Third

Session, 45th General Assembly

Elizabeth II, 2006

BILL 40

AN ACT TO REVISE THE

LAW RESPECTING THE CONDUCT OF PUBLIC INQUIRIES

Received and Read the First Time ...................................................................................................

Second Reading .................................................................................................................................

Committee ............................................................................................................................................

Third Reading .....................................................................................................................................

Royal Assent ......................................................................................................................................

HONOURABLE

THOMAS W. MARSHALL , QC

Minister of Justice and Attorney General

Ordered

to be printed by the Honourable House of Assembly

EXPLANATORY NOTE

This Bill would revise the law

respecting the conduct of public inquiries in the province.

A BILL

AN ACT TO REVISE THE LAW RESPECTING THE

CONDUCT OF PUBLIC INQUIRIES

Analysis

Short title

Definitions

PART

COMMISSIONS OF INQUIRY

Commissions of inquiry

Reporting

Participation at inquiry

Public hearings

Media coverage

Witnesses

Power to compel evidence

Power to inspect

Power to search with warrant

Evidentiary privileges

Application to court for exclusion

Contempt of commission

Request for direction

PART

OTHER INQUIRIES

Order directing inquiry

Reporting

Designation of powers

Oral hearings

Evidentiary privileges

PART

III

OTHER MATTERS

Appointment

Commission funding

Staff

Immunity

Protection of employees

Review of actions

Joint inquiries

Preservation of records

Policies respecting remuneration and

expenses

Other Acts giving powers of commissioner

RSNL1990 cP-38 Rep.

Be it enacted by the Lieutenant-Governor and

House of Assembly in Legislative Session convened, as follows:

Short title

1. This

Act may be cited as the Public Inquiries

Act, 2006 .

Definitions

2. In

this Act

(a) "commission" means a commission of

inquiry established under

Part I;

(b) "court" means the Trial Division;

(c) "inquiry" means an inquiry conducted

under

Part II; and

(d) "minister" means the minister appointed

under the Executive Council Act to administer

this Act.

PART I

COMMISSIONS OF INQUIRY

Commissions of

inquiry

(1) The

Lieutenant-Governor in Council may by order establish a commission of inquiry

to inquire and report on a matter that the Lieutenant-Governor in Council

considers to be of public concern.

(2) Where a commission is established under

subsection (1) the Lieutenant-Governor in Council shall in the order

(

a) appoint the members of the commission in

accordance with

section 21 ;

(

b) establish the jurisdiction of the commission

by setting terms of reference for the inquiry;

(

c) designate the minister responsible for the

inquiry; and

(

d) fix a date for the termination of the inquiry

and for the delivery of the commission's report.

(3) Where it is in the public interest, the

Lieutenant-Governor in Council may by order revise the terms of reference for

the inquiry and revise the dates set for the termination of the inquiry and

delivery of the commission's report.

Reporting

(1) A

commission shall deliver its report in writing to the minister designated by

the Lieutenant-Governor in Council by the date fixed for delivery of the report

under

section 3 .

(2) The minister referred to in subsection (1) shall

release the report to the public.

Participation at

inquiry

(1) A

commission shall give those persons who believe they have an interest in the

subject of the inquiry an opportunity to apply to participate.

(2) A commission shall determine whether a person may

participate in an inquiry and how he or she may participate, after considering

(

a) whether the person's interests may be

adversely affected by the findings of the commission;

(

b) whether the person's participation would

further the conduct of the inquiry; and

(

c) whether the person's participation would

contribute to the openness and fairness of the inquiry.

(3) A person who is permitted to participate in an

inquiry may participate on his or her own behalf or be represented by counsel

of his or her choice and, where an opportunity to appear before the commission

is provided, may accompany and appear with his or her counsel.

(4) A commission shall not make a report against a

person until the commission has given reasonable notice to the person of the

charge of misconduct alleged against him or her and the person has been allowed

full opportunity to be heard in person or by counsel.

(5) A commission may recommend that the government

of the province provide funding for counsel and other expenses of a person who

is permitted to participate in an inquiry.

(6) Where a commission makes a recommendation

under subsection (5), the minister shall consider the recommendation and advise

the person concerned of the decision of the government and the level of funding

to be provided, if any.

