Book Review: Commissions of Inquiry

Several times each month, we are pleased to republish a recent book review from the Canadian Law Library Review (CLLR). CLLR is the official journal of the Canadian Association of Law Libraries (CALL/ACBD), and its reviews cover both practice-oriented and academic publications related to the law.

Commissions of Inquiry. By Hon. Stephen Goudge & Heather MacIvor. Toronto: LexisNexis, 2019. xvi, 510 p. Includes appendices and index. ISBN 9780433503118 (softcover) $120.00.

Reviewed by Paul F. McKenna
Lecturer, School of Information Management
Dalhousie University
In CLLR 45:3

This comprehensive work deals with all things related to the concept, characteristics, construction, conduct, and conclusion of commissions of inquiry. The authors are particularly well suited to this task. Stephen Goudge was the former Commissioner of the Public Inquiry into Pediatric Forensic Pathology, and, more recently (2014), chaired the Expert Panel on Future of Canadian Policing Models for the Canadian Council of Academies and Public Safety Canada. Heather MacIvor is a former political science professor. Together they have assembled an impressive, and exhaustive, amount of information dealing with this critical apparatus of the state.

Commissions of inquiry have a long tradition in Canada and other Commonwealth jurisdictions, serving as a mechanism for closely examining structural, systemic, and societal issues. Oddly enough, there is no official tally of public inquiries in Canada. One study estimates that 450 public inquiries were held under Part I of the Inquiries Act (as it is now) between 1868 and 2014, which amounts to about 10 per year. Public inquiries are undeniably a fixture in the firmament of government reform.

The work is divided into five parts: introduction to commissions of inquiry, the law of commissions of inquiry, getting to work, participants and witnesses, and answering the questions set out in the terms of reference. Each part is replete with illustrative examples drawn from Canadian experience and other jurisdictions within the Westminster tradition.

The authors begin with the observation that commissions of inquiry fall into two broad categories: fact-finding and policy/advisory. This is a useful and necessary distinction. An excellent example of this dichotomy may be found in the efforts of Thomas Braidwood with respect to the death of Robert Dziekański at the Vancouver airport. One facet of Braidwood’s work took the form of a hearing inquiry looking at the misadventures of the RCMP officers who interacted with Dziekański; the other facet was his study inquiry, which examined the lethality of conducted energy weapons manufactured by Axon Canada.

The legal aspects of Commissions of Inquiry hinge substantially on the various Inquiries Acts that exist in Canadian jurisdictions and are impacted by the Charter and the potential for judicial review of all findings and recommendations of any commission of inquiry. It is noted that British Columbia, Saskatchewan, Newfoundland and Labrador, as well as Ontario, have newer and more prescriptive Inquiries Acts that reflect the model act proposed by the 2004 Uniform Law Conference of Canada. This portion of the work is particularly valuable as it consolidates relevant legislative information and recapitulates much of the earlier research.

It is essential to take stock of the sui generis nature of commissions of inquiry. Each inquiry is in response to specific and particular precipitating events or concerns, and they typically include issues of significant public interest. Topics have ranged from wrongful convictions, Canada’s blood supply system, the quality of drinking water, the non- medical use of drugs, the shooting death of a First Nations protestor, new reproductive technologies, political corruption, deployment of Canadian forces in Somalia, to the murder of nursing home patients.

Each inquiry must fashion its own unique and distinctive terms of reference. This publication offers clear guidance of how commissioners should tackle the daunting task of crafting appropriate terms of reference. The authors are somewhat critical of the Missing and Murdered Indigenous Women and Girls (MMIWG) Inquiry’s mandate, which they found to be “exceptionally broad and phrased in vague aspirational terms” (p. 127). They suggest that, by breaking one of the cardinal rules of good practice, the MMIWG inquiry set itself up for confusion and delay.

The authors next delve into the characteristics of commissions of inquiry. All public inquiries should be effective, thorough, expeditious, in accordance with the principle of proportionality, and cost-effective. Of course, these are aspirational features in that virtually every public inquiry comes into being within a climate of controversy, conflict, and crisis. Commissions of inquiry have considerable autonomy with respect to process within the parameters of their terms of reference.

The selection of the commissioner is pivotal to the success of any public inquiry. Judges occupy a unique role in the ecosystem of inquiries, often being called upon to serve as commissioner. They are perceived to have political independence, experience with running hearings, an ability for the analysis of information, and legal experience. But while commissioners are often judges (serving or retired), commissions of inquiry are not judicial bodies. Rather, they are an agency of the executive branch of government. Accordingly, the findings of a commissioner amount to “expressions of opinion” and are subject to judicial review. Commissions of inquiry, to a great extent, feature inquisitorial, as opposed to adversarial, fact-finding approaches. Similarly, while the commissions cannot assign civil or criminal liability, they can effectively pinpoint improper or unprofessional behaviour and instances of bad management (p. 191).

Inquiry commissioners have made an indelible mark on Canadian policy and leveraged government innovation through their efforts; however, at times, it has been necessary to place a bridle on the work of commissioners. For example, the Federal Court determined that Commissioner Parker exceeded his jurisdiction when he applied his own definition of “conflict of interest” in the inquiry into federal Cabinet minister Sinclair Stevens’s actions. Other judges have also been known to fall somewhat short of the Platonic ideal, including Justice Létourneau, who was thought to have “disabling bias” toward Brigadier-General Beno during the Somalia Inquiry.

Goudge and MacIvor consider several matters that can affect the commissioner’s ability to compel testimony and the production of documents, including considerations of national security. National security concerns were raised during the Maher Arar and Somalia inquiries. Goudge’s own inquiry into pediatric forensic pathology had to overcome the stiff opposition of Charles Smith, whose incompetent work had triggered that inquiry, and the concerns raised by the College of Physicians and Surgeons of Ontario. These considerations can slow the proceedings and divert attention from the issues at hand.

Once a commission of inquiry has completed its work, there is no formal mechanism to ensure that its recommendations get implemented. In fact, the final report of the commissioner is the property of the executive level of government that created the commission of inquiry. A federal inquiry becomes “a confidence of the Queen’s Privy Council for Canada” (p. 251) and the federal Cabinet has complete discretion over whether, or not, to publish the commissioner’s report.

It is noteworthy that multi-member inquiry panels can become deadlocked, such as occurred with the Royal Commission on New Reproductive Technologies. When only three of the seven commissioners agreed to sign the final report, the commission appealed to the Clerk of the Privy Council for some form of intervention. The federal government chose not to interfere with the Commission’s work.

Many of us have been gripped by revelations issuing from public inquiries. For example, there was the vivid moment when Mr. Justice Archie Campbell, on the 1996 Bernardo Investigation Review, pronounced that police services in Ontario functioned as though they were operating in different countries. His review and recommendations led inexorably to the introduction of major case management protocols, which now represent good (and standard) practice in Canadian policing.

The six appendices, ranging from Canadian Inquiries Acts (the actual text of the federal and Ontario statutes, and links to all others), sample terms of reference, selected rules of procedure and practice from five inquiries, to the “Salmon Principles,” appropriately complement the thoroughness of the text. This publication is a true treasure for anyone seeking to begin their understanding of commissions of inquiry or those who wish to refine and refocus their efforts to inaugurate this most important tool in the arsenal of government innovation.