This morning, we, along with the BC Civil Liberties Association and West Coast LEAF, released “Blueprint for an Inquiry: Learning from the Failures of the Missing Women Commission of Inquiry.” The report casts a critical gaze on the way that the Missing Women Commission of Inquiry has unfolded and offers a set of guidelines for future government inquiries involving marginalized people and communities.
Using the law as a catalyst for positive social change, Pivot Legal Society works to improve the lives of marginalized communities.
From the perspective of the hundreds of marginalized women who protested the Missing Women Commission of Inquiry (“the Inquiry”) every morning for the first month of hearings, the Inquiry was an absolute failure. This perspective is shared by the B.C. Civil Liberties Association, Pivot Legal Society and West Coast LEAF, the human and democratic rights organizations that produced this report.
When we withdrew from the Inquiry, we committed to using our resources to produce something that would have a positive impact for marginalized women. Today’s report is one way in which we have be working to fulfill that commitment and contribute to a positive legacy for an Inquiry that so bitterly failed the memories of the women who were failed in life by the police and judicial system.
We began this report with some overarching questions not just about the Missing Women’s Commission of Inquiry, but about the potential of the inquiry process itself: is it possible to achieve such lofty, big-picture goals of healing and reconciliation within the confines of a legal procedure? Are we asking too much from an Inquiry process?
In the end, we say yes to the first question and no to the second. With this report, we seek to seek to explain how a public inquiry is both capable of, and essential to, the goals of truth and reconciliation. And we believe that much of the answer lies in procedural structure – the blueprint of the inquiry process itself.
The Inquiry was set up to examine the problems arising from investigations of the disappearance and murder of dozens of women in Vancouver’s Downtown Eastside (“DTES”), and particularly the investigation of serial murderer Robert William Pick- ton. Out of the failures of the Inquiry, which are well documented and understood in the affected communities, the hope of the authors is that a positive legacy can still be uncovered.
If nothing else, this Inquiry demonstrates what should not be done in conducting a public inquiry involving marginalized communities. It therefore functions as a useful lesson for similar inquiries in the future, no matter where they take place. This report does not focus on the nuances of B.C. provincial law, but instead on broad trends and procedural approaches that future commissioners of inquiry and their staff may usefully adapt to the particularities of their own jurisdictions.
If there were only one recommendation to come from this report, it would be that commissions of inquiry that intend to work with marginalized populations as witnesses, or inquiries that are called in response to the concerns of marginalized communities, must consult thoroughly at every stage with those communities and the organizations that work with those communities.
Consultation and Collaboration: Voices of the community excluded
The Inquiry excluded the voices of individuals and communities that it should have worked the hardest to include: Aboriginal women, sex workers, women who use drugs, and women living in poverty who were most affected by the Pickton murders and the resulting investigations, and who remain at extremely high risk for violence.
The Commission repeated the very mistakes that led to serial murderer Robert Pickton being able to operate with impunity in the first place – the voices of marginalized women were shoved aside while the “professional” opinions of police and government officials took centre stage. The focus of the Inquiry was directed away from systemic issues, targeting instead individual participants in the system who may not have fulfilled their job requirements as expected.
- Commissions must ensure that marginalized individuals and groups who could contribute to the Commission’s work have meaningful opportunity, including funding and legal representation if necessary, to participate in inquiry processes.
- Commissions should prioritize using the infrastructure, expertise and staff of existing community organizations to facilitate the participation of marginalized groups by providing those groups with additional resources to support the commission, rather than try to create new resources.
- The consultation process should include an educational component for commission staff to assist them in understanding culturally appropriate and effective ways to gather evidence and conduct itself.
Where the establishing government body fails to support the full participation of marginalized communities, a commissioner must act to protect their participatory rights. These steps should start with consultation with affected groups about best responses to the government interference and end with, if necessary, the resignation of the commissioner.
- For all future public inquiries, compensation for commissioners of inquiries should be commensurate with judicial salaries and commission counsel salaries should not exceed that of Crown Counsel.
Terms of Reference: Critical themes left unexplored
Limitations on the terms of reference, and an artificially narrow interpretation of those terms of reference by the Commission, left systemic concerns around socio-economic marginalization off the table, themes of organized crime and police corruption troublingly unexplored, and key witnesses uncalled. Financially, the Commission spent twenty times the operating budget of the major drop in centre for sex workers in Vancouver, and yet left many of the community’s most pressing questions unanswered.
- Terms of Reference should be developed in consultation with communities that are directly affected by the prospective inquiry or who have called for the inquiry.
