The Public in Action: The Potential for Public Inquiries to Realize Deliberative Democracy: A Case Study of the Mass Casualty Commission

by Grace Bryson

2023 winner of the "In the Public Interest" Student Essay Contest

Introduction

Public inquiries have the potential to be flourishing sites of deliberative democracy. But in their current form, public inquiries fail to promote meaningful public participation because they rely on shallow forms of participation that do not challenge the status quo or prompt radical policy change. In this paper, I argue that public inquiries are well-suited to become spaces of meaningful engagement and deliberative democracy. To accomplish this, public inquiry procedures must be purposely crafted to be inclusive of the public they are seeking to engage. Without meaningful public participation, public inquiries are merely another state-created policy-making centre, lacking citizen input. If the purpose of public inquiries is to investigate tragedies and propose recommendations that will be supported in their implementation, the public must be involved. The goal of this paper is to advance the argument that public inquiries have the potential to be forums of deliberative democracy and to propose procedural changes to reach this potential.

In Part 1, I explore the role of public participation in public inquiries and the concept of deliberative democracy. This framing supports the argument that public inquiries could be centres for deliberative democracy. Currently, participation is stifled by adherence to procedures that mimic adversarial processes that limit the expression of radical ideas and the inclusion of all people. To address this problem, I address specific procedural elements like the breadth of the mandate, participant standing and funding, and the reliance on adversarial features to determine how public inquiries could be shaped to give the public a more meaningful role. Procedural choices are crucial because public inquiries are powerful in how they conduct themselves, not just in the recommendations they propose. Procedures employed in previous public inquiries will be referenced throughout the paper as successful instances (The Berger Inquiry) or failings (The BC Missing Women Commission) of deliberative democracy.

In Part 2, I examine the Joint Public Inquiry into the Nova Scotia April 2020 Tragedy (also known as the Mass Casualty Commission). Using the criteria developed in Part 1, I explain how the Mass Casualty Commission stifled public participation and lacked features of deliberative democracy. Although positive policy change may result from the recommendations of the Commission, I highlight areas for improvement that future investigative inquiries should consider when developing their procedure to create a more inclusive space that encourages radical participation.

Finally, in Part 3, I make general observations arising from the case study and identify who is best suited to implement these changes. There is no ideal set of procedures that will work for each public inquiry due to the breadth and range of issues that inquiries address. Because of this, I chose not to recommend a set list of procedures, but rather identified changes that could be made to encourage public participation.

Part 1: The Potential for Deliberative Democracy in Public Inquiries

A) Introduction to Public Inquiries

1. Basic Features of Public Inquiries

Public inquiries are independent, temporary bodies convened by governments to examine a particular event or policy issue. Their role is to make recommendations, but they are not involved in their implementation. Public inquiries exist outside of traditional policy-making bodies, established to address issues that the existing branches of government are incapable of handling.¹

As creatures of statute, they are convened by either the federal or provincial governments. This separation is based on the constitutional division of powers, but governments can come together to convene joint federal-provincial public inquiries. Enabling legislation is similar across jurisdictions and gives wide scope to the Commissioners to craft the process according to the issue being addressed.² The ad hoc nature of public inquiries has been credited with their ability to encourage independence and creativity.³

The federal government and all provinces and territories have public inquiries legislation. These statutes give the Governor in Council authority to convene inquiries but leave most procedural decisions up to the appointed Commissioners. For example, the federal Inquiries Act only prescribes when an inquiry can be convened, the power to compel evidence, who can be employed by the Commission, and the requirement to provide notice of alleged misconduct.⁴ Notably, prescriptions about public participation are excluded.

Although they span numerous issues, public inquiries can be grouped into two broad categories: investigative and policy advisory.⁵ Investigation inquiries are concerned with a specific event that reveals the need to reform policy. For example, the Walkerton Inquiry was an investigative inquiry. It investigated the drinking water system in Ontario following the contamination of the town of Walkerton’s drinking water with Escherichia coli, killing seven people.⁶

Policy advisory inquiries often have broader mandates and focus on areas of policy failure whether “economic, social, environmental, or other”.⁷ For example, the National Inquiry into Missing and Murdered Indigenous Women and Girls (the “MMIWG Inquiry”) was a policy advisory inquiry. The MMIWG Inquiry examined the systemic causes of violence against Indigenous women and girls across Canada, investigated cases of women or girls who were murdered or went missing, and considered widespread policy reform to increase their safety and security.⁸

2. Convening Public Inquiries

It is “the limitations of the legislative, executive, and judicial branches of government that are often cited as the reasons” for convening public inquiries.⁹ Public inquiries are convened for any large-scale policy issue that the government is not able to address within existing policy bodies:

“The creation of a public inquiry may be considered when the government is facing a difficult and large-scale event, situation or problem that has serious or wide-ranging legal, policy or political consequences and that may detrimentally affect public confidence in public institutions.”¹⁰

Politics also play a role in the choice to convene a public inquiry. The decision to convene a public inquiry is also discretionary rather than mandated by statute.¹¹ If a government wants to delay its response or shift blame, calling a public inquiry can be a tactical move that takes the heat off the government following a tragedy or failure of public policy. In contrast, governments may be reluctant to convene a public inquiry and public outcry may be required to spur action. For example, the British Columbia Missing Women Commission of Inquiry (the “BC Missing Women Commission”) was called following decades of demonstrations and protests by grassroots women’s organizations that aimed to bring attention to the alarming rate of violence against women in Vancouver’s Downtown Eastside.¹²

Some governments seem to favour public inquiries, perhaps to shift blame or perhaps because they see the utility of public participation in policymaking. Whatever their rationale, governments who call inquiries are choosing to open up policy deliberations to the public sphere since an inquiry presumptively holds hearings in public.¹³ They are creating the possibility of deliberative democracy, whether this is their goal or not.

