September 28, 2021

What can the Mass Casualty Commission actually accomplish?

This week, in anticipation of hearings set to start on October 26th in Halifax, staff from the Mass Casualty Commission have been holding open houses near some of the communities most affected, including Debert, Truro, and Millbrook. A comment from Commission investigator, Barbara MacLean, in the CBC article on the open houses caught my attention, and may help us all understand some of what is going on with the Commission.

Ms. MacLean told a community member that it was important that community members remain engaged and involved after the final report is issued in November, 2022, as the recommendations from the Commission are not legally binding.

It was correct of Ms. MacLean to point this out to those attending the open house, and is something we should all keep in mind. In fact, it goes to the very nature of this public inquiry.

The Mass Casualty Commission is like a Supreme Court in many good and important ways. It can subpoena documents and witnesses, and can compel production just like a Justice in a civil trial could do.

The Commission is very unlike a Court in that it cannot make something happen in the final instance. Unlike a Court, it cannot order that its recommendations actually be put into action. A Court can order, for example, that ownership be declared in someone’s favour, or that money needs to be paid from one party to another, and then there are enforcement mechanisms that can be utilized to give teeth to those orders.

In the Inquiry setting, instead of orders there are recommendations, which can be either followed or ignored. Therefore, the real outcome of an Inquiry comes from sustained public pressure after the fact, after the final report is issued. Sometimes, like in the Marshall Inquiry, the Westray Inquiry, or the Truth and Reconciliation Commission, implementation can take years, when it happens at all.

Here, the Orders in Council from the Provincial and Federal governments direct the Commissioners to set out “lessons learned as well as recommendations that could help prevent and respond to similar incidents in the future”. The real impact of an inquiry is thus dependent on the persuasiveness of the reasoning contained in the final report, along with sustained public pressure. That is why it is so important to involve the families and communities affected most deeply. They will be the ones that are most motivated to energize that public pressure.

What this all compels us to remember is that an Inquiry is a political process as much as it is a legal one. It starts politically, when the public puts pressure on government to call the inquiry. It becomes a legal process during the Inquiry, when legal mechanisms allow for a credible, in-depth exploration of the many relevant issues involved in the incident matrix. Then, once the report is complete, it re-emerges as a political issue, dependent on public pressure in order to have recommended changes implemented.

Time will tell what this Commission can accomplish, and throughout the process members of the public should understand that they collectively play a major part in the dynamic and evolving unfolding of those accomplishments.

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