Q: I was watching TV the other night and saw the Schreiber-Mulroney trial from Ottawa. Why wasn’t it in a courtroom? What kind of trial is it?
A: This matter is not a trial at all, although it has some of the same attributes. It’s actually a commission of inquiry, which has a different purpose and is aimed at getting different results.
Commissions of inquiry can be ordered by the federal government, or by any province or territory that has existing legislation permitting such procedures to occur.
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Where the government sees an issue that demands attention, a commission can be ordered to try and answer questions.
Under the federal Inquiries Act, the government may set up an inquiry into any matter connected with the good government of Canada or the conduct of any part of the public business. The provinces have similar laws.
Generally, such commissions have two broad purposes. First, to determine the facts – to figure out what happened. Who did what and when? What were the consequences?
Often a second purpose is to make recommendations to address what happened.
These two purposes usually function within an overarching mandate. For example, the inquiry to which you refer deals with alleged business dealings between Karlheinz Schreiber and former prime minister Brian Mulroney, none of which have been proven to have occurred.
Other inquiries have similarly narrow purposes: the investigation into the improper conviction of David Milgaard, or the search for how a young Saskatchewan native man came to freeze to death and whether there was police involvement.
Other inquiries focus on non-justice issues, such as the tainted blood scandal or the problems with drinking water in Walkerton, Ont., and North Battleford, Sask.
A third facet of such inquiries is that they are specifically not supposed to make findings of civil or criminal liability.
Blame is something courts assess, not commissions of inquiry. There are several reasons for this. First, the inquiry has a different purpose, as explained above. There is a different focus than the usual trial has. Trials are generally about sorting out guilt or innocence or, in a civil case, the rights between the parties.
Inquiries have a broader policy focus. As well, the rules of evidence and procedure are typically more relaxed in an inquiry.
While there is no requirement that the commissioner in charge of the inquiry be a judge, judges are often appointed. This is presumably because judges will understand the inquiry’s mandate, how legal matters and what can be considered as evidence.
Rick Danyliuk is a practising lawyer in Saskatoon with McDougall Gauley LLP. He also has experience in teaching and writing about legal issues. His columns are intended as general advice only. He can be reached at thelaw@producer.com.