3. Importance of Procedures

In this paper, I focus on the procedures used in public inquiries to determine whether they promote deliberative democracy, rather than focusing on the policy change following an inquiry. This is because many scholars have argued that the process of a public inquiry can be more meaningful than the recommendations developed.¹⁴ The government that calls an inquiry ultimately chooses whether to implement the recommendations. Although not implementing the recommendations may weaken public support for the government, there have been several instances where the recommendations sit on a shelf for years following an inquiry. The MMIWG Inquiry is a prime example, as scholars have pointed out that the recommendations are “far from being implemented anytime soon”.¹⁵

Although we should be concerned about this lack of implementation, public inquiries can still be effective through their process alone. The process must be rooted in values that meaningfully address the policy issue and are responsive to the concerns of the public. The Commissioners and staff must translate these values into procedures. For example, the Walkerton Inquiry was successful not only because of what it discovered about the drinking water system in Ontario, but because its process was rooted in values of thoroughness, expedition, openness to the public, and fairness. The development of procedures from identified values is important because it sets the stage for more valuable and meaningful public participation that is responsive to the issues. As the 1992 Ontario Law Reform Commission explained, public inquiries:

“… must want to create meaningful change, irrespective of whether its recommendations are adopted or not – it can accomplish such a goal by having a process that becomes the message.”¹⁶

The Supreme Court of Canada reinforced this view in Phillips v Nova Scotia:

“A commission has certain things to say to government but it also has an effect on perceptions, attitudes and behaviour. Its general way of looking at things is probably more important in the long run that its specific recommendations.”¹⁷

Therefore, it is through the selection of procedures that an inquiry can choose to invite deliberative democracy.

B) The Role of Deliberative Democracy

1. The Importance of Deliberative Democracy

Deliberative democracy is a form of public participation that aims to limit the amount of state intervention and emphasizes the role of citizens not typically engaged in policy-making. It advances the idea that “the best policy decisions emerge after careful and thoughtful” dialogue and engagement with affected parties.¹⁸ It also recognizes the shortcomings in our current practice of democracy:

“Although a democracy is supposed to offer its citizens opportunities to participate, most citizens are cut off from a meaningful role in ongoing political activities.”¹⁹

To address these shortcomings, deliberative democracy aims to increase the perspectives and ideas expressed in public forums so that citizens have an opportunity to participate, beyond just voting.²⁰ To be effective, deliberative democracy must be guided by a commitment to policy justice and anti-oppressive practices, since the opinions of equity-seeking groups are often left out of policy discussions.²¹

The objectives of deliberative democracy include offering citizens an opportunity to learn, giving citizens a chance to develop their own communication and reflection abilities, seeking to address the limits of the current government structure, and bringing forward new issues and actors into the policy-making arena.²² The ultimate goal of deliberative democracy is arriving at a common, mutual understanding that has collective weight – something that government-made policies lack.²³

As they are currently structured, public inquiries are confined to how radical they can be. As a state-made forum, public inquiries can serve to reinforce existing forms of oppression and colonialism that are “entrenched by broader systems of governance”.²⁴ This is due to the inherent power imbalance and non-neutrality of state-created spaces for public participation. Despite these limitations, public inquiries should not be thrown out altogether. Their potential to incorporate marginalized views through participation can be realized through procedures that are purposely crafted to encourage deliberative democracy.

2. Public Participation in Public Inquiries

Inquiries bring people to the table who otherwise would not have a role in policymaking.²⁵ At the same time, it is often only corporate groups, formal lobby groups, and government officials who participate.²⁶ This raises the question of how to increase public participation outside of these groups and ensure true deliberative democracy.

Most commonly, the public can participate in public inquiries through public interest groups or community meetings. The role of public consultation is an aspect of virtually every public inquiry.²⁷ There has been a trend in recent years to go into the affected communities before the start of formal hearings. This was done in the Walkerton Inquiry: Commissioner O’Connor started the inquiry by conducting hearings with residents of the town of Walkerton either publicly or in private. Commissioner O’Connor credited this initial building of trust with the community as a key aspect of the inquiry’s success.²⁸ Notwithstanding the positive experience of the Walkerton Inquiry, community hearings and consultation can often be shallow and less meaningful to participants since they are not afforded the same credibility as formal “Participants” in the inquiry.

