The Pros and Cons of Commissions
of Inquiry
Justice John H. Gomery *
landscape
the political
In this lecture, Justice Gomery explains the function
of commissions of inquiry: to investigate, to educate, and to
inform Canadian society. The commission, once appointed,
has a high degree of independence and autonomy, limited
only by the requirements that it restrict its activity to the
investigation that it is authorized to make by the Order-in-
Council.
Justice Gomery explains that public inquiries are a
regular part of
in Canada,
constituting what has been described by the Supreme Court
of Canada as a significant and useful part of our
democratic traditions, both in Canada and elsewhere. He
reflects on five particular commissions of inquiry that were
subject to judicial review in Canada. Nelles concerned an
Ontario provincial inquiry into the death of children in a
public hospital. The Westray case investigated the deadly
underground explosion at the Westray Coal Mine in Nova
Scotia. The Somalia Inquiry was set up to examine the
violent death of a Somali civilian at the hands of Canadian
soldiers sent to Somalia as part of a United Nations
mission. The Krever Inquiry dealt with the tragedy
resulting from the contamination of the national blood
supply with Hepatitis C and HIV. Finally, he mentions the
Walkerton Inquiry, which explored the reasons for the
fatal contamination of the water supply in Walkerton,
Ontario.
Commissions of inquiry have been criticized for
several reasons: for being unfair to the persons who are the
subject of unfavourable comment, made during public
hearings or in the commissions report; for costing too
much; and for taking too long. Justice Gomery addresses
these concerns and concludes that they are outweighed by
the benefits. The recommendations arising from these
commissions, coming from an independent and impartial
source, will not only assist the government in taking
remedial action but will tend to restore public confidence in
the industry or process being reviewed.
Dans cette confrence, le juge Gomery explique la
fonction des commissions denqute, soit celle denquter,
dduquer et dinformer la socit canadienne. Une fois
quelle est nomme,
jouit dune
indpendance et dune autonomie importantes qui ne sont
limites que par lexigence quelle restreigne ses activits
lenqute autorise par le dcret layant cree.
la commission
Le
juge Gomery explique que
les enqutes
constituent un aspect normal du paysage politique
canadien, et sont devenues, daprs la Cour suprme du
Canada, un lment important et utile de nos traditions
dmocratiques, au Canada et ailleurs. Il explore cinq
commissions denqute qui furent assujetties des
procdures de rvision judiciaire. La premire tait une
enqute provinciale ontarienne traitant des dcs de
plusieurs enfants dans un hpital public, dont certains
aspects du rapport furent contests dans laffaire Nelles. La
commission Westray enquta sur lexplosion souterraine
meurtrire dans la mine de charbon Westray en Nouvelle-
cosse. La commission denqute sur la Somalie fut tablie
pour examiner la mort violente dun civil somalien aux
mains de soldats canadiens participant une mission de
maintien de la paix des Nations Unies. Lenqute dite
Krever traita de la tragique contamination des rserves de
sang canadiennes par les virus de lhpatite C et du SIDA.
Dernirement, il mentionne lenqute Walkerton sur la
contamination du rseau deau potable dans la ville de
Walkerton, en Ontario.
Les commissions denqute sont critiques pour
plusieurs raisons: pour avoir t injustes lencontre
dindividus qui furent viss par des commentaires
dfavorables exprims lors daudiences publiques ou dans
les rapports des commissions; pour avoir engendr des
cots trop levs; ou encore pour avoir t trop longues. Le
juge Gomery aborde ces problmes mais conclut que les
bnfices des commissions denqute lemportent sur les
inconvnients. Les recommandations ressortant des travaux
de ces commissions, la fois indpendantes et impartiales,
non seulement aident le gouvernement prendre des
mesures palliatives, mais ont aussi leffet de restaurer la
confiance du public en lindustrie ou le processus examin.
* Judge at the Quebec Superior Court and Commissioner of Inquiry into the Sponsorship Program
and Advertising Activities. This lecture was delivered to McGill Universitys Faculty of Law on 15
February 2006.
Justice John H. Gomery 2006
To be cited as: (2006) 51 McGill L.J. 783
Mode de rfrence : (2006) 51 R.D. McGill 783
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When I was asked to deliver the McGill Law Journal annual lecture, I was
enormously flattered, and found myself unable to refuse, in spite of my determination
not to become a confrencier once my duties as a commissioner had come to an end
as they have, now, come to an end. I was reminded, when the invitation was made to
me, quite unnecessarily, by the current editors of the Journal that I am an alumnus not
only of the McGill Faculty of Law but also of the Journal. I was on the editorial
board in 1955, a year before I graduated. The Journal was at that time a newborn
publication and it was, I think it is fair to say, much less prestigious than it is today.
My participation in the success of the publication was limited to selling advertising
space to Montreal law firms. I made no contribution to its editorial content but I sold
quite a lot of advertising space. Nevertheless I am one of a large group of proud
parents, and feel privileged to be invited to address you.
