Home Programs National security Air India review Lessons to be learned: The report of the Honourable Bob Rae 8. Form of inquiry

8. Form of inquiry

Having said that there are questions still to be answered, I now turn to the equally important question of what kind of inquiry should be held to answer them.

The weeks before my appointment were marked by a renewal of the call for a public inquiry. This call had been originally made almost immediately after the atrocity occurred in 1985. The frustrating slowness and complexity of the criminal investigation led to more such demands. These reached a crescendo after the acquittal of Bagri and Malik in 2005.

In my meetings with family members and many others I have asked the question - a public inquiry into precisely what? To which I have received essentially three types of answers. The first is “to find out who committed this crime and to make sure they are brought to justice”. The second is “to find which individuals in government and various police and security forces made mistakes and to hold them personally accountable for them”. The third is “to establish what went wrong and make sure these mistakes are not repeated.”

An inquiry to answer the first two questions would be either illegal or profoundly ill-advised. An inquiry to answer the third is in the public interest. It is important to understand the distinction between these different types of questions, and inquiries, because their consequences are very different.

It is a fundamental premise of Canadian law that an inquiry cannot be used to establish criminal or civil responsibility. As Justice Cory stated in Canada (Attorney General) v. Canada (Commission of Inquiry on the Blood System in Canada — Krever Commission), “A commission of inquiry is neither a criminal trial nor a civil action for the determination of liability. It cannot establish either criminal culpability or civil responsibility for damages.” ¹⁶

The courts have, over the last twenty years, engaged in the difficult exercise of balancing the broad public interest in getting to the bottom of difficult problems, and protecting the rights of the individual. Here, for example, is what Justice Cory said in Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy):

One of the primary functions of public inquiries is fact-finding. They are often convened, in the wake of public shock, horror, disillusionment, or skepticism, in order to uncover “the truth”. Inquiries are, like the judiciary, independent; unlike the judiciary, they are often endowed with wide-ranging investigative powers. In following their mandates, commissions are, ideally, free from partisan loyalties and better able than Parliament or the legislatures to take a long-term view of the problem presented. Cynics decry public inquiries as a means used by the government to postpone acting in circumstances which often call for speedy action. Yet, these inquiries can and do fulfill an important function in Canadian society. They are an excellent means of informing and educating concerned members of the public. ¹⁷

But Justice Cory goes on to say,

Nonetheless, it cannot be forgotten that harsh and persuasive criticisms have been leveled against them. Every inquiry must proceed carefully in order to avoid complaints pertaining to excessive cost, lengthy delay, unduly rigid procedures or lack of focus. More importantly for the purposes of this appeal is that risk that commissions of inquiry, released from many of the institutional constraints placed upon the various branches of government, are also able to operate free from the safeguards which ordinarily protect individual rights in the face of government action. ¹⁸

Clearly, courts will be guided by the terms of reference of the inquiry, as well as by its scope. The Court struck down the inquiry in the Patti Starr case. ¹⁹ There the focus of the Court was on the terms of reference for that inquiry which clearly paralleled the wording of the Criminal Code of Canada, and referred directly to the conduct of specific individuals.

In the Patti Starr case, the majority of the Supreme Court of Canada found that:

[n]o broader policy objective was present to distinguish that inquiry from a substitute police investigation… Neither the terms of reference nor the background facts leading up to the inquiry indicated that the inquiry was designed to restore confidence in the integrity and institutions of government or to review the regime governing the conduct of public officials. Any such objectives were clearly incidental to the central feature of the inquiry, which was the investigation and the making of finding of fact in respect of named individuals in relation to a specific criminal offence. ²⁰

The majority also found that:

[t]he Commissioner need not make findings of guilt in the true sense of the word for the inquiry to be ultra vires the province. It suffices that the inquiry is in effect a substitute police investigation and preliminary inquiry into a specific allegation of criminal conduct by named, private citizens. ²¹

In Re Nelles at al. and Grange et al., a unanimous Ontario Court of Appeal, quoted with approval the words of Justice Riddell of the Ontario Court of Appeal from the 1930’s:

A Royal Commission is not for the purpose of trying a case or a charge against anyone, any person or any institution - but for the purpose of informing the people concerning the facts of the matter to be enquired into... The object of a Royal Commission is to determine facts, not to try individuals or institutions, and this consideration is sufficient to guide the Commissioner in the performance of his duty. ²²

The Court went on to say:

A public inquiry is not the means by which investigations are carried with respect to the commission of particular crimes... Such an inquiry is a coercive procedure and is quite incompatible with our notion of justice in the investigation of a particular crime and the determination of actual or probably criminal or civil responsibility. ²³

and further:

This inquiry should not be permitted to become that which it could not have legally been constituted to be, an inquiry to determine who was civilly or criminally responsible for the death of the children, or, in the circumstances of this case in lay language simply: who killed the children. ²⁴

The law is clear. It is not possible to establish an inquiry that would attempt to answer the question: Who is criminally responsible for killing the passengers and crew of Air India Flight 182?

