Role of the Commissioner
| Author | Ed Ratushny |
| Pages | 149-213 |
149
chapter five
Role of the Commissioner
The first three chapters were a general introduction and provided an
overview of Canadian commissions of inquiry. The last chapter exam-
ined the establishing of a commission of inquiry from the perspective of
a government.
This chapter moves to how a commission should fulfill its mandate,
commencing with the role of the commissioner. The next chapter then
examines the related role of legal counsel.
The next three chapters then shift the focus to the legal framework;
the conduct of hearings; and the actual report, including findings of mis-
conduct. The final chapter examines broader policy/advisory mandates.
The reports of past commissions of inquiry provide a valuable re-
source in guiding the practice of future inquiries. The Walkerton Report
and the Goudge Report, in particular, have been helpful in the prep-
aration of this study, for each devotes an entire chapter to discussing
how these commissions carried out their mandates.1 I have borrowed
liberally from both, but those involved in inquiries are also encouraged
to read these chapters directly.
1 Walkerton Inquiry, “The Process of Part I of the Inquiry,” Part One, c. 14; Goudge
Inquiry, “The Scope and Approach of the Inquiry,” vol. 4, c. 23.
150 the conduct of public inquiries
A. DECISION TO ACCEPT
1) Prior Consultation
It is important that a person who agrees to conduct a commission of
inquiry does so with as much knowledge as possible of what will be in-
volved. It is often a difficult challenge to address the terms of reference
adequately within the time available. The process and the commissioner
will be subjected to the glare of public scrutiny and some of the parties
may be emotionally involved. The manner in which the inquiry is con-
ducted and the report may both be criticized publicly and may affect
the commissioner ’s future reputation. The attitude of the government
to the commission may be supportive at the beginning, but that may
change if public opinion does.
In a gem of a presentation entitled “ The Bernardo Investigation Re-
view,” the late Justice Archie Campbell observed: “The commissioner’s
first task is to ensure that the terms of reference will work, and to secure
a clear understanding that the inquiry will be independent and will be
supported by reasonable resources.”2 He added: “One veteran of Royal
Commissions is noted as saying that your bargaining position never gets
better than it is the minute before you say yes.”3
It is important for the prospective commissioner to meet with the
responsible minister and/or senior officials to review the terms of refer-
ence at an early opportunity.
Justice Gilles Letourneau agreed to conduct the Somalia Inquiry
without any advance knowledge or input into its terms of reference. In
fact, he appears to have considered that it would not be appropriate for
a commissioner to see them in advance: “I had accepted it before seeing
the terms of reference so it wouldn’t be proper to be involved in defining
the terms of reference because it is a Cabinet decision.”4 When he and
his colleagues informed the government that the terms would be impos-
sible to fulfill in the six months proposed, they were given nine months
and told the deadline would be reviewed after that. While Justice Le -
tourneau felt that the commissioners should have been consulted on
2 In Allan Manson & David Mullan, eds., Commissions of Inquiry, Praise or Reappraise?
(Toronto: Irwin Law, 2003) at 385.
3 Ibid. at 388.
4 Interview with Mr. Justice Gilles Letourneau, ibid. at 363.
Role of the Commissioner 151
the time frame in advance, they placed themselves in a difficult position
by accepting their appointments without first insisting on a realistic
deadline for reporting.
Contrary to the suggestion by Justice Letourneau, it is perfectly ap-
propriate for a prospective commissioner to discuss the draft terms of
reference with the government. Commissioner O’Connor specifically
addressed this issue in a ruling in the Arar Inquiry, after it was suggested
that such consultation was unfair to the parties:
I disagree. In my view, there is no significance to the fact that I reviewed
the terms of reference before Order-in-Council PC 2004-48 was final-
ized. This was done as part of a practice that has evolved when gov-
ernments ask someone to undertake the task of being a commissioner.
Adherence to this practice is not unfair, nor does it create an appear-
ance of unfairness.5
The same practice is encouraged in the Canadian Judicial Council policy
discussed in the next section.
In his own inimitable fashion, former Commissioner Gomery de-
scribed his “negotiations” with federal officials to establish his mandate.
He said that he “felt a little like David against Goliath . . . There were
three or four deputy ministers around the table with their teams of as-
sociates and assistants and I was alone.”6 However, he obtained import-
ant concessions. First, he requested that there be no time limit in light
of the experience of the Somalia Inquiry. Second, he wanted assurances
that he could examine all facts that he considered to be relevant to ful-
filling his mandate. He was also given this subjective authority. In his
words: “That left me with almost absolute power.”
Finally, he requested that privilege be waived for relevant Cabinet
documents. When the officials balked, he suggested that they talk to
the prime minister’s staff since he had given assurances that all neces-
sary powers would be granted for a complete investigation. They con-
ceded that he would have access to Cabinet documents.
Justice Gomery was in a very favourable negotiating position since
the news release announcing his appointment said that he would assist
in setting the terms of reference. But every commissioner should insist
5 Arar Inquiry, “Ruling on Jurisdictional Issue” (3 January 2006).
6 Rollande Parent, “At 75, Gomery is Shifting Gears” Globe & Mail (6 August 2007) A6.
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