Public Inquiries in Canada

Public inquires have become relatively common events in Canadian politics, be it at the federal or provincial/territorial levels. These public inquiries serve many different purposes, from examining allegations of government wrongdoing to studying divisive or complex issues dominating Canadian politics and policy-making. This article provides an introduction to the purposes, organization, and value of public inquiries in Canada.

Credits: This article was initially written by Rhonda Lauret Parkinson. It has since been altered and updated by Jay Makarenko.

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Introduction to Public Inquires in Canada

What are public inquiries and how are they conducted in Canada?

The following section provides an introduction to public inquiries.

What is a Public Inquiry?

A public inquiry is an official review, 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.

Distinguishing Features

There are four important features of public inquiries in Canada:

• Legislative entities: Public inquiries are governed by specific government legislation. All levels of government have public inquiry laws that set out how such inquiries can be created and operated.
• Advisory role: Public inquires can only provide an advisory role to government. Their purpose is to establish the causes of or facts surrounding an event or issue, and then to make recommendations that the government may or may not accept. Public inquiries do not have the legal power to force government to take its advice.
• Semi-independence: Public inquiries only have semi-independence from the governments that establish them. The government dictates the mandate or purpose of the public inquiry, as well as its make-up and budget. The inquiry is, however, free to manage its own day-to-day activities, and to form its own conclusions and recommendations within the mandate given to it by the government.
• Public nature: Public inquiries have a very open and public nature. The public is allowed (and often encouraged) to view the proceedings of the inquiry, as well as to provide evidence or testimony. Public inquiries’ final reports are generally made available to the public at large.

See the Public Inquiries Versus Other Reviews section of this article for a comparison of public inquires to other sorts of official reviews in Canada.

Also see the Public Inquiry Legislation section of this article for details on the rules and procedures of public inquiries.

Subjects of a Public Inquiry

Public inquiries can be created to review any important event or issue in Canadian society. Common public inquiry topics include:

• Tragic events such as an airliner crash or the collapse of a building;
• Misconduct that brings the administration of government into disrepute, such as fraud or mismanagement by government officials; and
• Important public policy issues that demand extensive study or public consultation, such as the future of health care or the treatment of minorities.

See the History of Public Inquiries in Canada section of this article for a list of important events and issues reviewed by Canadian public inquiries.

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Public Inquiries Versus Other Reviews

How do public inquiries compare to other government reviews?

Reviews are commonplace in modern government; however, not all of these can be called public inquiries. The following distinguishes public inquires from other sorts of reviews undertaken by the state.

Judicial Proceedings

A judicial proceeding is a trial or review by a recognized federal, provincial, or territorial court. These courts review cases and make findings of guilt (in criminal matters), liability (in civil matters), and legality (in constitutional cases). They are also responsible for administering punishment or remedies. 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.

Criminal Investigations

Criminal investigations are undertaken by law-enforcement agencies in order to determine whether individuals should be charged with a criminal offence. They range from smaller investigations into everyday criminal activities, to broad investigations into organized crime or criminal misconduct by government or business.

A criminal investigation differs from a public inquiry in two important ways. First, a criminal investigation is undertaken by police agencies in a fairly closed manner. While the police may interview members of the public in order to obtain evidence and leads, and may announce their findings to the general public, criminal investigations are generally done with a level of secrecy. This is in contrast to the very open nature of a public inquiry.

Second, and most importantly, the purpose of criminal investigations is to establish whether individuals are to be charged with a criminal offence. A public inquiry does not have the power to charge individuals with a criminal offence.

It is important to note that criminal investigations often cooperate with public inquiries. If an inquiry were to uncover evidence of criminal activities, such evidence would be turned over to the appropriate agency for further investigation and possible criminal charges.

Legislative Committees and Departmental Studies

Legislative Committees are advisory bodies created by the legislative branch of government. They can be found at both the federal and provincial/territorial levels of government.

Departmental studies are internal reviews conducted by government departments. Federally, for example, Citizenship and Immigration Canada may conduct an internal review of its immigration policies and procedures in order to make reforms.

