Stop me if you know this story… “Canada’s Pacific fisheries are at a crisis point.”

“This year, following two depressed years, the economic circumstances of the commercial fisheries are exceptionally bleak… Although aggravated by current conditions, the economic problems and other concerns are rooted in fundamental deficiencies in fisheries policy.”

These are the opening lines from “The Commission on Pacific Fisheries Policy” otherwise named: “Turning the Tide: A New Policy for Canada’s Pacific Fisheries“.

Commonly known as the Pearse Royal Commission — which was completed in 1982.

In my previous post I highlighted a paper “Some observations on Public Inquiries” by Associate Chief Justice Dennis R. O’Connor of the Court of Appeal of Ontario. O’Connor was the Commissioner of the Walkerton and Maher Arar Public Inquiries.

Justice O’Connor raises the issues of Commissioners:

There is some debate as to whether sitting judges should serve as commissioners of independent inquiries.  Conducting an inquiry is not part of the judicial role nor involves judicial duties.  The creation of an inquiry is an act of the executive.  A judge who serves as a commissioner is carrying out a function of the executive, not the judicial branch of government.  The judge as commissioner does not adjudicate on issues of civil or criminal liability.  The findings and recommendations in a report have no binding legal effect.  The judge fulfills the function frequently carried out by non-judicial investigators or committees.

Peter Pearse who was the Commissioner of the “Commission on Canadian Fisheries Policy” was/is an economist. Honorable Bruce Cohen is the Commissioner of the Cohen Commission and a Justice in the Supreme Court of British Columbia.

It appears that maybe the approach utilized by Pearse in the 1980s commission and the approach that is being set up by the Cohen Commission might explain why a judge was appointed to the Fraser sockeye investigation.

Justice O’Connor points out:

… inquiries have, in my view, tended to overuse the evidentiary, adversarial type of hearing process suited for legal trials to gather information.  I think that we have yet to take full advantage of all of the possibilities for different processes that can be tailored to meet the need of investigating and reporting on the various types of matters set out in inquiry mandates.  I believe that greater creativity and flexibility in fact-determining processes will ultimately improve the inquiry process from the perspective of all participants, increasing responsiveness, decreasing cost, and ultimately improving the process and results of public inquiries.In my view, there is a real advantage to directly involving groups and individuals in the inquiry process, rather than having them participate only through lawyers.  This is particularly the case where the participants have experience, expertise and an understanding of issues under consideration.  From a cost perspective, minimizing the involvement of legal counsel, when not necessary, can result in a significant cost reduction.

Unlike criminal or civil trials, inquiries do not need to be conducted within the confines of the fixed rules of practice and procedures. Inquiries are not trials: they are investigations.  They do not result in the determination of rights or liabilities; they result in findings of fact and/or recommendations.

This goes back to my questions regarding the Cohen Commission website that currently only outlines the process for gaining “standing” which will require a lawyer and engage in the adversarial and procedure-filled process of the law.

It is not clear yet what the other methods of participation will be – and what weight other methods of participation will carry.

Justice O’Connor:

Traditionally, fact-finding inquiries have used public, evidentiary, court-like hearings to gather and test information.  Commission counsel collect and review relevant documents, interview witnesses and then introduce the relevant information through sworn testimony in a court-like setting.  Lawyers for parties with an interest in the inquiry are granted standing and are entitled to cross-examine witnesses, and make closing arguments.

These types of hearings can be very complex, time consuming and expensive.  When public inquiries are criticized, criticisms are frequently directed at the inefficiency of the process, the time involved, and the expense incurred.  Indeed, criticisms of this nature are sometimes used as arguments against holding an inquiry in circumstances which otherwise warrant an independent examination and report.

As Justice O’Connor suggests: “…The facts are the facts, and in many instances it is unnecessary to subject the facts to the adversarial process in order to ascertain the truth… There are alternatives to full blown evidentiary hearings, at least for some parts of the information gathering process.”