Public hearings

(1) A

commission may decide whether evidence presented to the inquiry or a

representation to the inquiry is to be oral or in writing.

(2) Where a commission holds an oral hearing it

shall be conducted in public, but a commission may exclude the public from a

hearing, or from part of it, where it decides that the public interest in holding

the hearing, or a part of it, in public is outweighed by another consideration,

including the consequences of possible disclosure of personal matters, public

security or the right of a person to a fair trial.

Media coverage

(1) A

commission may arrange for the publishing or broadcast of its proceedings.

(2) A commission may by order restrict or prohibit

the public reporting of its proceedings and the publishing of evidence at the inquiry

where the commission decides that the public interest in reporting or

publication is outweighed by another consideration, including the consequences

of possible disclosure of personal matters, public security or the right of a

person to a fair trial.

Witnesses

(1) A

person who appears before a commission to give testimony has the same

immunities as a witness who appears before the court.

(2) A person who is summoned to appear before a

commission shall be paid for his or her appearance and any travel and other expenses

reasonably incurred in relation to that appearance out of the Consolidated

Revenue Fund in accordance with policies established by the Lieutenant-Governor

in Council under

section 29 .

Power to compel

evidence

9. A

commission may, by summons,

(

a) require a person to attend as a witness and

give evidence, orally or in writing, on oath or by affirmation; and

(

b) require a person to produce to the commission

or a person designated by the commission all documents, records including

documents or records maintained in electronic form, and things in his or her custody

or control that may relate in any way to the subject of the inquiry.

Power to inspect

(1) Where

a commission believes it is reasonably necessary to the conduct of an inquiry,

the commission, or a person whom the commission may authorize for the purpose,

may

(

a) at reasonable times enter a premises to view

or inspect the premises;

(

b) require the production of records, documents including

documents or records maintained in electronic form, or other things relating to

the subject of the inquiry and may examine those records, documents or other

things or remove them for the purpose of making copies of them; and

(

c) make inquiries of a person on the premises

into all matters relating to the subject of the inquiry.

(2) Where a commission or a person authorized by

the commission removes records, documents or other things under paragraph

(1)(b), the commission or person shall give to the person from whom they were

taken a receipt for them and shall immediately make copies of them where

possible and return the originals to the person who was given the receipt.

Power to search

with warrant

(1) Where

a commission, or another person whom the commission may authorize for the

purpose, is refused or denied entry onto a premises or the commission is of the

opinion that entry without notice is necessary, and the commission has

reasonable grounds to believe that entering and searching the premises will

assist in the conduct of its inquiry, the commission may apply to the court,

without giving notice to another person, for a warrant permitting the

commission or a person named in the warrant to do those things referred to in

section 10.

(2) A judge of the court who is satisfied on oath

or affirmation that there are reasonable grounds for believing that entering

and searching the premises will assist in the conduct of an inquiry, may issue

a warrant authorizing a commission or a person named in the warrant to enter

the premises and search for and inspect anything that will assist in the

conduct of an inquiry and to do all those things referred to in

section 10.

Evidentiary privileges

(1) A

person has the same privileges in relation to the disclosure of information and

the production of records, documents or other things under this Act as the

person would have in relation to the same disclosure and production in a court

of law.

(2) Notwithstanding subsection (1), a rule of law

that authorizes or requires the withholding of records, documents or other

things or a refusal to disclose information, on the grounds that the disclosure

would be injurious to the public interest or would violate Crown privilege,

does not apply in respect of an inquiry under this Act.

(3) Notwithstanding subsection (1), a person shall

not refuse to disclose information to a commission or a person authorized by a

commission on the grounds that the disclosure is prohibited or restricted by

another Act or regulation.

Application to

court for exclusion

(1) A

person may apply to the court for an order excluding a person or a record,

document or thing from the operation of subsections 12

(2) and (3), and the court may, after considering the application and the

submission of the commission and other interested parties, order that

(

a) the person may refuse to disclose information;

(

b) a record, document or thing may be withheld

from the commission; or

(

c) the information shall be disclosed or the

record, document or thing produced on conditions that the court may provide.

(2) There is no right of appeal from a decision of

a judge made under this section.

