Canada: The Charbonneau Commission – Preserving Confidentiality Or Defending Oneself: Why Have To Choose?

The awarding of public contracts in the construction industry1, the deployment of troops in Somalia2, espionage at the outset of the Cold War3: commissions of inquiry have punctuated and shaped the recent history of our country. But in getting to the heart of important social issues, they often adversely affect the private interests of those involved in them.

Commissions of inquiry are a unique and indispensable tool for investigating matters of public interest. What is unique about them is their complete independence and the total immunity enjoyed not only by the commissioners4, but also by the witnesses summoned before them5.

The corollary is that their hearings are public, which serves both to inform the public and, more fundamentally, to ensure the fairness and legitimacy of the entire process. That said, the media are often quick to report on evidence that comes to light at the hearings down to the most minute detail and insignificant anecdote, and often with little regard toward the value or reliability of such evidence. With the advent of new communications technologies, this aspect of commissions of inquiry has been greatly exacerbated, to the delight of the public, though at the expense of the individuals testifying and those named in their testimony, who often become victims of the flexible rules of evidence that prevail at commission hearings.

The paradox between open public hearings and individual privacy rights was raised during the Charbonneau Commission. After the testimony phase had concluded, the Commission sent out prior notices to several individuals informing them that it would potentially be making unfavourable conclusions in their regard ("Prior Notices"). Pursuant to the Commission's rules of procedure ("Rules") the content of the Prior Notices remains confidential. However, the Rules are silent regarding the procedure for the contestation of Prior Notices, and more importantly, as to whether such contestations will be confidential6. Therefore, any potentially unfavourable conclusions could ipso facto become public.

The paradox stems from the fact that, as the Commission itself explained after a request for an in camera contestation by an individual, a person who has received a Prior Notice is forced to choose between two rights, the right to confidentiality and the right to contest the Prior Notice7.

In order to resolve this problem, the Commission invited interested parties and the media to submit their respective arguments in favour of in camera contestation hearings or public ones.

The persons to whom Prior Notices were addressed raised the problem of the major stigma that would attach to their reputations in the event of a public contestation of the Prior Notices which, it should be noted, were sent even where there was but a mere possibility of unfavourable conclusions being rendered. In addition, it was pointed out that the very purpose of a Prior Notice was to protect the individual's reputation by allowing him or her to answer to the allegations contained therein without the risk of a rush to judgment by the media and the public. In other words, the persons to whom Prior Notices were sent essentially argued that the benefits of non-publication outweighed the prejudicial effects of closed-door hearings of the contestations.

The media, on the other hand, made the exact opposite argument, maintaining that non-publication would be a serious infringement of freedom of expression, a fundamental value of our democratic system, and that in the event of a conflict between private and public interests, the latter should prevail. The media also maintained that by deciding to contest a Prior Notice, the individual thereby waived the confidential nature of its content, as the contestation hearings were necessarily public. In short, it was a stalemate!

The Commission ultimately decided on a publication ban until its final report was submitted. Its decision thus allowed affected individuals to defend themselves before the Commission without the risk of being ipso facto found guilty in the court of public opinion. However, their written arguments would become public, but only after the Commission's final report has been submitted.

Written in collaboration with Julien Rheault, lawyer

Footnotes

1 Commission of Inquiry on the Awarding and Management of Public Contracts in the Construction Industry, 2011 (the "Charbonneau Commission")

2 Commission of Inquiry into the Deployment of Canadian Forces to Somalia, 1995

3 Kellock–Taschereau Commission, 1946

4 An Act Respecting Public Inquiry Commissions, CQLR, c. C-37, s. 16

5 Ibid., s. 11

6 These prior notices inform the persons to whom they are addressed that unfavourable factual conclusions could be made against them in the Commission's final report. The Prior Notices give the individuals concerned the opportunity to present rebuttal evidence in their defence

7 Décision sur la publicité des audiences en réponse aux préavis de conclusions factuelles défavorables [Decision on whether hearings to respond to prior notices of factual conclusions should be public], April 9, 2015, par. 57

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