I suppose it is obvious that my recent notoriety as the Commissioner of Inquiry
into the Sponsorship Program and Advertising Activities is the reason why I am here,
and you are probably interested in hearing the inside story of what is most often
referred to as the Gomery Commission. If that is so, I am sorry but I am going to
disappoint you.
First, my fact-finding report,1 which was published on November 1st last year, is
the subject of no less than three pending applications for judicial review made on
behalf of Messrs. Jean Chrtien, Jean Pelletier, and Alfonso Gagliano. For those of
you who are not yet lawyers, and havent gotten into this kind of delicate question,
this means that those three persons who are, it is fair to say, unhappy with the
conclusions of the report. They have asked the Federal Court of Canada to set it aside,
alleging that I was biased against them, that I conducted the hearings unfairly, and
that I came to conclusions that were legally unfounded, unreasonanble, and
unsupported by the evidence. For as long as these legal proceedings, which may very
well take years to be resolved, are undecided, it is both unwise and improper for me
to say anything that could be construed as a defence of my report or a justification of
how I acted as Commissioner. To use a Latin expression that everyone, I think,
understands, even at a time when Latin has become unfashionable, the work of the
Commission and the report that it produced on November 1st is sub judice, and should
not be the subject of comments that might be interpreted as an attempt by me to
influence how the Federal Court will decide the three pending cases.
I should add that the second report of the Commission,2 which makes eighteen
recommendations to the federal government as to how it might act to correct the
problems that were the source of what is usually described as the Sponsorship
1 Canada, Commission of Inquiry into the Sponsorship Program and Advertising Activities, Who is
Responsible?, vol. 1 (Ottawa: Public Works and Government Services Canada, 2005) (Commissioner:
John H. Gomery).
2 Canada, Commission of Inquiry into the Sponsorship Program and Advertising Activities,
Restoring Accountability, vol. 1 (Ottawa: Public Works and Government Services Canada, 2006)
(Commissioner: John H. Gomery).
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JUSTICE J.H. GOMERY COMMISIONS OF INQUIRY
2006]
Scandal, was deposited with the Clerk of the Privy Council on February 1, 2006, just
two weeks ago, and there is still plenty of time for the same or other dissatisfied
individuals to take other legal proceedings to set it aside as well. This possibility is
another reason for me to decline to talk about the reports and what transpired prior to
their preparation. So if you want to know anything about the Commission that just
concluded that has not already been disclosed, the only thing I can suggest is to read
the two reports. By the way, you can read other books, by people who think they
know the inside story. There are books written by at least three journalists that have
been sent to me as complimentary copiescomplimentary in quotation marks
and theres more to come, I believe. Everything I have to say publicly about the
Sponsorship Scandal and the other matters I was given the mandate to investigate, is
in the reports, which, I am sorry to say are long and at times as dry as the Gobi
Desert.
I said a few minutes ago that there are two reasons why I cannot talk to you
concerning the subjects that you probably came here to hear about. The second reason
is that in addition to being an ex-commissioner (because my mandate came to an end
with the production of my final report) I continue to be a judge, and judges are
subject to severe limitations as to what they can say publicly, especially about
controversial topics like politics and scandals. As a general rule, a judge speaks in
public only through the judgments he or she renders, or, if the judge happens to be
acting as an inquiry commissioner, through the reports he or she delivers. Of course,
judges have private lives and private opinions but they are supposed to keep their
personal opinions to themselves. This is particularly true with respect to political
matters. Since the subject of the inquiry over which I presided was highly charged
politically, with important consequences both for the politicians concerned and for the
administration, often referred to as the bureaucracy, I have to be careful about what I
say about political questions and political personalities. There are exceptions to these
rules, and I will be trying, in what I say from now on, to fit myself into one of the
exceptions, the one that permits judges to speak to academic audiences on legal
topics. The legal topic I have chosen for this lecture is some differences of opinion
about commissions of inquiry in general.
Over the past two years I have had to make myself familiar with the law relating
to commissions of inquiry. The federal legislation that authorizes the appointment of
such commissions is a statute called the Inquiries Act.3 It is remarkably concise,
consisting of only fourteen articles, four of which deal with public inquiries of the
kind just concluded. Article 2 defines when public inquiries may be commissioned,
and it reads, very simply as follows:
The Governor in Council may, whenever the Governor in Council deems it
expedient, cause inquiry to be made into and concerning any matter connected
3 R.S.C. 1985, c. I-11.
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with the good government of Canada or the conduct of any part of the public
business thereof.4
These words are so vague and all inclusive that it is fair to conclude that there is
really no matter that cannot be the subject of an inquiry, if the government decides to
create a commission.