The objectives and independence of public inquiries demand public participation. Public inquiries are convened because existing policy-making forums are incapable or unequipped to deal with certain issues. Because of the nature of the events or issues under investigation (often of national or regional significance), public participation must be a cornerstone of the process. This is reinforced by the non-binding nature of the recommendations. Ultimately, the public is responsible for holding the government accountable for implementing the recommendations. If the recommendations fail to reflect public opinion and input, there is no incentive to hold governments accountable. Again, the role of the public was affirmed in Phillips:

“Inquiries can and do fulfil an important function in Canadian society. In times of public questioning, stress and concern they provide the means for Canadians to be apprised of the conditions pertaining to a worrisome community problem and to be a part of the recommendations that are aimed at resolving the problem. Both the status and high public respect for the commissioner and the open and public nature of the hearing help to restore public confidence not only in the institution or situation investigated but also in the process of government as a whole”.²⁹

The potential for participation in inquiries is significant. Bessner and Lightstone developed a list of what public inquiries can accomplish: they can provide a forum for concerned citizens to participate in the resolution of issues, they can give the public information upon which to form opinions, they can result in significant impacts on those affected by tragedies through their participation in the inquiry, they can provide healing to affected individuals and communities, and they can divert people from assigning blame to a more constructive role that can lead to reform.³⁰ If realized, each of these accomplishments can increase participatory democracy because people can have their voices heard and contribute to discussions in a thoughtful and productive way.

The Canadian Commission on Democratic Expression recently used citizens’ assemblies to draft recommendations on combatting disinformation spread online.³¹ The goals of citizens’ assemblies are similar to those advocated for in this paper. They bring together a demographic sampling of citizens, chosen through sortition, to draft policy recommendations in an effort to overcome politic stagnancy in policy-making. Lessons learned from this process could be implemented into public inquiries to encourage democracy while being mindful of the limitations of such a forum.

3. Conceptions of the Public

Each public inquiry is unique. It responds to a different set of challenges and seeks to engage different actors. Given this reality, the procedures employed in public inquiries must also be unique. To be responsive, the inquiry needs a clear conception of the “public” they are seeking to engage. However, a common problem in public inquiries is not knowing why the public is participating or who constitutes the public.³²

To address this issue, Salter proposed six conceptions of the “public” in public inquiries.³³ She explained that inquiries should strive to engage multiple conceptions, but one inquiry is unlikely to engage all of them. Early on, an inquiry should consider which conception of the public is best suited to address the issues being examined, with the knowledge that each conception has both advantages and disadvantages.

The first conception is the “public as interest groups” – the most common conception.³⁴ When the public is comprised of interest groups, the policy discussions become negotiations with a compromise of interests. This is a strength because the ultimate negotiated position represents conclusions that multiple groups agree to. However, the downside is that these interest groups are often well-established and frequent participants in the policy discussion. As a result, there is a lack of new perspectives and dialogue from individuals not associated with interest groups.

The second conception is the “public as the disaffected”.³⁵ This conception is often seen where a public inquiry aims to be a healing process following a tragedy. The emphasis is on individuals who have been directly impacted and the public inquiry makes space for them to participate. However, this can lead to a one-sided discussion where those not harmed have no voice and are left out of policy discussions.

The third conception is the “public as about discourse”.³⁶ When discourse is at the centre of an inquiry, there is a greater potential for new ideas and opinions to emerge. It is through dialogue that deliberative democracy can flourish. The downside of this conception is that those who participate might not be interested or affected parties, but rather busybodies, and discussions can easily veer off course. Additionally, if radical ideas emerge and are reflected in the recommendations, the government may not welcome or implement them.

The fourth conception is the “public as expert”, an often-forgot conception.³⁷ When expertise lies with the public, an inquiry must translate public experiences and opinions into policy recommendations. This was a key feature of the 1974 Mackenzie Valley Pipeline Inquiry (the “Berger Inquiry”) which was established to evaluate the Canadian Arctic gas pipeline proposal from the Yukon through the Mackenzie Valley in Alberta. The Berger Inquiry has been praised as a citizen-focused inquiry that invited Indigenous peoples from northern communities into the policy arena.³⁸ By framing the public as experts, Commissioner Berger recognized the affected Indigenous communities as knowledge-holders. The problem with this conception is that the public may be unaccustomed to participating in this manner and be reluctant to engage.

The fifth conception is the “public in need of information and education”.³⁹ By transmitting information through experts, the idea is that the “newly-educated public will then be in a better position to vote, join pressure groups, and otherwise participate in politics”.⁴⁰ The problem with this conception is that people are inherently skeptical of expert opinion and likely will not be “lining up for this education”.⁴¹ The struggle lies in delivering the information in a digestible manner and in a place where people are open to hearing it.

The sixth conception is the “public as public opinion” which relies public opinion to build recommendations.⁴² However, “public opinion” often comes from those who attend hearings and are deemed to represent the public. This pitfall means that perspectives may be one-sided and not truly representative of the public.

Although each conception of the public has a unique role in public inquiries, those who create the inquiry often have a defined image of the public they want to engage and tend to ignore other useful conceptions. But, the public conception imagined is not always well-suited to the issues. Inquiries can easily replicate procedures from previous inquiries without recognizing that participation can, and arguably must, look different between inquiries. In the following discussion of procedural elements, the initial framing of the conceptions of the public will influence what procedures are most appropriate and likely to enhance deliberative democracy.

C) Incorporating Deliberative Democracy into Public Inquiries

1. Problems with the Current Procedures in Public Inquiries

If we imagine a public inquiry process that is responsive to and engaged with the public, what procedures would we choose? What would the role of the public be? How would current processes need to change to bring inquiries closer to being forums of deliberative democracy?

These questions will guide the following examination of procedural elements that influence public participation. What follows is a discussion of an ideal system where deliberative democracy is the main goal to be realized from public inquiries. But this will not always be the reality. Sometimes, public participation will take a back seat to issues of privacy, investigative purposes, or other goals. Nevertheless, if a public inquiry is convened, it should presumptively be committed to advancing deliberative democracy.

