Nature and Purpose of Commissions of Inquiry

AuthorEd Ratushny
chapter two
Nature and Purpose of
Commissions of Inquiry
A commission of inquiry is here def‌ined as a bo dy created by a govern-
ment under Part I of the Inquiries Act1 or the corresponding provincial or
territorial legislation. Its purpose is to make inquiries and report to the
government its f‌indings and any related recommendations. The subject
of its inquiries and report are established by the government and de-
scribed in its terms of reference. It has powers to carry out its inquiries
by requiring persons to testify before the commission and to produce
any relevant documents. It may only report and recommend. It cannot
adjudicate disputes or determine rights.
However, in making its report and recommendations, a commission
of inquiry may comment on the conduct of persons in a way that could
adversely affect their reputations or other interests. When doing so, it is
legally bound to treat such persons fairly. The legal principle of fairness
establishes standards for such treatment. After a commission makes its
report, it ceases to exist.
The f‌irst commissions of inquiry were royal commissions established
by British monarchs to assist them in governing: “The source of royal
1 The comparable Acts in other jurisdictions are discussed in Chapter 7, Section
B. Commissions established by a minister, as opposed to a government, are also
discussed there.
12 the conduct of public inquiries
commissions is to be found in the generally assumed right of the Crown
to appoint off‌icials to perform duties temporarily or permanently on
behalf of the King.”2 Such duties could encompass judicial and admin-
istrative responsibilities as well as investigation. Thomas Lockwood de-
scribes the investigation that occurred between 1080 and 1086, and that
resulted in the completion of the Domesday Book , as being the work of
the f‌irst royal commissioners: “ This awesome investigation resulted in
the compilation of a mass of information respecting landholding, culti-
vation and population of the manors throughout England shortly after
the C onquest.3 Royal commissions became “an established feature of
English administration” and represented the expanding jurisdiction of
the king. As such, they were a target of efforts to curb the king’s powers
that began with the Magna Carta and continued with the subsequent
rise of Parliament.
Parallel events were occurring in relation to the development of a
criminal process to try criminal offences.4 The earliest stages involved an
“accusatory system” where a specif‌ic wrong had to b e identif‌ied before
a person could be found guilty. However, the Fourth L ateran Council,
which abolished trial by ordeal in 1215, also established an inquisitorial
process allowing the “judge” to compel any person to testify. At f‌irst, the
requirement of an “accusation” was respected but judges began to re-
ceive accusations in secret and then to initiate inquisitions on their own
“suspicions.” This arbitrary power soon came to be used as a weapon of
religious and political suppression. The consequences were particularly
harsh when the vague offence of “heresy” was charged and the punish-
ment involved execution by burning. The process allowed a person to be
compelled to testify, cross-examined about his or her religious beliefs,
and then told that these beliefs constituted heresy. A refusal to testify
could, itself, be subject to punishment by the “rack.
These powers were adopted from the ecclesiastical courts by the hy-
brid Court of High Commission and then by the Court of Star Chamber,
composed of the Privy Council sitting judicially together with the chief
2 Thomas J. Lockwood, “A History of Royal Commissions” (1967) 5 Osgoode Hall L.J.
172 at 179.
3 Ibid. at 180.
4 Ed Ratushny, Self-Incrimination in the Canadian Criminal Process (Toronto: Carswell,
1979) at 159–74.

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