The aim of this thesis is to demonstrate that the conduct of judge-led commissions of inquiry in Canada could be improved, and rendered more consistent with purposive values embodied in the rule of law, were judicial commissioners to observe a principle of fidelity to adjudication. The rule of law, practically understood as a political and legal ideal, treats independence as integral to the judicial role in interpreting and applying law, safeguarding the Constitution, and honouring individual rights. Public confidence in the independence and integrity of Canada’s judiciary flows not just from constitutional safeguards, however, but from judicial observance of adjudicative procedure. So too does confidence that in exercising their functions, judges respect the boundaries commanded by the separation of powers. Contrary to categorical distinctions that are often drawn between commissions of inquiry and courts, adjudicative procedure is an essential feature of many inquiries. This is so because the participants in such inquiries legitimately demand an assurance of justice equivalent to that associated with traditional judicial proceedings. Recognizing this commonality does not mean burdening public inquiries with the evidentiary and procedural rigidity of courts. It does suggest, however, that adjudication has a valuable (if non-exclusive) role to play in the conduct of some inquiries, establishing a compelling reason why judges should be their leaders. Fidelity to adjudication directs judicial commissioners to account for this reality when confronting common dilemmas and challenges in inquiry conduct. I explore the methodological implications of fidelity to adjudication in two broad areas, first concerning procedural fairness, and second concerning the protection of a commissioner’s independence. Finally, I consider how fidelity to adjudication establishes boundaries cautioning against judicial service in inquiries that demand different conceptions of justice, or advance different notions of truth-seeking, than those in which judges are traditionally informed. A principled alignment is thus established between judicial service on commissions of inquiry, judicial methods and skills, and observance of the rule of law.

The Iraq ‘Chilcot’ Inquiry is the last in a string of public inquiries tasked with understanding how the British state went to war with Iraq. In so doing, the inquiries have become defined by the problem of striking a balance between publicity and secrecy. While exposing foreign policy decision-making to public scrutiny should be the norm in a liberal democracy, this must be balanced by state secrecy, which is justified in exceptional circumstances when there is a threat to national security. Striking the right balance acts to maintain and legitimise a distinction between liberal and illiberal regimes by justifying exceptions as the mitigation of existential threats to liberal values. In contrast to the balance metaphor, this thesis shows how the inquiries are a site of contestation between two technologies of government: the public gaze and official secrecy. Drawing on Foucault, I demonstrate how both technologies support the liberal ‘security dispositif’: the exercise of freedom without too little or too much government. Each technology secures this liberal governmentality in a different but mutually supportive way. The public gaze seeks constitutes security of the liberal subject by exposing, criticising and disciplining statesmen and statecraft. Official secrecy, meanwhile, constitutes security of the state by protecting the value of privileged information used to support a necessary minimum of government. In this context, the balance metaphor may be recognized as the discursive framework that, in any moment, legitimises either the exercise of publicity in response to insecurity engendered by secrecy or vice versa. The balance metaphor thereby supports a further distinction between the responsible liberal self and the illiberal other. I show how the Iraq Inquiry legitimizes British official secrecy while re-inscribing the conditions of possibility for waging liberal war.

Le 30 janvier 1972, dans la ville nord-irlandaise de Derry/Londonderry, treize personnes furent tuées par des soldats britanniques alors qu’elles participaient à une manifestation pour les droits civiques. Ce « Bloody Sunday » provoqua immédiatement des polémiques : les soldats affirmaient avoir répliqué à des tirs, ce que contestaient vigoureusement les civils. Le verdict de la première enquête publique, qui conclut en 1972 que les soldats avaient agi dans les règles, ne fut jamais accepté par les familles des victimes, qui lancèrent en 1992 une campagne réclamant une nouvelle enquête. En 1998, dans le contexte du processus de paix, le gouvernement britannique accéda à cette requête et créa l’enquête Saville. Le défi était grand : comment réécrire la mémoire officielle d’un événement aussi symbolique, alors que celui-ci avait déjà été intégré dans des mémoires collectives antagonistes et fortement enracinées ? Ce travail étudie l’enquête Saville à la lumière de trois grands concepts : la vérité, la justice et la mémoire. La vérité, car la découvrir était l’objectif premier de l’enquête. La justice, car une enquête publique, bien que n’étant pas un procès, la sert en rétablissant la confiance en l’Etat de droit et en accordant aux victimes une reconnaissance officielle. Enfin, la mémoire, car une tentative de réécrire la version officielle d’un tel événement se heurtait forcément aux mémoires collectives existantes : celles des communautés nationaliste et unioniste, mais aussi de l’Etat. Cette enquête chargée d’oeuvrer pour la réconciliation a donc du gérer les difficultés nées de ces relations étroites mais parfois conflictuelles entre vérité, justice et mémoire. / On January 30th, 1972, in the Northern Irish city of Derry/Londonderry, thirteen people who had been taking part in a civil rights demonstration were shot dead by British soldiers. This ‘Bloody Sunday’ immediately sparked controversy: the soldiers claimed they had fired in retaliation, which civilian witnesses categorically denied. In 1972, the conclusion of the first public inquiry that the soldiers had acted within the rules was rejected by the victims’ families, who launched a campaign demanding a new inquiry in 1992. In 1998, as the peace process was under way, the British government granted a second public inquiry, to be chaired by Lord Saville. This inquiry faced a major challenge: how could they rewrite the official memory of such a symbolic event, which had already been integrated into deeply entrenched, antagonistic collective memories? Three main concepts were used to study the Saville inquiry in this work: truth, justice and memory. Finding the truth was announced as one of the inquiries’ main objectives. Justice is also highly relevant, for even though the inquiry is not a trial, it does serve justice by restoring confidence in the rule of law and providing official recognition for the victims. Finally, the importance of memory is paramount, as any attempt to rewrite the official narrative of an event was bound to clash with existing collective memories: the collective memories of the nationalist and unionist communities, but also the official memory of the British state. Truth, justice and memory thus appear to be closely linked, but may also collide, making it difficult for the inquiry to reach the objective of bringing about reconciliation.

