Mr. Speaker, I am pleased to have the opportunity to debate the motion by the hon. member for Saanich—Gulf Islands on section (k) of the terms of reference of the Commission of Inquiry into the Sponsorship Program and Advertising Activities.
The motion asks us to amend section (k) of the commission's terms of reference to allow the commissioner, Mr. Justice John Gomery, to name names and assign responsibility.
My aim today is to have members understand why the House should not call for the amendment of the terms of reference, but rather oppose it, for a number of reasons. The motion is inappropriate, without merit, redundant and prejudicial to the independence and conduct of the commission.
Need I point out that the government established a commission under part I of the Inquiries Act? In other words, it is a commission of inquiry and not a court. It is important to remember and stress this distinction.
Those watching the commission's proceedings on television, following the examinations and cross-examinations of countless witnesses, who know that the commissioner is a judge of the Quebec superior court, might, however conclude that a trial is going on.
Also, the confusion is due in part to the Inquiries Act, which gives the commissioners the same powers as judges. Under section 4, they have the power to summon witnesses, require them to give evidence and produce documents and other things. Under section 5, they have the same power to enforce the attendance of witnesses and compel them to give evidence as is vested in any court of record in civil cases.
However, no section of the Inquiries Act gives a commissioner of a commission of public inquiry the power to render a decision like a judge can. Instead, such commissioners play the role of investigators who counsel or assist the government on matters relating to the good governance of Canada or the administration of public affairs.
This is exactly the case with the Gomery commission. The government established it, and I quote:
—to investigate and report on questions raised ... by Chapters 3 and 4 of the November 2003 Report of the Auditor General of Canada ... with regard to the sponsorship program and advertising activities of the Government of Canada ... and to make any recommendations that he considers advisable, based on the factual findings made ... to prevent mismanagement of sponsorship programs or advertising activities in the future.
We have stressed this numerous times: it is important to our government for the Gomery commission to continue its inquiry, make its recommendations and report back to us. We are committed to following up on the recommendations that Justice Gomery will present in his final report.
The government has acted in accordance with legislation passed by this Parliament, meaning the Inquiries Act, and with the relevant case law by not asking the Gomery commission to determine civil or criminal liability. That is why section (k) in the Gomery commission's terms of reference is not unique; it appears in the terms of reference of other commissions of inquiry.
Accordingly, section (k), it states:
the Commissioner be directed to perform his duties without expressing any conclusion or recommendation regarding the civil or criminal liability of any person or organization and to ensure that the conduct of the inquiry does not jeopardize any ongoing criminal investigation or criminal proceedings;
However it does not preclude findings of misconduct against individuals pursuant to section 13 of the Inquiries Act under which the Gomery commission was established and it is this vital distinction that is not appreciated by the members of the opposition.
It is important to understand that a commission of inquiry is not a court or a tribunal. It does not follow the same laws of evidence or procedure that a court or tribunal would observe. No matter how carefully a commission of inquiry conducts its hearings, it cannot provide the evidentiary or procedural safeguards that prevail at a trial.
What we have observed at the Gomery commission is typical of commissions of inquiry: evidentiary rules have been relaxed and people have been summoned by subpoena to testify about their actions and the like. It is important to point out that a commission of inquiry, which sets out to make findings of criminal or civil liability against persons from whom it is compelled testimony, would infringe the fundamental rights of those persons and run a very high risk of being struck down by the courts as set forth in their judgments themselves.
For example, in Canada, A.G. v. Canada , Commission of Inquiry on the Blood System, the Supreme Court of Canada stated:
A public inquiry was never intended to be used as a means of finding criminal or civil liability. No matter how carefully the inquiry hearings are conducted they cannot provide the evidentiary or procedural safeguards which prevail at a trial. Indeed, the very relaxation of the evidentiary rules which is so common to inquiries makes it readily apparent that findings of criminal or civil liability not only should not be made, they cannot be made.
I might add that collective or conclusory indictments of the opposition alleging Liberal fraud, Liberal theft and ongoing collective indictments, undermine the foundational principles of the rule of law, which are organized around principles of individual responsibility not collective indictments, which are organized around principles of presumption of innocence not predetermination of guilt and, most particularly, with regard to the Gomery commission, seek to short-circuit the Gomery commission before all the evidence has been heard, before all the arguments have been framed and before conclusions can be drawn and recommendations made by the Gomery commission itself.
What we should seek, opposition and government alike, is the opportunity for the Gomery commission to conclude its proceedings pursuant to the rule of law, make appropriate findings of fact and make appropriate recommendations which would be in the public interest to prevent any actions or misconduct from ever occurring again.
The Supreme Court of Canada held in Starr v. Houlden:
The inquiry process cannot be used to circumvent the federally prescribed criminal procedure. It is coercive and quite incompatible with our notion of justice in the investigation of a particular crime and the determination of actual or probable criminal or civil responsibility.
We must appreciate the distinct roles of commissions of inquiry and of courts and tribunals. Commissions of inquiry are not courts of law.This leads to a second reason why section (k) of the terms of reference should not be amended in the way proposed by the hon. member. Simply put, it would jeopardize ongoing criminal investigations and criminal proceedings which I trust the opposition has a shared commitment in seeing that those proceedings continue.
The hon. member's motion regrettably appears to have ignored this important aspect of section (k). As hon. members know, the government referred certain matters to the RCMP for investigation as did the Auditor General. The RCMP has laid charges against four individuals. We have every reason to believe that its investigations are continuing while the hearings of the commission of inquiry have been under way.
