In an often adversarial legal world, in which lawyers battle to assign fault, Commissions of Inquiry (royal and otherwise) can contrast as unusually collaborative and forward-facing processes — dedicated to fact-finding and clearing the air, but also committed to resolution and reform.
On a host of critical issues, such as Indigenous rights and governance, commissions at the federal and provincial levels have accelerated — or sometimes stalled — the march toward justice. A huge number have also attracted grumbling that their processes were little more than political distractions, producing doorstop reports that were rushed to the dustiest corner of the Parliamentary Library and left to rest, unimplemented and often unexamined.
Against this complicated history, Allard Law alumni and faculty have been recruited at multiple levels by several recent commissions, applying their skills, their insights and their advocacy not just to contribute to the commissions’ successes, but also to reassure Canadians about the strengths, the potential and the demonstrable value of these wide-ranging legal mechanisms.
A leading voice in this group is Allard Law alum Dr. Kim Stanton (LLB ‘99), who sat as one of three commissioners on the Mass Casualty Commission, the public inquiry into the April 2020 shooting deaths of 22 people in Nova Scotia.
“Commissions are more than just the reports they produce,” Stanton says. First, they are by definition inquisitorial, providing a broad legal mechanism by which to investigate and illuminate issues of critical public concern.
The Mass Casualty Commission, jointly appointed by the federal and provincial governments, had the authority to subpoena documents and require the cooperation of witnesses at all levels of government, as well as in the federally mandated RCMP. It’s unlikely that any other process could have achieved such a comprehensive understanding of what occurred in the 13-hour shooting rampage, what contributed to it, and what might be done, systemically, to prevent such a thing from occurring again.
Stanton also notes that commissions are by nature public. They initiate research and investigations, and they hold hearings at which they receive and reveal information and evidence. Stanton says that on any number of issues — including some that are low profile or poorly understood — “they present an opportunity for the public to become aware.” Even aside from making recommendations, she says, “[Commissions] produce an incontrovertible record — a factual record — after which, what happened cannot be denied.”
This is an aspect of particular interest to Stanton, who is also the author of Reconciling Truths: Reimagining Public Inquiries in Canada, on the role and implications of inquiries such as Canada’s Truth and Reconciliation Commission (2008–2015) and the National Inquiry into Missing and Murdered Indigenous Women and Girls (2016–2019), which were both instrumental in confirming and calling public attention to incidents in Canadian history that had often been ignored or denied.
Getting matters of national interest onto the public record was also a crucial function of the Public Order Emergency Commission (POEC). The Commission was triggered in February 2022, when the Trudeau government declared a national emergency to manage the so-called Freedom Convoy’s occupation of downtown Ottawa, the blockades of Canada/US border crossings, and other protests and obstructions across the country.
Allard Law Professor Dr. Jocelyn Stacey, one of seven members of the commission’s Research Council, says the POEC was unique, and uniquely successful, because rather than having to wait until a government is compelled by circumstances to call a commission, as is usually the case, the Emergencies Act requires that a Commission of Inquiry be completed within a year of any emergency declaration. So the government knew, even as it began contemplating using emergency powers, that all of its decisions and actions would be subject to full public scrutiny.
In that way, Stacey says, this particular commission had an effect even before it was formed. “It was a good example how to ensure public scrutiny of the exceptional use of emergency powers, in a comprehensive and time-sensitive manner,” she says.
Paul Champ (LLB ’99), an Allard alum and Ottawa litigator focused on human rights, employment, labour and constitutional law, says the POEC hearings, which began in October 2022, were particularly welcome among those who had been most directly affected by the long and noisy protest. Champ won standing before the Commission to represent a coalition of Ottawa residents and businesses, all of whom were “looking to get on the record the degree to which the convoy protest was anarchic — a breakdown at all levels.”
So, Champ says, the hearings, in which the level of anarchy was extensively recorded, “were incredibly cathartic for the people of Ottawa.” On days he could be seen cross-examining witnesses in the televised sessions, he says, “Strangers would hail me in the street and say, ‘You’re Paul Champ! Can I buy you a coffee?’”
Champ, who is accustomed to the adversarial nature of most court proceedings, says he was also impressed by the credibility and collegiality of the POEC. “The process says a lot about Canada,” he observes, pointing particularly to the willing participation of the convoy organizers, whom he describes as members of “an anti-authoritarian group with extreme political views” who nevertheless “still felt this was a process they could trust.”
Champ also reports what he describes as “a kind of Stockholm syndrome among the lawyers,” whomever they were representing. He says that he and the convoy organizers’ lawyers would sometimes eat lunch or dinner together and would collaborate when their interests aligned. “We all felt we were working together to tell the story.”
In a third example, the Commission of Inquiry into Money Laundering in British Columbia, the key function of fact-finding was a particularly prominent feature — and ultimately a huge public benefit. Allard Law alum and former Associate Chief Justice of the BC Supreme Court the Honourable Austin Cullen, KC (LLB ’75) was appointed Commissioner in 2019. He credits some early finders of fact with providing inspiration for the Commission in the first place, pointing in particular to some “canny and effective reporters” — especially Sam Cooper, of The Province newspaper and later Global TV — who were tireless in bringing the issue to light.
