Judicial Inquiries and the Rule of Law

Abstract

The aim of this thesis is to demonstrate that the conduct of judge-led commissions of inquiry in Canada could be improved, and rendered more consistent with purposive values embodied in the rule of law, were judicial commissioners to observe a principle of fidelity to adjudication.

The rule of law, practically understood as a political and legal ideal, treats independence as integral to the judicial role in interpreting and applying law, safeguarding the Constitution, and honouring individual rights. Public confidence in the independence and integrity of Canada’s judiciary flows not just from constitutional safeguards, however, but from judicial observance of adjudicative procedure. So too does confidence that in exercising their functions, judges respect the boundaries commanded by the separation of powers.

Contrary to categorical distinctions that are often drawn between commissions of inquiry and courts, adjudicative procedure is an essential feature of many inquiries. This is so because the participants in such inquiries legitimately demand an assurance of justice equivalent to that associated with traditional judicial proceedings. Recognizing this commonality does not mean burdening public inquiries with the evidentiary and procedural rigidity of courts. It does suggest, however, that adjudication has a valuable (if non-exclusive) role to play in the conduct of some inquiries, establishing a compelling reason why judges should be their leaders. Fidelity to adjudication directs judicial commissioners to account for this reality when confronting common dilemmas and challenges in inquiry conduct.

I explore the methodological implications of fidelity to adjudication in two broad areas, first concerning procedural fairness, and second concerning the protection of a commissioner’s independence. Finally, I consider how fidelity to adjudication establishes boundaries cautioning against judicial service in inquiries that demand different conceptions of justice, or advance different notions of truth-seeking, than those in which judges are traditionally informed. A principled alignment is thus established between judicial service on commissions of inquiry, judicial methods and skills, and observance of the rule of law.