Establishing a Commission of Inquiry

AuthorEd Ratushny
chapter four
Establishing a Commission
of Inquiry
In Chapter 2, Section B, the commission of inquiry was described as
a “residual” institution within the machinery of government which is
established when other institutions of government and their processes
are found to be inadequate. For the reasons discussed there, a commis-
sion of inquiry gives the public conf‌idence that it will achieve what the
others cannot. In that respect, a commission of inquiry is often the result
of a crisis in public conf‌idence. We are speaking here of commissions
exercising primarily investigative functions. The genesis of primarily
policy/advisory commissions is usually different.
1) A Political Decision
Since it is the Cabinet that decides to establish a commission of inquiry,
that decision is inherently political. There are often signif‌icant political
advantages to invoking this exceptional response to public conf‌idence
in the government. But there is also a potentially serious disadvantage.
During the hearings and because of the commission’s report, the gov-
ernment loses control of the information given to the public and the
manner in which it is expressed.
The primar y political advantage in appointing a commission of in-
quiry is to take the heat off the government in relation to a problem with
106 the conduct of public inquiries
a high public prof‌ile. The government can say it has “done something”
without having to admit to wrongdoing, at least temporarily. The gov-
ernment also avoids having to commit to any more specif‌ic response to
the problem.1 Still another advantage is that it then becomes diff‌icult
for critics to continue to attack the government since, inevitably, part
of their earlier attacks included the demand for such an inquiry. Once
that demand has been met , they are not in a position to continue their
criticism before the commission can report.
But such demands are so numerous that the government will f‌irst re-
spond by denying that the problem is signif‌icant or stating that existing
processes are addressing it. In seeking to retain control, the government
may be concerned that the obligation to provide information could lead
to wider problems being revealed. In addition, the cost of a commission
of inquiry does not merely involve its own expenses. Other government
off‌icials must gather information, monitor the hearings, brief ministers,
attend as witnesses, and deal with public and media requests. Finally,
the government must assess its “exposure.” Is the problem limited to a
few individuals? Does it reach into senior and ministerial levels? Will
the exposure put the government in a bad light even if there is no clear
evidence of wrongdoing? Is there a strong public suspicion of a “cover-
up” that can be confronted only by independent fact f‌inding?
The government must assess not only the scope of the problem but
also whether it has “legs.” C an the government weather the storm by
simply repeating its position until the media and public grow tired of the
issue? There is the danger of having the worst of both worlds—taking
a prolonged political beating and then having to succumb to an inquiry
anyway if the issue should gain momentum rather than losing it.
In Starr,2 Justice L’Heureux-Dubé described in some detail the mo-
mentum that increased and ultimately forced the Ontario government to
establish a commission of inquiry. Media reports led to the government
announcing a criminal investigation into the allegations of misconduct:
1 See, generally, John D. McCamus, “The Policy Inquiry: An Endangered Species?” In
Allan Manson & David Mullan, eds., Commissions of Inquiry, Praise or Reappraise?
(Toronto: Irwin Law, 2003) at 211 and Michael J. Trebilcock et al., The Choice of
Governing Instrument (Ottawa: Economic Council of Canada, 1982).
2 Starr v. Houlden, [1990] 1 S.C.R. 1366 [Starr], discussed in Chapter 3, Section E(5).
Establishing a Commission of Inquiry 107
However, it quickly became apparent that the matter was far from be -
ing so limited in its nature, scope or effect. The record reveals that the
allegations intensif‌ied almost daily from May 15, 1989 until the establish-
ment of the inquiry.3
It was alleged that four Cabinet ministers had received campaign con-
tributions or other benef‌its from Ms. Starr. By 19 June, additional min-
isters were implicated and allegations were made of public funds being
diverted into a Liberal “slush fund.” Ms. Starr had received a public ap-
pointment and it was alleged that efforts were made for her mother
to receive a government contract. But the fatal blow came three days
later when the executive director of the Premier’s Off‌ice resigned after
disclosing he had received f‌inancial benef‌its from her. The premier an-
nounced the commission of inquiry the next day.
The following passage describes a completely different rationale for
the establishment of a commission of inquiry:
A government may also have an incentive to establish a commission
of inquiry where the incident in question happened on the watch of
a previous government. A government may believe that political risks
associated with an inquiry are mitigated when the events in question
predate its election. However, given the independence of a commission
of inquiry, and the unpredictable nature of its investigation, this incen-
tive may not be as strong as it would at f‌irst seem.4
A case in point is the Somalia Inquiry. Although the Liberal government
established that inquiry to address events under the previous Conserva-
tive government, the Liberals decided to terminate the commission be-
fore an impending general election. Presumably, the ongoing “bad news”
of the hearings was having a negative effect on the public’s perception
of the government, even though the events had occurred when the pre-
vious government was in power.5
Similarly, the Ipperwash Inquiry was established by the Ontario gov-
ernment to address events under a previous Conservative administra-
3 Ibid. at 1414.
4 Robert Centa & Patrick Macklem, “Securing Accountability through Commissions
of Inquiry: A Role for the Law Commission of Canada” in Manson & Mullan, eds.,
above note 1 at 79.
5 Discussed in Chapter 3, Section B(5).

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