Public inquiries: Unchartered ground for lawyers

When Simon Ruel was recently beckoned to be deputy chief counsel of the Bastarache Commission, the Montreal lawyer was delighted to have an opportunity to leave his imprimatur in the inquiry into alleged political interference in the nomination of Quebec judges even though he was mindful of the long grind that awaited him.

An experienced civil litigator, Ruel is well-versed with the inner workings of public inquiries. Senior counsel on the government litigation team at the Gomery Commission and commission counsel with the Cornwall sex scandal Public Inquiry, Ruel penned “The Law of Public Inquiries in Canada,” a recently published book that examines the legal and strategic issues behind inquiry bodies.

“It’s a privilege,” remarked Ruel, counsel at the civil litigation services of the federal Department of Justice. “It’s not often that lawyers have an opportunity during their careers to represent a matter of public interest on specific incidents in a neutral and objective manner. It is very interesting work.”

Though literally a staple of the Canadian legal and political landscape, with more than 1,500 federal public inquiries launched since Confederation, it remains unchartered ground for most lawyers. Often perceived as a means for government to delay action, public inquiries can – and repeatedly have – served as vehicles for examining and analyzing policy in ways that the justice system cannot, notes Ruel. Some inquiries have had such a notable impact that it has led to the creation of new institutions, such as the Canadian Security Intelligence Service spawned after the MacDonald Commission or the Canadian Blood Services following the Krever Commission.  Others, such as the Walkerton Inquiry into the E.Coli contamination of the water supply, instigated legislative amendments.

“Lawyers generally play two or three roles in an inquiry, that is, either act as a counsel for the commission or represent a witness or a participant,” said Marie Cossette, of Langlois Kronström Desjardins in Montreal, who took part in three public inquiries. “In all of these cases, in order to be able to effectively fulfill his role and play an influential role in the proceedings, lawyers must understand how inquiries function. But in general that is not the case.”

Inquiries, like the judiciary, are independent, often endowed with wide-ranging investigative powers, convened in the wake of public shock, horror, disillusionment, or skepticism to uncover the “truth,” as Supreme Court of Canada Justice Peter deCarteret Cory put it in Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), [1995] 2 S.C.R. 97. Its rules and procedures, however, are far more supple than those governing the courts, with rules of evidence for instance allowing for hearsay to be introduced. They are also open and public in nature, airing on television or increasingly on the Internet, in a bid to help the public to understand the stakes, allow them to keep abreast of developments during the proceedings, and in some cases even enable them to vent their frustrations.

But the combination of the presence of the cameras along with its compliant rules and procedures can make it for tough slogging for lawyers involved in inquiries, particularly commission of inquiries, notes Sylvain Lussier, a Montreal lawyer with Osler, Hoskin & Harcourt LLP who was the Government of Canada’s attorney before the Gomery Commission. While the findings of a commissioner cannot result in either penal or civil consequences for a witness, Lussier points out that it can lead to “collateral damage” or taint a person’s reputation. Indeed, a good reputation for most people is a person’s most highly prized attribute, notes the SCC in Canada (Attorney General) v. Canada (Commission of Inquiry on the Blood System), [1997] 3 S.C.R. 440. With so much at stake, inquiries often end up adversarial, weighed down by an atmosphere more akin to an acrimonious trial than a fact-finding mission.

“The price that people pay is often too high but it seems that it’s a necessary evil,” remarked Lussier, who strongly recommends lawyers about to embark in a public inquiry to get some expert media coaching in order to avoid the pitfalls. “Due to the attention of the media, not only do you have to calculate the impression you are going to make on the commissioner, with your questions and interventions, you also have to calculate the impression you are going to make on television, on the media. So you end up having to weigh what is going to be less damaging for your client.”

While conceding that it can be quite a challenge, Ruel urges commission counsel and lawyers representing participants and witnesses to cooperate in order to avoid lengthy delays and interminable legal disputes. “From my perspective and having lived through it, in order for a commission of inquiry to function in a harmonious manner, all parties have to make concessions to avoid conflict,” said Ruel. “There is great value to having constant dialogue between the parties to ensure procedural fairness.”

Lawyers also have to be aware of the importance of strategic planning, added Ruel. Lawyers must ask themselves fundamental questions such as if they are going to collaborate, how are they going to do so; what spin are going to give to the evidence and testimony; how are they going to cross-examine and who is going to do it, all the while keeping in mind that in many public inquiries political considerations have to be considered.

“Working in public inquiries requires far more than just legal preparation,” said Ruel. “Strategic considerations are important. One has to understand what is at stake andequally important understand what’s at stake for your clients.”

But regardless of whether they act as commission counsel or represent either participants or witnesses, lawyers too must be prepared to pay a price, warns Cossette. Most cases before public inquiries are complex and extremely time-consuming. Lawyers therefore should ensure that they have enough time on their hands to be able to read, analyze, and understand the case just as they would in a “lengthy trial,” added Cossette, who was counsel at the Gomery commission,  deputy counsel to the Commission investigating the Concorde overpass collapse, and represented Quebec’s provincial police officers at the Poitras Commission.

Lussier takes it a step further. He says that lawyers should expect their practice to take a hit.

“It makes a big dent in your practice because it becomes your one file,” said Lussier. “You cannot develop your practice. In fact, in some sense it can be damaging because whatever existing files you have you have to pass it on to your partners and you certainly can’t take on new mandates.”

Yet despite the challenges, neither Cossette, Lussier or Ruel would even conceive of passing up the chance to work at a public inquiry. The mandates are fascinating, the work is rewarding, and you end up working with la “crème de la crème as it’s always the top lawyers who take part in inquiries,” says Cossette.

This story was originally published in The Lawyers Weekly.

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