- Those whose conduct is being investigated by the inquiry should have an extremely limited role in influencing the development of the terms of reference.
- Given the nature of an inquiry as seeking systemic reforms, terms of reference must be broad enough to capture systemic factors and causes.
Supporting the Participation of Witnesses: Unbalanced legal representation and a lack of support
The failure to provide funded counsel or adequate support systems deterred potential marginalized witnesses from attending to give evidence. For example, the woman who had been stabbed by Pickton but saw charges against him stayed refused to attend to give testimony, despite her central importance to one of the terms of reference of the Inquiry. Instead of consulting with the community or First Nations when the Province refused funding for recommended legal counsel, the Commission appointed two lawyers who would “represent” the diverse Downtown Eastside community and the equally diverse voices of First Nations people.
- Psychosocial, legal and any other supports that are reasonably required to facilitate participation by marginalized witnesses should be provided to them.
- Supports must be culturally appropriate, adequately resourced, and available from well before a witness gives their testimony until well after their testimony is complete. Inquiries should work in partnership with established community organizations to design and deliver supports, while understanding that these organizations have limited funding that is entirely focused on their core mandates. Additional financial support may be required for these groups to assist.
- The possibility of amnesty for witnesses must be considered and publicly debated in the context of each individual inquiry.Procedural protections for marginalized witnesses who fall into protected grounds under provincial or federal human rights legislation should be established at the outset of proceedings, and can include anonymity, publication bans, limits on cross examination, and other legal protections.
If a marginalized witness claims this protection, the onus should be on any party challenging those protections to demonstrate why the witness is not entitled to the protection requested.
Quality of Evidence: Compromised by delay, non-disclosure and a lack of fair legal representation
Although many inquiries have taken place concurrent with, and prior to, criminal investigations and charges, the Inquiry was delayed until after Robert Pickton’s criminal trials were complete. Many women died while they waited for the Inquiry to be called, given the harsh and brutal conditions for women in Vancouver’s Down- town Eastside. Others who participated in the Inquiry were asked to remember events that had happened ten or fifteen years previously.
While police had comprehensive paper records of their actions at the time, com- munity witnesses only had their own memories to rely upon. Even so, the lawyers for the families saw many of their clients’ requests to the Commission for disclosure and witnesses ignored for months and then refused. The results of family requests to the Commission were leaked to the media by Commission staff before they were decided in the hearing.
- Inquiries should be launched as soon as is practically possible after the event in question.
- Except where exemptions already exist in the law or the terms of reference or the rules of the commission itself, commissioners should follow the common law rules around disclosure.
- Applications by parties for disclosure or the calling of particular witnesses should be decided in a timely manner, as a matter of convenience for all where those applications involve evidence that may impact on upcoming witnesses, but especially where the requests come from marginalized participants.
- Parties must disclose documents in a timely manner, and documents should be disclosed in advance of the calling of witnesses. Commissioners of inquiry must not hesitate to use court processes to compel timely and complete document disclosure.
Rules of Evidence: A missed opportunity for truth and reconciliation
Instead of restructuring the rules of evidence of the Inquiry when the Province refused to fund the participation of marginalized people in the hearings, the Inquiry instead established a parallel process for community that could – because of its design – have no influence on the fact finding mandate of the Commission.
• Procedural protections for marginalized witnesses must not come at the expense of their ability to influence equally the purpose and outcomes of the inquiry.
• Creative approaches for collecting evidence should be explored, such as trained statement-takers from supportive community organizations, and facilitated to ensure that witnesses are able to share their information completely.
Independence: Conflicts of interest and interference abound
Conflicts of interest and interference were prevalent from the outset. A former Attorney General who had suggested there would be little to learn from an Inquiry was appointed as Commissioner. This Commissioner appointed a former Vancouver Police Department officer as Executive Director, a staff member who would go well beyond the role of Executive Director by participating in the preparation of an “independent” expert report prepared by Peel Regional Police Department. This “independent” report, in part examining RCMP conduct, was prepared by the Peel Police which itself had officials under investigation by the RCMP for corruption. To cap these real and perceived conflicts, the Province directly interfered with the Commission by refusing to fund the full participation of parties the Commissioner identified as central to ensuring the fairness and efficacy of the Inquiry.
- When a public inquiry targets in whole or in part the activities of the police, current or former members of the police should not be hired to organize or coordinate the inquiry, or be retained to prepare supposedly “independent” reviews of the evidence that will be heard at the inquiry.
- Experts chosen by a commission of inquiry should be chosen solely on the basis of qualifications, relevance, availability and independence, not because they are available at no cost and are soliciting participation.
We invite you to read the whole report here