Contempt of commission

14. Where

a person without lawful excuse,

(

a) does not attend on being summoned under

section 9 as a witness at an inquiry;

(

b) while in attendance as a witness at an

inquiry, refuses to take an oath or to make an affirmation lawfully required by

the commission to be taken or made, or to produce a document, record or thing

in his or her custody or control lawfully required by the commission to be

produced to it, or to answer a question to which the commission may lawfully require

an answer;

(

c) contravenes an order of the commission under

section 7 with respect to public reporting of

its proceedings or the publishing of evidence; or

(

d) does any other thing that would, if the

commission had been a court of law having power to commit for contempt, have

been contempt of that court,

the commission may state a case to the

court setting out the facts and the court may, on the application of the

commission, inquire into the matter and, after hearing any witnesses who may be

produced against or on behalf of that person and after hearing a statement that

may be offered in defense, punish or take steps for the punishment of that person

in the same manner as if he or she had been guilty of contempt of the court.

Request for direction

(1) A

commission may apply to the court for direction on a question of law or on the

jurisdiction of the commission.

(2) There is no right of appeal from a decision of

a judge made under this section.

PART II

OTHER INQUIRIES

Order directing

inquiry

(1) The

Lieutenant-Governor in Council may order that there be an inquiry under this

Part into a matter that the Lieutenant-Governor in Council considers to be of

public concern.

(2) In an order made under subsection (1), the

Lieutenant-Governor in Council shall direct how the inquiry is to be conducted,

including

(

a) appointing one or more persons in accordance

with

section 21 to carry out the inquiry and

submit a report;

(

b) specifying the mechanisms by which the inquiry

is to be conducted, which may include

(

i) interviews and surveys,

(ii) research studies,

(iii) inspections and investigations,

(iv) calling for written submissions, and

(

v) informal or formal hearings;

(

c) designating the minister responsible for the

inquiry; and

(

d) specifying the nature and scope of the report

to be submitted by the person or persons appointed to conduct the inquiry.

Reporting

(1) The

person or persons appointed to conduct an inquiry under this Part shall deliver

a report in writing to the minister designated by the Lieutenant-Governor in

Council under paragraph 16(2)(c).

(2) The minister shall release the report to the

public.

Designation of

powers

(1) Where

an inquiry is directed under

section 16 , the

Lieutenant-Governor in Council may, by order,

(

a) direct that persons who believe they have an

interest in the subject of the inquiry have a right to participate in the inquiry,

and where it is so directed the person or persons appointed to conduct the

inquiry have the powers of a commission under

section 5

and that

section applies to the inquiry, with the necessary changes;

(

b) direct whether the person or persons appointed

under

section 16 are to receive evidence and

representations in writing or orally, and where oral hearings are held, whether

subsection 6 (2) applies;

(

c) direct that the person or persons appointed

under

section 16 may arrange for the publishing

or broadcast of proceedings held by him or her or them and, where so directed,

subsection 7 (2) applies to the inquiry as if it

was a commission of inquiry;

(

d) direct that the person or persons appointed

under

section 16 have the powers of a

commission under

section 9 to compel the

production of testimony and evidence;

(

e) direct that the person or persons appointed

under

section 16 have the powers of a

commission under

section 10 to conduct

inspections and, where so directed, subsection 10

(2) applies as if the person or persons were commissioners;

(

f) direct that the person or persons appointed

under

section 16 have the power of a commission

to apply for a warrant to search under

section 11

and where so directed, subsection 11 (2) applies

as if the person or persons were commissioners; and

(

g) direct that the person or persons appointed

under

section 16 may apply to the court for

direction under

section 15 as if he or she or they

were commissioners.

(2) An order made under this

section shall be

published in the Gazette and in a

newspaper of general circulation in the province.

Oral hearings

19. Where

a person or persons appointed under

section 16

hold oral hearings, sections 8 and 14 apply to the inquiry as if the person or persons were

commissioners.

Evidentiary privileges

20. Sections

12 and 13 apply

to an inquiry held under this Part as if it was a commission of inquiry.

PART III

OTHER MATTERS

Appointment

(1) Members

of a commission appointed under

Part I or a person or persons appointed to

conduct an inquiry under

Part II shall be appointed on the terms and with the remuneration

set by the Lieutenant-Governor in Council in the order of appointment.

