Final Report

• Author: Ed Ratushny
• Pages: 355-415

355

chapter nine

Final Report

A. WRITING THE REPORT

1) General Considerations

Completion of the f‌inal report is the ultimate goal of a commission of

inquiry. The manner in which the journey is conducted will help to dem-

onstrate how effectively the commission has fulf‌illed its purpose. That

includes acting independently, effectively, and transparently in using its

powers to fulf‌ill its mandate. This in turn will be ref‌lected in how the

commissioner, counsel, and other staff have carried out their roles and

how they have dealt with the parties, the media, and the public. The

journey will be especially ref‌lected in the public hearings. But the ul-

timate contribution and standard for judging a commission of inquiry is

its f‌inal report. This report, itself, will be the main basis on which the

recommendations it contains will be assessed.

The late Justice Archie Campbell established his own standards

which he “plastered” on his off‌ice walls “on large posters” when writing

the report of his Bernardo Inquiry:

 

 

 

 

 Bernardo case?

356 the conduct of public inquiries

 

 

 1

One of the commissioners in the Somalia Inquiry wanted no part in

writing the report:

Assembling, writing, and editing a royal commission report is perhaps

the most unrewarding task in the world. This is a job for technicians

who have the skills needed to absorb mountains of data, sort it into neat

piles, and process it into something recognizable and meaningful.

I’m not saying that I don’t admire people who can do this. It’s a spe-

cial ability that is in high demand in Ottawa, where the production of

speeches, manuals, press releases, studies, and reports of every size and

description provides employment for a small army of anonymous writ-

ers. But better them than me.2

Such an approach is appropriate when dealing with te chnical informa-

tion, which is generally descriptive and not contentious. But where po-

tential f‌indings of misconduct or other controversial issues are involved,

the commissioner will want to engage in the drafting personally, or at

least be in ongoing dialogue with the drafter. This is important, not only

for actual f‌indings, but also for how they are expressed.

The foundation for making recommendations has two broad com-

ponents. The f‌irst is to analyze the evidence and determine the relevant

factual basis for the report. The second is to draw inferences and con-

clusions from those f‌indings of fact. Both aspects are dictated and con-

strained by the terms of reference. In the context of potential f‌indings

of misconduct in Krever, it was argued that f‌indings of fact were permis-

sible but not the evaluation of those facts “according to a standard of

conduct.” This argument was rejected, since “it simply would not make

sense for the government to appoint a commissioner who necessarily

becomes very knowledgeable about all aspects of the events under in-

vestigation, and then prevent the commissioner from relying upon this

1 “The Bernardo Investigation Review” in Allan Manson & David Mullan, eds., Com-

missions of Inquiry, Praise or Reappraise? (Toronto: Irwin Law, 2003) at 402.

2 Peter Desbarats, Somalia Cover-Up: A Commissioner’s Journal (Toronto: McClelland

& Stewart, 1997) at 296.

Final Report 357

knowledge to make informed evaluations of the evidence presented.”3

These two steps then place the commissioner in a unique position to

make recommendations for the future.4

The terms of reference will provide initial guidance as to what should

be placed on the factual record. They will inform the commissioner’s in-

itial “game plan” and the manner in which commission counsel organizes

the hearings and calls evidence. It is important not to make factual as-

sumptions and to anticipate all evidence that will be required for writing

the report, so that it may be adduced and tested. Where there appears to

be a consensus among the parties about some important facts and there

are no other relevant interests, that consensus should be placed on the

record so there can be no objection after the report is written. Refer-

ence has been made to the role of the commissioner in assessing the

facts individually and collectively, including their interrelationships.5

In Walkerton, Commissioner O’Connor qualif‌ied the factual basis

on which he reached certain conclusions: “Instead of making f‌indings

of fact, in some instances I have set out my conclusions by expressing

them in terms of the probability or likelihood of something happening

or not happening . . . . Several of my conclusions are qualif‌ied by rather

remote possibilities.”6 Precision and clarity in expressing the extent of

reliance on facts will contribute to the accuracy of the report. In turn,

that should lead to a better understanding of the nature of the infer-

ences drawn from them.

In some circumstances, especially when an inquiry continues over an

extended period, it may be important to verify whether further develop-

ments have occurred since the time when particular issues were addressed

at the hearings. Praise has been given to a police force, in a commission

report, for reforms adopted even before hearings were completed.7 Where

3 Canada (Attorney General) v. Canada (Commission of Inquiry on the Blood System in

Canada—Krever Commission), [1997] 3 S.C.R. 440 at para. 40, Cory J. delivering the

judgment of the Court [Krever].

4 In Morneault, Justice Reed identif‌ied three steps in making f‌indings but her last

two can be subsumed under “evaluations,” as used in the above quote from Krever.

See Morneault v. Canada (Attorney General) (1998), 150 F.T.R. 28 at para. 61 (T.D.)

[Morneault].

5 See Chapter 5, Section B(2).

6 Walkerton Inquiry, Part One at 37.

7 See Chapter 3, Section D(4) and Chapter 6, Section C.