A commission of inquiry is appointed by an Order-in-Council, which is to say a
decision of the Cabinet. The Order-in-Council names the person or persons who are
to act as commissioners. Almost invariably a sole commissioner is a judge, because
judges are supposed to know how to preside over hearings, and are familiar with rules
of evidence and procedure. Sometimes three commissioners may be appointed in
cases where it is considered advisable to have commissioners who have experience in
specialized areas of knowledge, or where the job is simply too much for one person,
or for other reasons. The Somalia Inquiry5 is an example of a commission that had
three commissioners, as did the inquiry into the circumstances of the wrongful
conviction of Donald Marshall,6 but the current fashion, for reasons of economy or
expediency, seems to be the appointment of a sole commissioner.
The Order-in-Council identifies the particular matter to be investigated and the
subjects of the recommendations, if any, that are requested. It may specify a time limit
for the report of the commissioner or commissioners. Time limits have been a source
of difficulties over the years, because it frequently happens that circumstances make it
impossible, or at least very difficult, for the report or reports to be ready on time, and
the commissioner has to request an extension. If the commission has become
politically unpopular (and that happens), the extension may not be forthcoming. I was
fortunate that there were no time limits imposed on me to make my reports, although
the Order-in-Council stipulated that I should make my reports on an urgent basis,
which was a great incentive not to waste time.
Commissioners are given, by law and by the terms of the Order-in-Council, broad
powers to incur expenses necessary to their investigations, and they are entitled to
summon and hear witnesses and to require the production of documents. The
commission, once appointed, has a high degree of independence and autonomy,
limited only by the requirements that it restrict its activity to the investigation that it is
authorized to make, (in other words, it cannot exceed its jurisdiction), and that it act
fairly.
Public inquiries are a regular part of the political landscape in Canada. There
have been over four hundred of them since Confederation in 1867, if you include
4 Ibid.
5 Canada, Dishonoured Legacy: The Lessons of the Somalia Affair: Report of the Commission of
Inquiry into the Deployment of Canadian Forces to Somalia (Ottawa: Minister of Public Works and
Government Services Canada, 1997) (Chair: Gilles Ltourneau).
6 Nova Scotia, Royal Commission on the Donald Marshall, Jr., Prosecution: Commissioners Report
(Halifax: Province of Nova Scotia, 1989) (Chair: Chief Justice T. Alexander Hickman).
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JUSTICE J.H. GOMERY COMMISIONS OF INQUIRY
2006]
provincial commissions of inquiry (because I think every province, or almost every
province, has its own Inquiries Act, which authorizes commissions of inquiry). But I
think that the authorities and the jurisprudence deal with both provincial and federal
commissions of inquiry without making distinctions between them. They constitute
what has been described by the Supreme Court of Canada as a significant and useful
part of our democratic traditions, both in Canada and elsewhere.7
As I remarked in the Preface to my fact finding report,8 it is truly extraordinary
that a government would appoint a commission of inquiry to investigate allegations
of scandal and misconduct, which tended to affect public confidence in the
government itself and the public administration for which it was responsible, and it is,
I suggest, equally extraordinary that the government appointing the inquiry should be
itself obliged to acquiesce to the demands for information and documentation made
by the commissioner and his or her attorneys. In Canada we tend to take this for
granted, but very few nations subject their governments to this kind of independent
and public scrutiny. It is remarkable that senior officials and politicians at every level
can be subpoenaed by a public inquiry to testify, and to produce for public
examination their personal records such as their agendas and their credit card
accounts, for example.
In the Sponsorship Inquiry, subpoenas were issued to many witnesses who were
clearly reluctant to testify, while others, including the sitting Prime Minister, his
predecessor, and many cabinet ministers, appeared voluntarily. Other witnesses
included a number of deputy ministers, the present and former Clerks of the Privy
Council, and senior officers of several Crown Corporations. In effect, all of these
powerful people were obliged to answer questions about their actions and
involvement in a controversial government program whether they wanted to or not.
They were expected to explain their actions, and to account for the manner in which
they had discharged their public responsibilities, to an independent body carrying out
its investigation in public, in the full glare of television coverage.
Most people today believe that the secretiveness that characterized government
administration in the past is no longer appropriate or acceptable, and that greater
transparency is necessary. In fact, transparency has become something of a
buzzword, and some commentators emphasize the danger that excessive exposure of
the advice that should be given to politicians by their senior advisors might make it
unlikely that that advice will be as frank and honest as it should be. Be that as it may,
the genie is out of the bottle and I don’t think it is probable that the secrecy that
characterized public administration in the past can be rehabilitated. Judging by the
comments received on the website of the just completed Commission, the Canadian
public overwhelmingly favours greater transparency, and seems to approve of
commissions of inquiry and the exposure that they provide of the inner workings of
7 Canada (Attorney General) v. Canada (Commission of Inquiry on the Blood System), [1997] 3
S.C.R. 440, 151 D.L.R. at para. 29 [Blood System (SCC) cited to S.C.R.].
