June 6, 2022

What The MCC Can Learn From Commissioner Stanton’s Inquiries Book

Just before being appointed as one of the three Commissioners of the NS Mass Casualty Commission, Toronto-based lawyer, Kim Stanton finished writing a book on Inquiries, called Reconciling Truths. There are several themes and lessons the MCC may draw from this work, which might help it fulfill its mandate, and increase the level of public trust in the Commission.

The book is close to 400 pages in total, but only about 200 of those constitute the main content of the work, the rest being appendices and references. Much of the work focuses on Canadian inquiries, or truth commissions, which have attempted to analyze historical and ongoing tensions in the relationship between Canadian governments and aboriginal peoples.

In the introduction, Commissioner Stanton suggests that the genesis of the book effort was a discussion she had with someone involved in the Murdered and Missing Indigenous Women and Girls (MMIWG) Inquiry, where there were many doubts that the inquiry would provide tangible help.

In the epilogue, she notes that she was appointed to the MCC as she was finishing her edits on the book, and writes that after she is in her new role, she will likely have more compassion for other Commissioners she has critiqued. She also, to her credit, recognizes that as an inquiry commissioner she now has a vested interest in her own theories on inquiries.

Reconciling Truths is an attempt to put Canadian-First Nations relations and inquiries in context vis-à-vis the historical and international development of truth commissions, so it is not specifically relevant for the MCC. It does, however, hold important clues to Commissioner Stanton’s thinking on inquiries, and thus perhaps her influence over MCC developments.

Stanton’s book is an easy read. It does not have the academic density or rigour that would be expected of a main textbook for a law course, nor does it seem to be aiming to be such. It seems more aimed at an educated general audience with an interest in Canadian indigenous reconciliation and/or the international truth and reconciliation commission movement. It would be appropriate introductory material for an international human rights law course.

The book focuses on several Canadian case studies, and connects them to truth commissions in El Salvador, Australia, Argentina, Bolivia, Germany, Nepal, Peru, South Africa, Uganda, the United States, and Zimbabwe. The main Canadian case studies discussed were the MacKenzie Valley Pipeline Inquiry (1977), the Manitoba Aboriginal Justice Inquiry (1991), the BC Missing Women’s Inquiry (2012), the Royal Commission on Aboriginal Peoples (1995), the Truth and Reconciliation Commission of Canada (2015) and the Murdered and Missing Indigenous Women and Girls Inquiry (2019).

The main thesis of Stanton’s book is that despite their problems, inquiries, or truth commissions can be a valuable public policy tool, but that this potential utility depends mainly on the effectiveness of its leadership and the process used by the Commission. She says that “Commissioners interpretation of the mandate is one of the critical factors in whether an inquiry fulfills its social function”.

She also seeks to define best practices in truth commissions, which, in her view, are a subset of public inquiries. Such truth commissions are meant to deal with patterns of human rights violations, and are usually employed by countries that are emerging from an authoritarian regime into a nascent democracy, and need some legal mechanism to help search for accountability without sacrificing the emerging democratic structure. Stanton notes that truth commissions are more adept than trials at advancing restorative justice goals such as acknowledging the suffering of victims.

The MacKenzie Valley Pipeline Inquiry, and its lone Commissioner, then-newly appointed Justice Thomas Berger, receive high praise from Stanton. The MVPI dealt with a potential pipeline going through areas claimed by various groups covered by Treaties 8 and 11, and Commissioner Berger took an expansive view of his Terms of Reference such that he analyzed the aboriginal land title claims being made.

Stanton praises Berger for insisting that all parties, along with the media, travel to the North for the hearings, to ground them in the experience. She also writes that he was the first Commissioner to really have a media engagement strategy, which was crucial to the inquiry’s success. Stanton compares this to other inquires, like the Royal Commission on Aboriginal Peoples, which did not have effective media strategies and thus saw their public support limited and their recommendations fail to take hold.

Commissioner Stanton was also particularly critical of the failure of the MMIWG Inquiry Commissioner for not rectifying failures with respect to communications, transparency, and accountability as that inquiry proceeded along.

Another theme that emerged from the MVPI, along with the Truth and Reconciliation Commission, was for proceedings to be more victim-centered, with more community hearings and fewer lawyer-dominated proceedings. Recall that she is discussing “truth commissions”, as compared to fact-finding public inquires, and for these she emphasizes several times what she sees as the benefits to having fewer lawyers involved, and fewer of the features of a trial, such as cross-examination or oaths.

Looking at the ‘factors for success’ Stanton identifies for truth commissions certainly brings to mind some of the shortcomings of the Mass Casualty Commission. Stanton advises that to succeed, a commission must be lead by someone with vision, courage, and compassion, who can command the attention of the public. In terms of process, she says it must engage the broader community, create knowledge and understanding well before the final report is issued, have a clear media strategy, engage the public, hold public hearings that are not lawyer-driven, use the first language of the witnesses, have different kinds of hearings, provide opportunities for civil society engagement, welcome independent research, and make clear that all evidence it hears will be valued.

Stanton also recommended that a commission start their hearings with those most directly affected, so as to ground the work of the commissioner. (In the MCC, we have only heard from one resident of Portapique so far about their experience in the community, 31 days into the hearings, and that was simply to identify the gate to the blueberry field. We also heard from Richard Ellison, but that was focused on the Onslow-Belmont fire hall situation.)

Aside from not having an effective media engagement strategy, the MCC has not followed Stanton’s conclusions in several other ways as well. They did not start by hearing from victims. They did not bring the proceedings to the place where it happened, opting instead for the cavernous Nova Centre in Halifax.

To the extent that the MCC has been an effective unifying force, it has been at its own expense. People are learning enough about the RCMP response to know the force was underprepared, lacked trust in the people, and have been trying ever since the killings to cover up their mistakes and failings. One of the reasons people are learning this is that the MCC itself has received so much criticism for being complicit in assisting the RCMP with their goals.

Upon reading Commissioner Stanton’s book on inquires, it would seem that the main conflict with the MCC might be a fundamental misunderstanding of what kind of inquiry this is supposed to be. Non-lawyer driven proceedings, where we just listen respectfully and uncritically to everyone’s truth, may work well in a setting where the facts of human rights abuse patterns have already been established. It does not work as well when facts are being sought in the face of powerful, obstructive institutions with their survival on the line.

It is possible that Commissioner Stanton views the MCC as victim-centered, when its most prominent character should be analyzing the response and capacities of our emergency response stakeholders. Hopefully, unlike the Commissioners who she has critiqued, Commissioner Stanton will have the “vision, courage, and compassion” to use her knowledge base to help steer the MCC back to a place where it can be trusted to deliver on its “social function” to “educate the public such that political will is generated to ensure an injustice is not repeated”.