Public Inquiries Flashcards
Whats a public inquiru 3
Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), 1995 CanLII 86 (SCC) p. 60
Held: The court has played a significant role in the country and plays diverse roles.
As ad hoc bodies, commissions of inquiry are free of institutional construction, which sometimes constrains the operations of various branches of government.
They are created as needed; tragedies like plane crashes, unexplained infant deaths, allegations of widespread child sexual abuse etc often prompt their establishment.
They investigate the facts underlying the tragedy and offer policy recommendations.
Recommendations are not binding on the government but nonetheless have a significant influence on government and policy.
Geneal characteristics
A commission of inquiry generally has the following characteristics:
It is appointed by the Governor/Lieutenant Governor in Council.
Terms of Reference are set out in an Order-in-Council issued under an Inquiries Act.
In crafting Terms of Reference, the appointing government must respect the division of powers in the Constitution Act.
It has a mandate to investigate a matter of public interest, usually a tragic event or a complex policy issue, and make recommendations to the government.
Although classified as an executive branch agency, the inquiry is usually led by a sitting/retired judge.
It operates at arm’s length from the government of the day.
It is inquisitorial, not adversarial: there’s a procedure by which they can notify that there is a finding of misconduct in the report.
There is no live legal dispute between the Crown and the parties, or among the parties themselves.
Unlike a neutral adjudicator, a Commissioner takes an active role in gathering and testing evidence
It devises its own Rules of Procedure, within the boundaries set by the applicable Inquiries Act, the Terms of Reference, and the norms of procedural fairness.
The Rules typically include such matters as criteria for standing and public funding; procedures for gathering and disclosing documents; and the order of questioning at evidentiary hearings.
Will draft the rules and send them to parties to get input.
Makes it more difficult to argue that the procedure was insufficient.
Staff/witnesses
It hires its own counsel and other staff.
It has the power to summon witnesses, compel sworn testimony, and subpoena documents. Refusal to comply with a Commissioner’s order can result in civil and/or criminal sanctions for contempt.
It is required by law to protect the rights of parties and witnesses in parallel or subsequent legal proceedings
An inquiry has broader procedural and evidentiary discretion than a court.
Confidentiality
It holds its evidentiary hearings in public with full media coverage unless an enabling statute or the Terms of Reference direct otherwise or there is a compelling reason to hear evidence in camera.
It reports its findings to the government and the public.
Unlike a trial court, it cannot assign civil or criminal liability to any named person.
However, a Commission of Inquiry may make factual findings damaging to individual reputations if its Terms of Reference require it to do so.
Impact
Its findings and recommendations do not bind the government (or anyone else).
A commission of inquiry may only report and recommend.
It cannot adjudicate disputes or determine rights.
It dissolves after its final report is submitted, and plays no part in implementing its recommendations.
Structure
Commissions of Inquiry may be led by one or more Commissioners.
They decide how to use their budget, which is set by the government and follows guidelines from the Treasury Board for expenses like travel and salaries.
Each Commission starts with no staff, resources, or prior experience to rely on.
Ratioanle for PI
Inquiries help improve public policy by gathering diverse information and perspectives.
Unlike trials, they can address systemic issues behind tragedies.
They educate the public and policymakers through public hearings and accessible reports, sometimes leading to changes in attitudes and governance.
Inquiries invite public participation and can independently investigate the government, including the police and military, promoting accountability and transparency.
They offer a safe space for victims of trauma to share their experiences, aiding healing and reconciliation
Inquiries also restore public trust by investigating issues transparently and recommending solutions, sometimes delaying political consequences for the government.
Type of inquiries
Factfining/investigative
Policy/advisory
PF
The more an inquiry focuses on investigating past events, the more it resembles a trial of specific individuals, requiring stronger protections for those involved.
While a fact-finding inquiry doesn’t follow the same strict evidentiary rules as a trial, its power to compel testimony, gather evidence, and make findings of misconduct requires a high level of fairness in its procedures.
Decisions that significantly impact a person’s interests require a higher level of fairness than those with only minor effects.
While an inquiry cannot determine criminal or civil liability, its findings can seriously affect the reputation of an individual, a company or a government agency:
Canada (Attorney General) v. Canada (Commission of Inquiry on the Blood System), 1997 CanLII 323 (SCC), [1997] 3 SCR 440
Held: For most, a good reputation is their most highly prized attribute.
It follows that it is essential that procedural fairness be demonstrated in the hearings of the commission.
The value of an individual’s reputation must be weighed against the public interest in addressing the issues that led to the Commission of Inquiry.
Statutorty provisions for PF
Section 13:
Before a Commission can make a finding of wrongdoing against any person, it must provide written notice and give the affected person an opportunity to be heard.
NB: Also guarantees against self-incrimination and the right to counsel.
The Supreme Court has ruled that a witness forced to testify before a Commission of Inquiry is protected by Section 13 of the Charter from self-incrimination, and by Section 7 against using evidence derived from their testimony.
One key exception: Section 13 allows their testimony to be used in a prosecution for perjury related to their appearance before the Commission.
Ontario Public Inquiries Act
Section 17:
17 (1) A commission shall not find misconduct by a person unless,
reasonable notice of the possible finding and a summary of the evidence supporting the possible finding have been given to that person; and
the person has been given a reasonable opportunity to respond.
Challmeging
Although there is no right of appeal from its findings, a Commission of Inquiry is subject to the normal rules of administrative law.
An affected party may be entitled to a remedy on judicial review if the Commission breached procedural fairness or exceeded the jurisdiction established in its Terms of Reference.
Inquiries are exercises in delegated legislative power and are subject to most rules of administrative law.
Separation of powers
In Canada, the terms “judicial inquiry” and “Commission of Inquiry” are often used interchangeably, but this is misleading.
A Commission of Inquiry is not a judicial body; it is part of the executive branch of government, created specifically for a particular purpose.
Commissions exist because of the Executive and must operate within the guidelines set by the Governor in Council.
Where to review
Superior courts possess an inherent jurisdiction to supervise the exercise of statutory powers
Includes powers assigned to Commissions of Inquiry under the enabling provincial legislation
The Federal Court of Canada has exclusive statutory jurisdiction to grant remedies on judicial review involving “a federal board, commission or other tribunal”.
Includes federally-appointed Commissions of Inquiry.
Masters of their own procedure
A court should respect the decision-maker’s choice of procedure, especially when there are few legal restrictions.
Commissions of Inquiry generally have control over their own process, with one key exception: they must provide notice of potential adverse findings.
The legal rules around these notices set the standard for review.
Master of its own procedure:
Each Commission of Inquiry sets its own Rules of Procedure.
As long as it follows any legal requirements and the specific instructions in its Terms of Reference, the Commission can choose how to gather and share information, hold hearings, and allow interested parties to participate.