8 Supra note 2.
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government. We had a website and we got over five thousand comments, which was,
I think, an indication of the intense interest that the Canadian public had for what we
were doing. Why then, do I make reference in the title of this lecture, to the negative
aspects of commissions of inquiry? What criticisms are made about their usefulness
and fairness?
From time to time arguments are raised to the effect that inquiry commissions
should be abolished entirely, or at least resorted to much less frequently. The critics
making these arguments suggest that inquiry commissions are fundamentally unfair to
the persons who are the subject of unfavourable comment, made either during public
hearings or in the commissions report. In fact, merely being summoned to appear to
testify before a commission of inquiry such as the one just completed can be
damaging to the witness reputation, since at least some members of the public and
some journalists take it for granted that if a witness is being compelled to testify, he or
she must have something to hide. This sort of assumption is obviously unfair and I
think that these criticisms are serious. As an example, Edward Greenspan, Q.C., a
very distinguished criminal defence lawyer, wrote an article published in the St.
Catherines Standard on November 18, 2005,9 just after the publication of the first
report, and which made some very critical comments about the Gomery Commission.
He summarized the arguments against commissions of inquiry in general with the
following paragraphs, which I will quote verbatim:
We also try people in Canada by strict rules of evidence that have been
developed over hundreds of years that are meant to ensure fairness by
excluding questionable evidence and unreliable sources of information, such as
hearsay, speculation or opinions by non-experts.
Commissions of inquiry are bound by no rules of evidence. Anything goes.
At public inquiries, witnesses are able to tarnish the reputation of others before
a nationwide television audience. Trials, because of their solemnity, are not
televised in Canada. And rightly so.
Criminal trials require proof beyond a reasonable doubt. Civil trials require
proof on the balance of probabilities. Commissions of inquiry don’t seem to
have any standard of proof. This type of investigation has no respect for
individual civil liberties, contravenes our notions of fundamental justice, is
grossly improper and should be banished forever like the Star Chamber.
And Mr. Greenspan finishes his article with this conclusion:
I believe we should abolish commissions of inquiry that have nothing to do
with public policy issues. Commissions of inquiry that are set up for the sole
purpose of blaming particular people for wrongdoing, resulting in the
destruction of reputations and standing in the community, have no place in our
country. We already have a civil and criminal justice system. That is where
justice truly lies.
9 Edward L. Greenspan, Inquiries Are Not Like Courts of Law The [St. Catherines] Standard (18
November 2005) A6.
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JUSTICE J.H. GOMERY COMMISIONS OF INQUIRY
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That is strong language, but it should be said immediately that all of the
arguments mentioned by Mr. Greenspan have been raised at one time or another
before the courts. The Supreme Court of Canada has generally rejected his point of
view and concluded that commissions of inquiry, if conducted fairly, are an
acceptable and useful means of investigating factual situations and obtaining policy
recommendations from an independent and impartial source. I thought it would be
interesting to this audience to review a few of these Supreme Court decisions and the
principles that they establish.
I will talk about fiveI wont talk about all four hundredhighly publicized
public inquiries, which have occurred over the past twenty years or so because they
illustrate, I believe, the pros and cons of the institution.
The first was the investigation authorized by the Government of Ontario
following thirty-four suspicious deaths of infants in the cardiac ward at the Hospital
for Sick Children in Toronto. It had been discovered that at least some of them did not
die of natural causes, but because of the administration of excessive quantities of a
drug. Criminal charges of murder laid against a nurse named Susan Nelles were
dismissed at her preliminary inquiry on the basis of insufficient evidence that she
might have been the guilty party. Under heavy public pressure to get to the bottom of
the mystery, the whole question of these suspicious deaths was referred in 1983 to an
inquiry commission over which presided Mr. Justice Sam Grange.
A question was raised at a fairly early stage of the inquiry as to whether its
purpose was a thinly disguised police investigation to find out, to put it bluntly, who
killed the children, and whether it would be proper for the commissioner, in his
report, to express an opinion upon whether the death of any child was a result of the
actions, accidental or deliberate, of any named person or persons. The Court of
Appeal of Ontario came to the conclusion that the inquiry should not be permitted to
express any conclusion regarding the civil or criminal responsibility of anyone, and
that this could be achieved only if it was prohibited from naming the person or
persons who administered the fatal doses of drugs.10 In other words, Mr. Justice
Grange was given
the task of reporting upon the evidence and making
recommendations without naming any individual as being responsible. The court
noted that carrying out this mandate would be, and I am quoting, extremely difficult,
at times approaching the impossible,11 and the limitations to which the commissioner
was subjected was the course that would best protect the civil rights of the person
which they were designed to protect.
Although this case did not go to the Supreme Court of Canada, the decision of the
Ontario Court of Appeal in 1984 in what is called the Nelles case12 has often been
10 Re Nelles et al. and Grange et al. [1984], 46 O.R. (2d) 210 (C.A.); 9 D.L.R. (4th) 79 [Nelles cited
to O.R.].