Legislative committees and departmental studies can be very similar to public inquiries. They often review issues of public concern, in addition to advising the government on possible actions. Nevertheless, they are not the same thing. Whereas public inquiries are meant to serve the public at large and are very open processes, legislative committees and departmental studies are meant to serve the government. Committee and departmental reports are often reserved for government and elected officials only.

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Different Public Inquiries in Canada

Not all public inquiries are the same. How do they differ?

The following provides ways in which we can distinguish different types of public inquiries.

Policy Reviews Versus Factual Inquiries

One major distinguishing feature is the purpose of a public inquiry. Some inquiries have the mandate to review major political, social, or economic issues, with the objective of providing policy recommendations to the government. These types of public inquiries are often called “policy review” inquiries. The scope of these inquiries will often be very broad, and involve testimony from academics, professionals, members of the public at large, and people directly impacted by the issue being studied. Examples of policy review inquiries include the 1949 Royal Commission on National Development of the Arts, Letters and Sciences (known as the “Massey Commission”), the 1991 Royal Commission on Aboriginal Peoples, and the 2000 Commission on the Future of Health Care in Canada (known as the “Romanow Commission”).

Another sort of public inquiry is the “factual inquiry.” Whereas a policy review examines a broad area of public policy, a factual inquiry reviews a specific event or occurrence that has raised public alarm. The scope of these inquiries is generally very narrow, with a focus on providing the public with a clear description of what occurred and why. Examples of factual inquiries include the 1994 Commission of Inquiry into the Deployment of Canadian Forces in Somalia and the 2004 Commission of Inquiry into the Sponsorship Program and Advertising Activities (commonly referred to as the “Gomery Inquiry”).

 Some public inquiries act as both a policy review and a factual inquiry. They are akin to factual inquiries in that they review a specific event or occurrence that has raised public alarm. They go beyond being simple factual inquiries, however, by providing recommendations to government as to how similar events can be prevented in the future. Examples of these dual inquiries include the 1995 Commission of Inquiry on the Blood System in Canada (the “Krever Commission”) and the 2004 Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar (the “Arar Commission”).

Royal Commissions, Commissions of Inquiry & Task Forces

You might notice that public inquiries often have very different titles. Some are referred to as a “Royal Commission,” while others are called a “Commission of Inquiry.” Further, there are others that are known as “Task Forces.”

This might give the impression that there are different sorts of public inquiries. However, this is not the case.

The only real difference is that a Royal Commission bears the royal seal, while the others do not. Whether a public inquiry bears the royal seal or not has no bearing on its mandate or power. A Royal Commission can be either a “policy review” or a “factual inquiry.” The same is true for Commissions of Inquiry and Task Forces. All three are vested with exactly the same powers to call witnesses and request evidence.

In the end, which title a public inquiry is given depends solely on the predilections of the government that created it.

Federal, Provincial & Joint Inquiries

Public inquiries can also be distinguished by the level of government that has created them:

• Federal public inquiries are inquiries created by the federal level of government in Ottawa. They are meant to inform and advise the national public and government.
• Provincial/Territorial public inquiries are inquiries created by a provincial or territorial level of government. They are meant to inform and advise the public and government of a particular province or territory.
• Joint public inquiries are inquiries created together by the federal government and one or more province or territory. They are meant to inform and advise the national public and government, as well as those of participating provinces and territories.

Generally speaking, the government with jurisdiction over the particular issue or event being studied would establish the inquiry. Telecommunications is a federal jurisdiction. Hence, the federal government would be responsible for any public inquiry into telecommunications policy.

However, there are instances where an inquiry of one level of government reviews issues or events under the jurisdiction of another. The 2002 Royal Commission on the Future of Health Care, for example, was a federal public inquiry into the provincial jurisdiction of health care.

Governments also have the option of establishing a joint public inquiry where the issue or event under study involves both federal and provincial jurisdictions. An example of this is the 1985 joint inquiry into the sinking of the oil rig, Ocean Ranger. Governments may choose to hold a joint inquiry to avoid duplication or to avoid division of powers disputes between the federal and provincial/territorial levels of governments.

