Role of Counsel

• Author: Ed Ratushny
• Pages: 215-260

215

chapter six

Role of Counsel

A. COMMISSION COUNSEL

1) General Role

In the previous chapter it was suggested that the commissioner begin

by appointing, almost immediately, the executive director and the sen-

ior counsel to the commission. Under the former, the entire administra-

tive and f‌inancial plans are developed and executed. In general, senior

(or “lead”) counsel is the “operational control centre” for the substantive

work of the commission. In his article “The Role of Commission Counsel

in a Public Inquiry,” former Commissioner O’Connor ’s f‌irst words were:

“I made what I think turned out to be the most important decision in the

Walkerton Inquiry within the f‌irst week after my appointment. I selected

commission counsel.”1 He added that his three counsel “did an outstand-

ing job.” It is common to see acknowledgments in commissioners’ reports

of the important role their counsel have fulf‌illed. In the Arar Inquiry,

Commissioner O’Connor reported that his legal team met the same

standard: “They were outstanding. The y performed their duties with

great skill, professionalism and, importantly, the balance that is essential

1 (2003) Advocates’ Soc. J. 9.

216 the conduct of public inquiries

to the role of Commission counsel in a public inquiry. They worked long

hours and made great personal sacrif‌ices. I am deeply grateful.”2

Similarly, Commission Kaufman spoke of his three counsel as: “the

Dean of the Criminal Bar . . . a highly skilled criminal counsel . . . [and] an

experienced and well-respected civil and commercial litigator . . . . They

approached the daunting task of marshalling thousands of pages of evi-

dence with skill and determination.”3 Commissioner Lamer:

I appreciated very much the assistance and advice of my legal counsel

. . . who provided great service in organizing the evidence and hearings

so that they f‌lowed smoothly and eff‌iciently . . . [another] provided wise

counsel and guidance . . . . I selected him for his intellectual honesty and

sense of fairness. He is an outstanding lawyer and a good friend.4

Commissioner Goudge:

I am convinced that a talented legal team of this size was instrumental

to my ability to complete my mandate in an expeditious manner . . . .

These tasks could not have been accomplished in such an eff‌icient

manner without the skill, size and dedication of my legal team.5

Commissioner Cory:

Commission Counsel conducted themselves in an exemplary manner

. . . they so organized the presentation of material and witnesses that

the hearings proceeded as smoothly, fairly and eff‌iciently as possible.

They worked long and hard in the presentation of evidence. As well,

they were of invaluable assistance in their reviews of the evidence and

issues. All this was accomplished quickly and cheerfully. I could not

have had better counsel.6

These comments ref‌lect the unique challenges of a commission of in-

quiry when it faces massive and complex information, unanticipated

complications, and a challenging deadline. The legal team, under senior

commission counsel, must come together quickly and have an attitude

2 Arar Inquiry, “Acknowledgments.”

3 Morin Inquiry, “Acknowledgments.”

4 Lamer Inquiry, “Acknowledgments.”

5 Goudge Inquiry, “The Scope and Approach of the Commission.”

6 Sophonow Inquiry, “Acknowledgments.”

Role of Counsel 217

of “whatever it takes” to get the job done. An intense commitment is

required.

A commissioner may be authorized to engage counsel either directly

by the inquiry’s legislation or by the terms of reference. Both will also

authorize broad latitude as to how the inquiry is to be conducted. Re-

cent federal terms of reference authorize the commissioner “to adopt

any procedures and methods that he may consider expedient for the

proper conduct of the inquiry.” This includes the role to be undertaken

by commission counsel. It would be open to a commissioner to question

witnesses directly, without the assistance of commission counsel. But it

is diff‌icult to assess evidence objectively when adducing it and the man-

ner of questioning may be perceived as partisan.7

In the above article, Commissioner O’Connor explained the relation-

ship of counsel to the commissioner: “It is with the assistance of com-

mission counsel that the commissioner carries out his or her mandate,

investigating the subject matter of the inquiry and leading evidence at

the hearings. Throughout, commission counsel act on behalf and under

the instructions of the commissioner.”8 In carrying out this role, commis-

sion counsel, in effect, become an extension of the commissioner:

And this is where commission counsel play such an important role. Com-

mission counsel are on the very front line of doing much of what is ne -

cessary to gain the public conf‌idence about the process and about the

integrity and impartiality of the inquiry itself . . . . As a result, commission

counsel’s role is not to advance any particular point of view, but rather

to investigate and lead evidence in a thorough, but also completely im-

partial and balanced, manner. In this way, the commissioner will have the

benef‌it of hearing all of the relevant facts or evidence unvarnished by the

perspective of someone with an interest in a particular outcome.9

He added that a perceived lack of impartiality on the part of commission

counsel “could seriously impair the credibility of the whole exercise.”

The role of commission counsel also was addressed in a ruling by

Commissioner Major in the Air India Inquiry. The association repre-

7 John Sopinka, “The Role of Commission Counsel” in A.P. Pross, I. Christie, & J.A.

Yogis, eds., Commissions of Inquiry (Toronto: Carswell 1990) at 77.

8 Above note 1 at 10.

9 Ibid.