Currently, public inquiries fail to meaningfully engage with the public because of their top-down power structure that requires participation in a predetermined way.⁴³ This rigidity means that inquiries fail to accommodate and welcome diverse groups, resulting in the persistent exclusion of marginalized groups from civic engagement. These problems contribute to the lack of trust between the government convening the inquiry and the participants. Therefore, procedural elements must be based on trust and include key stakeholders from the outset, including in the development of procedures. Ensuring that participants have a meaningful voice in the creation of procedures will move public inquiries toward deliberative democracy.

Several of the following procedural features were discussed following the BC Missing Women Commission. The Commission was called in 2010 and suffered immense public criticism, leading to the publication of recommendations for future public inquiries (the “BC Recommendations”).⁴⁴ As previously discussed, the inquiry was convened after decades of peaceful demonstrations and protests by grassroots women’s organizations and Indigenous groups that called on the government to investigate the prolonged violence. The inquiry’s mandate was to inquire into the investigations of the disappearance of women from 1997-2002 in the Downtown Eastside.⁴⁵ Despite the inquiry emerging from grassroots organizations, these groups had no involvement in the development of procedures. As a result, the inquiry reinforced existing forms of marginalization and oppression that “contributed to the forsaking of so many missing and murdered women.”⁴⁶ A key criticism was about the procedures used in the inquiry, further emphasizing the need to consider deliberative democracy at the outset:

“The design of the process, its management, and its oversight were made by those disengaged from the context in which the Commission’s work took place.”⁴⁷

Similar complaints have been echoed across the country in other public inquiries. During the MMIWG Inquiry, the process was subject to critiques about its narrow engagement and lack of communication with affected groups. Once again, criticism centered around the procedures:

“These critiques not only pointed to insufficient inclusion of key stakeholders in the design of the inquiry and a breakdown in communications throughout the process, but also the state’s failure to build and maintain relationships of trust.”⁴⁸

These excerpts emphasize the failings of current public inquiry procedures that neglect the public and represent shallow forms of engagement. For public inquiries to contribute to deliberative democracy, certain procedural elements must be changed. The following analysis examines three procedural elements and their ability to enhance deliberative democracy. These elements were chosen because of their current function of limiting participation and their potential to radically shift the focus of inquiries to deliberative democracy. This is not an exhaustive list of elements and further research in this area could consider a larger variety of procedural features.

2. Mandate and Terms of Reference

The convening government sets the inquiry’s terms of reference (including their mandate) in an Order in Council made under the enabling legislation.⁴⁹ The terms of reference are legally binding and the mandate prescribes the scope of an inquiry. If an inquiry acts outside their terms, they are acting without jurisdiction.⁵⁰ The mandate is created by the government so “mandates of inquiries by nature are fundamentally reformist” and “the words used in drafting them are not taken lightly by the executive”.⁵¹ As a result, public participation can be stifled early on by a mandate that fails to encourage expansive deliberation of the issues. This is worrisome because the inquiry’s mandate is central to its potential to be a forum of deliberative democracy.

An ideal mandate should be broad enough to capture systemic factors and be developed in consultation with those most affected.⁵² There are two ways to ensure that the mandate is capable of encouraging meaningful participation. First, through the wording and framing of the mandate itself. Because the government sets the mandate, this can only be accomplished if the government wants to encourage participation. Looking at previous inquiries, governments have not often shown this willingness. In the MMIWG Inquiry, deliberative democracy was stifled by the mandate set by the federal government. The government gave specific directions to the Commissioners on how to construct the process, how to receive evidence, and what government action to consider.⁵³ This limited the ability of the Commissioners to be responsive and receptive to public proposals and perspectives. Another factor is the government’s motive for convening the inquiry. If it calls the inquiry for political purposes, it may be less likely to craft a mandate that gives space for public determination of the issues while instead seeking to maintain control of the process.

If the convening government fails to create a mandate that encourages participation, the Commissioners can promote participation by pushing the bounds of the mandate. For example, during the Berger Inquiry, Commissioner Berger recognized how the language of the mandate “could expand or delimit the problem to be addressed”.⁵⁴ This recognition prompted Commissioner Berger to broaden the mandate and elicit proposals brought forward by Participants. The mandate itself never changed but Commissioner Berger found ways to work within the confines of the mandate by broadly interpreting it and capturing sub-issues that were relevant to the discussion. This allowed the public to take center stage and led to proposals that were defined by those most affected.

Pushing the bounds of a mandate has the potential to promote deliberative democracy, but it must be done carefully and within legal limits. In Nova Scotia (Attorney General) v Nova Scotia (Royal Commission in the Marshall Prosecution), the Supreme Court of Canada cautioned that public inquiries that act outside of their terms of reference could face consequences:

“A court may, therefore, confine the Commission to its terms of reference, including disallowing questions outside those terms of reference.”⁵⁵

Radical ideas and re-imaginations of public policy will only emerge from bold approaches that emanate from those most affected. Therefore, while being cognizant of the legal limits, Commissioners can shape the path of an inquiry and transform an otherwise restrictive mandate into one that encourages deliberations.

3. Participant Standing, Funding and Support

Over the years, public inquiries have expanded their view of standing so that more parties are granted standing as Participants. For example, a feature that led to the success of the Walkerton Inquiry was the Commission’s expansive view of standing.⁵⁶ Despite these advances, only parties with pecuniary or legal interests are considered credible in public inquiries.⁵⁷ Not only should standing be more expansive, but the degree of weight and credibility given to Participants should mirror this. A criticism of expansive standing is that it leads to increased duration and costs, both of which can diminish public confidence in the inquiry. Therefore, expansive standing must be balanced against these concerns while seeking to promote wide participation.