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History of Public Inquiries in Canada

How did public inquires begin? What are some important public inquiries in Canadian history?

This section provides a historical overview of public inquiries in Canada, including the early beginnings of public inquiries, changes to public inquiry legislation over the years, and lists of important public inquiries in Canada’s history, as well as ongoing inquiries as of 2007.

Early History of Public Inquires

As a former colony of the British Empire, public inquiries in Canada have their historical roots in the British system of government. British public inquiries descend from the British monarch’s royal power to order investigations. The Commission on Enclosures initiated by King Henry VII in 1517 is one of the earliest examples of such royal investigations.

The Government of Upper and Lower Canada passed the first Canadian public inquiry law in 1846. In 1868, Canada passed a modified version of the 1846 statue, An Act respecting inquiries concerning Public Matters. It gave inquiries the power to compel witnesses to produce requested documents and to testify under oath. It stated that any deliberately false statement given by a witness would be treated as perjury, but also gave witnesses the right not to answer any question that would leave them open to criminal prosecution.

Legislative Evolution of Public Inquiries

Since the passing of the first statutes, there have been many revisions and additions to inquiry legislation:

• In 1880, the government passed separate legislation dealing with investigations of government departments and public servants. It gave commissioners the power to demand department records, issue subpoenas, and force witnesses to testify under oath. This provoked a great deal of debate in the House of Commons, as many politicians felt it allowed inquiries to intrude into areas that should properly be handled in a court of law.
• In 1889, the 1868 Act was amended to protect the rights of witnesses. The amendment stated that witnesses could not refuse to testify on the grounds that their answer might incriminate them. However, their testimony could not be used as evidence in a criminal proceeding, unless they were charged with having given false evidence at the inquiry.
• In 1906, the two Acts were combined as An Act respecting Public and Departmental Inquiries. Part I dealt with public inquiries while Part II handled departmental investigations.
• In 1912, the Act was expanded to give individuals under investigation the right to legal representation, and commissioners the right to hire legal counsel and other experts. It also stipulated that, before issuing a report finding an individual guilty of misconduct, a commission must notify the individual and give him/her a chance to respond, either in person or through legal counsel.
• In 1934, a final amendment to the Act dealt with International Commissions and Tribunals.

Important Federal Public Inquiries in Canadian History

Public inquiries have played important roles in the social, economic, and cultural development of the nation. The following provides a list of just some of the key federal public inquiries in Canadian history:

