Should the inquiry in the business dealings between former prime minister Brian Mulroney and businessman Karlheinz Schreiber be handled discreetly?

Opposition MPs are denouncing Conservative plans for a narrowly focused inquiry into the business dealings between Karlheinz Schreiber and Brian Mulroney.

David Johnston, a special adviser to Prime Minister Stephen Harper, submitted a report to the government that rejected calls from opposition parties for an extensive, wide-ranging inquiry that would probe deeply into the affairs between Mulroney and Schreiber, whose links to the former prime minister go back 25 years.

He even suggested the inquiry commissioner might want to make the hearings more "efficient" by holding parts of the probe in secret.

Well, the "secret" bit has some people upset.  Warren Kinsella says the notion is immediately and obviously dismissed as illegal:

• It is internally inconsistent: The equivalent provincial legislation, in these cases, are generally called The Inquiries Acts. Part One of the Alberta Act, for instance, is titled “Public Inquiries.” Section 9(3), in statutory language, dispenses with any notion that secrecy may be maintained. That is the general proposition, nation-wide.
• It is an affront to democracy: The Somalia Inquiry had many problems, but was right in this determination it made: “Actions directly or deliberately leading to delay in producing documents, or the alteration of documents and files ordered for the purposes of fulfilling a mandate under the Inquires Act, should be seen by all Canadians as an affront to the integrity of the public inquiry process, to our system of government, and to themselves as concerned citizens.”
• It is the law: No less than Canada’s highest court has made clear that the general principle is openness. And one of Canada’s most respected jurists has said this in the recent Walkerton inquiry: “An inquiry should be public in the fullest sense. This means that the public must have access to the inquiry so that the story that is told can be heard. Further, to maintain public confidence, the process of an inquiry must be open to public scrutiny."

To be fair, Kinsella puts these arguments forth as examples, meaning there may be other precedents to use.  But looking at these, I'd say that there is some wiggle room when it comes to closing the doors on parts of the inquiry, perhaps when an individual's tax records were being discussed.

For his first bullet, there is no section 9(3).  In fact, a look through the legislation linked doesn't uncover any section that "dispenses with any notion of secrecy" in a way that is obvious to me.  In the comments, Kinsella admits to a typo, but hasn't corrected it yet.  I'm not sure if the typo is in the section being referenced or in the link to the document.

Let's put this argument in the "unclear" column.

For the second bullet, regarding the Somalia Inquiry, the issue was whether all the government documentation relating to the issue was being delivered.  Here's the entire section:

The first obstacle relates to compliance by DND with our orders for production of documents under the Inquiries Act and the delays and difficulties we faced in dealing with the Somalia Inquiry Liaison Team (SILT).

The second obstacle, related to the first, concerned the manner in which DND's Directorate General of Public Affairs (DGPA) failed to comply with our order for disclosure and attempted to destroy Somalia­related documents requested by us. Also related was DGPA's treatment of requests for information about the Somalia incidents made by CBC journalist Michael McAuliffe. This matter became a subject of concern for us, since the documentation requested by Mr. McAuliffe embraced information covered by our order to DND for the production of documents.

Our terms of reference required us to investigate certain matters that inevitably became intertwined with actions and decisions taken by DND in responding to our orders for production of documents and in processing Access to Information requests in relation to documents that were simultaneously the subject of our investigation. As things turned out, these events lent further weight to conclusions we had reached concerning the poor state of leadership and accountability in the upper echelons of Canada's military- issues that have become recurring themes throughout our investigation and this report. These appear as the prevalence of individual ambition, the blaming of subordinates, and blind loyalty to the military institution over public disclosure and accountability.

The story of DND's compliance with our orders for production of documents and later requests for specific documents might appear to lack the drama of the events that transpired in the Somali desert. However, these issues of compliance evoke much broader policy concerns, such as leadership in the military, allegations of cover­up and, ultimately, the openness and transparency of government-concerns that are of great importance to those planning the future of the Canadian Forces and, indeed, to government and Canadians in general.

The Inquiries Act gives commissioners appointed under its terms broad powers of investigation and the right of access to any information considered relevant to the subject under study. Actions directly or deliberately leading to delay in producing documents, or the alteration of documents and files ordered for the purposes of fulfilling a mandate under the Inquires Act, should be seen by all Canadians as an affront to the integrity of the public inquiry process, to our system of government, and to themselves as concerned citizens. In that light, the story of non­compliance with the orders of a public inquiry and the role played by SILT in that story, which is recounted in the following pages, becomes all the more shocking.

On the surface, the events described here suggest either a lack of competence or a lack of respect for the rule of law and the public's right to know. As we dug deeper, the difficulties we encountered involved tampering with or destruction of documents. The seriousness of these actions and their impact on the investigation conducted by our Inquiry demand that we recount these events in detail.

The question here was whether the government was making unaltered public documents available to the public inquiry.  The report did not criticize the inquiry for subsequently examining sensitive documents in private, which would be an analog to the question we're considering here.  And isn't it a principle that citizens have more protections and a greater expectation of privacy than the government?  Just because the government was raked over the coals for trying to to keep public information out of the public eye doesn't mean a private citizen would earn equally harsh criticism.

Finally, the Walkerton Inquiry quote: "the process of an inquiry must be open to public scrutiny".  To me, that says that the public must know what sections of the inquiry are being held in private, and why, so that the "process" is open.  But a subsequent portion of the same section of the report allows for information to be kept private, saying that the privacy and reputations of people caught up in an inquiry are important considerations:

The principles reviewed above all stem from the public’s interest in an inquiry. It is important to remember, however, that inquiries can have a serious impact on those implicated in the process. Thus, an inquiry must balance the interests of the public in finding out what happened with the rights of those involved to be treated fairly. As the Ontario Law Reform Commission has commented, the public benefits of an inquiry must be weighed against the costs of “interfering with the privacy, reputation, and legal interests of individuals.”

Sounds to me that this part of the Walkerton Inquiry report quite explicitly leaves the door open for an inquiry to take special steps to ensure that the privacy concerns of the players in the events in question are protected whenever possible.  Even a person's reputation is reason enough to make accommodation.  As long as we know when the inquiry is conducting a private interview, and as long as the inquiry is able to produce a coherent and compelling argument as to why the doors are being closed for this limited time (an argument that could be tested by a court using this principle of balancing interests mentioned in the Walkerton Inquiry report), then I don't think there is a problem.

But I'm no lawyer, so what do I know?

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