Home Programs National security Air India review Lessons to be learned: The report of the Honourable Bob Rae 9. Options

9. Options

In my terms of reference, I have been asked specifically to provide the government with options with respect to further a review or inquiry. The options would appear to be as follows.

Option 1 - A governmental task force

First, a governmental task force to ensure that the lessons learned from the Air India bombing have been applied effectively to Canadian institutions and public policy could be established. This task force could be chaired by a person from outside government, or by a senior public servant. It could also consist of deputy ministers and heads of agencies including: the Deputy Ministers of Foreign Affairs, Public Safety and Emergency Preparedness, Transport, Justice, Immigration and the Director of CSIS and the Commissioner of the RCMP.

The job of the task force would be to ensure that the issues described in this report have, in fact, been dealt with by governmental agencies. Regular implementation reports could be made public, and an open dialogue with the families of victims and other interested parties would continue.

The advantage of this form of review is that it is closely connected to the administration and policy of government and as such has the potential to lead to rapid changes within these agencies and/or organizations.

The disadvantages of this form of review are the following:

• insufficient independence from the very government organizations under review
• a risk that the work of the task force will get bogged down and lack momentum
• an absence of an independent third party examination and narrative
• risk that accountability would be inadequate

Option 2 - A Cabinet Order in Council

A second option would be to establish an inquiry under Cabinet Order in Council, with a clear mandate to report within a certain time with respect to the issues that have been identified, giving the commission latitude to decide what part of its work would be held in camera, and which aspects would be public. This review would not be held under the Inquiries Act. The commissioner would be independent of the government, and would have independent counsel, staff, and a guaranteed budget. This option would be similar to Ontario provincial inquiry into the Bernardo police investigation, carried out by Justice Archie Campbell of the Ontario Superior Court of Justice in 1995–96. The Bernardo Inquiry was carried out swiftly and led to significant changes in administrative practice. Consultation with the families could be carried on as in the first option. The advantage of this approach is its relative flexibility compared to the Option 3 discussed below. While a commissioner appointed under such an order would lack subpoena powers as set out in the Inquiries Act, this could be remedied by clear directions from responsible Ministers and heads of agencies with respect to co-operation and full disclosure, and indeed would have to be a condition precedent to its establishment. If such an inquiry were to be constituted, it should proceed on the basis of a definitive ministerial commitment, on behalf of all departments and agencies involved, to produce all available documents, files and records, and, to the extent possible, knowledgeable government employees to allow the inquirer to fulfill his or her mandate. These conditions could be set out in the order in council.

Option 3 - A public inquiry

A third option would to be to appoint a Commission of Inquiry under Part I of the Inquiries Act, with full powers of subpoena. It is a reasonable assumption that an inquiry of this kind could be more complex, expensive and lengthy than any inquiry established under the first two options outlined above, but focus in the terms of reference and direction in the Order in Council with respect to procedure could alleviate this concern to some extent.

The disadvantages of this approach would be: the complexity of issues of standing; the formal and adversarial nature of these proceedings as they have been conducted in the past; the cost, relative to the benefits; the risk of impact on the criminal investigation. Each of these points is significant. A generous interpretation of standing could complicate matters considerably, and would very definitely prolong the proceedings. Most major public inquiries have involved challenges and judicial reviews of various decisions of the commissioner. The costs of such inquiries are difficult to predict, because of the issues set out above. Finally, the compatibility with the ongoing criminal investigation remains a serious issue. The charges in this case are the most serious imaginable. Anything that created additional problems would be deeply counter-productive.