• Royal Commission on National Development of the Arts, Letters and Sciences (1949-51) (the “Massey Commission”): This public inquiry examined Canada’s cultural identity and its cultural sovereignty from the Untied States. The recommendations of the inquiry laid the foundations of national cultural policy in Canada. For more information on the Massey Commission: Collections Canada Website on the Massey Commission
• Royal Commission on Health Services (1961-64) (the “Hall Commission”): This public inquiry examined the issue of public health care in Canada and recommended a comprehensive and universal public medical system for all Canadians. Federal and provincial governments later adopted these recommendations.
• Royal Commission on Bilingualism and Biculturalism (1963-67) (the “Laurendeau-Dunton Commission”): This Royal Commission reported on the status of Canada’s francophone minority. The inquiry led to the redefinition of Canadian Confederation as an equal partnership between English and French. For more information on the Royal Commission on Bilingualism and Biculturalism: re:politics (formerly, Leaf Web) Article – Official Bilingualism in Canada CBC Backgrounder – The Road to Bilingualism
• Royal Commission on the Status of Women (1967-70): This public inquiry reviewed and made recommendations regarding the equality of women in Canada. The conclusions of the inquiry set the standards for sexual equality. For more information on the Royal Commission on the Status of Women: CBC Backgrounder – Equality First
• Royal Commission on the Economic Union and Development Prospect for Canada (1982-85): This Royal Commission reviewed Canada’s economy, making recommendations to strike up a free trade relationship with the United States. The federal government later implemented the recommendation for free trade.
• Royal Commission on Electoral Reform and Party Financing (1989-1991): This commission examined the regulation of political parties and elections in Canada. Several of its recommendations have been implemented.
• Royal Commission on Aboriginal Peoples (1991-96): This inquiry examined social, economic, and political issues relating to Aboriginal Peoples in Canada, in particular, the issue of self-government. The report of the Commission has influenced subsequent federal policy in this arena. For more information on the Royal Commission on Aboriginal Peoples: Indian and Northern Affairs Canada Website on the Royal Commission
• Commission of Inquiry into the Deployment of Canadian Forces in Somalia (1994-97): This commission investigated the events surrounding the torture and murder of a black prisoner by Canadian peacekeepers in Somalia. The Canadian Airborne Regiment, which was stationed in Somalia, was disbanded during the course of this public inquiry. For more information on the Commission of Inquiry into the Deployment of Canadian Forces in Somalia: Canadian Department of Defence – Final Report of the Commission
• Commission of Inquiry on the Blood System in Canada (1995-97) (the “Krever Commission”): The commission investigated Canada’s blood system after numerous patients contracted HIV and Hepatitis C through blood transfusions. The inquiry recommended new screening protocols and the creation of a new organization to manage blood screening. The Commission’s recommendations were later implemented by the federal government. For more information on the Krever Commission: Final Report, Commission of the Inquiry on the Blood System in Canada
• Commission on the Future of Health Care in Canada (2000-2002) (the “Romanow Commission”): This inquiry investigated the sustainability of public health care in Canada. The Commission’s final report has been at the centre of contemporary debate on the future of public health care in Canada. For more information on the Romanow Commission and its Final Report: Health Canada Website on the Commissionre:politics (formerly, Maple Leaf Web) – The Romanow Report
• Commission of Inquiry into the Sponsorship Program and Advertising Activities (2004-2006): Better known as the “Gomery Commission,” this inquiry was created to investigate allegations of corruption surrounding contracts given to advertising firms in the province of Quebec under the federal Liberal government’s Sponsorship Program. For more information on the Gomery Commission: Official Website of the Gomery Commission
• Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar (2004-2006): This public inquiry was established to investigate the role Canadian officials played in the deportation of Maher Arar (a Canadian citizen), from the United States to Syria, where he was allegedly tortured. For more information on the Commission: Official Website of the Arar Commission

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Federal Public Inquiries

How are federal public inquiries run?

The central federal legislation concerning public inquiries is the Inquiries Act. This Act sets out the manner in which public inquiries may be called, as well as some of their powers and responsibilities.

In addition to the Inquiries Act, over 80 federal statutes give inquiry powers to government departments — either with or without referring specifically to the Inquiries Act. A few examples are: the Immigration and Refugee Protection Act, the Competition Act (formerly the Combines Investigation Act), and the Territorial Lands Act. These statutes either confer specific inquiry powers, or leave that open to be decided by Cabinet.

The operation of a public inquiry is also influenced by administrative and judicial conventions and practices.

The following discussion provides a general overview of important public inquiry rules and procedures.

Creating a Public Inquiry

Who Can Call a Public Inquiry?

Under the federal Inquiries Act, the Governor-in-Council has sole power to call a public inquiry. The “Governor-in-Council” is the person or body that holds executive power in the government. Theoretically, this is considered to be the Canadian monarchy and its representatives in Canada, namely the Governor General of Canada. In practice, however, executive power lies with the federal Cabinet.

When Can Public Inquiries Be Called?

The Inquiries Act provides very ambiguous rules for when a public inquiry should be called. In fact, the Act grants the Governor-in-Council (the Cabinet) very broad discretionary powers. It states that a public inquiry may be called into “any matter connected with the good government of Canada or the conduct of any part of the public business thereof.” This includes almost any event or issue relating to government. Further, the Actstates that a public inquiry may only be called when the Governor-in-Council (or Cabinet) deems such action to be “expedient.” Put differently, Cabinet has complete freedom in deciding whether or not a public inquiry should be called.

