Truth and consequences

JOHN DeMONT July 7 1997

Truth and consequences

JOHN DeMONT July 7 1997

Truth and consequences

Critics question the viability of public inquiries

Ultimately, they seek truth. But the spate of government inquiries and royal commissions seemingly going on in every corner of Canada also leaves the impression that the best country in the world is undergoing systematic breakdown. The Guy Paul Morin inquiry wants to know why Ontario’s courts convicted a man of a murder he never committed. The Krever inquiry is investigating how thousands of Canadians were infected with tainted blood in the 1980s. The Westray inquiry searches for an answer to the question of why 26 men died in a Nova Scotia coal mine that, by some accounts, should never have been worked. The Somalia commission, meanwhile, wrestles with the riddle of the Canadian paratroopers who, for no apparent reason, tortured and killed a teenage civilian in an African country.

Taken together, the stories emergmg from inquiry rooms across the rrmntrvarp 11 nnnpsli on ahlv horrific country are unquestionably horrific.

That is, if anybody actually took notice. This week, the Somalia inquiry is scheduled to present its final report to Canada’s new defence minister, Art Eggleton. According to portions leaked to the media, the three commissioners will conclude that the attempted coverup of the actions of Canadian troops in Somalia—including the March 16, 1993, torture-killing of 16-year-old Somali Shidane Arone—reached into the department of defence in Ottawa. Political dynamite under normal circumstances—but rather than outrage, Bob Richardson, a vicepresident with the Angus Reid Group Inc., expects the nation to evince a collective shrug. “Canadians,” he explains, “simply don’t care about inquiries and commissions the way they did 15 or 20 years ago.”

Overkill is a big part of it. Since Confederation, Canadians have endured some 450 federal inquiries and royal commissions. But even as they have swelled in number, size and cost, critics are questioning their relevance. As former Supreme Court of Canada justice Willard Estey, who chaired a series of inquiries in the 1970s and 1980s, puts it: “The tool has grown dull.” How dull? So far, none of the main rec-

ommendations of the $30-million Royal Commission on New Reproductive Technologies, which ran from 1989 to 1993, has become law. Since landing last year, the massive report of the $58-million Royal Commission on Aboriginal Peoples has disappeared without a trace in Ottawa. The total price tag for the Somalia inquiry is

expected to hit $14 million, even though former defence minister Doug Young’s decision to shut down the hearings meant that many crucial witnesses did not get a chance to testify. And then there has been the legal wrangling: last week, the Federal Court of Canada ruled against two separate lawsuits by Brig.-Gen. Ernest Beño and retired general Jean Boyle, former chief of the defence staff, which called for the Somalia commission of inquiry to drop certain portions of its report or at least delay releasing them. Lawyers for the Canadian Red Cross Society, meanwhile, appeared before the Supreme Court in their ongoing quest to deny the $15-million tainted blood inquiry headed by Justice Horace Krever the right to name names and assign blame in Krever’s final report.

Marshalling such evidence, prominent critics like Estey say inquiries have outlived their usefulness. But not everyone is ready to give up on them—at least not yet. In theory, the goal of a government-appointed

inquiry or commission is simple: guide public policy on a particular issue, or probe specific incidents or allegations of wrongdoing and then recommend a course of action. Inquiries cannot lay charges or determine guilt, which is left to the courts, but they can criticize and assign blame. That power is at the heart of various legal actions directed against current inquiries because, critics say, assigning blame can influence the course of potential criminal trials. Even so, in the opinion of some experts, inquiries—which are empowered to seize documents and subpoena witnesses to reach their conclusions—often offer the best hope of getting to the bottom of an issue. “These proceedings get to the heart of problems and provide the forum for an exhaustive examination,” says University of Ottawa law professor Ed Ratushny, who headed the commission on racism in the Ontario justice system in 1996.

