Policy/Advisory Commissions

AuthorEd Ratushny
chapter ten
Policy/Advisory Commissions
Policy/advisory commissions were introduced in Chapter 3, Section C
and the commissions described there provide illustrations of some of
their features. They explore broad societal problems that require a gov-
ernmental response. Unlike investigative commissions, their primary
purpose is not to investigate specif‌ic events or related individual or in-
stitutional conduct. Specif‌ic events may be catalysts leading to their
creation but their origins have much deeper roots, requiring more fun-
damental approaches and solutions.
Policy/advisory commissions provide the following examples:
the tragedy of families being unable to afford medical treatment •
during the Great Depression, leading to a comprehensive system
of public “medicare”;
the crisis in Confederation arising out of political developments in •
Quebec in the 1960s, leading to policies of bilingualism and multi-
systemic discrimination in employment leading to policies of af-•
f‌irmative action in the form of “employment equity” and corres-
ponding legislation;
large-scale criminalization of younger Canadians for the non-med-•
ical use of drugs and the “calming” of inter-generational conf‌lict
418 the conduct of public inquiries
through a process of dialogue as well as the ultimate moderation
of penalties and enforcement policies; and
a deep economic recession leading to resolution of the perennial •
protectionist-liberalization trade debate in favour of free trade
with the United States.
Many investigative commissions also have a policy component but
these tend to be more narrow and more directly related to the specif‌ic
events or conduct under investigation. For example, the Walkerton Inquiry
investigated the tragic events in that community but was also directed to
inquire into “any other relevant matters that the commission considers
necessary to ensure the safety of Ontario’s drinking water.” The Gomery
Commission was required to investigate the creation and management
of the sponsorship and advertising programs, including specif‌ic problems
identif‌ied by the auditor general. The second part of its mandate was to
make general recommendations, arising out of its fact f‌inding, to prevent
future mismanagement of such programs. The Arar Inquiry had to inves-
tigate the detention, deportation, imprisonment, treatment, and return of
Maher Arar to Canada. In addition, it was directed to conduct a policy
review of oversight of the RCMP in national-security matters.
In many such investigative commissions, these broader components
of the terms of reference essentially address “systemic” problems that
are identif‌ied and informed by the more specif‌ic investigations. In con-
trast, the Goudge Inquiry was predominantly systemic. It was specif‌ic-
ally directed not to report “on any individual cases” and to “conduct a
systemic review.” However, the review was very much grounded in the
specif‌ic infant deaths that occurred, the conduct of Dr. Smith in relation
to them, and the (non) leadership of the Off‌ice of the Chief Coroner in
failing to prevent such conduct. In that respect, it could not be charac-
terized as a pure policy/advisor y commission. I would describe it as an
investigative inquiry with a primarily systemic mandate. The Air India
inquiry could be characterized in the same way.
Liora Salter has suggested that inquiries simply “can be arranged on a
continuum in terms of how they balance policy-making and investigation.1
1 Liora Salter, “The Complex Relationship between Inquiries and Public Contro-
versy” in Allan Manson & David Mullan, eds., Commissions of Inquiry: Praise or
Reappraise? (Toronto: Irwin Law, 2003) at 186.
Policy/Advisory Commissions 419
The idea of a “balance” between these functions does not seem helpful
or accurate. The investigation of specif‌ic events and related conduct
is, essentially, fact f‌inding and often requires f‌indings of credibility. It is
analogous to the fact f‌inding required in judicial or other adjudicative
proceedings. A systemic or polic y review may accompany this kind of in-
vestigation but it is normally treated as a distinct and separate phase.
Another example is the Mulroney-Schreiber Inquiry, which is conducting
its “Policy Review” parallel to its “Factual Inquiry.” Unlike a “pure” policy/
advisory commission, the policy issues here are relatively narrow. They
are restricted to Canada’s ethics rules, primarily as they apply to polit-
icians, and the handling of correspondence by the Privy Council Off‌ice.
While this policy review is proceeding separately, the related recommen-
dations are likely to be informed b y broader inferences drawn from the
fact-f‌inding stage as well.
John McCamus has expressed his impressions as to why policy in-
quiries seem to be less frequent in recent decades:
First, it is obvious that there are many more players in the policy f‌ield
than they were as recently as a few decades ago. We have seen in many
ministries and departments the growth of policy branches—some of
them rather large in size—that have developed an in-house capacity
for policy work that was previously lacking.2
He adds that they have been successful, not only in developing policy,
but also in “managing policy processes.” This includes consultation with
stakeholders and moving policy through government processes to imple-
mentation. McCamus also identif‌ies the proliferation of non-government-
al “research institutes both within and outside the academic community,”
and he notes, too, that “[t]he number and range of public interest groups,
often single interest groups, have mushroomed in recent decades.”3 Many
of these public-interest groups have at least some research capacity.
Finally, McCamus cites the attempts to enhance the role of parliament-
ary committees in policy formulation over the years. However, he is hard-
pressed to identify successes among these bodies, having to go back to
the MacGuigan Committee on Statutory Instruments in 1975.
2 John McCamus, “The Policy Inquiry: An Endangered Species” in Manson & Mullan,
eds., ibid. at 216.
3 Ibid. at 217.

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