Organization of a Public Inquiry

Terms of Reference

When a public inquiry is created, the Cabinet provides it with Terms of Reference, guidelines that govern its basic operation. Included in the Terms of Reference are the name of the person who will lead the inquiry, the mandate or purpose of the inquiry, and what powers the inquiry will have. The Terms of Reference may also include an end date for the inquiry. It is important to note that Cabinet has complete freedom in setting the Terms of Reference. It can pick whomever it likes to lead the inquiry. It can also limit the inquiry’s mandate or give it wide discretion in terms of the scope of what will be examined.

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. In the case of the Royal Commission on New Reproductive Technologies, the federal government chose seven people to sit on the Commission and designated Dr. Patricia Baird as Chair.

Mandate of the Public Inquiry

Another important component of the Terms of Reference is the mandate or purpose of the public inquiry. This includes explicit reference to the specific issue or event to be reviewed, as well as guidelines of what aspects of that issue or event the inquiry can cover.

Normally, the inquiry’s mandate is quite broad. For example, the Krever Inquiry was given a mandate to report on the “…organization, management, operations, financing, and regulation of all activities of the blood system in Canada, including the events surrounding the contamination of the blood system in Canada in the early 1980s…” The Royal Commission’s mandate on Aboriginal Peoples called for a thorough review of the relationship between Canada’s Aboriginal Peoples and the government and people of Canada.

Work Plan & Budget

Normally the Commissioner(s) exercises control over the inquiry format. S/he is responsible for developing a work plan and budget for completing the inquiry. For example, the Terms of Reference for the Sponsorship Inquiry state that the Commissioner is authorized “to adopt any procedures and methods that he may consider expedient for the proper conduct of the inquiry, and to sit at any times and in any places in Canada that he may decide.”

The Commissioner(s) submits the work plan and budget to the Privy Council Office (PCO), which handles the administration and financial management of inquiries. The PCO submits the budget to the Treasury Board. (For the purposes of financial management, public inquiries are designated as departments under the Financial Administration Act.)

Powers of a Public Inquiry

Even though they don’t exercise judicial functions, public inquiries enjoy many investigatory powers, in order to pursue their primary goal of fact-finding. These include the power to compel witnesses and evidence, and to make findings of misconduct.

Witnesses & Testimony

With regard to witnesses and their testimonies, the Inquiries Act grants public inquiries the following powers:

• The power to compel witnesses to appear;
• The power to compel witnesses to testify under oath;
• The power to treat any deliberately false answer given by a witness as perjury; and
• The power to compel witnesses to produce specific documents.

Essentially, the Act gives public inquiry commissioners the same authority, as found in civil court, to compel witnesses to testify and produce evidence.

The Inquiries Act also provides some safeguards for persons being investigated as part of a public inquiry, most notably, the right to be represented by legal counsel.

Findings of Misconduct

Although it may resemble a courtroom, a public inquiry is not a trial. Its purpose is not to determine guilt, or to pass judgement on the civil or criminal liability of individuals or organizations. However, a public inquiry can make a finding of misconduct against an individual or organization. When doing so, commissioners must adhere to the following guidelines:

• The finding of misconduct must be in an area that is within the Commission’s mandate;
• When making the finding, the Commissioner must attempt to use wording that doesn’t reflect criminal or civil liability; and
• Before making a finding of misconduct, the Commission must notify the individual or organization involved and allow for a response.

Public Participation

In addition to its advisory and investigative roles, inquiries provide several ways for the government to satisfy the public’s demand for input into important issues. A public inquiry can:

• Sample public opinion on an issue
• Educate the public
• Invite the public to participate directly in the process.

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. Two examples are the Romanow Commission on the Future of Health Care and the 1991 Spicer Citizens Forum on Canadian Unity. Both held cross-country hearings to gather public input. In the case of the Spicer Commission, over 400,000 Canadians ultimately shared their views with commissioners through group discussions, written submissions, and other methods.