Granting standing by itself does not guarantee full participation. During the BC Missing Women Commission, while all public interest organizations who applied were granted either full or partial standing, they were denied the right to counsel by the Attorney General.⁵⁸ Because of this, the organizations felt ill-equipped to cross-examine witnesses and address systemic issues. In an attempt to rectify the situation, the Commissioner appointed two independent lawyers funded by the Commission to represent all of these diverse organizations. This decision was seen as contributing to the unfairness of the process because the lawyers could not possibly represent all of the distinct interests. As a result, several organizations withdrew.⁵⁹ If deliberative democracy is to be realized, expansive standing must be accompanied by adequate financial resources so that all participants can equally contribute to the discussions.

In addition to funding, there are inherent barriers to participation. Participation in deliberative forums correlates highly with financial resources, civic skills, and educational levels.⁶⁰ People with more financial resources are better able to influence the outcomes of political activity, while organizations with more civic skills and capacity to communicate their interests are more likely to get involved:

“Social privilege, in short, plays a basic role in determining who does and doesn’t participate in public affairs.”⁶¹

To rectify this, more attention needs to be given to the question of how to involve people who would not otherwise participate in the policy-making process.

Beyond standing, funding, and wider involvement in public inquiries, participants need to be better supported. Marginalized witnesses especially should be provided with support to ensure that they can fully participate:

“There is a compelling need to recognize that those participating in the Inquiry could face both a compromised reputation as well as a re-traumatization from having to tell their stories. This raises critical questions about the potential role for lawyers, counsellors, advocates and mental health support workers in an Inquiry process.”⁶²

Standing, funding, and support can facilitate a greater degree of participation in public inquiries. Although these decisions may be subject to approval from the convening government, the Commissioner and their staff should make all efforts to create an environment that encourages the exchange of ideas and productive debate.

4. Adversarial Features

There is a growing concern that public inquiries are overusing adversarial and evidentiary processes traditionally found in legal proceedings. This stifles public participation and could hurt the policy-making goals of an inquiry.⁶³ Public inquiries have different objectives than trials. They are also limited in their ability to make findings of liabilities and their recommendations are not binding. Given these differences, public inquiries should not be confined by adversarial features. In fact, it is the inquisitorial nature of public inquiries that allow them to get at the truth more effectively than adversarial proceedings.⁶⁴ The following analysis considers four adversarial elements that if altered, could encourage deliberative democracy.

First, the cross-examination of Participants does not align with the goals of deliberative democracy. The use of cross-examination encourages witnesses and their counsel to seek every means to protect themselves.⁶⁵ Deliberative democracy will not flourish where Participants are backed into corners during cross-examination or restricted in how they participate. Relying on cross-examination during inquiries risks conflating the importance of small details or inconsistencies in a Participant’s testimony. It serves as a way for lawyers to discredit lived experiences and credibility. However, people should be able to contribute to public policy and discuss issues regardless of their perceived credibility or level of intelligence. To avoid the hostility that can arise during cross-examination, it is the responsibility of inquiry counsel and the Commissioner to set an inquisitorial tone from the beginning.⁶⁶

Second, sitting or retired judges are often appointed as Commissioners in public inquiries, especially in investigative inquiries. The rationale is that judges are familiar with the fact-finding process and can go through large evidentiary records.⁶⁷ However, in their role, judges are not oriented towards encouraging broad public participation. In contrast to the judicial role, the role of a Commissioner is multi-faceted and includes being a fact-finder, a proposer for policy reform, a healer for traumatized communities, and an administrative manager.⁶⁸ Public inquiries need Commissioners who are highly attuned to the importance of public participation and who are receptive to ideas brought forward by participants. This is not to say that judges can never accomplish this goal. Justice Berger has been widely praised for his work during the Berger Inquiry in broadening the scope of those consulted and transforming how inquiries conceive of public participation.⁶⁹ However, this appears to be the exception, not the norm. A hurdle in selecting a Commissioner who is willing to encourage deliberative democracy is the fact that the convening government chooses the Commissioner. This will likely continue to be a barrier to achieving deliberative democracy in public inquiries so long as the government seeks to maintain control of the process. Further, concerns about judicial independence from the executive are heightened when Cabinet hand-picks a sitting judge to lead a public inquiry into a politically charged issue.⁷⁰

Third, the form of participation in public inquiries is confined to oral hearings and community meetings. On this issue, the BC Recommendations questioned whether the inquiry process should allow for conversation instead of examination.⁷¹ Inquiries should strive to have a process where the form of participation is dictated by the Participants. For example, narrative storytelling has emerged in other forms of civic engagement as a way for participants to contribute to policy discussions while doing so in a way that is natural and comfortable for them:

“It is through the act of storytelling that individuals understand the goals and values of their social groups and communities, internalize social conventions, understand who they are vis-à-vis other members of groups, and how to empathize with one another.”⁷²

Giving evidence through narrative storytelling is one way for Participants to meaningfully engage in public inquiries.⁷³ Narrative storytelling enhances individual agency, a key feature of full participation, and encourages contributions from those who would otherwise be alienated by the adversarial process. Breaking away from the rigid format of oral hearings and towards a format that encourages debate and discussion would moves public inquiries toward deliberative democracy. Community meetings are thought the accomplish this goal. However, as previously discussed, people who participate in these meetings are not given the chance to influence policy and are not deemed credible enough to influence recommendations.