Section (k) of the terms of reference ensures that there are no negative consequences from the overlap between the criminal process and the Gomery commission of inquiry as mandated by the courts themselves. Indeed, the courts have discussed the overlap between commissions of inquiry and the criminal process.
In Nelles v. Grange, the Ontario Court of Appeal found that although the commissioner was directed to inquire into and report upon the means by which the children came to their deaths, the order in council specifically limited the commissioner by forbidding him to express any conclusion of law regarding matters of civil or criminal responsibility. It further stated that although the commissioner's findings and conclusions would not be binding, they would be considered by the public as a determination and could seriously prejudice any person named in subsequent proceedings, a principle that would be applicable to the present situation.
What the hon. member's motion would have this House do is potentially jeopardize current and future attempts to hold individuals accountable through ongoing and subsequent criminal prosecutions. In a word, this motion would undermine the rule of law, prejudice the independence of the Gomery commission and jeopardize further criminal prosecutions.
I will give the member a third reason why section (k) of the terms of reference must not be amended, namely that of procedural fairness. The motion would change the rules of the game for all parties to the proceedings of the Gomery commission. Most importantly, it would force the government to change the rules not at the start of hearings, but as the testimony is winding down.
With this motion, the hon. member is attempting, involuntarily, it might be said, to expose the commission and the government to legal risks. We could expect the parties to the proceedings to call it unfair, in terms of procedure, to amend the terms of reference of the commission after they have testified. We could also expect long judicial review proceedings to result.
I am sure the opposition MPs are just as impatient as the members on this side of the House to read the final report Justice Gomery is to table in December.
If members of the opposition anticipate this report as much as we do, then why would they want to propose an amendment that could have, even unintended, the effect of retarding, if not prejudicing, the continuation of the Gomery commission itself?
I want to be clear. The rules cannot be changed in such a way as to put procedural fairness at risk or delay the tabling of the Gomery commission report.
I am coming to the final reason MPs will want to reject this motion: the amendment could be redundant. In other words, to the extent that the motion aims simply to enable the Gomery commission to draw conclusions in determining whether there has been misconduct and who appears to be responsible for it, the commission is already charged with this duty.
On this point, I would remind members what Mr. Justice Gomery said in his opening statement on May 7, 2004:
I am entitled to draw conclusions as to whether there has been misconduct and who may be responsible for it. Such findings will be the focus of the Inquiry only to the extent that they are necessary to carry out the mandate in the terms of reference.
The Supreme Court of Canada has used similar terms:
—the commissioner may have to assess and make findings as to the credibility of witnesses.
—may draw appropriate conclusions as to whether there has been misconduct and who appears to be responsible for it.
The wording of section (k) of the Gomery commission's terms of reference complies with court guidelines, including those of the Supreme Court of Canada. On the one hand, the commissioner must not express any conclusion or recommendation regarding the civil or criminal liability of any person or organization. The courts, moreover, have made it clear that such is not the role of a commission of inquiry. On the other hand, there is nothing to prevent the commissioner from draw appropriate conclusions with respect to possible misconduct and to say who might be responsible for it. This is a very important distinction and one that is crucial to an understanding of the inquiry process.
In fact, in his opening statement, Justice Gomery made it clear that he understood that possibility was open to him:
Nevertheless, although the commission will not, and indeed cannot, express conclusions or recommendations in relation to the potential civil or criminal liability of anyone, it is part of its mandate to assess the evidence and to make findings of fact, such as findings with respect to the credibility of witnesses. According to s.13 of the Inquiries Act, which will be discussed in more detail later, I am entitled to draw conclusions as to whether there has been misconduct and who may be responsible for it. Such findings will be the focus of the Inquiry only to the extent that they are necessary to carry out the mandate in the terms of reference.
I hardly need remind hon. members that the present government is the one that struck the Gomery commission in a desire to get to the bottom of the situation. We are anxious to find out what is in the report, which is slated to be released in December, and we are determined to implement its recommendations.
If the hon. member's motion to allow Justice Gomery to name names and assign responsibility would allow the commission to draw conclusions on civil or criminal responsibility, I cannot support this motion.
If I did, I would be ignoring the distinction between the role of commissions of inquiry and of courts. I would risk jeopardizing any attempt to hold those concerned criminally responsible for their actions. I would be changing the rules and that could be detrimental to procedural fairness and prevent the publication of the commission's report. I would be compromising the commission of inquiry itself and its ability to present its report, thereby creating the possibility that it would be abolished on the pretext that it is violating basic human rights. I would be ignoring the fact the Gomery inquiry already has the authority to express pertinent findings on whether there was wrongdoing and who seems to be responsible.
As Minister of Justice and Attorney General of Canada, I must respect the rule of law. Any support for the motion would be given in total disregard for the decisions made by the highest court of the land, the Supreme Court of Canada.
As I have mentioned, Justice Gomery already has the power to draw conclusions of misconduct against individuals under section 13 of the Inquiries Act. If this is the objective of the proposed amendment, it would be redundant. If, however, as I said, it seeks to assign civil or criminal liability against individuals, such an amendment could jeopardize the inquiry for the reasons already mentioned above. Either way, it is clear that the amendment should be opposed.
I invite all hon. members to vote against this motion since it is inappropriate, unnecessary, unfounded, redundant and detrimental to the commission.