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.

Federal legislation does not require public inquiries to hold oral hearings. However, when oral hearings are held, these are normally open to the public, and frequently televised. Still, there are limits to the openness of the public inquiry process. National security and privacy issues may result in certain testimony being held “in camera,” which means it is given in private, with all spectators and media excluded. Furthermore, federal and provincial access to information legislation does not extend to public inquiry commissions. As a result, correspondence, briefing notes, and other private information accumulated during the process of holding the public inquiry are not available to the public or the media.

Judicial Review of Public Inquires

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.

Example of Judicial Review: The Krever Inquiry

One major case was the judicial review of the Krever public inquiry into Canada’s blood system, which reaffirmed the Commissioners’ rights to make a finding of misconduct. Headed by the Honourable Horace Krever, the Commission was a joint federal-provincial inquiry, launched after thousands of Canadians became infected with HIV or Hepatitis C from tainted blood and blood products. The inquiry was given a broad mandate to “review and report on the mandate, organization, management, operations, financing, and regulation of all activities of the blood system in Canada, including the events surrounding the contamination of the blood system in Canada in the early 1980s…” (Source: Federal Judicial Affairs Website).

Initially, Justice Horace Krever stated the inquiry would not turn into a “witch hunt,” but would focus on finding out what went wrong instead of laying blame. Nonetheless, in December 1995, the Commission notified 95 individuals, organizations, and nine provincial governments that they could be charged with misconduct.

The respondents launched a court challenge, making the following arguments:

• The Commissioner was acting outside his legal jurisdiction;
• The Commissioner went against his earlier promise not to assign blame; and
• The notices were delivered at the end of the public hearing phase, which gave the respondents no time to respond to the evidence. This violated Section 12 of the Inquiries Act, and, in the case of the individuals, Section 7 of the Canadian Charter of Rights and Freedoms.

The case was ultimately decided in the Supreme Court of Canada, where the Justices supported Justice Krever’s right to assign blame. In their decision, the Court noted that the Commission has a very broad mandate, and that “a commissioner may make findings of misconduct based on the factual findings, provided that they are necessary to fulfill the purpose of the inquiry as it is described in the terms of reference.” The decision included a definition of misconduct as “improper or unprofessional behaviour,” or “bad management” (Source: Supreme Court of Canada Website). In addition, the Justices dismissed the Charter argument and the claim that groups had no chance to respond, pointing out that Justice Krever had already received several extensions to the inquiry’s original deadline, and could ask for another.

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Provincial & Territorial Public Inquiries

How do provincial/territorial public inquiries compare?

Provinces and territories can also call public inquiries, and all have their own public inquiry legislation. Provinces and territories will call public inquiries into events or issues that are particular to their region or jurisdiction.

The following provides a comparison of the public inquiry legislation for the different levels of government.

Similarities in Legislation

Generally speaking, public inquiries legislation across the provinces and territories is quite similar. All allow for public inquiries into events or issues relevant to “good government” or “public concern” in their particular jurisdictions. Furthermore, it is always the Cabinet (be it the federal, provincial, or territorial) that has the power to create and set the parameters around the public inquiry.

Differences in Legislation

However, there are some important differences.

Rights of Witnesses

Whereas the federal government and most provinces grant the right to legal counsel only to those under investigation, several provinces extend the right to legal counsel to anyone appearing before the inquiry.

Notices of Misconduct

There are numerous differences in how the Commission must handle a notice of misconduct. The federal government and several provincial governments require public inquiries to give an individual or an organization reasonable notice before making a finding of misconduct, and give them a chance to respond. British Columbia limits this stipulation to departmental investigations only. The Alberta government leaves the right of individuals or their legal counsel to cross-examine witnesses up to the discretion of the Commissioners. There are some important differences provincially:

• In Alberta, British Columbia, New Brunswick, and Quebec, the Commission can charge those individuals who refuse to testify or produce relevant evidence with contempt.
• In Ontario, Commissioners can apply to the Divisional Court to charge individuals with contempt.
• In Ontario, judicial review of public inquiries is limited to jurisdictional errors.