11 Ibid. at 221.
12 Ibid.
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cited as a severe limitation to the utility of commissions of inquiry. It was based upon
the court’s opinion that any finding or conclusion stated by the commissioner would
be considered by the public, no matter how carefully worded, as a determination of
civil or criminal responsibility, and would be seriously prejudicial if a person named
by the commissioner were to face trial in later proceedings. It also put emphasis on
the fact that a person found responsible by the commissioner would have no recourse
to clear his or her name, or to repair the damage caused to his or her reputation.
A second case in which the courts had to deal with the problems associated with a
commission of inquiry, came about ten years later and is usually referred to as the
Westray case.13 There had been a mine explosion causing a number of fatalities in the
Westray mine in Nova Scotia, and the government of that province appointed a
commission of inquiry to report on the cause of the explosion and to recommend
measures to prevent such incidents in the future. At the same time the Attorney
General of the province laid criminal charges of manslaughter against the company
and two of its mine managers on the grounds that safety measures had been
negligently disregarded. The accused managers asked that the inquiry be suspended
until they had had their trial, and an injunction to that effect was issued on the
grounds that the evidence presented at the inquiry, which was of course being
intensively covered by the media, especially in Nova Scotia, would make it
impossible to empanel an unprejudiced jury.
The decision to issue an injunction was appealed by the Crown and the case
wound its way through the courts up to the Supreme Court of Canada. By that time
years had gone by and the mine managers had decided to opt for trial by a judge
alone, rather than by a court composed of a judge and jury, so the issue of a
prejudiced jury had become moot. On this basis a majority of the judges of the
Supreme Court came to the conclusion that there was really nothing for them to
decide and that the inquiry could proceed, but one of the dissenting judges, Mr.
Justice Peter Cory, wrote a fairly lengthy opinion dealing with the issue of self-
incrimination, contrary to section 7 of the Charter of Rights and Freedoms,14 and
which may occur when persons are obliged to testify before an inquiry on matters that
may subsequently be the subject of a criminal trial. He also dealt with the problem of
how to deal with prejudicial publicity and publication bans. Both of these issues arose
during the Sponsorship Inquiry and I was grateful for the guidance provided by Mr.
Justice Cory’s opinion. It was apparent that the whole question of the problems,
which might arise as a result of the appointment of a commission of inquiry was a
matter of great interest to Mr. Justice Cory, who, as we shall see, came back to the
subject in later decisions.
13 Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), [1995] 2 S.C.R.
97, 124 D.L.R. (4th) 129.
14 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B
to the Canada Act 1982 (U.K.), 1982, c. 11.
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JUSTICE J.H. GOMERY COMMISIONS OF INQUIRY
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The Somalia Inquiry is of interest and is reported as Beno v. Canada.15 The
Commission was appointed as a result of the violent death of a Somali civilian at the
hands of Canadian soldiers sent to Somalia as part of a United Nations mission. The
inquiry was vigorously opposed by attorneys representing the senior military
personnel who had been in charge of the mission, and ultimately the Canadian
government shut down the inquiry before it could complete its work and make a final
report. The inquiry simply ran out of time. There was a lot of litigation surrounding
this inquiry, which gave the courts many issues to deal with such as allegations of
bias against the presiding judge, and the admissibility of evidence that might not be
permitted in a trial before the courts.
On the issue of the usefulness of commissions of inquiry, Mr. Justice Cory,
writing this time for the majority, considers the Beno decision in the context of the
Krever Inquiry.16 The Krever Inquiry dealt with the tragedy resulting from the
contamination of the supply of blood, a contamination that caused hundreds, perhaps
thousands of deaths from AIDS and hepatitis to the recipients of blood transfusions.
The inquiry lasted nearly five years and was, it is fair to say, vigourously opposed by
the Canadian Red Cross and certain pharmaceutical companies, which were facing
civil suits in the hundreds of millions of dollars based on allegations of negligence.
There were many issues raised before the courts concerning the propriety of the
inquiry itself and the manner in which it was conducted. It was alleged, for example,
that the section 13 notices were sent out at too late a date to permit the parties
concerned to defend themselves. It was also alleged that counsel for the commission
should be prohibited from any participation in the preparation of Mr. Justice Krevers
report, on the grounds of bias. The Supreme Court ultimately decided that Mr. Justice
Krever and commission counsel had handled these issues correctly. The decision
makes it clear that no matter what damage may be incidentally caused to reputations
in public inquiries, the greater concern has to be the prevention of future tragedies.
However, care must be taken to act fairly and to avoid damage to reputations to the
extent that this is possible.
Justice Cory cites what he had said in the earlier Westray case, and it is worth
quoting parts of his reasons for judgment, because they show how far judicial
thinking had progressed since the decision in the Nelles case some thirteen years
earlier. He starts by stating that commissions of inquiry are created because of a need
for an investigation by an independent body, acknowledging that it is an unfortunate
reality that their establishment is often prompted by tragedies such as industrial
disasters, plane crashes, unexplained infant deaths, allegations of widespread child
sexual abuse, or grave miscarriages of justice. He might have added to the list
allegations of administrative mismanagement and political scandal. He goes on to
15 Beno v. Canada, (Commission of Inquiry into the Deployment of Canadian Forces to Somalia),
[1997] 2 F.C. 527, (1997) 146 D.L.R. (4th) 708 [Beno].