(2) The Lieutenant-Governor in Council may

terminate the appointment of a person under this Act if the person becomes

mentally or physically incapable of performing his or her role.

(3) A person appointed under this Act may resign

by giving written notice to the Lieutenant-Governor in Council.

(4) The Lieutenant-Governor in Council may by

order replace a person appointed under this Act who has resigned or whose

appointment has been terminated because of incapacity.

(5) Where more than one person is appointed as a

commissioner or to conduct an inquiry, the Lieutenant-Governor in Council may

by order appoint one of them as chairperson.

Commission funding

(1) Where

a commission is established, the minister shall prepare an estimate of the

expenditures required for the conduct of the inquiry in consultation with the

commission.

(2) Once the estimates are approved, the

expenditures incurred by the commission in the conduct of the inquiry shall be

paid out of the Consolidated Revenue Fund without further approval, except that

the commission shall comply with the provisions of the Financial Administration Act relating to expenditures by

departments and agencies of the government of the province and policies

established by the Lieutenant-Governor in Council in respect of the inquiry

under

section 29 .

(3) Where the terms of reference for the inquiry

or the dates set for termination of the inquiry or delivery of the commission's

report have been revised, the minister may prepare a revised estimate of expenditures

and submit it for approval in the manner described in subsection (1), and

subsection (2) applies to the further expenditures where the estimate is

approved.

Staff

(1) A

commission or inquiry may engage the services of

(

a) counsel, clerks, reporters and assistants; and

(

b) other persons having special, technical or

other expertise or knowledge.

(2) A commission or inquiry may authorize a person

referred to in subsection (1) to inquire into a matter that is within the scope

of the inquiry being conducted by the commission.

(3) A person authorized under subsection (2) has

the same powers and immunities as the commission under

section 24 .

Immunity

(1) A

commission, commissioners, persons appointed to conduct an inquiry and legal

counsel to a commission or inquiry engaged under

section 23 have the same privileges and immunities as a judge

of the court for a decision or action, or failure to act, in carrying out an inquiry

under this Act.

(2) A person authorized by a commission or an inquiry

to conduct an inspection or search under

section 10

or 11 has the same privileges and immunity in

relation to that inspection or search as the commission or inquiry.

Protection of employees

25. An

employer shall not take a discriminatory action against an employee by

dismissing the employee, by deducting wages, salary or other benefits or by

taking other disciplinary action against him or her because the employee has in

good faith made representations as a party or has disclosed information, in

oral testimony or otherwise, to a commission, to a person or persons appointed

under

section 16 or to staff or agents of either

of them.

Review of actions

26. A

decision or action taken by a commission or by persons appointed under

section 16 is final and conclusive for all purposes and

(

a) shall not be challenged, reviewed, prohibited,

restrained or quashed in a court; and

(

b) is not subject to proceedings or process of a

court, including prohibition, mandamus, injunction, declaration or certiorari.

Joint inquiries

27. Where

the scope of an inquiry conducted under this Act includes matters within the

jurisdiction of the government of another province, or a territory or of

Canada, the minister may enter into an agreement or arrangement with that

government about the joint establishment of a commission or inquiry and the

manner in which the inquiry is to be conducted by the joint commission or

inquiry.

Preservation of

records

28. The

Lieutenant-Governor in Council shall adopt policies and procedures for the

preservation of the records of a commission or inquiry and shall ensure that

confidentiality is preserved for information that is confidential or privileged.

Policies

respecting remuneration and expenses

29. The

Lieutenant Governor in Council may, either generally for all commissions established

and inquiries held under this Act, or for a particular commission or inquiry, establish

policies respecting

(

a) remuneration of commissioners;

(

b) remuneration of witnesses;

(

c) allowances to witnesses for travel and out of

pocket expenses;

(

d) other expenditures for services and

facilities; and

(

e) other administrative matters.

Other Acts giving

powers of commissioner

30. Where

another Act confers upon a person or body the powers of a commission under this

Act, the powers conferred on the person or body are those powers given under

sections 9 and 10

unless otherwise ordered by the Lieutenant-Governor in Council.

RSNL1990 cP-38 Rep.

31. The Public

Inquiries Act is repealed.

Earl G. Tucker, Queen's Printer