigative procedures? The simple truth is that conventional investigations are not always capable of gathering the type of information that witnesses prefer to hide. This is particularly the case when the information is tied to wide-ranging activities that are both illegal and well organized.

One has only to imagine what the results would have been had both the Walkerton Inquiry regarding the E.Coli contamination or the Poitras Inquiry into the SQ, proceeded by way of a police investigation. They would have been disastrous - police forces simply do not possess the required financial resources, personnel, legal tools and often the expertise to tackle such massive inquiries.

Importance of Commissioners and support staff


However, the success of any commission of inquiry depends on more than just the commissioners' legal powers and immunities. Other factors come into play, not the least being the competence and experience of the commissioners themselves. Those with great character and intellect are naturally a bonus for any inquiry. Judges make good commissioners but not only because they help to eliminate any appearance of partisan politics. As well as being legally trained and skilled, it is their reputation for judicial independence and impartiality that makes them the ideal choice.


Then follows the selection of attorneys, investigators, researchers and support staff that are all necessary to complete a mandate. Team players are of significant importance as any loose canon can create havoc for a commission. Attorneys also play a pivotal role in any commission of inquiry. Not only are they responsible for filtering the evidence and advising the commissioners, they handle all of the interrogations of witnesses during both the private and public hearings.

Subject to criticism

Despite their many advantages, commissions of inquiry have always been the subject of criticism .One of the biggest complaints is that witnesses are exposed to incriminating themselves as well as violating their right to remain silent. While this is true, it is nothing particularly new. The same situation occurs whenever an accused is called to testify against an accomplice in a separate case. While, in both instances, accomplices and witnesses are compellable witnesses, their testimony can never be used against them in their own proceedings, except in cases of perjury

Other criticisms originate from witnesses who claim they were not adequately heard in their defense or that their reputations were sullied because of the extensive publicity. While the use of private hearings as well as the right to respond to any blame have become standard safeguards, extensive publicity remains a fact of life that all branches of our justice system are exposed to.


Vulnerable to political manipulation


Are commissions of inquiry vulnerable to political manipulation? Definitively. The methods can be as widespread as they can be subtle. They include the setting up an inquiry with the secret aim of embarrassing a political opponent or opposition party to under budgeting an inquiry so as to make it less efficient. Finally, nothing prevents a government, from putting together a commission of inquiry to appease an angry public and shelving the findings and recommendations if they are found to be embarrassing.

Nevertheless, thanks in part to an increasingly vigilant public and media, governments have become less inclined to reject sound recommendations without valid reasons.

Next week: A closer look at the TBL " Commission of Inquiry"