16 Blood System (SCC), supra note 7.
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review the most important functions of commissions of inquiry, and I am going to
quote him because I cant possibly say it as well as he did:
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One of the primary functions of public inquiries is fact-finding. They are often
convened, in the wake of public shock, horror, disillusionment, or skepticism,
in order to uncover the truth. Inquiries are, like the judiciary, independent;
unlike the judiciary, they are often endowed with wide-ranging investigative
powers. In following their mandates, commissions of inquiry are, ideally, free
from partisan loyalties and better able than Parliament or the legislatures to take
a long-term view of the problem presented. Cynics decry public inquiries as a
means used by the government to postpone acting in circumstances which often
call for speedy action. Yet, these inquiries can and do fulfil an important
function in Canadian society. In times of public questioning, stress and concern
they provide the means for Canadians to be apprised of the conditions
pertaining to a worrisome community problem and to be a part of the
recommendations that are aimed at resolving the problem. Both the status and
high public respect for the commissioner and the open and public nature of the
hearing help to restore public confidence not only in the institution or situation
investigated but also in the process of government as a whole. They are an
excellent means of informing and educating concerned members of the
public.17
To summarize, the three functions of an inquiry, to investigate, to educate and to
inform, are of benefit to Canadian society. To these benefits should be added the
benefits deriving from recommendations for change designed to prevent a recurrence
in the future of the errors or faults being investigated. Such recommendations,
coming from an independent and impartial source, free from political bias, will not
only assist the government in taking remedial action but will tend to restore public
confidence in the industry or process being reviewed.
The usual rules of evidence do not apply to inquiries. The justification for this is
that there are no legal consequences attached to the determinations of a
commissioner, whose conclusions do not bind courts considering the same subject
matter. A public inquiry is not a trial but rather an investigation, to determine the facts
and to make recommendations. If, along the way, reputations are harmed, Mr. Justice
Cory admits that that is unfortunate, but he states clearly in the decision concerning
the Krever Inquiry that greater importance must be given to the successful completion
of the inquiry.
Section 13 of the Inquiries Act18 requires that the commissioner give notice to any
person who may be the subject of criticism or unfavourable comment in the eventual
report of this possibility, so as to permit the person to be represented at the inquiry
and to make representations and submissions to set the record straight. Section 13 is
an attempt by the law to be fair to a person whose reputation may be damaged by
being mentioned in the report. A further attempt to be fair is found in the requirement
17 Ibid. at para. 31.
18 Supra note 3.
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JUSTICE J.H. GOMERY COMMISIONS OF INQUIRY
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that the notices sent by the commissioner must be kept confidential, since it may
happen that notices are sent to persons who are, ultimately, not subject to blame or
criticism.
The notion that the report of the inquiry should not name names or attribute
blame is dealt with in the following passage from his decision in the Krever Inquiry
case, written by Mr. Justice Dcary of the Federal Court of Appeal,19 which is
expressly endorsed by Mr. Justice Cory in the Supreme Court decision.20 So this is
Mr. Justice Dcary speaking, but its quoted in the Supreme Court decision. He says:
… a public inquiry into a tragedy would be quite pointless if it did not lead to
identification of the causes and players for fear of harming reputations and
because of the danger that certain findings of fact might be invoked in civil or
criminal proceedings. It is almost inevitable that somewhere along the way, or
in a final report, such an inquiry will tarnish reputations and raise questions in
the public’s mind concerning the responsibility borne by certain individuals. I
doubt that it would be possible to meet the need for public inquiries whose aim
is to shed light on a particular incident without in some way interfering with the
reputations of the individuals involved.21
I suggest that the opinion of Mr. Justice Dcary, endorsed by Mr. Justice Cory
speaking for the entire Supreme Court, is a complete contradiction of the arguments
of Mr. Greenspan that I quoted earlier.
Finally, I will mention the Walkerton Inquiry,22 set up in the year 2000 to
investigate the reasons for the contamination of the water supply in Walkerton,
Ontario, which resulted in a number of deaths and enormous apprehension about the
quality of water supplied to Canadian citizens by their municipalities. This
commission over which presided Mr. Justice Dennis OConnor who, incidentally, is
today acting as commissioner of the Arar Inquiry,23 is usually cited as a model of
how public inquiries should be handled. It is noteworthy in that it has not been the
subject of legal proceedings, and has generally satisfied the public desire to know
what happened and how to correct the errors and mismanagement that led to the
contamination. The skill, wisdom and tact of Judge OConnor have set a high
standard for other commissions to live up to. I was fortunate to be able to use many of
the precedents created in the Walkerton Inquiry as guides as to how to handle
problems in the Sponsorship Inquiry, for matters such as Rules of Practice and
Procedure, the granting of standing, and requests for funding recommendations.