Fourth, the emphasis given to certain forms of testimony should be re-evaluated. In the adversarial system, expert evidence is often deemed more credible than that of lay people. However, this neglects the viewpoints of “groups at the margin of the dominant culture, in particular those who employ other modes of reason and expression”.⁷⁴ Although expert opinion should continue to have a role in public inquiries, it should not diminish the credibility and deemed utility of other Participants. The Berger Inquiry overcame this problem because Justice Berger recognized that expertise lay in the northern communities who would be impacted by the pipeline and his recommendations reflected the perspectives of these knowledge-holders.⁷⁵

The reliance on these adversarial elements continues to plague public inquiries and stifles broader discussions and participation. Deliberative democracy cannot flourish where there are rigid boundaries that curtail the expression of ideas and opinions. In the following section, the use of these elements will be analyzed to determine their effect on encouraging participation.

Part 2: The Mass Casualty Commission – A Case Study

A) Introduction

The Mass Casualty Commission (MCC) was convened to inquire into the events of April 18 and 19, 2020 where a gunman killed 22 people across central Nova Scotia. In the wake of this tragedy, the Governments of Canada and Nova Scotia announced a federal-provincial review of the events. However, there was a public outcry against the review and families of the victims called for a public inquiry that would have the power to compel evidence. In response, the Governments of Canada and Nova Scotia convened the MCC on October 21, 2020.

The MCC adopted values of independence, respect, and transparency with a focus on restorative principles and being trauma-informed.⁷⁶ Despite this goal, the inquiry’s processes drew criticism from Participants and the public. At the time of writing, the inquiry’s Recommendations have yet to be released. However, this does not detract from the focus of this analysis being on the procedural elements and public participation. In the following sections, select procedural elements of the MCC will be analyzed for their ability to encourage or detract from deliberative democracy.

B) Overall Approach

Before analyzing the procedural elements, it is useful to identify which conceptions of the public the MCC sought to engage. Returning to Salter’s conceptions, the MCC adopted four conceptions of the public. The dominant conception was the “public as the disaffected” because the MCC sought to use the inquiry as a healing process for the families of the victims and their communities. This conception informed their trauma-informed approach.

Second, the “public as interest groups” was also adopted and several organizations were granted standing and grouped into coalitions based on their purpose. These coalitions included Victim Advocacy Organizations, Health-Related Organizations, Firearm Organizations, Justice Organizations, Gender-Based Organizations, and Police-Related Organizations. Generally, these organizations were well-established interest groups with experience in lobbying and participating in policymaking forums. Third, the “public in need of information” was adopted because the MCC sought to inform the public about what happened on April 18 and 19. Finally, the MCC engaged the “public as public opinion”. On the MCC's website people could share suggestions, email the Commission, or host a group discussion.⁷⁷

Although laudable in its goals, the MCC struggled to put its adopted values into practice. Criticism emerged early on that the inquiry process re-marginalized families, that it was too trauma-informed, and that it lacked transparency. The MCC came about in large part due to lobbying by families of the victims and community members. However, the MCC suffered the same fate as the BC Commission (also derived from lobbying) because those who fought for the inquiry later felt marginalized by it.⁷⁸ Despite being “trauma-informed”, families of the victims felt infantilized instead.⁷⁹

Finally, there was criticism about the amount of time spent gathering documents and conducting interviews “behind closed doors”. This limited transparency and quickly led to frustration among the public.⁸⁰ Carlene Bagley, whose father was killed by the gunman, criticized the lack of transparency provided to Participants:

“How are we just 7 days away and we still do not know who is even going to be called as witnesses, let alone whether or not our counsel can examine witnesses?”⁸¹

These themes of lack of transparency and marginalization ran throughout the inquiry and were amplified by the choice of procedural elements.

C) Mandate

On October 21, 2020, the government of Canada and the government of Nova Scotia issued Orders in Council (OIC) to convene the joint public inquiry.⁸² The OICs set out the inquiry’s three-fold mandate:

1. To inquire into and make findings on matters related to the tragedy in Nova Scotia on April 18 and 19, 2020;
2. To examine issues as they relate to the tragedy including specific listed issues like communication with the public, firearms access, and gender-based and intimate partner violence; and
3. To prepare and submit lessons learned and recommendations that could help prevent and respond to similar incidents in the future.

On its face, the mandate was sufficiently broad to allow the Commission to explore areas of importance. Although it is unclear whether the public was consulted in developing the mandate, the breadth of the mandate is not the source of the problem. Rather, issues emerged in how the Commission carried out the mandate.

D) Standing, Funding, and Support

The OICs directed that those most affected be granted standing to participate. This included the families of the victims and both governments. Advocacy groups and organizations were also granted standing. The group that is notably missing is the public at large: those who were not directly impacted or part of a public interest organization but who were interested in participating. For example, the MCC denied standing to several individuals who purported to be impacted by the tragedy or had a special perspective to offer.⁸³ Only two individuals not deemed to be “those most affected” were eventually granted standing.⁸⁴ This restrictive view of standing does not invite discourse or deliberative democracy because it narrows the voices being heard.

