more Commission confusion?

There seems to be some potential confusion surrounding the Cohen Commission — the inquiry into the Fraser sockeye collapse. Another component that had me confused has been the constant use of “judicial inquiry” — you may even notice it’s one of my tags on this site.

However, the Cohen Commission is not a “judicial inquiry” — although almost any media leading up to and after the announcement in November has called it as such.

It’s a public inquiry; the commissioner just happens to be a judge. The Commissioner doesn’t necessarily have to be a judge though. It seems that maybe the title has been mixed up. There are judicial proceedings, which are conducted in a court of law. “The courts review cases and make findings of guilt (in criminal matters), liability (in civil matters), and legality (in constitutional cases).”

And then there are public inquiries, which are “official reviews, ordered by government, of important public events or issues. Its purpose is to establish the facts and causes of an event or issue, and then to make recommendations to the government. All levels of government (federal, provincial, and territorial) have the power to call public inquiries.”

… Public inquiries can often look like judicial proceedings. There may be a judge-like authority who oversees the inquiry and its day-to-day activities. There are often witnesses who give testimony and evidence to the inquiry. There may also be lawyers who make arguments and examine the evidence.

However, public inquiries are not courts of law. The purpose of a public inquiry is to establish the facts of a particular event or issue and make recommendations to the government. A public inquiry cannot make a legal finding of guilt or liability, nor can it force the government to act according to its advice. In contrast, judicial proceedings are legally binding. All parties to a court case are legally obliged to accept the decision of the court and whatever punishment or remedy it administers.

Furthermore, Canadian courts enjoy a high level of independence from the government, whereas public inquiries do not. Court judges cannot be easily fired and generally serve for life. Public inquiry officials can be removed at any time. In addition, the courts (as a whole) have the power to review any civil, criminal, or constitutional issue that is brought before them. In contrast, public inquiries only have the power to review what the government allows.

found online Mapleleafweb

Here is another curious point provided by the Mapleleafweb site regarding inquiry commissioners:

An important component of the Terms of Reference is the naming of the Commissioner or the person who will lead the inquiry. The Commissioner is one of the most important persons in the inquiry. S/he has influence over the format and schedule of the inquiry and leads its day-to-day activities. The Commissioner is often a former judge, senior politician, or some other professional held in high regard.

Normally one person heads a public inquiry and sits alone to hear witnesses. However, an inquiry looking into broad national issues may require several persons with expertise in different areas. These public inquiries may have several commissioners. For example, the government named Chief Justice Brian Dickson as Head Commissioner of the Royal Commission on Aboriginal Peoples, and Dickson chose 10 other individuals to sit on the Commission, including three Aboriginals.

That seems a pretty important point — as I’m quite surprised to look at the roster to the Cohen Commission and I do not see any First Nations individuals, or First Nation lawyers, or even lawyers specializing in aboriginal rights and title (although there may be). Yet, when it comes to Fraser River sockeye, I don’t know if becomes more fundamental, more life-altering, then the loss of sockeye to the many First Nation communities in the watershed.

Maybe this representation will come in days, weeks, months to come.

Regarding public participation:

The level of public involvement in the inquiry process will depend on whether the inquiry is primarily advisory or investigative. Commissions struck to advise the government on policy issues are more likely to solicit written or oral submissions from the general public…

Understandably, public interest in inquiries investigating possible wrongdoing by the government or other agencies is quite high. The level of direct public participation, however, is typically lower than for advisory inquiries. In order to testify or present a written submission, it is more likely that individuals will have to obtain standing by demonstrating to commissioners that they have a direct interest in the issue.

Benefits and dangers:

One of the most important benefits of any public inquiry is its public and open nature. Public inquiries represent an opportunity for the general public to get information on important issues and events of the day — information they might not otherwise receive through the media or their elected officials. This can lead to more knowledgeable citizens and better public debates, which are key to a strong democratic system.

It is important to remember, however, that public inquiries are also one way for the government to stifle public knowledge and debate. Governments could use public inquires to “bury” a controversial issue, hoping that it will have faded from the public’s memory by the time the inquiry releases its final report. Critics also frequently argue that public inquiries are simply a means for the government to give the appearance of responding to public concerns over an issue, without taking any concrete action.

“Public inquiries can also be important means for social or political reform. Public inquiries do much more than simply assign blame. They often attempt to find the underlying causes of an event or issue and to provide advice and recommendations for future action. If acted upon, the final report of a public inquiry can lead to important changes in government attitudes and practices.

It should be noted again here that governments are under no legal obligation to follow the recommendations of public inquiries. In many cases, in fact, the final report of a public inquiry often goes unheeded.”

It should also be remembered:

The findings of a public inquiry can be appealed. The Federal Court Act gives Canada’s Federal Court the authority to review decisions reached by public inquiries to decide whether errors were made, whether the inquiry failed to follow proper procedures, or went outside the scope of its mandate.

Thanks to Mapleleafweb for posting the information.

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