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Public Inquiries ALBERTA LAW REFORM INSTITUTE EDMONTON, ALBERTA PUBLIC INQUIRIES Issues Paper No. 3 November 1991 ISSN 0838-051 1 ISBN 0-8886-4175-3 ALBERTA LAW REFORM INSTITUTE The Alberta Law Reform Institute was established on January 1,1968, by the Government of Alberta, the University of Alberta and the Law Society of Alberta for the purposes, among others, of conducting legal research and recommending reforms in the law. Funding of the Institute's operations is provided by the Government of Alberta, the University of Alberta, and the Alberta Law Foundation. The Institute's office is at 402 Law Centre, University of Alberta, Edn?g ton, Alberta, T6G 2H5. Its telephone number is (403) 492-5291; fax (403) 492-1 0. The members of the Institute's Board of Directors are C.W. Dalton; The Hon. Mr. Justice J.L. Foster; A. Fruman; A.D. Hunter, Q.C. (Chairman); W.H. Hurlburt, Q.C.; H.J.L. Irwin; D.P. Jones, Q.C.; Professor F.A. Laux; Professor J.C. Levy; Professor P.J.M. Lown (Director); The Hon. Madam Justice B.L. Rawlins; A.C.L. Sims, Q.C.; and C.G. Watkins. The Institute's legal staff consists of Professor P.J.M. Lown (Director); R.H. Bowes; C. Gauk; J. Henderson-Lypkie, M.A. Shone and E.T. Spink. W.H. Hurlburt, Q.C. is a consultant to the Institute. PREFACE and INVITATION TO COMMENT This Issues Paper is published by the Alberta Law Reform Institute in order to stimulate discussion about the form, content, function and operation of the Public Inquiries Act (Alberta). It is the Institute's intention, following consultation on the issues relating to public inquiries, to make a final report setting out the Institute's proposals with respect to that act. These could involve the repeal, reform or continuation of the act. The Institute has noted with pleasure that the Ontario Law Reform Commission has on foot a similar, though not identical, project on public inquiries. The resulting exchange of views and research materials between the Commission and the Institute at a late stage of the preparation of this issues paper has been beneficial, as will be the results of the studies of the two bodies. The Institute is grateful to Ms. Rosalie Abella, Chairperson of the OLRC, and to the OLRC's project research director, Professor Kent Roach, for the cooperative and open approach they have taken to the conduct of the two projects; and to the authors of the OLRC research papers: Professors Jamie Benidickson, Marilyn L. Pilkington, Alan Mewett, and Alan Young. Since all the federal, provincial and territorial jurisdictions of Canada have similar legislation, the Institute hopes that this issues paper will be of interest throughout the country. It intends to distribute the paper outside as well as inside Alberta and to try to obtain the benefit of the expertise of persons outside as well as inside Alberta who have had experience in or given thought to the conduct of public inquiries in Canada. The Institute therefore solicits the views of all persons interested in the subject. Views can be communicated in writing to The Director, The Alberta Law Reform Institute 402 Law Centre University of Alberta Edmonton, Alberta T6G 2H5 Fax no. (403) 492-1790 Views can be communicated orally either to W.H. Hurlburt (403) 492-1795 or to Peter Lown, Director of the Institute, at (403) 492-3374. Views may cover any or all of the issues raised by the issues paper or any other issues that the commentator thinks should be considered in a review of a public inquiries act. Please refer, where applicable, to specific issues or pages to which comments are addressed. The Institute requests that all views be communicated to it by March 15, 1992. After that date, while the Institute will consider views received until it formulates its final proposals, views may be too late to infuence its consideration. PUBLIC INQUIRIES Table of Contents TABLE OF ABBREVIATED REFERENCES ........................ v LIST OF ISSUES RAISED BY THIS ISSUES PAPER ................ vii CHAPTER 1 -- INTRODUCTION ............................... 1 A. Purpose of Paper .................................. 1 B. Incorporation of the Public Inquiries Act by Other Provincial Statutes .......................................... 1 C . Relationship to the Institute's Administrative Procedures Project .......................................... 2 D . Limitations on Scope of Proposed Project ................ 2 E. Background Information ............................. 3 (1) Public Inquiries Legislation in Canada ............. 3 (2) Public Inquiries Legislation in Alberta ............. 4 (3) Terminology ................................. 6 (4) Reasons for Using Public Inquiries Legislation ....... 7 (5) Authority to Establish Inquiries under the Act ....... 7 (6) Nature and Purpose of Public Inquiries ............ 