Funding was not an apparent issue for the MCC, because 62 Participants were given funding to contribute to their legal costs which totalled $2.5 million.⁸⁵

For support, wellness supports were advertised to the community through the Commission’s ‘Community Information Packages’.⁸⁶ However, this too received backlash because families of the victims faced barriers to accessing mental health services. Sandra McCulloch, a lawyer for the families, said:

“When you are scrolling and have to call a list of 10 or 15 current service providers…that’s just not good enough.”⁸⁷

The narrow view of standing and lack of support for those most affected undermined the MCC’s intention to serve as a healing process. Ultimately, this alienated Participants from the process and diminished the inquiry's potential of encouraging deliberative democracy.

E) Adversarial Features

1. Cross-Examination

During the MCC, cross-examination played a crucial role. Despite the above analysis that cross-examination should be less heavily relied on, where there is conflicting evidence in an investigative inquiry, cross-examination is still an effective means of eliciting the truth.⁸⁸

However, the form of cross-examination in the MCC was criticized. For example, counsel for the families of the victims criticized Commission Counsel for failing to ask follow-up questions, leading to incomplete evidence. Commission Counsel also avoided areas already covered by police statements, notwithstanding their importance.⁸⁹ For example, when Sean Conlogue, the gunman’s friend in Maine who provided him with the firearms he used on April 18 and 19, testified, there were no questions asked about the gunman’s history of smuggling firearms into Canada.⁹⁰ This topic, although perhaps covered in other criminal investigations, was of high importance to the public.

It was also suggested that facts were being concealed and that the Commission was assisting the RCMP in covering up the mistakes in their response on April 18 and 19.⁹¹ The Commission granted accommodation requests to several RCMP members that allowed them to testify remotely, without cross-examination from Participants. Although this order was made in the spirit of being “trauma-informed”, the decision was heavily criticized given the importance of these witnesses’ evidence. Several families of the victims instructed their counsel not to take part in the hearings as a result of the accommodation decisions.⁹² To Professor Ed Ratushny, this decision was not in-line with the MCC’s trauma-informed mandate:

“To the average person, he said, this means the commission should consider that the victims’ families might need help throughout the process and the inquiry should be “gentle” with them.

Instead, Ratushny said it seems the commission considered trauma-informed through the lens of “that police officer must feel so badly about this”.”⁹³

If cross-examination is deemed necessary in a public inquiry, it should be conducted in a way that is responsive to the public’s concerns. Cross-examination that is too adversarial or ignores relevant issues will not encourage public participation.

2. Judges as Commissioners

Three Commissioners were appointed to the MCC. The Chief Commissioner was the Honourable J Michael MacDonald, former Chief Justice of Nova Scotia. Leanne J Fitch, retired Police Chief for the Fredericton Police Force, and Kim Stanton, a Toronto lawyer with experience in constitutional law and public inquiries, were also appointed as Commissioners.⁹⁴

Chief Commissioner MacDonald and Commissioner Fitch were originally appointed to head the independent federal-provincial review of the events of April 18 and 19.⁹⁵ After public outcry, the public inquiry was called and both appointees were retained to serve as Commissioners. However, the role of a review and public inquiry are distinct and there are different skills that Commissioners should have for each. This raises the concern that the Commissioners were not chosen for their ability to encourage public participation.

Commissioner Stanton published a book in 2021 called ‘Reconciling Truths: Reimaging Public Inquiries in Canada’. In the book, she provides recommendations about an inquiry can create dialogue on issues of public importance. Her disposition to creating spaces of public engagement was promising and suggested that she could shape the MCC into a forum that encouraged deliberative democracy. However, Commissioner Stanton’s ability to incorporate these learnings into the MCC was questioned based on the process eventually employed in the inquiry.⁹⁶

Notwithstanding the relevant background and experience brought to the MCC by each of the Commissioners, the Commission team lacked a social justice or community well-being perspective. Two of the Commissioners had legal backgrounds while one was well-versed in policing. Appointing a Commissioner with a social work background could have avoided the re-marginalization of families of the victims and supported more meaningful participation.

3. Form of Participation

Before public hearings began, the Commissioners spent months gathering documents and conducting closed-door consultations. Although important to set the evidentiary foundation, this delay and lack of transparency were heavily criticized. The MCC chose not to start with community hearings in Portapique (the community most impacted) which furthered the feelings of distrust among residents.⁹⁷ If public inquiries are to be responsive to the public affected, they must begin their work in the affected community rather than sifting through documentary evidence. More criticisms emerged when the public hearings were held in Halifax, not Portapique.

Notwithstanding the delay in consultation, members of the public who were consulted felt like they had a meaningful opportunity to have their voices heard.⁹⁸ These testimonials support the need for greater public engagement if an inquiry aims to be a healing process. Jennifer Zahl Bruland, a family member of the victims John Zahl and Joanne Thomas, expressed her desire to have a greater degree of participation in the inquiry. She expressed her disappointment to the Commissioners in the following statement:

“I appreciate the opportunity to be here, but I also want the three of you to know that I’m extremely disappointed in the commission for not allowing me to provide a live statement in front of the public and all participants. And that my only means of participating has been reduced to providing statement by transcript, where my feelings and emotions can’t be seen or heard.”⁹⁹

This statement highlights the importance of allowing the public to participate in a way that is most meaningful to them. It also reinforces the role of narrative storytelling where emotions and feelings can be expressed. Although this was an investigative inquiry where ascertaining evidence about the events was critical, more time should have been spent listening to the experiences of Participants and the public. It is only through public-directed forms of participation that deliberative democracy will flourish.