Whether an inquiry has any real impact depends on the politicians who created it. Calling an inquiry, after all, is one easy way for a government to put aside a political hot potato—like the tainted blood scandal or the Somalia mission—until the public temper cools. But sometimes the relief is only temporary: inquiries often come back to haunt the politicians, either with scathing

recommendations or charges of obstruction should a government attempt to limit their scope.

When their advice is heeded, inquiries

can definitely be worth the money. The $ 13-million 1980s inquiry into the sinking of the Ocean Ranger in 1982 led to a broad swath of regulations governing the safety of offshore oil rigs, which were adopted throughout the world. The 15-month, $2.8million provincial inquiry into deaths at Toronto’s Hospital for Sick Children once and for all exonerated nurse Susan Nelles of allegations that she murdered babies in her care. The $7-million study in the late 1980s into the wrongful imprisonment of Nova Scotia Micmac Donald Marshall Jr. for murder caused a sweeping re-examination of that province’s justice system and the creation of an independent director of public prosecutions. And, spurred by the Ben Johnson doping scandal at the 1988 Olympics, the $4-million Dubin inquiry, which reported in June, 1990, made Canada the first country in the world to systematically deal with the use of performance enhancing drugs by athletes. “Properly run, the benefits exceed the costs,” maintains Newfoundland Chief Justice Alex Hickman, who chaired the Ocean Ranger and Marshall inquiries.

The operative phrase, though, is “properly run.” Critics say today’s inquiries are dominated by lawyers who make a career out of derailing the hearings with endless court challenges. As a result, proceedings that once lasted months now drag on for years. And even proponents suggest that governments are too quick to name inquiries. “The calls for them should be more restrained,” argues Ratushny. “You’ve got to recognize that inquiries are not the solution to everything.”

Inquiries can also go too far in their zeal

for truth. Some overstep their mandates, examining in excruciating detail matters anything but central to the issue they were created to investigate. Even critics of Young’s decision to shut down the Somalia inquiry admit that the commissioners, who spent months examining the predeployment phase of the Somalia mission instead of proceeding quickly to events in Africa, handed the defence minister ample justification for his decision. John Merrick, chief counsel for the inquiry into the Westray disaster, decries the adversarial nature of some hearings and fears that commission lawyers can sometimes forget that their job is to unearth information—not establish guilt. “An inquiry is not a trial,” he stresses.

To the person at the centre of an inquiry, it can seem like one. Sinclair Stevens resigned as industry minister in Brian Mulroney’s Tory government in 1986 over an apparent breach of federal conflict-ofinterest guidelines. The investigation and inquiry set up to examine Stevens’s behavior took 18 months and $2.7 million of taxpayers’ money. In the end, the inquiry found that Stevens had violated the federal government’s conflict code 14 times while a cabinet minister. His court challenge of the inquiry’s findings continues to this day—and so does his contention that inquiries do more harm than good. “We have our own judicial system for matters like these,” said Stevens, now a lawyer in Ontario. ‘They [inquiries] show a dreadful disregard for natural justice.”

But for those seeking answers, the inquiry room can provide moments of drama and illumination. Last week, Guy Paul Morin watched as the best friend of Christine Jessop broke down on the witness stand as she admitted to giving false evidence that helped send him to prison in 1992 for Jessop’s murder—a crime he did not commit. That was just the latest bombshell in a four-month inquiry into Morin’s wrongful conviction—he was exonerated by DNA evidence in 1995— that has featured continuous revelations about fabricated testimony, tainted evidence and the suppression of information.

Meanwhile, Kyle Brown, a former member of the Canadian Airborne Regiment who spent two years in jail for the torture-murder of Arone, says he understands if Canadians feel frustrated by the snail’s pace of the Somalia inquiry. “A purge of conscience is not necessary,” he told Maclean’s, “but Canadians must have insight into what went on. Very serious problems have come to light because of that inquiry.” Undoubtedly, the report to the minister of defence will contain some answers. Canadians may not notice in this case. But if an inquiry can point the way forward for the future, perhaps no price tag is too much or investigation too long.



in Ottawa