8 (a) Fact-finding and recommending ............. 8 (b) Distinction between advisory and investigatory inquiries .................... 9 (7) Selected List of Alberta Inquiries ................. 10 F. Law Refonn Commission of Canada Recommendations ..... 11 CHAPTER 2 -- MAJOR POLICY CONSIDERATIONS .............. 14 A. Introduction ...................................... 14 B. Efficiency ........................................ 14 C . Protection of Individual Rights ........................ 15 D . To Codify or Not To Codify .......................... 18 E. Time and Cost: Balancing Efficiency and Protection of Individual Rights .................................. 18 F. Constitutional Issues ................................ 21 (1) Division of Legislative Powers ................... 21 (2) The Canadian Charter of Rights and Freedoms ....... 23 CHAPTER 3 -- APPOINTMENT AND POWERS ................... 25 A . Appointing Authority ............................... 25 (1) Establishment of Public Inquiries: Present Act ....... 25 (2) Establishment of Public Inquiries under a New Act ... 26 (3) Possible Limitations on the Power of Establishing Public Inquiries ............................... 27 B . Independence of Commissions of Inquiry ................ 29 C. Conferring Coercive Powers .......................... 33 CHAPTER 4 -- COERCIVE POWERS ............................ 38 A . Introduction ...................................... 38 B. Compelling Testimony and Production at a Hearing ....... 38 (1) Description of Powers .......................... 38 (2) Exercise of Powers ............................ 38 (3) Extent of Power to Order Production .............. 39 (4) Disposition of Documents Produced ............... 40 (5) Limits on Coercive Powers ...................... 41 (a) Evidentiary privileges ..................... 41 (b) Protection against self-incrimination .......... 45 (i) Testimony ......................... 45 (ii) Documents. papers and things ......... 49 (iii) Section 7 of the Charter .............. 54 (c) Enforced production as seizure .............. 54 (6) Issues About the Power to Compel Testimony and Production .................................. 57 C . Search and Seizure ................................. 58 D . Enforcement and the Contempt Power .................. 59 E. Delegation of Power ................................ 62 F. Extra-provincial Facts and Evidence .................... 63 CHAPTER 5 -- CONDUCT OF THE INQUIRY .................... 66 A . Commission Counsel ............................... 66 B . Evidentiary Matters ................................ 70 C . Hearings ......................................... 72 D . Media Reporting ................................... 75 E. Establishing Rules of Procedure ....................... 77 F . The Commission's Report ............................ 78 CHAPTER 6 -- PROTECTION OF RIGHTS OF INDIVIDUALS ....... 80 A . Introduction ...................................... 80 B. Fairness ......................................... 81 (1) The Doctrine of Fairness ........................ 81 (2) Application of a Duty of Fairness to Public Inquiries . 82 C . Specific Protections ................................. 85 (1) The Right to Know the Case Against One ........... 85 (a) Receiving evidence in the absence of person involved ............................... 85 (b) Notice of allegations ...................... 86 (2) The Right to Respond: Testifying. Calling Witnesses and Cross-examining Other Witnesses ............. 89 (3) An Unbiased Arbiter .......................... 92 (4) Right to Counsel .............................. 92 (5) Cost of Participation and Representation ........... 93 (6) Right to Examination by Own Counsel ............. 95 (7) Double Jeopardy and Fair Trial ................... 97 D. Legislation of Protections ............................ 98 CHAPTER 7 -- JUDICIAL REVIEW ............................. 99 A . Introduction ...................................... 99 B . When Judicial Review Applies ....................... 100 (1) General Limitation ........................... 100 (2) The Public Inquiries Acts ...................... 100 (3) Traditional View of the Courts .................. 101 (4) Constitutionality of Inquiry .................... 101 (5) Authority for Establishment of Inquiry ............ 102 (6) Terms of Reference ........................... 102 (7) Statutory Procedural Requirements ............... 103 (8) Exceeding Powers ............................ 103 (9) Lack of Procedural Fairness .................... 104 C . When and How Judicial Review Should Apply .......... 104 (1) When. if Ever. a Commission of Inquiry Should be Subject to Judicial Review ...................... 104 (2) Grounds ................................... 107 (a) General summary ......................
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