Cooper and others had produced a steady string of stories on people arriving in BC casinos with hockey bags full of cash, only to gamble, lose a little, and then leave at the end of the night with a cashier’s cheque — the original dollars cleansed of any previous association.
Because a significant amount of the casinos’ profits were going directly into government coffers, Justice Cullen says there was an implication that government ministers might have been turning a blind eye to obvious cash-washing — and to any predicate crimes. No such association was ever proven, but, Justice Cullen says, “A concern about corruption is a good reason to have a commission.” He adds that it was “enormously useful to have a thorough and transparent airing. It triggered a lot of useful discussions.”
Justice Cullen says that the Commission was also well informed by two major Dirty Money reports by Allard alum and current President of the International Centre for Criminal Law Reform Dr. Peter German, KC (LLM ’90). These had been commissioned, originally confidentially, by the BC Attorney General, and they had already revealed the likely impact that money laundering was having on such things as real estate, luxury vehicles, professional services and horse racing. During the Commission’s operations, it also became clear that some of the money was connected directly to the importation and sale of drugs such as fentanyl — a crime that was more profitable to commit precisely because that income could be washed and reused.
While Commission of Inquiry veterans point out the value of deep investigation and wide public disclosure, that doesn’t mean they are less than determined to bring full effect to the ultimate opportunity — to use commission findings and recommendations to change policy positively for the future.
Allard Law Professor and alum Dr. Emma Cunliffe (LLM ’03, PhD ’09) worked with Stanton on the Mass Casualty Commission as its Director of Research and Policy, charged with building a knowledge base on which the Commission could make novel, pragmatic recommendations with the best chance of actually being implemented. Cunliffe says, “We wanted to be sure [the Commission] was not a box-checking exercise that would be quickly shelved.”
With help from a team including Emma Ronsley (JD ’18), an Arvay Finlay litigator who had also worked as Cunliffe’s research assistant during her studies at Allard, they read widely among reports from previous inquiries, looking for what had been recommended, what had been implemented, what had not been implemented — and then trying to determine why not. They then worked to fill knowledge gaps, through documentary research, by commissioning expert reports and by running public roundtables at which experts and community members could discuss key issues.
Other Allard Law professors contributed their expertise to the research and policy work of the Commission, including Dr. Benjamin Goold, Isabel Grant and the Honourable Lynn Smith, OC, KC (LLB ‘73).
Ronsley says that working with the Commission, already an honour for someone who had only been called to the bar earlier the same year (2020), was exciting for its potential. She says that while litigation is backward looking — you narrowly define an issue, establish liability and prove damages — commissions are forward looking: “They are oriented toward finding the truth and sharing that finding with the public, and then looking to the future to determine how to make it better — something you rarely do in litigation.”
That said, Ronsley is also pragmatic about the prospects of quick change. The Mass Casualty Commission focused on a host of topics, including access to arms, policing, mental health and gender-based and intimate-partner violence. Ronsley says, “These are deep-seated systemic issues — things that will require a lot of will and effort. You can’t solve gender-based violence with a one-off training course.”
Stanton finds a degree of hope in that practical, long-term perspective. She says, “It’s not just a matter of getting recommendations implemented immediately. It’s an opportunity to shift the narrative over time.” As an example, Stanton points to the impact of Indian Residential Schools, a topic that was notjust ignored but actively avoided through much of the last century.
That started to change in the 1970s, when the late Justice (and Allard alum) Thomas Berger, OC, OBC, QC (LLB ’56) included a paragraph on the subject in his commission report from the Mackenzie Valley Pipeline Inquiry. Twenty years later, the report of the Royal Commission on Aboriginal Peoples included a full chapter on the subject, and by the early 2000s, in the midst of settlement suits involving the federal government and the Catholic Church, the issue was a forcing factor for the establishment of the 2008– 2015 Truth and Reconciliation Commission of Canada.
Stanton says, “It’s a 40-year arc, in which the public starts to understand something that is not easy to contemplate or take in. But if you hear it enough, you begin to see a shift.” You also better understand “how commissions contribute to social justice over time.”
That said, commissioners, researchers and legal staff alike still wait anxiously for action on reports already filed. Justice Cullen, for example, points out that “criminologists have reported that $40 billion a year is laundered in Canada,” and given what he learned during his own commission, “that seems to fall within a reasonable range.” So, he is very keen to see uptake on one of his principal recommendations, the establishment of an anti-money-laundering commission — an independent office of the legislature designed to monitor the effectiveness of anti-money-laundering efforts, to identify emerging areas of vulnerability, and to work with enforcement bodies to limit the damage.
Stanton, too, mixes the practicality of her patient perspective with a different and more urgent kind of pragmatism. Looking at her own commission, she says, “It’s up to government to implement the recommendations or risk seeing history repeat itself.” There’s no question that the issues are complex and that, even after an excellent process, they resist solutions. And the Mass Casualty Commission’s recommendations were wide ranging: “It’s expensive to implement,” she says, “but more expensive not to.”
The article was originally published in the 2024 issue of the Peter A. Allard School of Law's alumni magazine.
