Ontario’s Associate Chief Justice Dennis R. O’Connor gave a presentation to the Institute for the Administration of Justice conference in Halifax, Nova Scotia in October 2007. Justice O’Connor was the Commissioner for the Walkerton Inquiry in 2000 and the Arar Inquiry (investigation of Actions of Canadian Officials in Relation to Maher Arar) between 2004-2006.
Mr. Arar was the Canadian citizen detained on a flight in the U.S. in 2002 and then sent to a Syrian prison for almost a year and subjected to brutal torture — all on apparent accusations of terrorist links. Arar was cleared of all allegations in September 2006 by the public inquiry headed by Justice O’Connor.
O’Connor’s paper is called “Some Observations on Public Inquiries” (from Court of Appeals of Ontario website). Some highlights from the paper:
Public inquiries are episodic. The issue, or the dispute, is bigger than who did what to whom, although that question may have to be addressed. The crisis that leads to an inquiry often demands a response that is public, specific about the past, comprehensive about the future, and also cost-efficient and speedy. A public inquiry commissioner may combine a number of roles: that of a fact-finder, like a judge; a proposer for policy reform; a healer for traumatized communities; and a manager with responsibility for budgets and an administrative and legal staff.
Public inquiries, formerly known as Royal Commissions, essentially the same thing, have been with us for a long time. As far back as the middle ages, the kings sometimes used their royal prerogative to appoint a commission to investigate and report on matters of public policy or public concern.
Broadly speaking, there are two types of independent inquiries: those that have a mandate to find and report on facts, and those with a mandate to make recommendations for the development of public policy.
The Cohen Commission into the crash of Fraser River sockeye stocks appears to be a “fact-finding” inquiry with the terms of reference stating: “to investigate and make independent findings of fact regarding the causes for the decline of Fraser River sockeye salmon…. and the current state of Fraser River sockeye salmon stocks.”
Justice O’Connor suggests:
Fact-finding public inquiries have been used in Canada to address a broad range of issues, ranging from a train derailment, a failed bank, abuse in women’s penitentiaries, deaths in a children’s hospital, wrongful convictions, a mining disaster, tainted drinking water, political scandals, and on and on it goes.
Fact-finding inquiries are established to investigate and report upon a particular event or series of events. Commonly, they are established in the aftermath of a tragedy or scandal usually with political implications, where the public’s confidence or trust in public institutions or officials has been shaken. The normal public institutional responses are seen as inadequate, and governments respond to public pressure by creating an independent, ad hoc credible process to investigate and report on what happened and to make recommendations to prevent a reoccurrence.
So is the Cohen Commission investigating just the “particular events” of the past few seasons of limited sockeye fisheries?
For example the first “whereas” of the Terms of Reference: “Whereas the decline in sockeye salmon stocks in the Fraser River in British Columbia has necessitated the closure of the fishery for a third consecutive year, despite favourable pre-season estimates of the number of sockeye salmon expected to return to the Fraser River…”
On the other hand, Justice O’Connor suggests:
Policy-based inquiries are mandated to examine a particular area or issues of public policy and to make recommendations for future policy direction. In Canada , some major public policies have resulted from these types of inquiries – Medicare originated from the inquiry conducted by Justice Emmett Hall, our bilingual and biculturalism policies emanated from a public inquiry and the MacDonald Report in the early 1980s led to the establishment of our current national security framework. The Berger Inquiry [Mackenzie Valley Pipeline] made important recommendations that guided development in the north in relation to the interests of aboriginal peoples. These are just a few examples.
It appears the Cohen Commission also has a policy-based mandate as the terms of reference state:
B. to consider the policies and practices of the Department of Fisheries and Oceans…
D. to develop recommendations for improving the future sustainability of the sockeye salmon fishery in the Fraser River including, as required, any changes to the policies, practices and procedures of the Department in relation to the management of the Fraser River sockeye salmon fishery
As Justice O’Connor suggests, some public inquiries can be both fact finding and public policy focussed:
Some inquiries have both a fact-finding mandate as well as a separate policy-based mandate. The two inquiries I conducted had both. In Walkerton, I was directed to investigate and report on what happened to the drinking water system in Walkerton. In addition, I was also directed to make recommendations to ensure the safety of drinking water in Ontario in the future. The large majority of the issues in the second part of the mandate had nothing to do with what happened in Walkerton.
Similarly in Arar, I was asked to report on the actions of Canadian officials in relation to Mr. Arar. Separately, I was directed to recommend an independent review process for the RCMP’s national security activities. In each case, I developed two entirely different processes for the different mandates and delivered separate reports.
Might we see two separate reports evolving from the Cohen Commission?
- One, on “independent findings of fact” and another that considers “the policies and practices of the Department of Fisheries and Oceans”; and
- Two, a report that develops “recommendations for improving the future sustainability of the sockeye salmon fishery in the Fraser River including, as required, any changes to policies, practices, and procedures of the Department…”
If so, wow, this could take awhile. I’m not so sure the interim report by August 1, 2010 and final report by May 1, 2011 is all that realistic a timeline.
Traditionally, fact-finding inquiries have used public, evidentiary, court-like hearings to gather and test information. Commission counsel collect and review relevant documents, interview witnesses and then introduce the relevant information through sworn testimony in a court-like setting. Lawyers for parties with an interest in the inquiry are granted standing and are entitled to cross-examine witnesses, and make closing arguments.
These types of hearings can be very complex, time consuming and expensive. When public inquiries are criticized, criticisms are frequently directed at the inefficiency of the process, the time involved, and the expense incurred. Indeed, criticisms of this nature are sometimes used as arguments against holding an inquiry in circumstances which otherwise warrant an independent examination and report.