In recent decades, the truth commission has become a mechanism used by states to address historical injustices. However, truth commissions are rarely used in established democracies, where the commission of inquiry model is favoured. I argue that established democracies may be more amenable to addressing historical injustices that continue to divide their populations if they see the truth commission mechanism not as a unique mechanism particular to the transitional justice setting, but as a specialized form of a familiar mechanism, the commission of inquiry. In this framework, truth commissions are distinguished from other commissions of inquiry by their symbolic acknowledgement of historical injustices, and their explicit “social function” to educate the public about those injustices in order to prevent their recurrence. Given that Canada has established a Truth and Reconciliation Commission (TRC) on the Indian Residential Schools legacy, I consider the TRC’s mandate, structure and ability to fulfill its social function, particularly the daunting challenge of engaging the non-indigenous public in its work. I also provide a legal history of a landmark Canadian public inquiry, the Mackenzie Valley Pipeline Inquiry, run by Tom Berger. As his Inquiry demonstrated, with visionary leadership and an effective process, a public inquiry can be a pedagogical tool that promotes social accountability for historical injustices. Conceiving of the truth commission as a form of public inquiry provides a way to consider the transitional justice literature on truth commissions internationally along with the experiences of domestic commissions of inquiry to assemble strategies that may assist the current TRC in its journey.

In recent decades, the truth commission has become a mechanism used by states to address historical injustices. However, truth commissions are rarely used in established democracies, where the commission of inquiry model is favoured. I argue that established democracies may be more amenable to addressing historical injustices that continue to divide their populations if they see the truth commission mechanism not as a unique mechanism particular to the transitional justice setting, but as a specialized form of a familiar mechanism, the commission of inquiry. In this framework, truth commissions are distinguished from other commissions of inquiry by their symbolic acknowledgement of historical injustices, and their explicit “social function” to educate the public about those injustices in order to prevent their recurrence. Given that Canada has established a Truth and Reconciliation Commission (TRC) on the Indian Residential Schools legacy, I consider the TRC’s mandate, structure and ability to fulfill its social function, particularly the daunting challenge of engaging the non-indigenous public in its work. I also provide a legal history of a landmark Canadian public inquiry, the Mackenzie Valley Pipeline Inquiry, run by Tom Berger. As his Inquiry demonstrated, with visionary leadership and an effective process, a public inquiry can be a pedagogical tool that promotes social accountability for historical injustices. Conceiving of the truth commission as a form of public inquiry provides a way to consider the transitional justice literature on truth commissions internationally along with the experiences of domestic commissions of inquiry to assemble strategies that may assist the current TRC in its journey.

This research project seeks to explore aspects of the post-reporting phase of the public inquiry process. Central to the public inquiry process is the concept of legitimacy and the idea that a public inquiry provides and opportunity to re-legitimate the credibility of failed public institutions. The current literature asserts that public inquiries re-legitimise through the production of authoritative narratives. As such, most of this scholarship has focused on the production of inquiry reports and, more recently, the reports themselves. However, in an era of accountability, and in the aftermath of such a poignant attack upon society, the production of a report may represent an apogee, but by no means an end, of the re-legitimation process. Appropriately, this thesis examines the post-reporting phase of the 9/11 Commission’s public inquiry process. The 9/11 Commission provides a useful research vehicle due to the bounded, and relatively linear, implementation process of the Commission’s recommendations. In little more than four months a majority of the Commission’s recommendations were passed into law. Within this implementation phase the dominant discursive process took place in the United States Congress. It is the legislative reform debates in the House of Representatives and the Senate that is the focus of this research project. The central research question is: what rhetorical legitimation strategies were employed in the legislative reform debates of the post-reporting phase of the 9/11 Commission’s public inquiry process? This study uses a grounded theory approach to the analysis of the legislative transcripts of the Congressional reform debates. This analysis revealed that proponents employed rhetorical strategies to legitimise a legislative ‘Call to Action’ narrative. Also, they employed rhetorical legitimation strategies that emphasised themes of bipartisanship, hard work and expertise in order to strengthen the standing of the legislation. Opponents of the legislation focused rhetorical de-legitimation strategies on the theme of ‘flawed process’. Finally, nearly all legislators, regardless of their view of the legislation, sought to appropriate the authoritative legitimacy of the Commission, by employing rhetorical strategies that presented their interests and motives as in line with the actions and wishes of the Commission.