Tuesday, May 03, 2005

Waiting and waiting for Gomery

Andrew Coyne summarily dismisses recent speculation about “paragraph k” of the Gomery Commission’s terms of reference and the limitations it might impose on Gomery’s ability to assign blame in his blog yesterday.

On the surface, he appears right. But after a little searching, I discovered that the Krever public inquiry into Canada’s blood system provides a relevant precedent. Like other public inquiries, it would appear that the Krever Commission had a similar clause in its terms of reference regarding conclusions of criminal or civil liability.

What is interesting about the Krever case is that after years of legal wrangling, which went all the way to the Supreme Court, Justice Krever’s right to assign blame was ultimately affirmed (see Mapleleafweb for a useful overview of the powers of public inquiries and a summary of the Supreme Court’s decision in the Krever case).

But what the Krever case also shows is that if misconduct is found, named parties are prone to engage in legal tactics to prevent or delay the release of an inquiry’s report. The timeline of the Krever Commission is quite revealing:

  • October 1993 – Krever Public Inquiry into the Canadian blood system established
  • December 1995 – Krever gives notice to 95 persons, corporations and governments about possible misconduct
  • January 1996 – a group of the named parties asks the Federal Court of Canada to prevent the Commission from making findings of misconduct
  • June 1996 – Federal Court rules that the Commission may make allegations of misconduct
  • January 1997 – Federal Court of Appeal upholds decision
  • September 1997 – Supreme Court, in a unanimous decision, affirms Krever’s right to make allegations of misconduct
  • November 1997 – final Krever report released

The whole process took more than four years. So what are the prospects for similar legal interventions by named parties to derail the conventional view that Gomery will report this year, with an election held by March 2006?

Jean Chrétien is already challenging Gomery’s right to head the inquiry in Federal Court. As the report deadline approaches, you can count on other legal interventions by parties likely to be named in the report.

In my view, the conventional view of a winter 2006 election is looking like a best-case scenario. And Paul Martin knows it.