19 Canada (Attorney General ) v. Canada (Commission of the Inquiry on the Blood System), [1997]
2 F.C. 36, 142 D.L.R. (4th) 237 [Blood System (FCA) cited to F.C.].
20 Supra note 7.
21 Blood System (FCA), supra note 19 at para. 35. See also Blood System (SCC), ibid. at para. 39.
22 Ontario, Report of the Walkerton Inquiry (Toronto: Queens Printer, 2002) (Chair: The
Honourable Dennis R. OConnor).
23 Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, online:
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Commissions of inquiry are sometimes criticized for the reason that they take too
long and they cost too much. The time factor is explained by the necessity to create a
commission from nothing more than the Order-in-Council which appoints it. The
commissioner, armed only with this document, must engage personnel, locate
premises, purchase or rent office furniture and equipment, and generally see to the
formation of an administrative structure where nothing existed previously. Even with
the assistance of an experienced administrative director, this takes at least several
months. At the same time the commissioner must recruit a team of lawyers to handle
the analysis of the evidence and to present witnesses at public hearings.
There is a difficulty in finding good lawyers who are prepared to leave or disrupt
their busy offices for a prolonged period of time to devote themselves to a
commission of inquiry. If, after several years, they return to their previous practice,
they may find that their clients have gone elsewhere, and that their partners are not
particularly attracted by the prospect of reintegrating a lawyer without files into the
partnership, which may have evolved considerably in the interval. This difficulty is
aggravated by the problem of conflicts of interest, especially when the inquiry
involves a large number of parties and witnesses, many of whom will have had
contacts and relationships with the lawyers that the commissioner would like to
engage. People who criticize commissions of inquiry for start-up delay and the high
cost of legal help may not have taken these factors into account.
The commissioner must, at the beginning of his or her mandate, formulate rules
of practice and procedure, and deal with matters such as applications for funding and
standing. What needs to be understood is that the commissioner and counsel for the
inquiry start with nothing or at best, a minimal understanding of the particular events
which are to be investigated. To prepare themselves adequately it takes time before
public hearings can commence. In the case of the Sponsorship Program, we started
public hearings at the beginning of September 2004 after the Commission was
appointed by an Order-in-Council dated February 19, 2004. I can tell you that no time
was wasted, and that the employees of the Commission had to work very hard
throughout the intervening months to be ready for the start of the hearings in Ottawa
in September.
A second reason why commissions of inquiry have a tendency to be slow is due
to the legitimate desire of attorneys representing interested parties to ensure that the
rights of their clients are fully protected. This can give rise to interventions and delays
of various kinds. For example, our hearings were interrupted by the need to decide
certain issues relating to parliamentary immunity. The decision I made on that
question is still being litigated before the Federal Court of Appeal. One of the reasons
the Krever Inquiry took so long to conclude was that Mr. Justice Krever did not
consider that he could write his report as long as questions about the propriety of the
proceedings remained unresolved. As I mentioned earlier, those proceedings ended up
in the Supreme Court of Canada after years of delay.
The criticism that commissions cost too much is valid if one takes the position
that a price can be put upon the search for truth and justice, but I think that it is
795
JUSTICE J.H. GOMERY COMMISIONS OF INQUIRY
2006]
generally believed that in a society governed by the rule of law, citizens accept that
whatever the cost, it is desirable that the legal requirements of the justice system be
observed. This being said, the services of top lawyers and forensic accountants are
very expensive, and sometimes the total costs incurred by a commission are
dismaying. Only the commissioners services are a bargain, since a judge is not paid
anything other than his or her judicial salary for acting as a commissioner.
For students who would like to know more about commissions of inquiry in
general, I can recommend an excellent book entitled Commissions of Inquiry: Praise
or Reappraise?,24 published in 2003, which you must surely have in your library here,
and which presents a variety of points of view for your consideration.
Thank you very much for your attention.
Question 1:
Audience Member:
If you dont mind me asking this, its about the impartiality of commissions
of inquiry. Commissions of inquiry are appointed by the government and
sometimes they have to investigate the government, the same government by
which they were appointed. How do they deal with this?
Justice Gomery:
I think the reason that judges are almost invariably appointed as commissioners
or as the presiding commissioner of a commission of inquiry is because judges are
generally reputed to be non-political, apolitical. Some judges may have had political
activities in their past, for example when they were working as lawyers, but judges
very deliberately turn off their political activity when they become judges. I think the
only political activity that a judge takes part in is to vote in an election and I dont
think that anybody knows the way a judges vote, at least I cant imagine a judge ever
disclosing that.
But youre right, theres a danger that a judge whos presiding over a commission
of inquiry will be perceived as having a political role to play and the only way he can
avoid that is by acting as judges are supposed to act, which is impartially and without
bias, without disclosing any preference for any side of the various arguments that are
presented to him. In the Sponsorship Commission, the mandate was very precise: we
were asked to investigate the mismanagement of the Sponsorship Program; we were
not asked, and we did not look into, the validity or the wisdom of the political
decisions, which were made. I dont think that you will find anywhere in the records
of the Commission or in the reports, any indication of, for example, how I felt about
24 Allan Manson & David Mullan, eds. (Toronto: Irwin Law, 2003).
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the Sponsorship Program as a program, for its political aims and so on. I think that the
report had to do with the manner in which it was conducted, and political decisions
are left up to politicians.
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Question 2:
Audience Member:
It seems that sometimes commissions are created after a trial goes not the
way the public wanted it, in terms of the Air India bombing or now the blood
tainted trial. It seems that criminal and civil trials seem to accomplish one thing
and commissions of inquiry accomplish a different thing: commissions of
inquiry are much more public and try to satisfy truth and justice in a very
collective and public way while trials seem to do it by punishing the individual
perpetrators. Do you think its unfortunate that we need two forms to resolve
something that maybe should be resolved in one form?
Justice Gomery:
Well, you put your finger on a difficulty, which is, commissions of inquiry are not
supposed to be determining civil guilt or civil responsibility or criminal guilt, they are
supposed to be fact-finding investigations leading to recommendations. But in the
minds of the public I can tell you that there is confusion on this issue, a confusion that
I try very hard to dispel by saying over and over again, I think I said it today again,
that the objective of a commission of inquiry is to report upon the facts, to investigate
and report upon the facts, and not to determine guilt. But I have to tell you that the
public just doesnt really understand that, or many members of the public dont. I can
tell you that we got a tremendous amount of feedback from individual members of
the public and the general theme was when are you going to stop listening to
witnesses and start putting people in jail. I mean, thats what they wanted me to do,
and of course that was not my role at all. But I think those expressions represent some
of the frustrations that occur and perhaps still exist. The best way to deal with that
frustration I felt, was by having a public inquiry and exposing the facts, and Ive used
the expression a few times that I thought one of the roles that a commission of inquiry
has is cathartic. We allow people to express or live their indignation and hopefully get
over it and get back to being contented citizens, or reasonably contented citizens.
There was a tremendous amount of bad feeling about the Canadian government and
as Ive also said, the evidence that I hear indicated to me that the vast majority of
government programs are properly and adequately administered. We didnt find
systematic defect, but of course, having one program badly administered is in itself a
systematic defect, but it wasnt generalized, I dont think.
But youre right, commissions of inquiry have one objective, the justice system
has another objective and the two shouldnt be confused but Im sorry to say that they
are confused.
JUSTICE J.H. GOMERY COMMISIONS OF INQUIRY
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2006]
Question 3:
Audience Member:
When you were first approached to chair this Commission, did you have
any initial misgivings and did you anticipate in any way the magnitude and the
complexity and the scope of the work that awaited you?
Justice Gomery:
I didnt have the slightest idea of what I was getting into. I knew that it was a
major task and I thought it would take about two years, which is what it did take, but
I had no idea that I would uncover, or that the inquiry would uncover some of the
facts that were uncovered. I thought we were dealing with poor administration of a
government program within government, and people were interested in where the
money went and our inquiry pursued that line of questioning. But we certainly had
not anticipated, I dont think anybody anticipated, that wed be hearing stories about
wads of money in brown envelopes being passed in bars and things like that. So, I
was not prepared for that and I had not anticipated either the intense media coverage
that occurred, which was in itself a source of concern.
Question 4:
Audience Member:
Given that its a fact-finding trial and given this confusion between criminal
and civil trials on the one hand and commission of inquiries on the other hand,
are there any other reasons besides the perceived and actual impartiality of
judges that a judge would have to head a commission of inquiry?
Justice Gomery:
The confusion exists in the mind of the public, but there wasnt any confusion in
my mind. But I cant see any alternative to having a judge preside over a commission
of inquiry. First of all, he comes cloaked with a certain expected autonomy,
independence, impartiality, and these things all go together. And I cant think of
anybody else in our society that has that privileged positionthey dont have to
worry about the consequences of their decisions, you cant get fired, no matter how
unpopular your decision might be or how much it offends, for example, the
government in power. So judges are ideally suited to fulfill this role. But the trouble is
that even if a judge is acting as a commissioner, people say, gee that guys a judge
and they think of judges as dispensing judgments and frankly in a commission of
inquiry youre not dispensing justice, youre doing an investigative role and then
making some recommendations. So, I guess the confusion is inevitable and all that
you can do, all that I can do, is to keep on emphasizing that my reports are not
judgments, my reports are not findings of fault, well, not civil fault, they may be
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
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findings of blameworthy conduct, but its not fault in the sense that the word fault is
used in our Civil Code or in the Criminal Code.
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