Securing Accountability Through Commissions of Inquiry: A Role for the Law Commission of Canada

Abstract

Focusing on the Government of Ontario's unwillingness to call a public inquiry into the death of Dudley George, an Aboriginal protester, and the Government of Canada's willingness to interfere with an inquiry into the deployment of Canadian forces to Somalia, this article argues that governments appear increasingly reluctant to support a commission of inquiry into a public crisis even where it can serve as a catalyst for addressing larger and more pressing concerns of institutional and policy reform. It first addresses "start-up problems" associated with the fact that the decision to appoint a commission of inquiry lies within the sole discretion of cabinet. It also canvasses incentives and disincentives on political actors and the media to call for the establishment of a commission of inquiry. It then examines "shut down problems" associated with governmental efforts to prematurely end or restrict a commission's activity. Borrowing several features from the Independent Counsel and the Inspector General Models in the United States, the article proposes that the Law Commission of Canada act as a permanent base of operations for federal commissions of inquiry, and suggests that commissions of inquiry adopt non-confrontational methods and procedures that encourage governments and other parties to sit down and engage in a constructive exercise of fact-finding, policy formulation and structural reform.