4. Expert Evidence

Expert opinion and panels occupied a large part of the MCC. Expert reports were commissioned on topics like police impersonators, the history of gun control in Canada, and the structure of rural policing.¹⁰⁰ One of these documents alone, the ‘Structure of Policing in Nova Scotia’, was 1562 pages. Professor Ed Ratushny criticized the over-reliance on experts and said that the Commission was in some “academic wonderland ... and they forgot that there’s a reality going on out there.”¹⁰¹ Sandra McCulloch, a lawyer representing the families of the victims, said that too much time was spent on expert panels exploring side issues rather than on the tragedy itself.¹⁰² Although the issues were complex, the utility of such in-depth research is questionable, especially when met with criticism from the public about the duration and cost of the inquiry.

Another criticism was that the inquiry was too focused on “paper fact-finding”.¹⁰³ Before the public hearings, the MCC produced dozens of Foundational Documents from information gathered during independent investigations. These findings were about key times, locations, or incidents that formed the factual record for the inquiry.¹⁰⁴ On their website, the MCC said that hearings would provide the chance to fill gaps in these documents and that Participants would be able to review drafts of the documents before their publishing. This approach follows the worrying practice in public inquiries where the Commission dictates the process and the public is only consulted at the end to review or add suggestions. This process is fundamentally antithetical to deliberative democracy where the public should be central to the decision-making process and recommendations. The problem with this over-reliance on document production without meaningful public involvement runs the risk of leaving important information unchallenged. When an inquiry adopts the conception of the “public in need of information and education”, experts must be able to translate and convey relevant information in a way that is understandable to the public. The over-reliance on lengthy expert reports does not accomplish this goal. Public engagement and deliberative democracy are not fostered in an academic setting which renders the search for information opaque and time-consuming.

F) Conclusion

The criticisms faced by the MCC lasted throughout the life of the inquiry. Although the MCC has uncovered enormous amounts of information about the events of March 18 and 19, investigative success is not a replacement for deliberative democracy. The concerns raised by Participants and the public show a deeper concern with the process and procedures employed, resulting in a lack of trust and alienation between the inquiry and the public. The danger is that the recommendations will not be supported by the affected communities, leading to a lack of implementation by both levels of government. This fear was expressed by counsel for the families of the victims in their closing submissions.¹⁰⁵ The experience of the MCC highlights a pervasive problem in investigative inquiries: the focus is too often put on uncovering the truth while those most impacted are left in the dark. If public inquiries are to become forums of deliberative democracy, this focus needs to change.

Part 3: General Observations, Recommendations and Conclusion

Public inquiries have the potential to be flourishing sites of deliberative democracy. Their recommendations, developed independently from the government, could radically change policy in a way that is more inclusive of the general public and less focused on the perspectives of the select elite. However, to accomplish this, procedures employed in public inquiries must be more welcoming of public opinion and discourse.

At the early stages of an inquiry, the Commissioners should identify the public that they hope to engage. Identifying this conception of the public will aid the inquiry in developing procedures that are responsive to both the issues and the people involved. To be successful, the public should be engaged in the development of procedures.

In order to bring public inquiries closer to being forums of deliberative democracy, procedural elements like the breadth of the mandate, participant standing, and the use of adversarial features must be re-examined. The reliance on adversarial features damages the goals of public inquiries and serves to alienate the public. The use of cross-examination, the choice of Commissioners, the form of participation, and the credibility of witnesses needs to better reflect the distinct goals of public inquiries in order to bring together diverse perspectives and encourage discourse. As seen in the MCC, the procedural choices made by an inquiry can elicit public criticism and alienate the public. When an inquiry fails to respond to these criticisms, the public will not be motivated to participate or support the implementation of the inquiry’s recommendations.

The question remains of who is best positioned to implement these changes given the transient nature of public inquiries. It is unlikely that the convening government will embrace these concepts in the inquiry’s mandate. Law reform and legislative changes to the enabling statutes is also not advisable, because a strength of inquiries is their flexibility, so more detailed prescriptions are not useful. The Commissioners are in a good position to implement changes, but they may not necessarily be attuned to the importance of public participation. Historically, the public has played a crucial role in fighting for inquiries to be convened, but their role should not stop there. The duty rests on the public to urge Commissioners and inquiry staff to consider their perspectives and fight to be included in the development of procedures.

The MCC showed early signs of incorporating elements that would encourage wide participation, however, they failed to implement these principles and be responsive to concerns from Participants. Nevertheless, they were moving in the right direction by focusing on being trauma-informed, having broad Participant standing and funding, and using forums for participation other than live testimony. This provides hope that future public inquiries will strive to incorporate the public in meaningful ways. Future research should track these improvements and could examine the implementation of procedural changes through additional case studies. Also, further research could determine whether certain forms of public participation are better suited for either investigative or policy advisory inquiries.

If public inquiries change their procedures to be more inclusive of the public, the resulting recommendations could radically shift the policy landscape. Establishing public inquiries as forums of deliberative democracy could strengthen public support for inquiries while also increasing the public’s autonomy and capacity to meaningfully engage in the process. Through the use of procedural elements that encourage participation, public inquiries could be radically transformed into unique policy-making spaces that are welcoming of marginalized perspectives. Only then will public inquiries realize their potential as sites of deliberative democracy.

Endnotes