Outsiders: The Sources and Impact of Secrecy at the Iacobucci Inquiry

Abstract

The Internal Inquiry into the Actions of Canadian officials in relation to Abdullah Almalki, Ahmad Abou-Elmatti and Muayyed Nureddin is a particularly pronounced example of the use of secrecy that has defined Canada in the wake of 9/11. Despite having the authority to hold some portions of the Inquiry in public, the Iacobucci Inquiry was conducted almost exclusively in camera and ex parte. The result was an inquiry that was unlike previous commissions called under the federal Inquiries Act.

Taking the perspective of those "outside" the process, the author explores the question of what makes a commission of inquiry successful by revisiting the functions and objectives of public inquiries in Canada, in an analysis that invokes the exclusion and marginalization experienced by the three men. Relying on both case law and scholarship, the author proposes an analytic framework by which to assess commissions of inquiry and the textent to which they achieve their traditional objectives: information and education; restorative justice; and socio-democratic functions. Applying criteria derived from the literature on new governance to the internal inquiry model, the author concludes that inquiries conducted in secret fall significantly short of attaining their objectives.

Keywords: Commissions of Inquiry, National Security, Administrative Law, Outsider Jurisprudence

JEL Classification: K10, K40