As noted above, Justice Josephson has established the identity of two of the conspirators. There are others, and a renewed criminal investigation is attempting once more to find these individuals and bring them to justice. Their identity and prosecution is a matter for the police, not for an inquiry.

Given the principle that an inquiry cannot establish civil responsibility and the fact that a great length of time has passed between now and the bombing, I am led to conclude that an inquiry focused on individual conduct by government, security and police officials would be ill-advised. Many will feel it a cruel irony that the delay in the calling of an inquiry should now affect its scope. Governments said for years that they were concerned that the holding of an inquiry might affect first the investigation of the bombing, and then the trials of Reyat, Malik and Bagri. Now that those particular trials are over, the families are understandably impatient that timeliness would be used as an argument against the very holding of an inquiry. The passage of time does not change the need for an inquiry, but it does inevitably affect its terms of reference and its focus.

The great distance of time is important because government policies have changed, practices have been amended. Many of the individuals involved in aspects of the case have retired, left public service, or died. Thus, the scope of any inquiry should focus much more on what government departments, and central agencies have actually learned, how have they changed, and what further changes are needed, than on a micro-examination of decisions made twenty years ago. The alternative would be a massive, multi-year undertaking that would immediately become embroiled in extensive litigation. Looking so intensively at the past would do little to assist enhancing security and prevention now and tomorrow - which look to the future.

To invoke the words of Justices Riddell and Cory, a commission of inquiry is not a court and it is not a trial. Its purpose is to establish facts, and to learn from them. It is not to try either individuals or institutions. Excessive cost, lengthy delay, unduly rigid procedures and lack of focus are all to be avoided.

The internal practices of both the RCMP and CSIS with respect to this investigation continue to involve matters of national security. While the average traveler may discern the rough outlines of the security techniques currently in use at Canadian airports, many of the operational details of those processes must be kept confidential, lest their disclosure provide a road-map for those who seek to evade scrutiny. Important aspects of any review must, therefore, be conducted in camera, and not in public. It is better that this reality be faced now rather than in the middle of the inquiry. There is a public interest in knowing what happened, and in understanding what lessons have been learned, and what further lessons need to be learned. There is also a legitimate interest in protecting national security, and the reputational interest of individuals who have been engaged in public service. Under no circumstances should any inquiry be either seen, or constructed, as a punitive exercise.

Criminal responsibility is established in a criminal trial, and nowhere else. It is a given that whatever inquiry or review is conducted cannot conflict with an ongoing police investigation. An inquiry cannot retry those acquitted in a criminal trial. The RCMP investigation into the bombing, and other acts of violence that they believe to be associated with it, continue and indeed must be continued. If there are charges, they should be dealt with in a court.

There are also examples in Canada and other countries of the victims of crime pursuing civil remedies against those deemed civilly responsible for the death of their loved ones, notwithstanding a finding of “not guilty” in the criminal context. That remains an avenue open to exploration by the victims’ families if they feel it is warranted.

We should not establish an inquiry to go over ground that has already been reviewed extensively. As I have described in this report, much has been set out in various commissions and reports that needs to be summarized and understood, not re-tried or re-litigated. An inquiry that is too open ended, or which attempts to answer the wrong questions, would be derailed quickly. It would raise the false expectation that an inquiry can “find out who did it” or “bring those responsible to book”.

Finally, there are issues of effectiveness, cost, timeliness and complexity. Some have said that with a tragedy of this kind “money should be no object”. But this misses the point that the public has a legitimate right to ask that whatever is done is carried out as efficiently and effectively as possible. The families have expressed a strong desire that whatever is done be done with some urgency, and that it should be effective. As more than one family member stated: “the best memorial for our loved ones is that we should learn lessons and make sure nothing like it ever happens again.”

Families and many others have expressed a strong concern that an inquiry not become a “circus of lawyers”, that it be timely, and that it produce results. I agree. The best way to respect those who died at the hands of terror is to make sure that we learn from this experience and shed a light on error with a view to improve security and provide better protection to the public.

Any inquiry has to meet the essential test of the public interest. While the concerns, frustration, anger and anxiety of the families of the victims of Air India have to be carefully considered, it is the interest of all Canadians that are paramount when considering what kind of inquiry should be held. A further inquiry must be as much about the present and the future as about the past. There is a need for a clear public reckoning with what has happened. In my work, I encountered an entirely legitimate anger that this tragedy has been insufficiently understood and embraced as a Canadian event. The Air India bombing was Canada’s introduction into the modern age of terrorism. Have we learned its lessons?