The Legal Framework
| Author | Ed Ratushny |
| Pages | 261-306 |
261
chapter seven
The Legal Framework
In previous chapters, the relevant legal issues have been raised and
sometimes analyzed in the context of specific topics or in describing
the work of particular commissions of inquiry. In this chapter, they are
laid out more broadly to demonstrate their interrelationship. There are
some cross-references to the previous and subse quent discussions and
analysis, and some additional issues are discussed and analyzed.
In describing any legal “framework,” the starting point is the Consti-
tutional basis for the laws that follow. In Canada, that includes asking
whether the authority for making such laws falls within federal or prov-
incial jurisdiction. It also requires a recognition that some laws may be
invalid because of the Canadian Charter of Rights and Freedoms or some
other organic constitutional constraints. For example, the provincial
governments cannot create superior courts and the federal government
cannot abolish them. At the federal level, additional constraints may also
be imposed by the Canadian Bill of Rights.
The laws that flow from this constitutional foundation are found in
the Inquiries Act and the corresponding provincial and territorial Acts.
The constitutional validity of these statutes is neutral on their face.
They are simply “enabling.” But each level of government is prevented
from going beyond its jurisdiction by attempting to use its statute to in-
vade a subject area that has not been allocated to it under the constitu-
tion. That subject area is defined by the terms of reference given to each
262 the conduct of public inquiries
commission of inquiry when it is created. These terms are expressed
through an order in council of the government. Since the order in coun-
cil is made under the authority of the Inquiries Act, it is a statutory in-
strument with the same force of law as a statute (provided it passes
constitutional muster).
In carrying out its mandate, a commission of inquiry is bound by the
principle of fairness. This principle constrains the manner in which it
must treat people when exercising its legal powers. It also has the force
of law, but that arises from common law rather than statute. This means
that procedural rights protected by the principle of fairness may be
qualified or eliminated if a statutory law speaks clearly to that effect.
It has become common practice in recent years for each commission
to create its own rules of procedure. The legal status of such rules may
best be described as an “institutional policy ” of the commission. They
are not legally binding and a commissioner is entitled to depart from
them when there is good reason to do so. Indeed, they are usually draft-
ed explicitly to authorize the commissioner to do so. To some extent,
they “codify ” the rights that are already protected by the principle of
fairness but explain how those requirements will be satisfied in the con-
text of a particular inquiry. It is possible they could generate additional
legal, procedural rights by creating “legitimate expectations” under the
principle of fairness.
The “legal framework” is an appropriate context within which to
examine the interrelationship of commissions of inquiry to parallel legal
proceedings. This is of special importance when the conduct of an indi-
vidual is under criminal investigation or prosecution yet is also an im-
portant subject of an inquiry.
Finally, this chapter examines judicial interim review. This is the
vehicle by which the legal constraints upon a commission of inquiry are
enforced during its operation.
A. CONSTITUTIONAL BASIS
1) Division of Powers
The most frequent constitutional challenges to provincial commissions
of inquiry allege encroachment on the federal criminal law power. The
case-law development of the dividing line between federal and provin-
The Legal Framework 263
cial jurisdiction in this respect was described in Chapter 3, Section E.1
Initially, Keable and Di Iorio appeared to give broad authority to provin-
cial commissions of inquiry to investigate specific crimes. The Supreme
Court of Canada faced the issue squarely in O’Hara, where it found that
the subject of the inquiry did fall within the federal power to investigate
criminal offences. But it also fell within the provincial responsibility for
the administration of justice, arising out of its authority over policing
and jails. The Court concluded that the core purpose of the inquiry re-
lated directly to this provincial responsibility. Accordingly, it was valid,
even though it might investigate events involving criminal conduct.
In Starr, the issue also was whether the “pith and substance” of the
terms of reference served a valid provincial purpose. Here the Supreme
Court held that there was no broader, provincial policy basis for the in-
quiry. Upon analysis, it was merely a “substitute police investigation” to
determine whether there was a prima facie case that named individuals
had committed a specific criminal offence. This purpose went beyond
provincial jurisdiction.
Apart from the extreme situation in Starr, the courts seem, generally,
receptive to permitting inquiries to proceed where there is a valid prov-
incial purpose even though criminal conduct may also be involved. In
Phillips, the Supreme Court accepted this characterization of the dom-
inant purpose and effect of the Westray Inquiry’s terms of reference:
The pith and substance of the Westray inquiry is firmly anchored to the
province’s power to regulate coal mines within the province . . . . Nei-
ther the fact that part of this task would involve the investigation of the
conduct of the mine managers nor the possibility that criminal charges
might ensue once the report was made were fatal to the validity of the
terms of reference.2
1 This line of cases includes: Di Iorio v. Warden of the Montreal Jail, [1978] 1 S.C.R.
[Starr].
2 Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), [1995]
2 S.C.R. 97 at para. 53 [Phillips].
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