Other Differences

There are a few other noteworthy differences:

• In addition to good government and public business, in Newfoundland and Labrador, the jurisdiction of public inquiries extends to industries. In Prince Edward Island public inquiries may be called in relation to the cost of goods and services, while public health is covered in Quebec.
• In Nunavut, the Commission of Inquiry is called a “Board.” This avoids confusing inquiry members with Nunavut’s Commissioner, who holds a position similar to that of a provincial Lieutenant-Governor.

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The Value of Public Inquires

Are they worth the time and expense?

Although there is no doubt that an open and public review of important issues and events is valuable, the value of public inquiries is often questioned. The principal reasons for this include: the prohibitive costs associated with public inquiries; their close ties to governments; and, questions that customarily arise about their overall effectiveness.

The following section offers some perspectives to take into account when assessing the value of public inquiries in Canada.

Public Review of Events and Issues

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.

Means for Social & Political Reform

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.

In assessing the outcomes of public inquiries, however, it can be useful to consider the fact that governments may not implement all of an inquiry’s recommendations right away, yet some of its findings might make their way into government policy over time. In other words, it is useful to neither overemphasize nor underestimate the importance of public inquiries to social and political reform.

Lack of Independence of Public Inquiries

A common critique of public inquiries concerns their lack of independence from government. As it has power over the Terms of Reference of a public inquiry, the government assigns the Commissioner or Leader of the Inquiry what powers it may have, and sets out the scope of what it is allowed (and not allowed) to review. Moreover, with respect to federal public inquiries, while the Commissioner creates the inquiry’s work plan and budget, it still must be submitted to, and approved by, the Privy Council (a central agency of the federal government).

See the Federal Public Inquiries section of this article for more information on Terms of Reference and the work plan and budget of a federal public inquiry.

This lack of independence can be of great concern when the public inquiry is reviewing an issue or event that is directly linked to the government that created it. While there may be no real interference by that government, there can be a perception of interference. Such perceptions can reduce the public’s confidence in the legitimacy of the inquiry, as well as the impartiality of its findings.

It is important to note, however, that public inquires, at least at the federal level, do have more independence than most legislative and departmental reviews. Moreover, their public and open nature, and the media scrutiny that is involved, can help provide reassurance to the public regarding legitimacy and impartiality.

The Cost of Public Inquiries

Another common concern about public inquiries is their cost. To date, the most expensive commissions have been the Commission of Inquiry into the Sponsorship Program and Advertising Activities, which cost $100 million, and the Royal Commission on Aboriginal Peoples, which took five years and cost $60 million. The Romanow Commission on the Future of Health Care and the Royal Commission on New Reproductive Technologies cost $15 million and $30 million, respectively. In contrast, the 1873 Commission of Inquiry into the St. Lawrence Seaway cost just over $2,200. Much of the increase can be attributed to the need for public inquiries to hire more staff, including legal experts and researchers. Other costs include travel expenses and legal counsel for witnesses.

The issue of cost should be placed in the context of what the public inquiry accomplishes. In cases where an inquiry has led to a more informed public debate or important social or political reforms, any related expenses might prove to be less of an issue. However, where an inquiry is used to bury a controversial issue, or where government rejects an inquiry’s recommendations outright, its costs might be a greater matter of concern.

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Links to More Information

List of links for more on this topic

Government Links

• Prime Minister of Canada
• Governor General of Canada
• Privy Council Office of Canada

Legislation Links

• Canadian Inquires Act
• Canadian Federal Courts Act

Public Inquiries Links

• Royal Commission on National Development of the Arts, Letters and Sciences
• Royal Commission on Aboriginal Peoples
• Commission of Inquiry into the Deployment of Canadian Forces in Somalia
• Final Report, Commission of the Inquiry on the Blood System in Canada
• Commission on the Future of Health Care in Canada
• Commission of Inquiry into the Sponsorship Program and Advertising Activities
• Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar
• Indian Claims Commission