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


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

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions